Author:	Vanessa von Struensee JD, MPH Attorney at Law
Subjects:	Restorative Justice (Other articles) Alternatives to imprisonment Reparation Theories of punishment (Other articles)
Issue:	Volume 7, Number 4 (December 2000)
Category:	Comment

Contents

• Introduction
• Liberating the future from the past through confrontation and truth
• To know, and to let others know is one way toward healing
• Forgiveness and reparation in the context of violence
• Meaning is the means
• Confronting the past truthfully is the way to liberate from its negative legacies
• Truth Commissions and Truthful Apologies
• Public trials can also provide occasions to educate, to set the record straight, to prevent social amnesia or denial about what happened, and ideally, to deter future atrocities
• Forgiveness is a lengthy process
• Transcendence is the only real alternative
• Conclusion
• Notes

Introduction

1. One of the political, economic, legal, and environmental problems of today is that we are more concerned with the present-- the short term-- than the future. This reflected occupation with the present at the expense of the future is a common theme in political science, social reform, progressive business strategies and with environmentalists. There is a way to use history to make the past now relevant for present and future, and thereby liberate the past from the future, and the future from the past, in making both not obsolete but valuable and meaningful. Without both --past and future --there is no perspective, no meaning, no refinement, no growth, morally, ethically, personally, culturally, no readiness for cyberspace, outer space, no preparedness for technological problems. Something draws us all, as individuals, to the past--a struggle with history-of ourselves, our forebears and our community. The only way to liberate the future from the past is to confront what from the past must become the future and what must be shed. In short to make both meaningful. [1]

2. In this context what can be the meaning of the violent aspects of our heritage? How can we liberate ourselves from violence and abuse so as not to be destroyed by it or condemned to repeat it? An eye for an eye, a tooth for a tooth, is an approach that ends up extracting entire generations. New alternatives are being established. Reparative justice efforts seek to break the cycles of violence that in some ways are perpetuated when the state itself authorizes violent responses to violence, as in the death penalty.

   Liberating the future from the past through confrontation and truth

3. Facing the darkness in ourselves, in our history, is the beginning of liberation. Philosopher Mary Daly deals with transtemporal issues insightfully. [2] Daly persuades that much that is perceived as modern, as new--is actually old or even ancient. It is important for Daly to discover all of human history, so as to learn its lessons to benefit humanity. The danger of hiding or misrepresenting history, is therefore, an aggressive and hostile antihuman act. She examined this phenomenon in condemning the recent efforts trying to blackout and erase the horrific fact of the Holocaust from history. [3]

4. Certainly fabricated "pasts" are destructive and dangerous. It can confuse us about our identities, traditions, values, rights, duties and process. Daly's Quintessence illustrates the metaphysical argument that there is no sharp line between the past and the future. [4] As both are illusions that constantly separate and reblend and cannot be disentangled, they reflect each other endlessly and echo each other repeatedly. [5] But they inform each other if they are considered in the context of meaningfulness. Applied to concepts of justice it is obviously very important not to erase the past, but to look at it.

5. Sharing memories is healing, and liberating, as Todorov suggests, because it is an act that, among other things, provides validation. By contrast, private recollections in isolation only foster deniability and enables erasure and annihilation. Historical consciousness, the area in which collective memory, the writing of history and other modes of shaping the image of the past in the public mind is thus a crucial means to achieving human connection and unity. The exploration of the past, be it personal or global, illuminates the present, and in guiding the future, liberates both.

   To know, and to let others know is one way toward healing

6. In Facing the Extreme Moral Life in the Concentration Camps, Tzvetan Todorov wrote "If we fail to master the past, it may master us." [6] He offers convincing hope that moral life is still possible for both the victims and the perpetrators of crimes against humanity. [7] His work recognizes the deep, often underestimated, worth of human connection and the healing power of shared struggle, in stating, "To know, and to let others know is one way of remaining human." People such as Todorov liberate themselves from the past by learning from it from the viewpoint of humanity, gleaning the meaning from it. Applied to the horror of the Holocaust, Todorov believes, we need to find that the horrible experience of the camps and the war contained lessons for us. We certainly derive no benefit from denying or erasing the fact of human weakness and evil. Without processing the Holocaust or other personal or global trauma, we cannot move beyond it, since, as Todorov argues, literal memory of the horror (as opposed to an exemplary memory which remembers the past with a view toward integrating its meaning) only spreads the "consequences of the initial trauma over all the moments of existence."

7. Todorov's construct or whole from the horror, emphasizes an integration that will enable humanity to pursue the future with hope and peace and acceptance. Approaching the past with this kind of exemplary memory will certainly assist to liberate the future, from guilt, from despair, from a denial- based resentment and repetition. Exemplarists search for meaning, which is an ethic, an ethic Viennese psychiatrist, Viktor Frankl, discovered when coping first hand with the universal experience of human suffering, cruelty, agony and unspeakable, unfathomable human evil. [8] Making meaning out of evil, of trauma, is transforming it, penetrating it and making it a bridge toward transcendence, shared humanity and values.

8. Meaning is the means whereby we can surmount the horror of human suffering and life's cruelties as well as evolve and reach consolation, redemption. Liberating the future from the past means participating in the human struggle towards hope, meaning, connectedness and integration.

   Forgiveness and reparation in the context of violence

9. This construct is applicable to widening the legal model as well, where adversarial trials and punishment as responses to victims of violence, can fall short of the aims of vindication, reparation, and certainly justice. [9] [10] Restorative processes to understand and reintegrate offenders who commit violent harms are being developed.

10. Seeking re-acceptance of the wrongdoers in society, restorative justice tries to build on the offenders' capacities for accountability, understanding, and prevention of future offenses. Some models build upon 12-step programs, such as Alcoholics Anonymous, intended to help people recover from chemical dependencies, obsessions, and other limitations that contribute to their abusive behavior. Some work also supports inclusionary restorative processes, seeking ultimately forgiveness, as responses to terrorism and other atrocities. One reason to pursue these aspirations is pragmatic and psychological. Retributive approaches may reinforce anger and a sense of victimhood; reparative approaches instead can help victims move beyond anger and beyond a sense of powerlessness. Reparative or restorative justice can secure public acknowledgment and condemnation of the wrong, although through mechanisms that differ from prosecution, conviction, and punishment of wrongdoers. Restorative justice can also afford victims the position of relative power represented by the capacity to forgive--whether or not the individual victims proceed then to forgive particular perpetrators. Where victims do forgive, it is as much for their own healing and embrace of a future without rage as it is for the benefit of the offender. [11] A problem is how to assess whether a particular survivor of violence wants to forego prosecution out of strength or out of weakness. This problem is mirrored in a notable book authored by two philosophers who debate the appropriateness of mercy and forgiveness. [12] In the book, Forgiveness and Mercy, the authors debate forgiveness and punishment. [13]

    Meaning is the means

11. This emphasis on meaning and fellowship as a means to survival and healing of trauma is a variation on a theme by psychiatrist and concentration camp survivor, Victor Frankl. Meaning or purpose in life is present, so obvious as to miss it in the neuroses of most of our lives. Essentially, Frankl survived with a philosophy to live and to let live, to find meaning, to cooperate, to create and allow creation. [14]

    Confronting the past truthfully is the way to liberate from its negative legacies

12. What are the ethics and morality of civilized social responses to killing and violence? [15] How should South Africa deal with the past and continuing legacies of Apartheid? What do prosecutions for human rights violations offer? [16] What, in contrast, might be afforded by a commission of inquiry, such as the South African Truth and Reconciliation Commission? [17] When are reparations and restitution constructive and effective responses? [18] When are memorials, literature, and cinema more appropriate responses? What contribution to reparation do legal forms of response make? [19] Are legal tribunals just part of a larger scheme of restorative justice, with apologies and reconciliation, rebuilding relationships between victims and offenders, transcending roles, accepting humanity's sublime complexity? [20] [21]

13. Restorative justice is less familiar and less institutionalized than retributive justice. Its advocates view the adversarial trial associated with retributive justice as failing to focus adequately on victims and the task of repairing harms. Restorative justice is more holistic, emphasizing the humanity of both offender and victim, the repair of social connections and peace. At the same time, some theorists have argued more abstractly for an ethic of care in the practice of justice, either as a complement or a substitute for the dominant adversarial model. [22]

    Truth Commissions and Truthful Apologies

14. Efforts for reparations and apologies for atrocities similarly focus on healing and restoration. The emergence of truth commissions, which investigate crimes against humanity, compensate victims, issue reparations and try to reconcile divided peoples is testament to the value of confronting the truths of the past. [23] South Africa, in creating a Truth and Reconciliation Commission (TRC) hopes that confronting murder and torture would somehow release the country in a beneficial way. The five volume report of the TRC documents horrific abuses of apartheid. Truths have been revealed and in some cases absolution offered, and though occasionally victims and perpetrators reconciled, of course many did not, because reconciliation does not always happen within a year, two, or five, it may take generations, but these commissions are a step toward liberating the future from the past. These truth commissions have evolved in our century. Argentina convened a truth commission in 1983, followed by Uruguay, Chad, Chile, El Salvador, Chile and Germany. The value of truth commissions is being recognized due to the increased growing global respect for human rights and democratic ideals, and their use should grow in the 21st Century as an instrument of growth and humanism.

15. The Vatican's long awaited Holocaust document calling for repentance for those who had not acknowledged the evil of Jewish genocide, as well President Clinton's African apology for the American participation in the slave trade, complicity in apartheid and sins of omission in the Rwandan slaughter, and other recent official apologies raise the issue of how those in the present can liberate the future from the wrongs of the past. [24] Confronting the past truthfully is to begin to liberate from its negative legacies. These public apologies, reparations, and efforts to mediate conflicts are all part of a growing interest in reconciliation and forgiveness in the context of political and interpersonal violence. [25] Yet, refusal and denial to be truthful about past events, on intrapersonal, interpersonal, national and global levels is still pervasive. [26] The path to reconciliation is tortuous and painful. But, as the Pope put it, 'There is no future without memory'."

    Public trials can also provide occasions to educate, to set the record straight, to prevent social amnesia or denial about what happened, and ideally, to deter future atrocities

16. Former Chilean dictator Augusto Pinochet 's situation of being served a Spanish arrest warrant while recently hospitalized in England demonstrates the need for legal accountability as part of the process of deterring, addressing evil with exposure, shaming, demystifying and bringing accountability and confrontation. Pinochet took over Chile in 1973, backed by the United States. His army tortured and killed -"disappeared" over 3,000 people and also erected a series of legal barriers to shield him and his officers from the law. When Pinochet retired in early 1998 the Constitution protected him from answering for his crimes by naming him Senator for life.

17. However, the development of international law and the ideals of a humane Spanish Jurist prevented Pinochet from entirely evading retribution. [27] While globalism may have its drawbacks, it has definitely resulted in the positive expanding influence and utilization of international law. Pinochet was the first head of state to be arrested outside his homeland for crimes against humanity, and with the rising powers of international tribunals he will not be the last. [28]

18. What these tribunals do is apply to atrocities the crucial elements of a rule of law. Accountability for wrongdoing, public fact-finding in a setting marked by fairness and restraint, and certain and unbending punishment exacted by the state after full process, translate the desires for vengeance and redress into lawful, official action. Public trials can also provide occasions to educate, to set the record straight, to prevent social amnesia or denial about what happened, and, ideally, to deter future atrocities. The Nuremberg, Rwandan, and Serbian war crime trials were conducted by international tribunals, however Pinochet is the first war criminal who may be tried by another country. [29]

19. The Spanish judge, Baltasar Garzon, who issued the Spanish extradition warrant is devoted to the principles of the Universal Declaration of Human Rights. He has investigated atrocities committed by officials against the people of Chile and Argentina. Garzon, in seeking Pinochet's extradition for the killing of 94 citizens of Chile, Spain, the United States, Britain and Argentina, is challenging the old doctrine of giving heads of state immunity for acts committed while they were in power. That step is liberating the future from a constrictive abusive practice of the past. Since international law is becoming stronger, more and more will join Garzon in his determination to hold perpetrators accountable for crimes against humanity such as genocide and torture. Garzon has also issued warrants for Jorge Rafael Videla , a former Argentinean junta leader, and other top officials. Garzon's actions are encouraging other judges and statesmen. An Argentinean judge, influenced by Garzon, ordered Videla's arrest for child kidnapping--a crime excluded from the amnesty the Argentinean government bestowed to protect from prosecution by Garzon military leaders such as Videla. These legal assaults on dictators will embolden other statesmen, and in doing so encourage accountability, and strengthen democracy. Tyrants will come to see that it is realpolitik to honor human rights, for the political cost of not doing so will continue to soar for dictators and their countries.

    Forgiveness is a lengthy process

20. Of course absolution is a lengthy process. While in a concentration camp, Simon Wiesenthal was asked by a dying Nazi soldier for forgiveness. Wiesenthal could not forgive. Struggling with his conscience, Wiesenthal wrote Sunflower and began the dialog on this critical issue for humanity. He invited readers to advise on how they would have responded to the perpetrator. TRC Chairman Archbishop Desmond Tutu answered Wiesenthal's question simply "Without forgiveness there is no future." Encouraging forgiveness does not mean letting perpetrators off without accountability or moral responsibility. Forgiveness must be a process, and it must start with confrontation, legal accountability, reparations, and ultimately reconciliation. First, priority should be given to restoring respect and self-respect to victims, regardless of the response that is chosen. The entire range of potential responses should be included in this norm.

    Transcendence is the only real alternative

21. As Vaclav Havel pointed out, the abyss between the rational and the spiritual; the technical and the moral, the objective and the subjective gets deeper as our knowledge grows. Globalism is everywhere but only on the surface-- inside we still need our multiculturality, our locality, a home. The means to liberating humanity, as Havel eloquently and consistently declares, is respect for the human being and his or her intrinsic worth and the rights derived from that worth. He mentioned how some of those rights, such as the right to be free from slavery, were conferred on us long ago, and yet those rights are still very modern and continue to be a critical part of any liberation and meaningful world order.

22. The realization that we are connected to the earth and cosmos and each other is central to human development. In Havel's words, "This awareness endows us with the capacity for self transcendence." Havel continues,

    "Politicians at international forums may reiterate a thousand times that the basis of the new world order must be universal respect for human rights, but it will mean nothing as long as this imperative does not derive from the respect of the miracle of Being, the miracle of the universe, the miracle of nature, the miracle of our own existence....It logically follows that, in today's multicultural world, the truly reliable path to coexistence, to peaceful coexistence and creative cooperation, must start from what is at the root of all cultures and what lies infinitely deeper in human hearts and mind than political opinion...It must be rooted in self-transcendence. Transcendence to be in harmony even with those distance from us in time and space because we are linked to it...Transcendence is the only real alternative to extinction."

    Conclusion

23. Governments should continue to develop and explore innovations to prosecution and retribution to permit processes for those who benefit most from reparative, restorative responses to violence. Truth commissions and apologies could be created following episodes of serious violence; and legislative and executive considerations of clemency and apologies should be institutionalized.

24. The past, present and future are subject to internal and external pressures, pressures resulting from tensions and malfunctions of our history, that make it necessary to revise our values in the course of future development. However, past experience shows that these internal pressures are not by themselves enough to spur change. External pressures, such as those of the natural environment force our society to assume new models, we know we need a new path, but we are not sure which path to choose. [30]

25. The future will derive its orientation from these tensions. In getting our priorities balanced, the key ethic, and value, must be meaning, an awareness that mankind is not a means to an end but the meaning itself. Punishment is understandable, but reconciliation is closer toward individual and community peace.