Here are some general observations inspired by the recent talk of a possible amnesty for Assad as a means to convince him to give up power in Syria.
Imagine a country in which roughly 20% of the population ruled the other 80% during several decades or even centuries. The members of the ruling class owned the land and controlled much of the economy, are of a different social class (perhaps even race) and made sure that the rest of the population lived in constant poverty, oppression and discrimination.
The combination of an internal uprising and external intervention produced a successful transition to a fully democratic form of government. A strong and independent judiciary is now in place, able to effectively enforce a constitution that includes a wide array of human rights.
How should this new democracy deal with the horrors of the past and the rights violations of the now defunct regime? There are two seemingly incompatible needs: victims of rights violations in the past now demand justice, but the society as a whole may be better off without justice, at least in the short run immediately after the democratic transition (and later it may be too late to bring the perpetrators to justice because they’re all dead). Justice can make it more difficult to integrate the old ruling class into the new state. Given that most of the members of that class were heavily implicated in the horrors of the past, justice can’t be a simple matter of punishing a few key perpetrators. And punishing large groups of people will alienate those people, with potentially fatal consequences for the stability of the new state. It may even be the case that one can identify a few key perpetrators, but that those are still quite important for stability even though they’re not very numerous. For example, it’s likely that the military was implicated in past injustices, but the military – especially the top brass – is very important for stability and the new state can’t risk alienating this group, even if it’s not very large. An internally divided society is not at peace with itself and risks upheaval.
However, failure to pursue justice will also divide society. Failure to do something about past injustices will result in impunity and will undermine the moral authority of the new state. Also, what would that imply for future respect for human rights? Why respect rights when past disrespect was without consequences? And if only new rights violations are prosecuted, then there will be a feeling of injustice because of double standards.
A solution to this dilemma can perhaps be found in the fact that there are degrees and different kinds of justice. Justice doesn’t have to be penal or focused on retribution or revenge. Better perhaps to emphasize truth, also a traditional element of justice. Truth, as in the so-called truth commissions, can foster repentance, forgiveness and reconciliation. Judicial prosecutions can still play a part, but their potential divisiveness can be softened by measures such as amnesty, pardon or limited punishments, on the condition that the defendants cooperate in truth commissions. It’s often the case that truth is more important to victims than retribution.
Of course, some major perpetrators may still have to be punished and perhaps even severely punished. Some types of responsibility are simply to heavy to warrant amnesty. It may be impossible for a society to exist given the presence of monsters continuing their lives as if nothing happened. It’s not necessary to “buy” the allegiance of every single individual in society, not even individuals who still have a broad base of support. In addition, we have to avoid coerced amnesty: perpetrators can blackmail the new state by threatening large-scale unrest or upheaval.
So we need to balance the needs of the past and the future. Both needs should be acknowledged and neither should be sacrificed for the other. Of course, that’s easy to say and very hard to do.