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Murdoch University Electronic Journal of Law |
Transcending Retributive Models Of Justice
| Author: | Vanessa von Struensee JD, MPH Attorney at Law |
| Issue: | Volume 7, Number 4 (December 2000) |
"Politicians at international forums may reiterate a thousand times that the basis of the new world order must be universal respect for human rights, but it will mean nothing as long as this imperative does not derive from the respect of the miracle of Being, the miracle of the universe, the miracle of nature, the miracle of our own existence....It logically follows that, in today's multicultural world, the truly reliable path to coexistence, to peaceful coexistence and creative cooperation, must start from what is at the root of all cultures and what lies infinitely deeper in human hearts and mind than political opinion...It must be rooted in self-transcendence. Transcendence to be in harmony even with those distance from us in time and space because we are linked to it...Transcendence is the only real alternative to extinction."
[1] Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press, forthcoming).
[2] Daly, Quintessence (Beacon Press 1998).
[3] Philosophers should have foreseen such blackouts, Daly argues, because it is a common ruling power, ruthless, political technique. In another example of de-meaning history, Daly points to the example of the "women's movement", and convincingly argues that this alleged new movement did not really start in 1969, it was actually then already part of an age old tradition, and that efforts for female liberation existed centuries before there were efforts that were oblivionized or hidden or censured by ultimately victorious political opponents. Daly's commitment to truth and to the future finds it necessary to resurrect the past, to re-mind us of it in a way to make our connection known and hence meaningful. To her, the expropriators of the past and memory, (e.g., the false memory foundation, Holocaust blackouters) who try to erase or reverse history or distort it accomplished their perpetration of demeaning with the complicity of culture and media and an apathy fostered by the imposed manufactured meaninglessness that enables an easily controlled citizenry.
[4] There appears no one feminist viewpoint on which approach to violence best serves the interests of victims, women, and the society. Martha Minow argues that feminist approaches to violence and, especially, to criminal justice push for greater retribution, including criminal prosecutions, for violence done to women, and more caring, empathic responses to women who risk criminal charges for their own conduct. This pattern is concededly inconsistent, and one approach is difficult due to the variety of women's positions and interests. Some women are the mothers, daughters, or sisters of men facing retributive justice, even as some women are the victims of male violence; some women are the victims of other women's violence. A feminist approach to atrocities requires some effort to think across circumstances, even while specifying the kinds of particularities that could or should matter in a sensitive set of responses.
[5] There is no general feminist theory for responding to violence, criminal justice, international law, or even domestic violence issues. Instead, many feminists stress the importance of attentiveness to particularity and context, even while highlighting a larger pattern of unequal power and respect on the basis of traits such as gender, race, and class. See, e.g., Martha Minow & Elizabeth V. Spelman, In Context, 63 S. Cal. L. Rev. 1597 (1990); Martha Minow, Beyond Universality, 1989 U. Chi. Legal F. 115.
[6] Tzvetan Todorov, Facing the Extreme Moral Life in the Concentration Camps, Tzvetan Todorov
[7] Annette Baier addresses the topic of violent demonstrators, including terrorists, in her work in ethics. She offers consideration for terrorists who seek to command the attention of the more powerful through rebellion against perceived wrongs. Baier asserts that it is no more difficult and no less appropriate "to forgive the terrorist who sincerely believes that he has no other effective way to make his seriously aggrieved group's case than to forgive the glory-seeking or super-security-seeking national leader in whose war one dies as a conscript or as a civilian victim." Baier views vengeance a human, common, and sympathetic passion, and cites Hume for the pointlessness of moral injunctions against violence. Seeing terrorist violence as a demonstration of power to make others feel resentment about exclusion, Baier urges inclusion "at least in the cooperative schemes we set up in order to listen to one another's grievances." Annette C. Baier, Moral Prejudices: Essays on Ethics 218 (1995).
[8] Frankl, Man's Search for Meaning.
[9] In the United States, many victim advocates have pressed successfully for adversarial trials as the proper response to a range of harms and wrongs affecting women. Thus, more vigorous criminal prosecutions of rape and incest, criminal prosecutions of rapes committed by husbands, See generally Lisa R. Eskow, Note, The Ultimate Weapon?:Demythologizing Spousal Rape and Reconceptualizing Its Prosecution, 48 Stan. L. Rev. 677 (1996). federal civil actions treating gender-based violence, including rape and abuse, as violations of civil rights, See generally Kristin L. Taylor, Note, Treating Male Violence Against Women as a Bias Crime, 76 B.U. L. Rev. 575 (1996) (discussing the Violence Against Women Act).
[10] The first example arises in the debate over whether prosecutors should adopt a "no-drop" rule in pursuing charges of domestic violence. Cheryl Hanna, for example, writes lucidly about the dilemma. See generally Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849 (1996). The drive for a criminal justice approach to domestic violence can falter, she suggests, if the victim retains control over the decision to prosecute, because of the intimidation and injuries at stake if the case is brought. Victims of domestic violence who do not want to testify against their abusers may change their stories to protect the batterers, themselves, or children in the home. Therefore, some prosecutors have experimented with "no-drop" policies that either refuse to halt a prosecution simply because the victim refuses to testify or else provides support and advocacy for the reluctant victim to enable prosecutions to proceed. See generally Donna Wills, Domestic Violence: The Case for Aggressive Prosecution, 7 UCLA Women's L.J. 173 (1997). As one prosecutor explains, "batterers must not be allowed to control justice."Yet, arguably, no-drop policies deprive or constrict the victim's choices and refuse deference to her own assessment of the safety of proceeding with prosecution. This dilemma is troublesome. See also Joan L. Neisser, Lessons for the United States: A Greek Cypriot Model for Domestic Violence Law, 4 Mich. J. Gender & L. 171 (1996). Disrespect for women's own agency is one of the central targets of feminist law reform efforts. See, e.g., Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 Colum. L. Rev. 304 (1995). Hanna argues that the societal interests in responding to domestic violence justify the potential disrespect for women's choices posed by a no-drop rule, although she also proposes techniques for prosecuting without the victim's testimony or with assistance for the reluctant victim-witness. Others argue against a no-drop policy. See, e.g., Clare Dalton & Elizabeth M. Schneider, The Unwilling Witness, N.Y. Times, Feb. 21, 1996, at A19; Linda G. Mills, Intuition and Insight: A New Job Description for the Battered Woman's Prosecutor and Other More Modest Proposals, 7 UCLA Women's L.J. 183, 185-86 (1997).
[11] Father Michael Lapsley, who lost both hands and an eye to a letter bomb sent by Apartheid forces, explains that: I realized that if I became filled with hatred, bitterness, self-pity and desire for revenge, I would remain a victim for ever. It would consume me. It would eat me alive . . . I am no longer a victim, nor even simply a survivor, I am a victor over evil, hatred and death. Father Michael Lapsley, Bearing the Pain in Our Bodies, in To Remember and To Heal: Theological and Psychological Reflections on Truth and Reconciliation 21 (Human & Rousseau: Cape Town 1996) (Interview for BBC Radio, April 13, 1994).
[12] Jeffrie G. Murphy & Jean Hampton, Forgiveness and Mercy (1988).
[13] Murphy, a defender of resentment and retribution, argues that the wrongdoer thus has not only caused injury but also communicated a message of insult, that the victim does not matter and instead deserves disrespect. Therefore, suggests Murphy, the victim properly should respond with resentment and even hatred to re-assert self-respect after the degrading put-down of the injury. A response of forgiveness risks expressing low-self-esteem or the victim's own tendency to accept the insult and become complicit in the injury. Hampton, who defends forgiveness, suggests that some may forgive without risking their self-respect in order to refrain from degrading the offender and further passing on the messages of disrespect. She urges efforts by victims to resist hatred and instead learn more about the wrongdoer as a person, while including that person in the realm of shared morality. Even for the wrongdoer who has not yet repented, forgiveness makes sense to Murphy as an act of generosity and an effort to transform the relationship between the victim and the offender. Id.
[14] Postmodernists smirk that we are all here by accident, that the universe is uncaring and oblivious and chance reclaims the nothing we signify in the end. Even if that is so on one surface level, our being is still profound. Nobel Physicist Steven Weinberg , whose work supports the random universe theory, nonetheless acknowledges that meaning is created "by loving one another, investigating the universe and doing other worthwhile things." Another scientist, Dressler, offers "The bigger and more impersonal the universe is, the more meaningful you are, because this vast, impersonal place needs something significant to fill it up." There is no contradiction between scientific findings and the profundity of the human soul. Humanity is not the center of the universe, but meaning is the center of humanity.
[15] Ten years ago in Quebec. An anti-feminist man gunned down fourteen women in a university. See Joshua Dressler, Hating Criminals: How Can Something That Feels So Good Be Wrong, 88 Mich. L. Rev. 1448, 1448 (1990).
[16] See also Dolgopol, Ustinia, Women's Voices, Women's Pain, 17 HUMAN RIGHTS QUARTERLY, 127-54 (1995). (The author was a member of an mission sent by the International Commission of Jurists to the Philippines, Japan, the Republic of Korea, and the Democratic People's of Korea to interview government officials and victims of military sexual slavery); See also Hsu, Yvonne Park, "Comfort Women" from Korea: Japan's World War II Sex Slaves and the Legitimacy of Their Claims for Reparations, 2 PACIFIC RIM LAW AND POLITICS JOURNAL, 97-129 (1993).
[17] In the context of international human rights, this approach infuses the current South African Truth and Reconciliation Commission (TRC). Charged with gathering testimony from victims, the TRC also has the capacity to grant amnesty to those who committed violence under Apartheid if they testify fully and if their offenses had a political purpose. The TRC proceeds on the hope that getting a full account of what happened and according it public acknowledgment can lay the foundations for a new, reconciling nation, rather than disturb the start of a new society with shock waves of revenge and divisiveness. In describing the TRC, Archbishop Desmond Tutu explained that, "Our nation needs healing. Victims and survivors who bore the brunt of the apartheid system need healing. Perpetrators are, in their own way, victims of the apartheid system and they, too, need healing." Archbishop Desmond Tutu, Foreword to To Remember and To Heal, supra , at 7-8. The TRC seeks to promote healing by seeking a cathartic process of truth-telling and public acknowledgment of the human rights violations under Apartheid. See Terry Dowall, Psychological Aspects of the Truth and Reconciliation Commission, in To Remember and To Heal, supra , at 27, 36; Dullah Omar, Introduction to the Truth and Reconciliation Commission, in To Remember and To Heal, supra at 24, 26. See generally William Minoru Hohri, Repairing America (1988); Eric K. Yamamoto, Friend, or Foe or Something Else: Social Meanings of Redress and Reparations, 20 Denv. J. Int'l L. & Pol'y 223 (1991); Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L.Rev. 1165 (1997).
[18] The second example of a collision between the punishment and restorative responses to violence arises in assessments of reparations for women who have suffered horrific violence. Prime Minister Ryutara Hashimoto of Japan offered a letter of apology and monetary reparations to some 500 survivors of the 200,000 "comfort women" or sexual slaves imprisoned by the Imperial Army during World War II.See Seth Mydans, WWII Rape Victim Accepts Japanese Reparation, Dallas Morning News, Dec. 13, 1996, at 61A. ) Only six of the women accepted the offer. Most others rejected it largely because the fund came from private sources rather than from the government itself. Even those who accepted the money, however, emphasized that no monetary payment could repay the horrors and humiliations they experienced from the rapes and violence. See id. In contrast, one letter writer argued that reparations would be more important than apologies. See C. Suzuki, Letter: Concentrate on Reparations, South Morning Post, Sept. 13, 1995. Some of the women--from Korea, Taiwan, China, the Philippines, and Indonesia--found what seemed to them more gratifying help when the U.S. Justice Department placed the names of sixteen Japanese individuals involved in enslaving the women for sex on a "`watch list'" of suspected war criminals barred from entering the United States. Sonni Efron, Justice Delayed 50 Years, L.A. Times, Dec. 13, 1996, at A1. Some argued that only prosecutions by the Japanese government would adequately express governmental contrition and redress the abuse. Others have supported discussion of the comfort women in textbooks as a kind of reparation through memory. The debate exists; it occurs directly in a terrain of concern to feminists. It represents a collision between prosecutorial and restorative approaches.
[19] Thus, feminist activists tend to support adversarial trials and punishment as responses to harms to women, but restorative processes to understand and reintegrate women who commit violent harms. Some feminist work also supports inclusionary restorative processes, seeking ultimately forgiveness, as responses to terrorism and other atrocities.
[20] See, e.g., Jim Consedine, Restorative Justice: Healing the Effects of Crime (1995); Criminal Justice, Restitution, and Reconciliation (Burt Galaway & Joe Hudson eds., 1990); Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (1990). It is less familiar and less institutionalized than the retributive approach. Its advocates view the adversarial trial as failing to focus adequately on victims and the task of repairing harms. Restorative justice emphasizes the humanity of both offender and victim, and repair of social connections and peace as more important than retribution see Consedine, supra, at 157-58; see also Albert Eglash, Beyond Restitution, in Restitution in Criminal Justice 91 (Joe Hudston & Burt Galaway eds., 1977); Daniel W. Van Ness, New Wine in Old Wineskins: Four Challenges of Restorative Justice, 4 Crim. L.F. 251, 258-60 (1993). Under restorative justice, repairing relationships between offenders and victims and within the community take precedence over law enforcement. See generally Mark S. Umbrieet, Holding Juvenile Offenders Accountable: A Restorative Justice Perspective, 46 Fam. Ct. J. 31 (1995). Forgiveness and reconciliation are central aspirations. Also elevated are the goals of healing individuals, human relationships, and even entire societies.
[21] The debate over no-drop policies should also be understood in light of the contrast between prosecutorial and restorative approaches to violence. Some women are reluctant to prosecute because they want to maintain loving ties and rebuild the relationship with the offender. See Christine A. Littleton, Women's Experience and the Problem of Transition: Perspectives on Male Battering of Women, 1989 U. Chi. Legal F. 23, 46-47; see also generally Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1 (1988) (emphasizing significance of maintaining personal connections in women's lives). Although for some women, at some times, this desire may reflect fear, economic and emotional dependencies, for some women, at some times, it reflects an empathic, inclusionary response to violence. Even the offender is a victim; even the offender deserves help and forgiveness.
[22] See, e.g., Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (1982); Nel Noddings, Caring: A Feminine Approach to Ethics and Moral Education (1984); Sarah Ruddick, Maternal Thinking: Towards a Politics of Peace (1989); Joan Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (1993); Robin West, Caring for Justice (1997). Stressing nurturance of human relationships, this ethic of care would seem a perfect theory to demonstrate restorative justice. The image of peaceful political expression by the Mothers of the Plaza de Mayo protesting the "disappearance" of their children in Argentina suggests a kind of political action compatible with an ethic of care. Yet, note the ultimate lack of political power in such protests.
[23] Forgiveness and reconciliation are central aspirations. Also elevated are the goals of healing individuals, human relationships, and even entire societies.
[24] See generally William Minoru Hohri, Repairing America (1988); Eric K. Yamamoto, Friend, or Foe or Something Else: Social Meanings of Redress and Reparations, 20 Denv. J. Int'l L. & Pol'y 223 (1991); Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N.Y.U. L.Rev. 1165 (1997). In the United States, restorative justice discussions have largely focused on juvenile crime and mediation of disputes, including mediation of criminal offenses, and on specific governmental grants of reparations or apology. Campaigns for reparations for the 60,000 Japanese-Americans interned in United States camps during World War II similarly, in 1988, successfully secured governmental apology and symbolic monetary payments as efforts to repair individual and social damage. The state of Florida authorized reparations in 1994 for the survivors and descendants of the town of Rosewood, Florida, an African-American town destroyed in 1923 in a racially motivated incident with the knowledge of government officials. See Martha Minow, Not Only for Myself: Identity, Politics, and the Law 90-91 (1997). The legislative effort, news coverage, and documentary movies surrounding the event helped to restore the memory of the incident and the individuals affected by it after decades of silence and suppression.
[25] In May, 1997, President Clinton offered an apology to survivors of the U.S. Public Health Service forty year study denying proven medical treatment to a group of African-American men with syphilis. See Apology Now; Vigilance, Too, Plain Dealer, May 26, 1997, at 8B. The study had sought to document the course of the untreated disease; the President acknowledged that the government's behavior was "clearly racist."(14) 14. The Tuskegee Apology, St. Louis Post Dispatch, May 21, 1997, at 6C; see also Joan Beck, Apology Can't Erase Tuskegee Horror, Experiment on Black Men Remains a Blot on American History, St. Louis Post Dispatch, May 20, 1997, at 7B. Interestingly, the President's apology occurred after a widely-acclaimed television documentary on the subject entitled "Miss Evers' Boys." John Carman, The Emmy Nominees Are--Wait, You Again?, S.F. Chron., Sept. 12, 1997, at C1. In that act of public contrition, Clinton sought to begin to restore the faith of the the survivors and other observers in the government and in medicine.(15) 15. Some have called for a similar governmental apology for slavery, while others maintain that an apology in that context would be too trivial or too late. Compare DeWayne Wickham, Why Clinton Must Stop Dodging Slavery Apology, USA Today, Dec. 16, 1997, at 15A with Bill Nichols, Should the Nation Apologize? Critics Argue Substance is Need, Not Symbolism, USA Today, June 18, 1997, at 1A. Other recent public apologies included: "British Prime Minister Tony Blair apologized for his country's role in the Irish potato famine of 1845-1851"; Australia instituted a "Sorry Day" in response to its government's long-standing policy of stealing "Aborigine children from their parents to be raised by white families and orphanages"; "Japanese Prime Minister Tomiichi Murayama apologized . . .for suffering inflicted in World War II"; id. "East German lawmakers apologized . . . for the Holocaust," after their government had denied responsibility for decades; and Pope John Paul II apologized for violence during the Counter-Reformation.
[26] This despite that we know examples of chain reactions such as World War II being linked to the effect of imposing the humiliating Treaty of Versailles, and that Turkish and Armenian relations are still poisoned because of Turkish refusal to acknowledge its past sins to the Armenians in 1915. What responses can be framed for the 120,000 murders in Bosnia, As Ronald Steel wrote: "Past injustices weigh heavily everywhere, among peoples and states, even as they weigh heavily in our personal lives. The acceptance of responsibility is the beginning of peace. Today in South Africa a traumatized people is coming to terms with the past through a truth commission that issues pardons in return for admissions of fault. The Czechs and the former East Germans have opened the files on secret informers of the Communist era and, through the personal pain this entails have begun to reach an accommodation with the past. In Chile and Argentina, the process remains incomplete, as evidenced by the current fervor over the naming of former military dictator Augusto Pinochet as senator-for-life....Violence, inequity and cruelty are as much a part of our human condition as are charity, love and forgiveness. We live all our lives, and through every generation, with this terrible tension. But it is also a part of our condition to try to surmount our worst instincts and though honesty to seek a from of healing...If the Croats could ...[do]...this to the Serbs, and the Serbs to the Bosnians and the Kosovars, then even their troubled land might begin to heal itself.
[27] Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Clarendon Press 1997), p. 110; see also Theodor Meron, "International Criminalization of Internal Atrocities", 89 Am. J. Int'l L. (1995), pp. 554, 558; Restatement (Third) of Foreign Relations Law, §702, comment n.; Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-718 (9th Cir. 1992), cert. denied, 507 U.S. 1017 (1993)). See Submissions to be made by the Republic of Chile if leave to intervene is given, R. v. Metropolitan Stipendiary Magistrate, ex parte Pinochet, House of Lords, 13 January 1999, In the Matter of an Application for a Writ of Habeas Corpus ad Subjicendum (Re: Augusto Pinochet Ugarte) and In the Matter of an Application for Leave to Move for Judicial Review between: The Queen v. Nicholas Evans et al. (Ex Parte Augusto Pinochet Ugarte; House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Other (Appellants), Ex Parte Pinochet (Respondent)(On Appeal from a Divisional Court of the Queen's Bench Division); Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others (Appellants), Ex Parte Pinochet (Respondent) (On Appeal from a Divisional Court of the Queen's Bench Division) (No. 3), Judgment of 24 March 1999 (retrieved from the Internet on 25 March 1999 at the following site: http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm)[hereinafter Ex Parte Pinochet (HL 2)].
[28] In the world of international human rights, the development of a litigation framework marks for many the proud accomplishment of the past and the aspiration for the future. Thus, the Nuremberg and Tokyo war crimes trials following World War II stand as the important human rights innovations. The current efforts to prosecute individuals for crimes committed in the former Yugoslavia and in Rwanda revitalize and extend the earlier experiment in ways that move the world ahead on the course toward articulate and enforceable human rights. Domestic trials brought against former Nazis, such as Klaus Barbie and Adolf Eichmann, futher implement the vision of human rights, enforced by law. Similar triumphs are trials against those who authored and implemented the Dirty War in Argentina, the tyrannies of Eastern Europe, and torturers around the world.
[29] See Rhonda Copelon, Gendered War Crimes: Reconceptualizing Rape in Time of War, in Women's Rights, Human Rights: International Feminist Perspectives 197, 198 (Julie Peters & Andrea Wolper eds., 1995). Recently, Jadranka Cigelj and Nusreta Sivac, among others, pressed for the landmark indictments of Serb officials for the unprecedented charge of rape as a weapon of war and crime against humanity. See, e.g., Gayle Kirshenbaum, Women of the Year: Jadranka Cigelj and Nusreta Sivac, Ms. Mag., Jan./Feb. 1997, at 64. Attaining those indictments against officials who ran Omarska, the notorious prison camp in the former Yugoslavia, is itself a landmark in the trial-based vision of justice following mass atrocities. Even though actual arrests and prosecutions have been slow in coming--and may not actually occur in many of the most heinous instances--the steps of legal analysis and accomplishment involved in the indictments are real and worthwhile precedents for the future. The mission of articulating and protecting human rights is advanced by recognizing that genocidal or ethnic cleansing rape has been practiced specifically "to drive women from their homes or destroy their possibility of reproducing within and `for' their community." Copelan, supra note , at 205. Similarly, human rights groups have identified sexual violence during the Rwanda Genocide and its aftermath as a crucial target for human rights initiatives. See generally Human Rights Watch et al., Shattered Lives: Sexual Violence During the Rwandan Genocide and Its Aftermath (1996). They document deliberate propaganda efforts used to exploit and inflame ethnic tensions. One particular technique portrayed Tutsi women as both attractive and dangerous. Testimony by survivors of the genocide suggest that the assaulting Hutus perpetrated rapes and sexual abuse of Tutsi women and girls in systematic ways. Rather than the behavior of individual soldiers who lost control, the rapes and sexual slavery should be viewed as war crimes or violations of other legal protections.
[30] Science and technology demonstrate that knowledge and the technological complex will be a central power of the future. The capital of human knowledge is remarkable and will be linked to a revolution of cultural movements forcing fast paced changes in values and ethics. These technological advances, such as bioengineering and the internet, are viewed as both a dangerous threat or as the greatest hope for realizing democracy, liberty, community and self- enhancement. As Edward Cornish, president of the World Futures Society wrote in a report entitled "The Cyber Future" "Progress always creates new problems...when you change one element in a system, you suddenly discover there are alot of things out of joint, that don't fit so well." So, the only solution is to keep progressing, and inclusive human development achieves that, most obviously through education, and freedoms of thought, expression and guarding the dignity of humanity. The technological complex must be shared and our societies must train for democracy, human development and adaptation to change.