Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence

For Margot Stern Strom

Foreword    Judge Richard J. Goldstone

Chapter 1    Introduction

Chapter 2    Vengeance and Forgiveness

Chapter 3    Trials

Chapter 4    Truth Commissions

Chapter 5    Reparations

Chapter 6    Facing History

Notes

Acknowledgments

Index

Foreword

Since 19911 have been at the cutting edge of investigations into massive violence—in South Africa, the former Yugoslavia, and Rwanda. What has struck me again and again are the similarities in the manner in which perpetrators, victims, and bystanders react to massive human rights abuses. The callous manner in which innocent people are murdered, raped, and tortured. The shallow excuses produced by the perpetrators for such brutality; the calls for justice by the victims; the pleas of ignorance by bystanders. The above situations are universal and through this one must recognize that any people anywhere have the potential for evil on a massive scale, and that all victims, whoever they may be, need the opportunity to heal. No continent, no region, and no people are immune from it.

In this book Professor Minow examines in impressive detail the choices facing societies which emerge from a period of mass violence. She draws widely from the experience of nations in Latin America, Europe, and Africa. Her inspiration came from a conference which explored this subject. It was organized by Facing History and Ourselves, the Boston-based organization which produces educational programs aimed at teaching young people how to respond to violence and how to understand the Holocaust and other genocides.

It should be recognized that in a perfect society victims are entitled to full justice, namely trial of the perpetrator and, if found guilty, adequate punishment. That ideal is not possible in the aftermath of massive violence. There are simply too many victims and too many perpetrators. Even the most sophisticated criminal justice system would be completely overwhelmed. It is for this reason that such societies have to find other solutions. Some countries simply forget the past and attempt to induce a national amnesia in its people. Of course that is bound to fail—the victims do not, indeed cannot, forget. And their unanswered calls for retribution develop into hate and invariably that hate is directed collectively at the group from which the perpetrators came. In the former Yugoslavia and Rwanda the hate induced in that way provided the tool which evil leaders used to induce those under their power to commit genocide, crimes against humanity, and other gross violations of human rights.

In other countries wiser leaders recognized that in order to lay a foundation for an enduring peace, measures had to be taken to manage the past. It was acknowledged that history has to be recorded, calls for justice have to be heeded, and perpetrators have to be called to account. As Professor Minow shows us, it is dangerous to generalize or to offer armchair advice. There is no recipe for all such situations. In most cases the choices will be limited by political, military, and economic conditions. And, whatever solution is chosen, the results will be mixed. As she puts it: There are no tidy endings following mass atrocity. That should not on any account be used as a reason to do nothing. I would suggest that the forms of response considered in this work are not necessarily exclusive or contradictory. In South Africa, the Truth and Reconciliation Commission legislation has not prevented some of the apartheid perpetrators from being prosecuted. In Bosnia and Herzegovina, if the people of that country desire it, there is much to be said for a nonamnesty type of truth commission to be established to complement the work of the United Nations War Crimes Tribunal. In Rwanda, too, serious consideration is being given to the setting up of a truth commission and there may be no other sensible way to manage the number of people awaiting trial in unacceptable prison conditions. Certainly in that brutally torn and damaged country imaginative solutions will have to be found if it is to recover from its most recent and bloodiest experience of murder, rape, and expulsion. I have no doubt that the present policy of publicly executing convicted perpetrators will be interpreted by many Rwandans as acts of simple revenge and will not bring enduring peace and reconciliation to that country. That those executed were not given fair trials only serves to exacerbate the situation. The government of Rwanda has a massive problem in consequence of a genocide in which over ten percent of its people were murdered in the short span of three months. That it is frustrated at the slow pace of trials in the International Tribunal is understandable. In no way, however, is it justified in subjecting its people, regardless of perceived public support, to this kind of barbarity. And, in no way should it preclude the international community from condemning that policy.

There are many obvious problems attached to criminal prosecutions in the face of such massive atrocities. Professor Minow, with insight, refers to the difficulties arising from selective prosecutions and how this can undermine perceptions of fairness. As I write this foreword, the chief prosecutor of the Yugoslavia Tribunal has announced the withdrawal of indictments against fourteen of those indicted by the Tribunal. As Martha Minow states: This decision was taken in an attempt to balance the available resources within the Tribunal and in recognition of the need to prosecute cases fairly and expeditiously. One can only sympathize with Justice Arbour who is faced with a growing number of defendants who are all entitled to a trial within a reasonable time. At the same time, the effect of withdrawing the indictments is tantamount to the grant of an amnesty notwithstanding her warning that they may one day be reindicted. I cannot but have regard to the effect this decision must have on the many victims of the atrocities with which those indicted stood accused. I wonder whether arrangements could not have been made for their trial by national courts in Bosnia or in another European country.

Victims are too frequently neglected. They are seldom if ever on the agenda of the politicians or the military. If they were, it would not have taken eighteen months for a chief prosecutor to have been appointed to the Yugoslavia Tribunal by the UN Security Council and the well-armed NATO troops to have been ordered to arrest Karadzic and Mladic as a priority to follow swiftly the arrest of the others indicted by the Tribunal.

A word on the South African Truth and Reconciliation Commission. I must confess to have been a supporter of that institution from the beginning and to have been involved in discussions which led to its establishment. Its success has exceeded by far my expectations. It had the potential for failing abysmally. It could have been ignored. The opposite is the reality. Over 7,000 applications for amnesty. Submissions and evidence from over 20,000 victims. The evidence has stopped denials of the many serious human rights violations committed by the apartheid security forces.

One only has to imagine where South Africa would be today but for the Truth and Reconciliation Commission in order to appreciate what it has achieved. Few South Africans have been untouched by it. All sectors of its society have been forced to look at their own participation in apartheid—the business community, the legal, medical, and university communities. A substantial number of white South Africans, all of whom willingly or unwillingly benefited from this evil system, have experienced regret or shame or embarrassment.

I have not heard a black South African complain that the Truth and Reconciliation Commission has gone on too long or suggest that it should come to a premature end. On the other hand, I have heard many white South Africans complain that it is enough of opening wounds. To whose wounds, I have wondered, are they referring? Surely not their own. And, what makes them think that the wounds of the victims have healed? And yet, when I said this to the playwright Ariel Dorfman, he corrected me in his always gentle and wise manner. He pointed out that those white South Africans are also victims of apartheid. Their discomfort with the truth is a symptom of their shame and that, too, makes them victims. And that is the importance of Professor Minow’s pointing out that this discussion must include not only the perpetrators and the victims, but also the bystanders.

And, finally, I would refer to the problems of South Africans talking past each other. A good example is the anguish caused to Archbishop Tutu by former President de Klerk, during his appearance before the Truth and Reconciliation Commission. To apologize meaningfully for apartheid, President de Klerk would have had to admit that there was no justification at all for the policy he had helped implement during the whole of his political career, and which his father (also a Cabinet member) had implemented before him. He would have had to admit that it was a morally offensive policy. He did neither of those things. I do not believe I would be doing him an injustice by suggesting that his apology sprang from his perception that apartheid was a mistake, not because it was morally offensive but because it failed and that it was well meant in the interests of all South Africans.

The foregoing are just some of the many issues which are raised in this outstanding work. Each page I read evoked some memory, some recognition, of my own learning experience during the past eight years of my life. It is an essential resource for anyone interested in finding a means of curbing war crimes and human rights abuses in the next millennium. In her introductory chapter the author expresses the hope of developing a vocabulary for assessing the goals and limitations of each kind of response to atrocities. She has fulfilled that hope.

Judge Richard J. Goldstone

Judge, Constitutional Court, South Africa; former Chief Prosecutor, International Criminal Tribunals on the former Yugoslavia and Rwanda

1. Introduction

You build your life around something that cannot be healed, . . . something for which there are no words. —Dori Laub

Wound and cure, in this sensitive area, are hard to tell apart. —Geoffrey Hartman

Will the twentieth century be most remembered for its mass atrocities? The Holocaust of World War II. The killing fields of Cambodia. Argentina’s Dirty War against subversion and regime of torture and killing. South Africa’s apartheid and the violence deployed to sustain it. The Turkish massacre of the Armenians. The Romanian terror both before and after communism. The East German system of pervasive spying and lethal enforcement around the Berlin Wall. The slaughter by Stalin. The Americans at My Lai. Uganda, Chile, Ethiopian government repression, mass tortures, and murders. Military regimes using terror and repression in Eastern Europe, Greece, Uruguay, Brazil, and elsewhere. Each of these horrific events is unique, and incomparable. And yet, a century marked by human slaughter and torture, sadly, is not a unique century in human history. Perhaps more unusual than the facts of genocides and regimes of torture marking this era is the invention of new and distinctive legal forms of response. The capacity and limitations of these legal responses illuminate the hopes and commitments of individuals and societies seeking, above all, some rejoinder to the unspeakable destruction and degradation of human beings.

A most appalling goal of the genocides,¹ the massacres, systematic rapes, and tortures has been the destruction of the remembrance of individuals as well as of their lives and dignity: this is what joins the Holocaust and Final Solution, the Rape of Nanking, the mass killings of Cambodians, the genocide of Armenians during the Turkish Revolution, the massacre of Ibos in Nigeria, the killings of the Hutus, the Gulag, the tortures of leftists in Chile, the students in Argentina, the victims of apartheid.

Yet some of the incidents of mass violence are linked as well by wondrous, though painful and complex, transformations of the surrounding societies after the events. Less oppressive, and even democratic regimes, emerged, for example, in Argentina, Brazil, Poland, reunified Germany, and South Africa.² In the course of such transitions, societies have to struggle over how much to acknowledge, whether to punish, and how to recover. How to treat the continuing presence of perpetrators, and victims, and bystanders, after the violence has ended is a central problem, or better put, series of problems. A common formulation posits the two dangers of wallowing in the past and forgetting it. Too much memory or not enough; too much enshrinement of victimhood or insufficient memorializing of victims and survivors; too much past or too little acknowledgment of the past’s staging of the present; these joined dangers accompany not just societies emerging from mass violence, but also individuals recovering from trauma.

This book explores how some nations have searched for a formal response to atrocity, some national or international reframing of the events. Groups of people and leaders of nations, at times, have refused to let forgetting or denial succeed. Groping for legal responses marks an effort to embrace or renew the commitment to replace violence with words and terror with fairness. The legal responses may seem puny and always insufficient after massacres, state-sponsored tortures, systematic raping of groups of women, bombing of children. Yet societies emerging from collective violence—such as Argentina and Rwanda—have on occasion sought to prosecute those who gave orders to kill and torture, those who enacted those orders, or those who benefited from those orders. Must all such societies pursue prosecutions in order to comply with international human rights standards? Alternative legal responses, recently invented, include East Germany’s extension of public access to previously secret police files and Czechoslovakia’s screening and removal of officials and civil servants involved in the old regime from public office, and Canada’s grants of land as restitution to First Nations groups. These are less aggressive responses than prosecution, but they may satisfy people’s needs both to know what happened and to establish a clear break with the past.

Some nations, like Brazil, name the names of those who were implicated in human rights violations. Others, like Chile and South Africa, create commissions of inquiry charged with gathering the stories of victims, the truth about what happened, and at whose hands. Many, including Germany after World War II and Switzerland more recently, secure reparations for individual victims and their families or for the groups most seriously damaged. Germany also authorized financial assistance for therapeutic services for such individuals. Meanwhile, mental health professionals in Scandinavia and in Latin America try to revamp therapy to respond to collective horror without removing its effects from politics.

Nations and cities have created memorials in the forms of public monuments and sculptures, museums, and days of memory. Individuals offer works of music, poetry, and drama. Requiring and devising programs of public education, including curriculum developed for schoolchildren, is another important response. Public education can convey versions of what happened to lift secrecy, celebrate the transition, and warn against future recurrences of the atrocities. Some nations permit or promote television talk shows and more informal settings to present confrontations between victims and those who tortured them or killed their relatives. These and other measures involve people outside the government and institutions outside the law.

Quite a different strategy, adopted, for example, in Chile, Greece, Uruguay, grants amnesty or immunity from prosecution to those involved in the horrors. Yet this approach can be—and in South Africa it has been—combined with official efforts to obtain information from oppressors about what really happened. The South African Truth and Reconciliation Commission illustrates an innovative and promising effort to combine an investigation into what happened, a forum for victim testimony, a process for developing reparations, and a mechanism for granting amnesty for perpetrators who honestly tell of their role in politically motivated violence.

These alternatives all share one feature. They depart from doing nothing. Yes, at best they can only seek a path between too much memory and too much forgetting. Yet they also try for a way between vengeance and forgiveness. Hannah Arendt contentiously asserted that in the face of genocides, we are unable to forgive what [we] cannot punish and [we] are unable to punish what has turned out to be unforgivable.³ Even if she is right, it would be wrong then to do nothing. Dwelling in the frozen space of inability and incapacity is unacceptable, unresponsive to victims, unavailing to the waiting future. This is what underlies attempts to act for victims in the affirmation of atrocity.

By exploring here what can and what cannot be accomplished through differing responses to collective violence, I hope to develop and to deepen a vocabulary for assessing the goals and limitations of each kind of response to societal-level atrocities. Survivors of violence often ache for retribution against identifiable perpetrators, and for public acknowledgment of what happened. Some want financial redress; psychological or spiritual healing seems crucial to others. Some survivors, and their fellow citizens, place higher priorities on moving ahead with life, building or rebuilding trust across previously divided groups, and establishing or strengthening democratic institutions. Many believe that the entire society needs to stand behind efforts to punish the wrongdoers, and to deter any such conduct in the future. People understandably may have great trouble sorting out priorities among these possibilities.

Even so, I hope to clarify the purposes animating responses to collective violence, and the relative capacities of different societal responses to meet those purposes. I do not seek precision here; nor do I mean to imply that we can wrap up these issues with analysis or achieve a sense of completion. Two reasons animate my resistance to tidiness. First, the variety of circumstances and contexts for each nation, and indeed each person, must inflect and inform purposes in dealing with the past and methods that work or can even be tried. It matters whether the new regime took over through combat or negotiation with the old leaders, and whether the wrongdoing involves a small portion or a large portion of the population; it matters whether the individual has a profound religious confidence in a divine realm of consequences for behavior on earth, or a strong desire to invest energy in surviving family members. Saying that context matters is not the end of the analysis. Rather, it is the beginning.

The second, and perhaps more crucial reason to resist any implication of exactness or closure in such matters is that no response can ever be adequate when your son has been killed by police ordered to shoot at a crowd of children; when you have been dragged out of your home, interrogated, and raped in a wave of ethnic cleansing; or when your brother who struggled against a repressive government has disappeared and left only a secret police file, bearing no clue to his final resting place. Closure is not possible. Even if it were, any closure would insult those whose lives are forever ruptured. Even to speak, to grope for words to describe horrific events, is to pretend to negate their unspeakable qualities and effects. Yet silence is also an unacceptable offense, a shocking implication that the perpetrators in fact succeeded, a stunning indictment that the present audience is simply the current incarnation of the silent bystanders complicit with oppressive regimes. Legal responses are inevitably frail and insufficient. As Larry Langer writes: the logic of law will never make sense of the illogic of genocide.⁴ But inaction by legal institutions means that the perpetrators prevailed in paralyzing the instruments of justice. Even new waves of massive violence turned upon the oppressors would offer more hope than inaction for the resurgence of ideals, of justice, of humanity. Yet new cycles of revenge and violence in the name of justice kill even that hope.

So this book inevitably becomes a fractured meditation on the incompleteness and inescapable inadequacy of each possible response to collective atrocities. It is also a small effort to join in the resistance to forgetting. It is an effort to speak even of the failures of speech and justice, truth-telling and reparation, remembering and educating, in the service of urging, nonetheless, response. It is a missive to the next generation, in the next century, in the fearful acknowledgment that we are not done with mass violence, nor expert in recovering from it.

An estimated 20,000 Muslim women and girls were raped by Serb men between 1991 and 1995 in Bosnia as part of the collective violence in that region. Two women, Jadranka Cigelj and Nusreta Sivac, themselves survivors of this violence, labored to present their own stories and to gather those of more than 400 others who were detained, tortured, starved, and raped.⁵ Their captors released Cigelj and Sivac with others from the Omarska internment camp after the international media started to uncover the violence. Devastated physically and mentally, both women found strength in telling their stories to the media. They helped make an award-winning documentary, Calling the Ghosts. They submitted testimony to the International Criminal Tribunal for the former Yugoslavia. In June of 1996, the tribunal issued indictments for the arrest of eight men and thereby launched the first prosecutions recognizing rape as a weapon of war and a crime against humanity.⁶

There is not, and could not be, a happy ending to this story. Five years after the event, nearly all the rapists remain free as do the commanders who exploited rape as a weapon.⁷ A few prosecutions recently began against those indicted for the rapes. Yet, the presiding judge called for shutting down the International Criminal Tribunal unless the United States or the NATO powers made the instigators of the Bosnian war available for trial. Julia Hall, a member of the team investigating women’s issues in Bosnia for the nongovernmental organization