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Table of contents
- Reconceptualising the Moral Economy of Criminal Justice: A New Perspective Philip Whitehead
- Social Theories and the Criminal Justice System
- Reconceptualising the Moral Economy of Criminal Justice: a new perspective
- War, Peace and Stabilisation: Critically Reconceptualising Stability in Southern Afghanistan
TRCs are a tool of transformative social action, which rest on the assumption that collective remembrance of the past will help prevent the recurrence of violence in the future Du Toit, The goals of TRCs are many and ambitious: to unearth, clarify and acknowledge past violations, to respond to victims' needs, to create a culture of accountability and respect for the rule of law, to outline institutional responsibility and possible reforms, to advance the prospects of reconciliation and reduce historical conflict over the past Hayner, Two kinds of TRCs can be distinguished.
Some, as the South African one, rest on a participatory model, fostering reconciliation by public dialogue and collective acknowledment. Other TRCs are constructed more as educational fact-finding bodies, with the explicit aim of encouraging historical interpretation, and disseminating a new collective memory.
Reconceptualising the Moral Economy of Criminal Justice: A New Perspective Philip Whitehead
TRCs cannot determine culpability for the individual, and cannot punish or sanction perpetrators of human rights abuses. They have no subpoena power. However, they can make recommendations for broad reform of State institutions based on their findings, and suggest reparation for the victims. They may also be related to criminal trials and help their investigation, as in Sierra Leone. TRCs combine investigative, judicial, political, educational, therapeutic and even spiritual functions. In most TRCs, the State asks individuals to renounce their desire for prosecution and revenge in the name of national reconciliation, as the focus is on healing and reparation rather than on punishment Asmal, Restorative justice, as embodied in TRCs, regards the universe as an organic whole, and thus infuses jurisprudence with concrete principles.
In South Africa, this aspect was reflected through the African philosophy of ubuntu , which emphasises the group over the individual. As Antjie Krog has said:. Truth, then, is the path to healing, and TRCs' reports are often filled with a therapeutic type of language. TRCs provide a platform for victims to come together and share their memories, which is considered essential to healing. As this survivor of the Rwandan genocide told French journalist Jean Hatzfeld:. TRCs can also be defined as a sanctioned form of fact-finding.
The problem with compiling this comprehensive account is that it may modify the meaning of justice and of the trial itself: is it really the role of law to heal individuals? The integration of the language of love and forgiveness into the public political field should therefore be carefully analyzed as it might, once again, shock the liberal mind. The restorative approach to mass violence, outlined above, raises several problems, and variations of it have emerged as an answer to these criticisms.
Like trials, commissions are often used to create a collective memory about the past, and are considered an essential instrument in the rebuilding of a post-traumatic national identity. But the attempt to forge a global consensus about the past can be problematic. Is such consensus ever possible? Is it necessary for the transitional process that each individual share a unique moral perspective on the past facts? Garton Ash, Post-conflict societies are deeply divided and it is often very difficult for citizens to agree on a single version of the conflict.
The notion of collective memory, which TRCs are bound to create, suggests a consensus that can only be an ideal, and which potentially carries oppressive structures. TRCs are bound to determinate what is included and what shall be left out in the story a nation tells itself about its traumatic past: to that extent, they are highly political tools.
Woods is thus right to describe national or public memory as a performative act: it is less something we have than something we do Woods, Moreover, the official version of the past is difficult to apply to peoples' real beliefs. TRCs function as narrative builder, seeking to present the past in a comprehensible manner, as being tied to the teleological end of reconciliation within a peaceful democratic future.
TRCs are often defined as modern morality plays, where all present characters function allegorically Osiel, However, the prospects of such a morality play model differ when complicity for the crimes is widespread throughout society, as in most totalitarian states. Legitimating narratives produced by TRCs might end up imposing a top-down authoritative historical account of the past, masking the plurality of experiences of each individual Gutman and Thompson, Everyone tends to interpret great losses and trials as a sacrifice.
Any attempt to impose a single version of history could also be counter-productive, and risk provoking a backlash of competing narratives that celebrate or negate the past, rather than condemning it Lind, The South African TRC made a significant step when it recognized that there are different kinds of truth, namely: a narrative truth, a forensic truth, a historical truth and a social, or dialogic, one. But it failed to evaluate the huge disjunction that can exist between information and belief. It may therefore fail to establish the moral common ground necessary to promote reconciliation.
The objectivity that TRCs pretend to is therefore difficult to reach, and might not even be desirable. Objective facts exist, but they are not necessarily the ones that matter to the survivors. Any attempt to fix history and impose a single vision of the past would therefore be dangerous, as would any utopian wish for ultimate reconciliation of all with all. Another problem lies in the relation between restorative justice and procedures of amnesty and forgiveness Orentlicher, ; De Greiff, ; Weschler, Indeed, one of the main characteristics of TRCs is that they do not have prosecutory powers, such as the power to subpoena witnesses or bring cases to trial.
Like trials, they symbolize a condemnation of the past and a break with ideology, but their assumption is that the telling of the truth will itself do justice. Forgiveness is thus intrinsic to the functioning and the philosophy of restorative justice. Forgiveness is said to be morally justified for the sake of the community. As Kader Asmal, a South African minister, has said:. We sacrifice justice, because the pains of justice might traumatise our country or affect the transition.
Social Theories and the Criminal Justice System
However, this may appear to amount to making a virtue out of necessity, since TRCs are often part of a political compromise themselves. In South Africa, the conditional amnesty clause that was included in the TRC mandate was certainly politically motivated. To that extent, justice in its retributive sense becomes the casualty of political calculations.
TRCs often come with national programs of amnesty in the name of healing and reconciliation. But those high goals are difficult to evaluate.
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Does anyone really know whether TRCs really secure the benefits of healing, catharsis, disclosure of truth, and nation building? In most cases, we cannot verify that disclosing the truth promotes reconciliation and healing. We also know that in many cases for instance, Mozambique , amnesty and amnesia may be more viable options Allen, Many victims who testified in the South African TRC said they actually experienced retraumatization, and their wounds were not healed by simply telling their stories.
In addition, many complained that the TRC did not respect the due process of law, or observe the customary rules of evidence and of deliberative procedure. Nor were the rights of the alleged perpetrators always respected, as TRCs often allow untested allegations to be made in public hearings. TRCs are caught in a paradox here: on the one hand, they must satisfy the public need for the exposure of wrongdoing, but on the other they must ensure the fair treatment of those accused of wrongdoing.
Standard laws of evidence are often relaxed within the TRC process, mainly to demonstrate the focus on victims and their healing. For instance, TRC commissioners usually rise when the witnesses enter the courtroom, visit the sites of atrocities, sing and pray with the witnesses, or participate in reburials and public rituals of remembrance. The informality of the restorative process gives the officials the ability to grieve with victims publicly.
In TRC hearings, the testimony of a witness is not considered to be a legal argument in a court, but a personal narrative, which, as such, deserves respect. Those gestures of acknowledgment are important, of course. In South Africa, they served as a proof that Black peoples' stories were worth telling and should be handled with care and respect in the public sphere. Violations of due process were thus justified by a higher need for recognition. For some, it may simply require that those who hurt them are punished:. The therapeutic discourse of restorative justice marginalizes those who demand justice, not health, or see themselves as activists more than as victims Nagy, On a more moral ground, one could give a compassionate justification for the sacrifice of justice entailed by TRCs, arguing in the name of psychological benefits and healing.
However, some argue that testifying can also reopen old wounds. The Trauma Centre for Victims of Violence and Torture in South Africa reports that between 50 and 60 percent of victims have suffered serious difficulties after giving testimony at the TRC Gutman and Thompson, For many victims, truth is a luxury that neither heals their wounds nor puts bread on their tables Daly, Moreover, it is not certain that forgiveness as such is morally desirable.
Many argue that it is not, and that to forgive the person who killed or raped a family member is immoral, and even contrary to the Christian tradition on which restorative justice often relies. The idea is that, contrary to what many people think, it is not always morally appropriate to forgive, and that the crimes should not be made easier to forget. In the end, TRCs allow a huge level of impunity, often for political reasons. De Klerk and Pieter W.
Reconceptualising the Moral Economy of Criminal Justice: a new perspective
Botha were never made accountable, and their only meeting with the TRC was frustratingly inconclusive Kiss, The work of the TRC provoked anger in many parts of the Black community, who saw security forces leaders walk free in exchange for telling their crimes, while victims were denied access to courts. The argument for forgiveness is based on the fact that it is the only way to break free from the cycle of violence: no democracy can exist if we do not let go of our hatred and resentment Tavuchis, ; De Greiff, However, one could also consider that there are ways other than forgiveness and amnesty to quell this desire for revenge.
Trials, rehabilitation measures, the building of memorials, or simply forgetting and moving on can be considered as alternative ways of dealing with revengeful passions. The enormity of some evil should call for our resolute refusal to see the people who committed it as eligible, ever again, for social trust. Indeed, a moral community is defined both by what and whom it comprehends and by what it marks as beyond the pale Walker, b: Criminal justice, as we have seen, is focused on perpetrators more than on victims.
Truth telling and restorative justice, on the other hand, are all about victims and the integration of the perpetrators and the whole community into the healing process. Indeed, the longer-term goals of TJ, such as the democratization of institutions and the rebuilding of the rule of law, will only affect victims' lives indirectly, and concern their children and grandchildren more than themselves.
To that extent, it is often considered that only material reparations can have a direct, tangible impact on victims, and that they should therefore be given a special role within TJ Meister, ; Hayner, ; Roht-Arriaza and Orlovski, They can be defined as:. Reparations represent the dawning of a new phase in the relationship between States and the groups they have historically victimized Colonomos, For many commentators, the origin of this phase lies in the post-Holocaust era Torpey, But claims for reparations have now become prominent aspects of political transitions in Latin America, Eastern Europe and Africa in the last two decades.
War, Peace and Stabilisation: Critically Reconceptualising Stability in Southern Afghanistan
Material reparations are meant to put an end to an unjust situation through the allocation of a monetary equivalent that is supposed to compensate for it. One advantage of reparation policies, as opposed to restorative justice, is that they are said to be morally neutral: the reliance on the economic dimension is a way to free the relations from an overwhelming affective and moral weight.
To that extent, reparations do achieve one of the main goals of TJ: inclusiveness, in the sense that all citizens become part of a common political project De Greiff, b. Generally, the benefits of reparations are coordinated in a holistic manner, as part of a wider TJ program that would also include prosecutions, truth telling, and institutional reforms De Greiff, b.