Writing

‘The reality is that international wrongdoing needs to be punished, and then,
perhaps, compensated for. Forgiveness has no part in this.’ Is this true?

December 2003

From the time of St Augustine, international politics have been consumed with jus ad bellum (rules for war) and jus in bello (conduct in war). However, few regulations have been made regarding the conclusion of conflict and the requirement for justice afterwards. Who can be held accountable for international wrongdoing, or violations of human rights? What can such people or states, if they are found culpable, do to compensate for their crimes? And is forgiveness ever an issue regarding post-crime compensation? In 1948, the United Nations adopted a declaration in which certain human rights were spelled out for the world to understand and respect. These include the right to life and liberty;1 torture, slavery, and genocide, for example, are all extreme violations of human rights. These atrocities have been performed both before and after the drafting of the declaration, and many wounds are still left to heal as generations are affected by their memories or the memories of their forefathers. These wounds, when left to fester, often reopen in another outpouring of violence. Hence there is a need for retribution of sorts, an act that will clean up the wounds in the hope that the infection will be cured. If international wrongdoing and violations of human rights require punishment of the offenders as a reckoning for such acts, then, perhaps, the victims must be compensated, understanding that if they accept the compensation, and if they accept the punishment as adequate or appropriate, they are then obligated to forgive.

Unless we learn to live together as brothers, we will die together as fools.
– Martin Luther King, Jr.2

Institutions such as the International Criminal Court (henceforth ICC) and war tribunals can aid in punishing those who have violated human rights and forbid, in less explicit terms, any attempts to deny certain events in history. The increase in influence of the ICC exemplifies the reduction of the role of state sovereignty, as human rights crimes can now be addressed on the international political stage, rather than relying on a state government to handle or, in certain cases, continue with its violations.3 The foundation for such an institution was based upon war crimes tribunals in Nuremberg and Tokyo – immediately after which the United Nations expressed the need for an international court4 – and Rwanda, through which a number of individual human rights violators were put on trial by the United Nations. General Pinochet of Chile is one of these violators. In 1998, the same year as the drafting of the Rome Statute of the ICC, Pinochet was arrested by the British government and sent to Spain, wherein the government there demanded he be tried for human rights violations against Spanish citizens in Chile. This extradition was found to be legal under the International Convention against Torture (ICT), hence allowing anyone – even heads of state – to be tried should violations of human rights occur in their respective countries.5 The Rome Statute guaranteed the ICC the right to “decide what weight, if any, to give to domestic amnesties or to domestic prosecutions for the same offence,” and to “judge and punish each case on the basis of the principles of international human rights law.”6 The justification for punishment through the ICC or other institutions or tribunals can be either retributive, a deterrent, or both, depending on the circumstances.

In order to maintain stability on the international stage, it is imperative that a conflict is concluded in the fairest manner possible, and that the punishment involved is proportional to the crime. The victor must not completely take advantage of the defeated, an act that may be construed as vengeful.7 This can be seen in the post-World War I Treaty of Versailles, in which the Germans were forced to pay reparations, give up some territory and their navy, and demilitarise the Rhineland, which was quite a hefty toll to pay and thus left many Germans with a deeply-rooted bitterness. After World War II, however, the Nuremberg tribunals put twenty-two Nazi war criminals on trial for their actions during the Holocaust; this set a precedent that implied that the international political stage would make a direct effort to bring violators of war crimes and of crimes against humanity to justice8 without further alienating the civilian population of the country as a whole. However, no tribunals were held regarding the former Soviet Union, for example, and Stalin’s reign of terror, during which the executive government and military officials oversaw the murder of millions of Soviet citizens. This is again an example of the victor taking out its hostilities on the defeated, leaving the winner in a hypocritical state by not subjecting itself to its own policy of tribunals. Indeed, the ICC itself has been seen by a few major powers, including China and India, as a Western puppet designed to push its ideals onto the rest of the world.9

Get rid of all bitterness, rage and anger, brawling and
slander, along with every form of malice.
– Ephesians 4:31

In contemporary literature, a question of ‘transitional justice’ has arisen, wherein states that are in the process of replacing their current governments with a democracy are forced to fashion a method by which they may “respond to past evils without undermining [their] new democratic regime[s]” with the guarantee that “reckoning with an evil past [will] not imperil them.”10 Within transitional governments, the principles for the Nuremberg trials do not apply, as it is near to impossible to convict anyone when the war criminals are citizens of the same state as those who have been victims of a crime.11 Much of the time, the human rights violators are elite government officials who would doubtless forbid such trials from occurring. In South Africa after apartheid, the Truth and Reconciliation Commission (TRC) offered human rights violators the opportunity to come clean about their roles in the violence, as well as to offer themselves as witnesses in the prosecution of other non-willing actors12, in exchange for amnesty. The purpose of this was to put the truth in full light, and to affirm the necessity “for understanding but not for vengeance, a need for reparation but not for retaliation.”13 How might this aid in reconciliation between the violators and the victims, however? Some critics have said that the TRC’s policy “actually impedes rather than encourages social amity, because it denies the human need for justice and retribution and thereby leaves a trail of resentment and frustration.”14 Similarly, such ‘truth commissions’ and the detailed truthful accounts of the specific wrongdoing can often result in deeper resentment between groups by exposing the harmful realities of the past15 and thus causing further rifts.

The question of punishment having been addressed, the focal point now is on compensation and whether it is necessary or appropriate. Compensation and restitution are part of the ‘just war’ criteria, which include the idea that any wrongdoing must certainly be righted, but one must ask if this actually makes compensation of any kind appropriate. Even if those who experienced, say, the Holocaust were to be compensated for their strife, it would not serve as an appropriate apology because, as the moral question stands, can one set a monetary value on a human life? Similarly, there can hardly be a specific sum paid to descendents of former slaves in the United States, slavery having been a five-hundred-year-old process before its ban in the nineteenth century. However, for more recent war crimes, compensation should indeed be paid to victims in an effort to “[restore] victims to something approaching their status quo ante.”16 It can be thought that those who are or were victims of human rights violations, or those who are family members of the victims, deserve the right to at least some compensation as a result of their “pain and suffering,”17 as well as knowledge of the truth. Now the question remains: who exactly is due to pay for this? In certain cases, those who have violated human rights are easily identified, but often these people “will be wholly unable (not to mention unwilling) to compensate” for their deeds.18 At the same time, there is no existing institution or court that has the capacity or authority to force the payment of compensation to anyone, by anyone.19 This makes the payment of compensation nearly impossible to achieve, especially since even state governments with the mindset to compensate for past crimes cannot do so without public support, or, even without expressed support, the taxation of citizens. As mention before, after World War I the Allies forced Germany to pay reparations for its conduct before and during the war; this was a case of pressure placed on a country by its enemies who were more well-equipped and hence very persuasive in their methods. Germany was unable to protest because it was military unable to do so against such a demand. Thus payment of reparations was caused by vengeful actions by the Allied powers, and therefore increased negative sentiments, even hatred,20 amongst the German population. The Allied powers would have done well to have created some sort of reconciliation approach to go hand in hand with the demands for reparations. Instead, they blamed the whole of Germany via their ‘collective guilt’ clause, rather than focusing on individual actors.21 Because of this, Germany was nearly bankrupted and harboured ill feelings towards the Allied powers that would erupt just twenty years later. In other words, “to beggar thy neighbour is to pick future fights.”22

The question still stands as to who shall receive compensation for international wrongdoing. In recent years, it is easy to identify the ‘victims’ of international crimes, as many of them are still alive, and if not, their direct relations are in existence. However, regarding the Holocaust or the American slavery situations, for example, one must realise that if compensation were to be given, it would be the living receiving reparations or compensation for the dead.23 This raises another controversy as to whether compensation should actually be given to war crimes victims, while there is no clear point at which to draw the line and cease giving reparations. Providing compensation for wrongdoing actually causes a domino effect from which an unknown number of people will emerge and demand compensation because the targeted ‘victims’ received it. It is a never-ending spiral for which there is no solution unless certain limits are placed on the compensation itself by the party distributing such funds. However, history has proven that solutions are available and largely successful. In a 1993 case in Suriname, for example, the government was ordered to pay reparations to the families of the victims who were murdered by Suriname soldiers. Instead of simply distributing cash, a trust fund was set up and a clinic and school were built in the town in which the event occurred.24 This is an effective means of distributing compensation, and reduces the chance that the aforementioned ‘domino effect’ will occur. As well, the victims – or, at least, their families – were able to benefit from reparations in a variety of paths: eduction, health, and economics.

True peace cannot exist without some form of forgiveness on the part of the victims involved, or on the part of their descendents or relations. The requirements for forgiveness are twofold: the criminal must acknowledge his wrongdoing and offer some sort of retribution, be it verbally or otherwise, and then the victim or victims must recognise the suffering they have endured and accept the wrongdoer’s ‘apology.’ That is, forgiveness “aims at the restoration of a relationship when a relationship has been broken.”25 This ‘relationship,’ in certain instances, can never be mended completely, but some acknowledgement of an attempt by either side can often be experienced. Although, it is interesting to note Susan Dwyer’s comment on forgiveness; to her, “the more deserving of forgiveness a person is, the less like a wrongdoer he seems, and forgiveness seems to lose its point.”26 Hence many victims are hestitant or simply unwilling to forgive the wrongdoer. With regard to the example of the Holocaust, it is nearly impossible to imagine complete forgiveness by the victims or relatives of the victims for the Germans involved. This is a simple case of, as Desmond Tutu puts it, “If you steal my pen and say ‘I’m sorry’ without returning the pen, your apology means nothing.”27 For true forgiveness to occur, the lives lost during the Holocaust would have to be returned. As this is blatantly impossible, only semi-forgiveness, or at least acknowledgement of the crimes, can occur. Hannah Arendt has mentioned that “men are unable to forgive what they cannot punish,”28 expressing the tie between punishment and forgiveness. Without punishment of human rights violations and war crimes, there can be little to no forgiveness, and even with compensation, without forgiveness there can be no peace. Forgiveness can be reached, in certain instances, when the victim desires “psychological peace”29 and thus respects the aggressor’s apology, if not completely accepting it. Forgiveness, however, is a personal expression; therefore it requires each and every person who has been wronged to respect the apology of the violator. A collective agent, such as a head of state, cannot grant a wrongdoer forgiveness and simply expect those who have been violated to forgive and forget.

It has been said that “international wrongdoing needs to be punished, and then, perhaps, compensated for” but that “forgiveness has no part in this.” In truth, a sense of forgiveness is necessary when concerned with both punishment and compensation, for, without forgiveness, the issue at hand is due to fester either subconsciously or blatantly, and will undoubtedly result in future strife or conflict. In the case of wrongdoing that is impossible to forgive completely, some degree of acknowledgement is necessary in order to lessen the pain felt by the victims and to prevent a repeat of history.30 The ICC is on the right track by organising tribunals for war criminals and violators of human rights, but further control and organisation must be developed to a certain degree. Perhaps the court needs to have the authority, and the power behind that authority, to punish criminals properly through some sort of compensation, reparations, or retribution. For a criminal not to pay compensation simply because he is unwilling to do so should not be an issue; rather, in some way, he should be made to pay for his actions and hence set a precedent for others who might be considering violating international law or human rights via a public international hearing and an equally public punishment of some nature. Only then can the international stage hope to see a decrease in violations of international law and human rights.



1 “Universal Declaration of Human Rights.” http://www.un.org/Overview/rights.html
2 Tutu, Desmond. No Future Without Forgiveness. New York: Random House Inc., 1999. pg. 8
3 Mendez, Juan E. “National Reconciliation, Transnational Justice, and the International Criminal Court.” Ethics and International Affairs. Vol 15, No 1, 2001. pg. 25
4 “Overview of the ICC.” http://www.un.org/icc/overview.htm
5 Brown, Chris. Sovereignty, Rights, and Justice. Oxford: Polity Press, 2002. pg. 217
6 Mendez, Juan E. “National Reconciliation, Transnational Justice, and the International Criminal Court.” Ethics and International Affairs. Vol 15, No 1, 2001. pg. 42
7 Orend, Brian. “Justice After War.” Ethics and International Affairs. Vol 16, No 1, 2002. pg. 43
8 “Address by Benjamin B. Ferencz, Pace Peace Center.” http://www.un.org/icc/speeches/616ppc.htm
9 Brown, Chris. Sovereignty, Rights, and Justice. Oxford: Polity Press, 2002. pg. 221
10 Crocker, David A. “Reckoning with Past Wrongs: A Normative Framework.” Ethics and International Affairs. Vol 13, 1999. pg. 43
11 Tutu, Desmond. No Future Without Forgiveness. New York: Random House Inc., 1999. pg. 22
12 Robertson, Geoffrey. Crimes Against Humanity: The Struggle for Global Justice. London: Penguin Books, 2002. pg. 290
13 Tutu, Desmond. No Future Without Forgiveness. New York: Random House Inc., 1999. pg. 45
14 Little, David. “A Different Kind of Justice: Dealing with Human Rights Violations in Transnational Societies.” Ethics and International Affairs. Vol 13, 1999. pg. 65
15 Tutu, Desmond. No Future Without Forgiveness. New York: Random House Inc., 1999. pg. 270. See also Crocker, David A. “Reckoning with Past Wrongs: A Normative Framework.” Ethics and International Affairs. Vol 13, 1999. pg. 51. This may cause violence, or “violate the rule of law, personal privacy, or the right not to incriminate oneself.”
16 Crocker, David A. “Reckoning with Past Wrongs: A Normative Framework.” Ethics and International Affairs. Vol 13, 1999. pg. 57
17 Robertson, Geoffrey. Crimes Against Humanity: The Struggle for Global Justice. London: Penguin Books, 2002. pg. 301
18 O’Neill, Onora. Bounds of Justice. Cambridge: Cambridge University Press, 2000. pg. 131
19 Robertson, Geoffrey. Crimes Against Humanity: The Struggle for Global Justice. London: Penguin Books, 2002. pg. 196
20 Shriver, Donald W. Jr. An Ethic for Enemies: Forgiveness in Politics. New York: Oxford University Press, 1995. pg. 75-76
21 Goldhagen, Daniel Jonah. A Moral Reckoning. London: Little Brown, 2002. pg. 9
22 Orend, Brian. “Justice After War.” Ethics and International Affairs. Vol 16, No 1, 2002. pg. 48
23 Tutu, Desmond. No Future Without Forgiveness. New York: Random House Inc., 1999. pg. 278
24 Robertson, Geoffrey. Crimes Against Humanity: The Struggle for Global Justice. London: Penguin Books, 2002. pg. 270
25 Elshtain, Jean Bethke. New Wine and Old Bottles. Notre Dame: University of Notre Dame Press, 1998. pg. 42
26 Dwyer, Susan. “Reconciliation for Realists.” Ethics and International Affairs. Vol 13, 1999. pg. 81
27 Shriver, Donald W. Jr. An Ethic for Enemies: Forgiveness in Politics. New York: Oxford University Press, 1995. pg. 224
28 Robertson, Geoffrey. Crimes Against Humanity: The Struggle for Global Justice. London: Penguin Books, 2002. pg. 299
29 Dwyer, Susan. “Reconciliation for Realists.” Ethics and International Affairs. Vol 13, 1999. pg. 84
30 Elshtain, Jean Bethke. New Wine and Old Bottles. Notre Dame: University of Notre Dame Press, 1998. pg. 43