The Ethics of Human Rights (15): Justice After Genocide

A new political regime that is installed in a society that has recently suffered human rights violations on a cataclysmic scale, such as genocide or ethnic cleansing (Rwanda and Cambodia are examples), always faces the problem of justice. What to do with the crimes of the past? This is a problem because the crimes in question usually haven’t been committed by a few individuals can that be identified and tried, but by a large majority of the citizens. You can’t put the majority in jail.

The new regime runs the risk of falling into the trap of collective guilt. One particular ethnic group or one class of society is singled out as the perpetrator (e.g. Hutus in Rwanda, forgetting that many victims were Hutu), and those members of this “criminal group” who aren’t put on trial suffer from social stigma. Collective guilt is unjust, and – worse even – mirrors the practice of the genocidaires.

But there’s another trap as well. Mark Drumbl, for example, has coined the phrase “the myth of collective innocence”. By punishing a few perpetrators only, even if they are guilty and perhaps even the “brains” behind the genocide, the impression is given that the large masses didn’t participate, whereas the genocide was only possible because of mass participation. It’s also a well-known fact that selectivity in the application of justice erodes justice. It gives the impression of unfairness, prejudice, nepotism, double standards etc. Why me and not the other guy? Society as a whole may come to see the justice system as seriously flawed. Justice, after all, should be equal.

On the other hand, selectivity is a fact in all justice systems, and in all types of crimes (in the U.K., for example, only 3 % of all crimes are prosecuted). And in the case of genocide, selectivity is perhaps even necessary. The new regime cannot afford to alienate a large part of society. There has to be some kind of national reconciliation. The demands of the victims and their claims of justice for the past, have to be balanced against the future needs of a stable, reconciled society.

Genocide offers a justification for this selectivity. During the “implementation” of genocide, individual culpability is sometimes eroded. In a genocidal situation, social pressures to participate in mass violence can be enormous. Contrary to violence in ordinary crimes, violence in a genocide becomes the norm, the moral thing to do, precisely because it is so widespread. Refusing to participate is morally abhorrent, deviant, and can expose an individual to extreme risk. And we see that individuals quickly internalize this new “morality” and start to act accordingly. (On a smaller scale, this is apparent in the phenomenon of littering. Once it starts to be seen as “normal” to litter somewhere, the littering will become normal behavior). The notion of voluntary participation in genocide becomes problematic.

This doesn’t absolve people from guilt, but it can be attenuating, and it can justify the prosecution of only a handful of planners and organizers. And this in turn can be helpful for national reconciliation. The others may be subject to a more restorative kind of justice, compared to the retributive kind imposed on the important few. Truth commissions can play an important part in this process.

The Ethics of Human Rights (12): How to Deal With the Horrors of the Past?

After a country has gone through democratic reforms, it often faces the difficulty of dealing with the horrors and injustices committed by the previous dictatorial regime. In many cases, a democratic transformation is possible only because of some kind of deal with the previous rulers. They agree to give up power and in exchange receive amnesty and immunity (take the case of Pinochet or of many of Franco’s assistants).

However, things may even be worse. In some cases, the horrors have been committed, not only by a handful of rulers, but by large numbers of citizens. The transformation to a stable democracy is then sealed by a so-called “Pact of Silence”, in which the victims and their families agree to burry the past in order to make it possible for the different parts of the new democratic state to live together.

Democratic progress and democratic stability may indeed require the tragic choice of impunity for the old rulers. But they also require national reconciliation when the past atrocities were the work not only of the rulers but also of numerous civilian henchmen. A society that is not at peace with itself doesn’t have a future, especially when it is a democracy. A democracy, much more than any other state, require the support of a large majority of the people. If a substantial number of people feel that the new democracy is the state of the “victors”, a state moreover which will do everything to get back at them, then we will witness strong social division and a lack of loyalty, both of which are very dangerous for young and not so young democracies. No democracy can afford dissatisfaction and disloyalty in large groups of civilians.

Does this reconciliation, which is necessary for the proper functioning of the new democratic state, require silence about the atrocities of the past? A “turning of the page”? I don’t thinks so, because this silence will not satisfy the victims and their families. And then they will not accept the new democracy. And neither will the international community. Silence and inaction undermine the legitimacy of the new state and sends a message to future criminals.

Punishment can indeed alienate a large portion of the population, and can be detrimental for a young democracy. But so can silence. A democracy is caught between doing too much and doing nothing. However, there’s a large distance between silence and punishment, a distance which can be filled with the writing of history, the telling of the truth (as in the South-African Truth Commission), and the dispensing of forgiveness. Victims and their families will never accept silence, certainly not in the long term. The telling of the truth is very important to them, more important probably than punishment. And in exchange they may be convinced to forgive, especially if the truth-tellers can also express regret, remorse and guilt. This forgiveness in turn sends a strong message to the perpetrators, a message of inclusion and love. And this is a strong basis for a new society. Forgiveness is the opposite of forgetting. Because of the extraordinary nature of the forgiveness for an act of horror, this act will be remembered forever. A “right to truth” can be based on the right to information as expressed in art. 19 of the Universal Declaration.

The remembrance of the past may require some kind of amnesty. One can convince people to tell the truth and to ask for forgiveness by promising some kind of leniency. To fight amnesia, amnesty may be necessary. Of course, this applies to the large number of ordinary citizens who were the executors of the crimes, not to the few leaders planning and ordering them. They have to be punished, and they can be because their support is not required for national reconciliation. Their support is not necessary for the maintenance of the new regime. How can people be expected to live their lives when the most despicable murderers continue to live among them, often in luxury and without remorse? And how can the normal criminal justice system be expected to function?

Punishment of large portions of a population, on the other hand, may satisfy some short term feelings of revenge, but does nothing to build a long term future for society. There may be judicial verdicts on their crimes, but the punishments for the crimes should be indefinitely postponed in exchange for the truth. This is not impunity. It’s the correct balance between the needs of the past and the needs of the future. Turning the page without closing the book, as someone has said.

Silence is never good. Telling the story can help to avoid the horror from repeating itself. However, telling the story isn’t a sufficient conditions. Education isn’t almighty. Present-day neo-Nazis for example know all too well what happened, and they consciously want to repeat it. But forgetting is a sufficient conditions for a repetition. Some people do learn from history. And telling the truth, making things clear will force people who want to repeat it to openly take the side of barbarity. They will have a lot more difficulties to promote their case and they will only attract barbarians.