CONFLICTS leave societies broken and unhinged, devastated in multiple ways – structurally and economically. Oftentimes they erase histories, a slate wiped clean, with little social or political glue for remaking it for all its original inhabitants given the resultant resentments among people within society. Such post-conflict societies often try to develop mechanisms to bring to justice those who had committed particularly horrific crimes.

This brief paper explores two possible mechanisms developed in recent history – first, International Criminal Tribunals (ICTs). Such structures often seek to punish offenders (with varying purposes) and, in some cases, also to document the ‘true’ sequence of events in the process of handing out ‘justice’. For most people who belong to common law or civil law jurisdictions with a robust criminal justice system, this would appear to be a natural response, even within post-conflict societies. The evidence for this can be found in the UN responses to the Rwandan and Yugoslavian conflicts in the early ’90s. Second, the less popular and comparatively nascent, Truth and Reconciliation Commissions (TRCs).

After a prelude ‘on forgiveness’, this paper explores the spectrum between revenge and forgiveness and places TRCs closer to forgiveness than ICTs. The paper makes a case for TRCs based upon various aspects, including social, economic, political and futuristic. These perspectives come together to make a case that for a post-conflict society, forgiveness rather than revenge may be a fair outcome and the only path to a just rebuilding.

The art to forgive is often imbued with a religious undertone, thus making it problematic to those who wish to inhabit a secular world. The religious connotations to forgiveness end up proscribing the concept for secular governments. Its origins, as Hannah Arendt points out, lie in the teachings of Jesus of Nazareth.¹ She also explains how this resulted the concept losing ground in popular culture.² However, debate over these origins should not reduce the immense importance this concept possesses as a tool to recreate societies. Rebuilding is a task that requires immense love. Else, such rebuilding would fail. Either it would be a mere pretence or it would only work for some factions of society, excluding those who are vilified through the usual justice processes. The process to achieve justice for the victims often involves elements of retribution. This, however, is unlikely to help in rebuilding.

Unlike revenge, forgiveness is a new act and brings a solution to the table instead of recreating an endless spiral of revenge. As Arendt puts it: ‘Forgiving… is the only reaction which does not merely react but acts anew and unexpectedly, unconditioned by the act which provoked it and, therefore, freeing from its consequences both the one who forgives and the one who is forgiven.’³ Arendt talks of love and its power to forgive, as it ‘destroys’ that which ‘separates us from others’.⁴ This act of erasing the boundary lines that separate ‘us’ from ‘them’, and creating harmony through empathizing with one another in common suffering, might be the only way to rebuild that which is broken in post-conflict states.

The following sections show that courts and their analogues can often bring societies closer to retribution than forgiveness, thereby hindering the process of rebuilding. They are the opposite of what a conflict torn peoples need.

 

The social pertains to the society and its organization. A society torn apart might seem to be in need of rebuilding. When foreign actors assist in the rebuilding process, the acceptance of their efforts can be difficult, to say the least. The language barrier alone can end up making a court’s efforts look somewhat frivolous to those who most need closure.

For instance, in the case of both the ICTY and ICTR, it is pertinent to ask whether these institutions caused any structural and institutional changes within the countries they aimed to bring justice to; if yes, were these reforms lasting/permanent? With respect to the ICTY, ‘Europeanization’⁵ was allegedly the aim. This was problematic for three reasons, as pointed out by Bachmann and Fatic. First, it led to the othering of the Western Balkans. This did not just lead to ascribing a ‘savage’ nature to this ‘other’ but created a need for the continuation of the said ascription to constitute the central ‘self’ as against this peripheral ‘other’.⁶ Second, the prejudice thus created could not be erased diplomatically through simple cognitive means, as prejudice penetrates emotions and is visceral.⁷ This makes it hard for a prejudiced person to even recognize it, leave alone abandon it through rational conclusions.⁸ Third, the European standards that were preached were not upheld by the ICTY, especially with respect to non-prejudicial prosecution of perpetrators.⁹ The domestic effect of such a mechanism, imposed by foreign actors, can lead to nothing but distrust among the people of the former Yugoslavia.

Similarly, the ICTR had its own problems. The people in Kigali (Rawanda), with the outreach programme in 2003, were able to salvage parts of the ICTR’s image; however, these efforts were over and above the original objectives of the tribunal.¹⁰

 

Using external identities like Europeanness as a social glue can lead to major political problems, especially in the organization of the society. When incongruous ideals are imposed on society, it confuses its inhabitants and is seen as morally dubious.¹¹ The political viability of such solutions is thus highly questionable. As in case of the ICTY, constituting a tribunal that prosecuted perpetrators on one side more than the other, and showing bias towards NATO, resulted in creating more boundaries instead of furthering reconciliation.

Both tribunals were supposed to further reconciliation in the conflict-torn areas through punishing those most responsible for the heinous crimes that were committed. However, the impossibility of remaining unbiased in its prosecution partly due to the political difficulties that the tribunals faced in finding the perpetrators they wished to indict, and partly because of more insidious reasons, make both these tribunals good examples of social and political non-viability of such ICTs.

 

Both these tribunals had steep economic impacts on the international community in general. Up to the end of 2013, the overall cost (in terms of UN General Assembly appropriations for the tribunals) had grown up to US $ 1,735.3 million at the ICTR and US $ 2,289.8 million at the ICTY.¹² The average cost of one defendant’s trial at the ICTY amounted therefore to US $ 14.22 million, whereas one such trial cost the ICTR US $ 27.98 million – almost twice the cost of the ICTY.¹³

The UN thus has abstained from recreating such a resource intensive ICT ever since. Further, the UN Mechanism for International Criminal Tribunals (UNMICT), that is the successor organ that will maintain the archives is supposed to be lean and efficient according to its binding resolution. the need to reduce costs has resulted in the creation of hybrid tribunals that are under national control, like the ones in Lebanon or Sierra Leone. However, this overburdens the post-conflict society with further costs by moving economic burdens from the shoulders of the international community to the states themselves, and thus creates an atmosphere of hostility. It also generates the possibility of ensuring victor’s justice, as the new regime is closely connected to, and partly funds the mechanism.

 

Truth and Reconciliation Commissions in contrast are far more cost effective. They are also socially and politically more viable. An important aspect of TRCs is that they do not have the object of pinning blame on people. Instead, they are grounded in the creation of a combined experience that all sides to a conflict can go through together. Instead of burdening the system with politically difficult decisions, the TRC allows for all persons responsible to tell their story. Truth telling, as Shiv Visvanathan has pointed out, is powerful. It creates a unique experience that can bring enemies to see both sides of the story. This is an alternative to finding a shared yet foreign identity to connect people (as was the case with ICTY).

Psychologically less burdensome, TRCs encourage perpetrators to tell their story and are thus socially cathartic. They generate a narrative with many interesting narrators. Victims and perpetrators from all sides bring together the whole picture, instead of using technical legal jargon. This makes the archives of a TRC much more accessible to the common public. Another advantage the TRCs have is that the reconciliation thus created is the people’s own. Even if the mechanisms to record are foreign, this level of interference does not end up making the final outcome a foreign one. The potential to rebuild their own home becomes clear through such an exercise. The society can feel that it has the power to put the past behind itself and move on to a better and stronger future.

 

A few stories might help put this in perspective. Take for instance the NGO in Israel/Palestine created by two men who lost their daughters in the war.¹⁴ This forum is composed of 600 Israeli and Palestinian families who each lost a close friend or family member to the war. ‘Joint activities have shown that the reconciliation between individuals and nations is possible and it is this insight that they are trying to pass on to both sides of the conflict.’¹⁵ Further in Rwanda, the Gacaca courts have led to an unlikely friendship between a former priest and the killer of his family. The two men now live together, and are a great role model for reconciliation.¹⁶

Such individual stories have been institutionalized in many places. For instance, the story of the ‘Stolen Generations’ in Australia, where the government has been asking for forgiveness from the natives whose children were stolen and put into white homes.¹⁷ This report has been followed by efforts to economically and educationally integrate the natives in Australia into the mainstream, while working towards preserving their culture and giving them political representation. TRCs seem, therefore, politically, socially, economically and developmentally more viable than any ICT.

TRCs represent forgiveness as they bring forth a spirit of recreation and reconciliation in a manner that a formalized ICT with its legal jargon may never be able to due to structural and political restraints. Re-emphasizing boundaries by pinning blame cannot be the best way to move forward. Thus this paper argues for a move towards TRCs as official mechanisms for post-conflict societies that need to rebuild from the ground up.

We may in the future, find many societies that will need such mechanisms: Syria, Israel-Palestine, Kashmir, among others. The question about the most viable mechanisms to rebuild these beautiful societies will arise, and this paper argues that TRCs, with their spirit of forgiveness, should to be a major part of these efforts.

 

It ought to be noted that this paper only skims the surface, and much more work is needed to better comprehend the depth of this supposed binary. Over the past three decades, more than forty TRCs have been set up in various parts of the world to rebuild societies, and they have done so more successfully than ICTs. The fewer number of ICTs in comparison is one such indicator. This article brings together a few perspectives through which one can compare ICTs and TRCs. It observes that ICTs may recreate hostility, as was the case with ICTY and ICTR, while TRCs are better at fostering reconciliation within a post-conflict society.

In choosing forgiveness over revenge to end the cycle of ugly reactions, this article makes a case in favour of truth telling as opposed to formalized prosecution of perpetrators in a transitional society.

 

Footnotes:

1. ‘The only rudimentary sign of an awareness that forgiveness may be the necessary corrective for the inevitable damages resulting from action may be seen in the Roman principle to spare the vanquished (parcere-subiectis) – a wisdom entirely unknown to the Greeks – or in the right to commute the death sentence, probably also of Roman origin, which is a prerogative of nearly all western heads of state.’ Hannah Arendt, The Human Condition. The University of Chicago Press, Chicago, 1958, pp.238-243.

2. Ibid.

3. Ibid.

4. Ibid.

5. Synonym for getting distant, peripheral and economically weaker regions to adapt to norms, values, customs and institutional solutions developed by countries of the economically stronger centre. K. Bachmann and A. Fatic, The UN International Criminal Tribunals: Transition Without Justice? Routledge, London and New York, 2015, p. 158.

6. Ibid.

7. For example, ‘Instead of fault being sought in the inadequate management of the "protected zone" and poor military performance by the international troops, the almost exclusive onus of the official commentaries of this event focuses on the "savagery" of the Serbian forces.’ K. Bachmann and A. Fatic, ibid., p. 159.

8. R. Shusterman, Thinking Through the Body: Essays in Somaesthetics. Cambridge University Press, Cambridge, 2012. Also see, K. Bachmann and A. Fatic, ibid., p. 106.

9. For example, ‘Its failure to prosecute war crimes during the NATO bombing campaign in 1999 and the discrepancy between indictments (and guilty verdicts) for accused of the different ethnic communities.’ K. Bachmann and A. Fatic, ibid., p. 160.

10. Ibid.

11. ‘The concept of "Europeanization", when it is used to approximate the concept of "civilization", is sheer ideology: it is a manipulative way of trying to further specific political interests with a disingenuous moral guise. The Yugoslav war, and the concept of international justice as a part of such European policies, is perhaps the most painful and flagrant example of such moral disingenuity.’ Bachmann and Fatic, ibid., p. 161.

12. Ibid., p. 119.

13. Ibid.

14. See generally, ‘The Parents Circle – Family Forum’, at http://www.theparentscircle. com/

15. Ibid.

16. ‘Reconciling with the Men who Killed my Family’, at https://www.youtube.com/watch? v=OmvXxwg8Ezg

17. See generally, ‘Bringing Them Home – Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families’ (1997), at https://www.humanrights.gov.au/sites/ default/files/content/pdf/social_justice/bringing_them_home_report.pdf