Hostname: page-component-cd9895bd7-7cvxr Total loading time: 0 Render date: 2024-12-31T15:52:35.413Z Has data issue: false hasContentIssue false
  • English
  • Français

Reckoning with Past Wrongs: A Normative Framework

Published online by Cambridge University Press:  28 September 2012

David A. Crocker
Get access Rights & Permissions [Opens in a new window]

Abstract

This essay formulates eight goals that have emerged from worldwide moral deliberation on “transitional justice” and that may serve as a useful framework when particular societies consider how they should reckon with violations of internationally recognized human rights. These goals include: truth, a public platform for victims, accountability and punishment, the rule of law, compensation to victims, institutional reform and long-term development, reconciliation, and public deliberation.

These eight goals are used to identify and clarify (1) the variety of ethical issues that emerge in reckoning with past wrongs, (2) widespread agreements about initial steps for resolving each issue, (3) leading options for more robust solutions of each issue, and (4) ways to weight or trade off the norms when they conflict. The aim is to show that there are crucial moral aspects in reckoning with the past and to clarify, criticize, revise, apply, and diffuse eight moral norms. These goals are not a “one-size-fits-all” blueprint but rather a framework by which societies confronting past atrocities can decide–through cross-cultural and critical dialogue–what is most important to accomplish and the morally best ways to do so.

Type
Articles
Information
Ethics & International Affairs , Volume 13 , March 1999 , pp. 43 - 64
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 1999

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The best multidisciplinary collections on transitional justice are Kritz, Neil J., ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes, 3 vols. (Washington, D. C.: United States Institute of Peace Press, 1995Google Scholar); Roht-Arriaza, Naomi, ed., Impunity and Human Righs in International Law and Practice (New York: Oxford University Press, 1995Google Scholar); and James McAdams, A., ed., Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997Google Scholar).

2 Ash, Timothy Garton, “The Truth About Dictatorship,” New York Review Of Books 4(1998 F19), p. 35.Google Scholar

3 For these broader issues, see Essay, Ash's and Méndez, Juan E., “Accountability for Past Abuses,” Human Rights Quarterly 19 (1997), pp. 256–58Google Scholar, and “In Defense of Transitional Justice,” in McAdams, ed., Transitional Justice, pp.22-23, n. 4.

4 Mydans, Seth, “Under Prodding, 2 Khmer Rouge Apologize for the Reign of Terror,” New York Times, December 30, 1998, p. A1Google Scholar, and “Cambodian Leader Resists Punishing Top Khmer Rouge,”New York Times, December 29, 1998, pp. A1, A8.

5 See Ratner, Steven R. and Abrams, Jason S., Accountability for Human Rights and Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Clarendon Press, 1997Google Scholar); Neier, Aryeh, War Crimes: Brutality, Genocide, Terror and the Struggle for Justice (New York: TimesBooks, 1998Google Scholar).

6 Wedgwood, Ruth, “Fiddling in Rome,” Foreign Affairs 77 (November–December 1998), pp. 20–24CrossRefGoogle Scholar.

7 Weschler, Lawrence, A Miracle, A Universe: Settling Accounts with Torturers (New York: Pantheon, 1990Google Scholar); Gutman, Roy, Witness to Genocide (New York: Macmillan, 1993Google Scholar); Rosenberg, Tina, The Haunted Land: Facing Europe's Ghosts After Communism (New York: Random House, 1995Google Scholar) and “Defending the Indefensible,” New York Times Magazine, April 19, 1998, pp. 45–69; Rohde, David, Endgame: The Betrayal and Fall of Srebrenica, Europe's Worst Massacre since World War II (Boulder: Westview Press, 1997Google Scholar); Feitlowitz, Marguerite, A Lexicon of Terror: Argentina and the Legacies of Torture (New York: Oxford University Press, 1998Google Scholar); Cohen, Roger, Hearts Grown Brutal: Sagas of Sarajevo (New York: Random House, 1997Google Scholar); Sudetic, Chuck, Blood and Vengeance: One Family's Story of the War in Bosnia (New York: W. W. Norton, 1998Google Scholar); Berkeley, Bill, “Aftermath: The Pursuit of Justice and the Future of Africa,” Washington Post Magazine, October 11, 1998, pp. 10–15, 25–29Google Scholar; Gourevitch, Philip, We Wish to Inform You That Tomorrow We Will Be Killed with Our Families: Stories from Rwanda (New York: Farrar, Straus & Giroux, 1998Google Scholar).

8 See, for example, the essays by the following authors, in Kritz, ed., Transitional Justice, vol, 1, who took part respectively in attempts to reckon with past wrongs in El Salvador, Argentina, and Chile: Thomas Buergenthal, Carlos Nino, and José ZalaguettGoogle Scholar.

9 See McAdams, ed., Transitional Justice; and Osiel, Mark, Mass Atrocity, Collective Memory, and the Law (New Brunswick, N.J.: Transaction Books, 1997Google Scholar).

10 see Just and unjust wars: A Moral Argument with Historical Illustrations, 2d ed. (New York: Basic Books, 1977), p. xxviiGoogle Scholar.

11 See, for example, Shriver, Donald, An Ethic for Enemies: Forgiveness in Politics (New York: Oxford University Press, 1995Google Scholar); De Greiff, Pablo, “Trial and Punishment, Pardon and Oblivion: On Two Inadequate Policies for the Treatment of Former Human Rights Abusers,” Philosophy and Social Criticism 12 (1996), pp. 93–111CrossRefGoogle Scholar.

International Criminal Courts and Transitions to Democracy, Public Affairs Quarterly 12 (1998 ), pp . 79 – 99 .Google Scholar; and

Graybill, Lyn S. , “ South Africa's Truth and Reconciliation Commission: Ethical and Theological Perspectives ,” Ethics & International Affairs 4 (1998), pp. 43–62CrossRefGoogle Scholar.

12 One exception to this judgment is Ash, “The Truth About Dictatorship.” Although he neither clarifies nor defends his ethical assumptions and although his particular assessments can be disputed, Ash insightfully considers four general measures–forgetting, trials, purges, and historical writing–with lots of variations and examples, especially from East and Central European countriesGoogle Scholar.

13 Crocker, David A., “Transitional Justice and International Civil Society: Toward a Normative Framework,” Constellations 5 (1998), pp. 492–517CrossRefGoogle Scholar; “Civil Society and Transitional Justice,” in Fullinwider, Robert, ed., Civil Society, Democracy, and Civic Renewal (Lanbam, Md.: Rowman & LittlefieldGoogle Scholar, forthcoming); and “Truth Commissions, Transitional Justice, and Civil Society” (paper presented at the South African Truth and Reconciliation Commission Conference, World Peace Foundation, Somerset West, South Africa, May 28–30, 1998). My list of objectives has benefited from the work of Méndez and Zalaquett as well as from that of Margaret Popkin and Naomi Roht-Arriaza, who formulate and employ four criteria in “Truth as Justice: Investigatory Commissions in Latin America,” Law and Social Inquiry 4(1995), pp. 79–116.Google Scholar, especially pp. 93–106.

14 Crocker, , “Transitional Justice and International Civil Society,” pp. 495–96Google Scholar.

15 Stojanović, Svetozar, The Fall of Yugoslavia: Why Communism Failed (Amherst, N.Y.: Prometheus Books, 1997), pp. 77–78Google Scholar; see also pp. 89–92.

16 Boraine, Alex, “The Societal and Conflictual Conditions That Are Necessary or Conducive to Truth Commissions” (paper presented at the South African Truth and Reconciliation Commission Conference, World Peace Foundation, Somerset West, South Africa, May 28–30, 1998Google Scholar).

17 Rohde, , End Game, p. 226Google Scholar.

18 End Game, pp. 230–31Google Scholar.

19 For investigations of what the United States and other Western powers could and should have done to prevent the Holocaust, see Breitman, Richard, Official Secrets: What the Nazis Planned, What the British and Americans Knew (New York: Hill and Wang, 1999Google Scholar); and Istvan Deak, “Horror and Hindsight,” a review of Official Secrets by Richard Breitman, The New Republic, February 15, 1999, pp. 38–41. For consideration of the same issues with respect to the failure of the United States, the UN, and the European Union to intervene militarily in Croatia and Bosnia in 1991–95, see Danner, Mark, “The US and the Yugoslav Catastrophe,” New York Review of Books 4(1997 N20), pp. 56–64Google Scholar.

20 See my “Truth Commissions, Transitional Justice, and Civil Society”Google Scholar.

21 See, for example, Ball, Patrick, Who Did What to Whom? Planning and Implementing a Large Scale Human Rights Data Project (Washington, D. C.: American Association for the Advancement of Science, 1996Google Scholar).

22 See Danner, Mark, “Bosnia: The Turning Point,” New York Review of Books 4(1998 F5), pp. 34–41Google Scholar, for a compelling argument that rejects Serb claims that it was Muslims themselves who were responsible for the mortar attack that killed 68 Muslims in a Sarajevan market on February 5, 1994.

23 Daly, Suzanne, “In Apartheid Injury, Agony Is Relived But Not Put to Rest,” New York Times, July 17, 1997, pp. A1, A10Google Scholar.

24 “Aftermath: Genocide, the Pursuit of Justice and the Future of Africa ,” Washington post Magazine , October 11, 1998, pp. 14, 28Google Scholar.

25 See Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustration (New York: Basic Books, 1977), pp. 304–27Google Scholar; Neier, War Crimes, pp. 229–45; Osiel, Mark J., “Obeying Orders: Atrocity, Military Discipline, and the Law of War,” California Law Review October), pp. 943–1129Google Scholar.

26 Quint, Peter, The Imperfect Union: Constitutional Structures of German Unification (Princeton: Princeton University Press, 1997), pp. 194–215Google Scholar. Cf. Sa'adah, Anne, Germany's Second Chance: Trust, Justice, and Reconciliation (Cambridge: Harvard University Press, 1998Google Scholar).

27 May, Larry and Hoffman, Stacey, eds., Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics (Lanbam, Md.: Rowman & Littlefield, 1991Google Scholar).

28 See Nino, Carlos, Radical Evil on Trial (New Haven: Yale University Press, 1996), pp. 210–28Google Scholar; Neier, War Crimes, pp. 210–228; French, Peter A., ed., The Spectrum of Responsibility (New York: St. Martin's Press, 1991Google Scholar).

29 Nino Radical Evil on Trial, and “A Consensual Theory of Punishment,” in John Simmons, A., et al. , eds., Punishment: A Philosophy & Public Affairs Reader (Princeton: Princeton University Press, 1995), pp. 95–111Google Scholar; and Malamud-Goti, “Transitional Governments in the Breach: Why Punish State Criminals?” in Kritz, ed., Transitional Justice, vol. 1, pp. 193–202.

30 See, for example, Simmons et al., eds., Punishment; Crocker, Lawrence, “The Upper Limit of Punishment,” Emory Law Journal 4 (1992), pp. 1059–1110Google Scholar; and Moore, Michael, Laying Blame (Oxford: Clarendon Press, 1997Google Scholar).

31 Luban, David, “The Legacies of Nuremberg,” in Legal Modernism (Ann Arbor: University of Michigan Press, 1994), pp. 335–78CrossRefGoogle Scholar. Cf. Fuller, Lon L., The Morality of Law, rev. ed. (New Haven, 1977), pp. 33–39Google Scholar.

32 See, for example, Holmes, Stephen, “The End of Decommunization,” in Kritz, , ed., Transitional Justice, vol. 1, pp. 116–20Google Scholar; and Elster, Jon, “On Doing What One Can: An Argument Against Post-Communist Restitution and Retribution,” in Kritz, , ed., Transitional Justice, vol. 1, pp. 556–68Google Scholar.

33 Hoge, Warren, “Law Lords in London Open Rehearing of Pinochet Case,” New York Times January 19, 1999, p. A1Google Scholar.

34 Report of tbe [South African] Truth and Reconciliation Commission, Vol. 5, Chap. 5, Para. 27–28 and 85–93Google Scholar.

35 Sanger, David A., “Gold Dispute with the Swiss Declared to Be at an End,” New York Times, January 31, 1999, p. A1Google Scholar.

36 Cohen, Roger, “German Companies Adopt Fund for Slave Laborers Under Nazis,” New York Times, February 17, 1999, p. A1Google Scholar. Cohen observes that “since World War Two the German government has paid out about $80 billion in aid, most of it to Jews who survived concentration camps or fled.”

37 Ibid.Google Scholar

38 See Dahl, Robert A., Democracy and Its Critics (New Haven: Yale University press, 1989Google Scholar), especially chaps. 8, 17, and 18; and Diamond, Larry A., “Democracy in Latin America: Degrees, Illusions, Directions for Consolidation,” in Farer, Tom, ed., Beyond Sovereignty: Collectively Defending Democracy in the Americas (Baltimore: Johns Hopkins University Press, 1996), pp. 52–104Google Scholar.

39 See, for example, Crocker, David A., “Development Ethics,” in Craig, Edward, ed., Routledge Encyclopedia of Philosophy, vol. 3 (London: Roudedge, 1998), pp. 39–44Google Scholar; and Nussbaum, Martha C. and Glover, Jonathan, eds., Women, Culture, and Development (Oxford: Clarendon Press, 1995CrossRefGoogle Scholar).

40 Villa-Vicencio, Charles, “A Different Kind of Justice: The South African Truth and Reconciliation Commission,” Contemporary Justice Review (forthcomingGoogle Scholar).

41 Osiel, Mass Atrocity, Collective Memory, and the Law, p. 17Google Scholar, n. 22; see also pp. 47–51; 204, n. 136; 263–65.

42 Gutmann, Amy and Thompson, Dennis, “Moral Foundations of Truth Commissions” (paper presented at the South African Truth and Reconciliation Commission Conference, World Peace Foundation, Somerset West, South Africa, May 28–30, 1998Google Scholar).

43 See Little, David, “A Different Kind of Justice: Dealing with Human Rights Violations Transitional Societies,” in this volumeGoogle Scholar.

44 See Dwyer, Susan, “Reconciliation for Realists,” in this volumeGoogle Scholar.

45 See Lewthwaite, Gilbert A., “In South Africa, Much Truth Yields Little Reconciliation,” Baltimore Sun, July 30, 1998, p. 12Google Scholar; and Oppelt, Phylicia, “Irreconcilable: The Healing Work of My Country's Truth Commission Has Opened New Wounds for Me,” Washington Post, September 13, 1998, pp. C1, C4Google Scholar.

46 See Bohman, James, Public Deliberation: Pluralism, Complexity, and Democracy (Cambridge: MIT Press, 1996Google Scholar); and Gutmann, Amy and Thompson, Dennis, Democracy and Disagreement (Cambridge: Harvard University Press, 1996Google Scholar).

47 Mydans, Seth, “20 Years On, Anger Ignites Against Khmer Rouge,” New York Times, January 10, 1999, p. A1Google Scholar.

48 See, for example, Hayner, Priscilla B., “The Past as Predator: The Role of Official Truth-seeking in Conflict Resolution and Prevention,” in National Research Council, International Conflict Resolution: Techniques and Evaluation (Washington, D. C.: National Research Council, forthcomingGoogle Scholar).

49 Formosa, Manuel, “La alternative: Repensar la revolución,” Seminario Universidad, Universidad de Costa Rica, October 23, 1987, p. 5Google Scholar.