Restoring Justice

On the night of November 19, 1981 someone removed Griffiths Mxenge's ears. Mxenge was a lawyer and a political activist in Durban, South Africa. He divided his time between defending opponents of apartheid in court and working to free Nelson Mandela from prison. The man who ordered Mxenge's brutal murder was Dirk Coetzee.  When apartheid finally collapsed in 1994 Coetzee was a wanted man. As commander of a vicious counterinsurgency unit he had perpetrated a number of crimes against innocent civilians. But nearly sixteen years after Mxenge was killed the man behind his slaying was granted a full amnesty; his crimes had been forgiven in exchange for the truth.

While hybrid courts were a step in the direction of allowing post-atrocity societies ownership over their healing processes it was just a tiny step. As Westerners we are conditioned to accept that there is only one type of justice-that which is meted out by a person with a gavel and black robe. But justice can have many faces, and not all of them wear a scowl.

Criminal justice is a form of retributive justice. Its purpose is to punish the criminal and in doing so deter future criminal acts. Restorative justice, on the other hand, sees the community, not the individual, as the victim. It seeks to engage both the victim and the accused to work together in finding a peaceful reconciliation.

In recent years there has been a cottage industry of restorative justice institutions, the most famous of which is the South African Truth and Reconciliation Commission. Similar commissions were established in Timor Leste, Guatemala, Liberia and many other countries. There is a good reason for this movement towards truth and reconciliation commissions. Restorative justice can accomplish things retributive justice cannot. For example, courts such as the ICTY or even the ECCC do not provide a reliable historical record. In fact, as Fabrice Weissman points out much more convincingly-

The discourse of criminal justice understands historical events strictly in terms of the crimes they have engendered. Its view of conflicts is that of chaos and generalized crime. It offers no analysis of the causes of violence, but only judgment and condemnation of its perpetrators - an ahistorical judgment based only on the objective rationality of the law.

Those accused of genocide or war crimes in front of international tribunals are under no obligation to admit their guilt or even accept the version of the events that the court has accepted. Former Bosnian Serb leader Radovan Karadzic not only claims he was offered an immunity deal, but also has taken it upon himself to prove that the massacre at Srebrenica was a Western conspiracy. Dirk Coetzee was granted an amnesty by the TRC partly because he told the story of his paramilitary unit. He assisted the Commission in shedding light on the dark corners of South African history and in a way he was rewarded.

Restorative justice also demands that the entire truth be told, not just the victor's version. The TRC was praised for examining not just the crimes of the apartheid-era government, but also those of the ANC. In comparison, the ICTR has been criticized for ignoring human rights violations carried out by Paul Kagme's RPF during the Rwandan genocide.

A radical form of restorative justice can be found in blanket amnesties, such as the one granted to all combatants in the Mozambican Civil War. All crimes were forgiven and society returned to peace again. Helena Cobban writes-

"In the Mozambican provincial town of Belavista, the whole group of seven civil society leaders with whom I talked in 2003 completely dismissed the notion that people who had committed violent acts during a war could, or should, be punished for those actions. That group included, notably, two men on the staff of a nationwide human rights organization. ‘In civil wars, terrible things happen' was the general view expressed by these men.

I heard exactly the same sentiments expressed by just about all the Mozambicans I interviewed. In 2003, I talked with Afiado Zunguza, the executive director of the church-related organization Justapaz...[h]e said that in traditional Mozambican society the reaction of respected elders to this would be to say: ‘Pointing fingers won't help. Perpetrators are a part of us. We believe they didn't want to go to war. They are our sons, and we want them back. To accuse them would mean that they would continue to be bandits.'"

The past is monumentally important. We must never forget the graves in Dachau or Dili or Choeung Ek, but we cannot live in the past nor can we alter it. In order to be able to exist in the present, in order to stifle the same hate that lead to these horrible crimes and to prevent them in the future, we have to engage with war criminals and genocidaires . This is perhaps the most important of restorative justice-that healing can come through forgiveness.