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Isma'il R. al Faruqi

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Burying the Past: Making Peace and Doing Justice after Civil Conflict PDF Print E-mail

Nigel Biggar, ed., Washington, DC: Georgetown University Press, 2001. 312 pages.

How should societies that have transitioned from authoritarian to democratic rule deal with the atrocities and gross human rights violations of their immediate past? Should those implicated in the crimes of past regimes be prosecuted? This sophisticated volume attempts to address such questions. About one-third of the book is comprised of well-reasoned theoretical chapters that answer the above questions by creating a space in liberal justice for forgiveness. The remainder consists of empirical contributions that describe the ways in which international institutions and five countries (Chile, Guatemala, South Africa, Rwanda, and Northern Ireland) have responded to such crimes. Unlike the theoretical section, most contributions here argue that while memory and forgiveness (the truth commissions) are important, they are not enough to meet the victims’ psychological needs and do not guarantee non-repetition. The introduction rightly acknowledges that some of the chapters argue in different directions.

 

Doing justice in the aftermath of civil conflict is a thorny problem. In liberalism, criminal justice always has been straightforward: the courts, the mouthpiece of objective law, have to mediate and impose punishment if the perpetrator is proven guilty. Punishment must consist of penalties that annul the advantages seized by the criminal, compensate the victim in the case of damage, and prevent future repetition by reforming the perpetrator and serving as a warning to potential criminals. In all of this, punishment has to be proportionate to the crime, as Bentham rightly noted. This is what is obtained in liberal societies and, indeed, in all societies governed by the rule of law.

However, the contributors to the book’s theoretical section try to politicize criminal justice by creating a tension between the need for justice and the need for peace/political stability. They agree that doing justice in the case of injury definitely entails punishment, but argue that the perpetrators would interpret this as revenge, an act of a subjective will, if they committed the crime while serving a former regime. In this context, strict adherence to justice would fuel a cycle of killings that would continue ad infinitum (Hegel’s self-related negativity) and topple whatever political accommodation was negotiated to achieve peace.

The contributors bridge the tension between the moral claim of justice and the political demands of peace by arguing that criminal justice is not primarily about punishing the perpetrator, but that it involves recognizing the injury and acknowledging the victim’s dignity. Furthermore, the authors argue that justice entails establishing the truth and preserving the story so that the public will have a lasting collective memory of it, that public remembrance is a warning against any repetition, and that forgiveness is a restorative justice that unburdens people from the past’s hold and also reintegrates the perpetrators into the community.

As I noted earlier, liberal justice is about just punishment. However, this is missing from the idea of restorative justice developed in the first four chapters. The courts have no role in “restorative” justice, and what emerges is a political compromise that makes politics possible but barely addresses the victims’ concerns. Some of the examples used actually express the victim’s disapproval of, and weak support for, the case of political forgiveness. Take the case of Steve Biko’s family in South Africa, presented by Donald Shriver. Biko’s family is said to have “refused to appear before the Truth and Reconciliation Commission, fearing that the commissioners would grant amnesty to the murderers.” Instead, the family went to the courts.