Guest Post: International Criminal Justice and Reconciliation: Beyond the Retributive vs. Restorative Divide (Part 1 of 2)

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace.]

Introduction

Punishment and reconciliation are closely linked. In this post, I would like to explore one issue of this relationship, namely the link between the retributive and restorative justice. The core dilemma was identified by Hannah Arendt in her treatment of forgiveness in the Human Condition in1958:

 ‘men are unable to forgive what they cannot punish and are unable to punish what turns out to be unforgivable’.

This dichotomy still stands today. Since Nuremberg and Tokyo, there is a strong trend to recognize that the purposes of trials reach beyond retribution and vengeance. International criminal proceedings are increasingly associated with restorative features, because punishment alone has inherent limitations. Some harm may only heal with time. At the same time, certain acts may be beyond forgiveness. This argument is used to discard alternatives to punishment or short cuts to impunity, in particular in relation to core crimes.

These dilemmas arise in any mass atrocity context. They have a legitimate space in law and justice policies. They cannot, and should not be outplayed against each other, but stand in a dialectic relationship. The right equilibrium must be found anew in any specific context, through argument, contestation and persuasion.

The contribution of international criminal justice to reconciliation is modest. Reconciliation has of course many meanings. It extends beyond the victim-offender relationship that forms part of the criminal trial. It involves different levels: interpersonal forgiveness and collective dimensions (e.g., community-based, societal or national reconciliation). It contains retrospective (e.g., understanding of the past, healing, undoing of wrong) and prospective elements (e.g., social repair). Legal visions of time do not necessarily correlate with societal understandings. International criminal justice typically only covers fragments of the past, and glimpses of the imagination of the future.

Unlike a judgment in a trial, reconciliation can rarely be tied to a specific moment in time. It occurs as a process. As argued in the Handbook on Reconciliation after Violent Conflict, it is both a goal, i.e., an ideal state to strive for, and a process ‘through which a society moves from a divided past to a shared future’. It involves ‘social learning’ and a move beyond negative co-existence and the mere absence of conflict. Justice is only one element, alongside others such as the search for truth, forgiveness or healing.

It is questionable to what extent reconciliation should be framed as a primary goal of international criminal justice per se. International criminal justice can neither stop conflict nor create reconciliation. A Court can judge, but only people can build or repair social relations. A Chamber cannot order an apology by the perpetrator, nor forgiveness by victims. In fact, the liberal criminal trial may require respect of the will of those who do not choose to forgive. The experiences in the Balkans, Latin America and Africa have shown that healing and forgiveness are culturally-bound processes that are rooted in local cultures, and start at the level of the individual or community based structures. Reconciliation requires the recognition of a more inclusive common identity that transcends the justice trial. But international criminal law strengthens the claim that reconciliation should not be conceived ‘as an alternative to justice’. Moreover, the criminal trial can provide conditions that facilitate such complex processes. It may signal a rupture with the past that contributes to a process of reconciliation.

In the following, I will try to unpack some of the existing divides. I will first challenge whether restorative approaches are per se better suited to achieve reconciliation than retributive mechanisms. I will then explore certain means to improve the connection between international criminal justice and reconciliation.

1. Links between Reconciliation and Retributive Justice

Retributive justice mechanisms, such as international criminal courts and tribunals, are often criticized for their limitations, namely their emphasis on perpetrators, their individualization of guilt and focus on the past, and their risks. This includes detachment from local context and emphasis on universal justice models and standards. Restorative mechanisms of justice, including victim-centred and less formal forms of accountability, have gained increased acceptance as a middle ground between retributive justice and blanket pardon. They are viewed as more conducive to reconciliation, in light of their stronger focus on needs of victims, their proximity to community or group structures, and their flexibility in terms of process and sanction (e.g., restorative penalties). This either/or logic requires differentiation. Developments over past decades suggest that it is the linkage between these two models that may be most conducive to reconciliation.

1.1.Punishment as prerequisite for reconciliation

One first important point is that prosecution aimed at punishment is not necessarily an obstacle to reconciliation. In certain contexts, retribution may have a greater effect on reconciliation that certain restorative forms of justice that prioritize forgiveness or forgetting. Forgiveness often requires more than a mere apology or generic acknowledgments of responsibility. Victims might be more willing to forgive, or at least temper their feelings of revenge, if they know that the perpetrator will be punished. A recent example is the trial against camp guard Oskar Gröning before German Courts. Ausschwitz survivor Eva Moses Kor shook hands with Gröning. She noted that she could forgive because ‘forgiveness does not absolve the perpetrator from taking responsibility for his actions’ nor diminish the ‘need to know what happened there.’

1.2.‘Us vs. them’ divides

Second, reconciliation is linked to cognitive and affective change, grounded in social interaction. It is shaped by positive experience with the ‘other’ and a relationship of recognition and trust. As argued by Jodi Halpern and Harvey Weinstein, reconciliation ‘shows itself in the degree to which people actually can act as distinct individuals with mutual regard in the real world’. Prosecutor have a tendency to portray perpetrators as persons lacking in humanity. But there are many types of perpetrators in international criminal justice: Political leaders, executers, followers. Alette Smeulers has identified at least nine different species:

‘(1) the criminal mastermind; (2) the careerist; (3) the profiteer; (4) the fanatic; (5) the devoted warrior; (6) the professional; (7) the criminal and sadist; (8) the follower; and (9) the compromised perpetrator’.

One common feature is that many of them are ‘ordinary’ persons who turn into criminals because of context. International criminal justice offers a space to re-humanize, by breaking some of the inequalities and hierarchies inherent in system criminality, or de-constructing context. As argued by Pablo de Greiff, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, the criminal trial provides a forum to discard any ‘implicit claim of superiority made by the criminal’s behaviour’. In specific contexts, the victim and perpetrator (re-)encounter each other as mutual holders of rights, or as members of a common polity. These structural features can lay important foundations for longer-term processes of social repair or reconciliation. They can break up ‘us vs. them’ divides.

1.3.Acceptance of multiple truths

A third point relates to the relationship between reconciliation and truth-finding. One of the inherent features of a criminal trial is that it can produce different narratives, or even multiple truths, through assigned roles in the legal process, competing testimonies or conflicting decisions. International criminal justice is paved with such examples. It has produced many frustrating experiences for victims of crime. But this is not necessarily an impediment to healing or forgiveness. Reconciliation is not linked to the acceptance of a ‘single truth’ or narrative, but grounded in the acceptance or toleration of conflicting points of view. It lives from the ability to respect the ‘other’ and tolerate difference, despite opposite or conflicting views of events and facts. The strength of the criminal process lies in the fact that it offers a forum where contradictions and contestations may legitimately co-exist, based on the constraints of the law.