On the day that the Foreign Relations Committee voted to call the Armenian genocide a “genocide”, it is perhaps even more fitting to talk about restorative justice and human rights. As promised last week, I wanted to report on Carrie Menkel-Meadow’s talk at Marquette. Carrie’s talk was entitled Cultural Variations in Restorative Justice: Case Studies of Chile, Argentina & China and was based on her travels over the past year in each of these countries and witnessing some of the restorative justice programs on the ground. As Carrie noted, restorative justice faces numerous challenges when it is implemented around the world. These challenges include whether to focus on the past versus the future; the need for cultural variation (is the community more interested in locating blame, do the people tend to have “collective amnesia”, etc.); variations in individual needs (some are more interested in telling their story, others would prefer to not talk at all); where to focus justice–individually or for all; and how to work the jurisdiction of these programs between international, national or hybrid tribunals.
In Carrie’s specific reporting about the differences between Chile & Argentina, it was clear that all of these challenges were often resolved quite differently even when, to a U.S. audience, it might appear that the story of military dictatorship and human rights violations were similar. In fact, given the different needs of the population, the different governments post-dictatorship, different ethnicities of victims, and different histories, it is easy to understand why the two countries handled restorative justice programs as they did. Carrie’s talk is not yet published but I am sure will provide an interesting follow-up to her earlier work in the area.
Two weeks ago, I spoke at the first Marquette Human Rights Conference that is being hosted by our new Human Rights Initiative and also focused on restorative justice as it operates after human rights violations. First, as we have clearly seen, justice (trials) without healing does not work. While there were trials after World War II dealing with Japanese war crimes, the lack of truth-telling (compared to Germany where almost every schoolchild visits a concentration camp) continues to haunt relations with their neighbors. Bosnia may well turn out to be our more current example. Although there have been prosecutions in the International Tribunal for the Former Yugoslavia, there is little recognition of fault among the very separated ethnic populations. We clearly need prosecutions but these alone without dialogue or reconciliation are insufficient.
On the other hand, healing and truth-telling without justice does not work either. (And in restorative justice, justice may mean both legal justice and a change in the circumstances that caused the violations.) Truth commissions in Central and South America are the best example of truth without justice. Investigations and reports were made and victims could tell their story but, in some cases, amnesty was granted literally the day the report was released. Even in South Africa, studies have shown that favorable opinions toward the Truth & Reconciliation Commission (the gold standard of international restorative justice) are dependent on a change in the victim’s economic status. We need both justice and healing. The irony might be that in Rwanda–where we have had international prosecutions, domestic prosecutions and use of the more traditional gacaca courts with much criticism for the backlogs and overlap–we might come closest to providing both truth and justice for the victims of that genocide.
As we move forward to implement restorative justice in other venues, there are some common issues to remember. As Carrie noted in her talk, one size does not fit all—we know that culture and history need to be taken into account. I would add that the appropriate process might also depend on what type of human right violations occurred, who committed them, and who is in power now. Furthermore, as I have outlined in an article regarding peace in the Middle East, we need both internal and external commitments to the process. Internally, or domestically, when the government wants to move forward (or needs to move forward) in order to maintain a fragile democracy or its own credibility, the truth will be less valued. Similarly, when the population wants to move on (what Carrie noted as the collective amnesia in Chile), the truth will also be less valued. For a process in which both justice and healing occurs, one needs a government who is interested in doing both–and that might take several post-conflict governments to get there.
We also need external commitment to the process. Too often neighboring countries or the international community might make the right noises but then undermines the process as it proceeds. If the neighboring country is not supportive, it could refuse to hand over suspects (as in East Timor and Indonesia) or be seen as a haven for the human rights violators (as in the Congo where the Hutu are still camped out among the local population and destabilizing that country). The international community also needs to financially support the process. Both courts and truth commissions need money to do their jobs, to research the violations, and to get the stories of the victims–which often means going to the people rather than sitting in the capital city.
One last note on restorative justice–we may need a little patience. We (the outside world) want to come in and fix the situation but the fix might take as long as or longer than the causes of the violations took to erupt. The prosecutions today in South America remind us that justice delayed might not always mean justice denied.