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Roads to reconciliationDr Mark Byrne*A version of this paper was published as Uniya-JRS Occasional Paper, no.9, September 2005
Transitional and restorative justice Transitional justice has been defined as the pursuit of “accountability for past mass atrocity or human rights abuse... in societies emerging from repressive rule or armed conflict, as well as in established democracies where historical injustices or systemic abuse remain unresolved.”[2] Countries with unhealed historical wounds may, by this definition, have something in common with those emerging from war and/or oppression. In the past, transitional justice processes have mostly been based on a retributive framework[3] motivated by concerns for accountability, punishment and rehabilitation (the Nuremberg trials of Nazi war criminals being the most famous example). However, retributive justice is usually adversarial, expensive and time-consuming. In addition, it may not lead to the uncovering of truth; contrition on the part of offenders; justice for victims; or the healing of individual or communal wounds. Recent transitional justice processes have therefore increasingly been based on a restorative justice model, which “emphasises repairing the harm caused or revealed by criminal behaviour... through cooperative processes that include all stakeholders.”[4] The idea is to bring victims and offenders together, giving perpetrators the opportunity to admit their crimes while victims are afforded the opportunity to tell their stories. Some perpetrators are moved to express remorse, while some victims come to forgive their perpetrators. Restorative measures are adapted to local conditions and include forums for victims to confront offenders, the use of customary law and the payment of reparations.[5] South Africa As South Africa made its “long night’s journey into day”[6] following the end of apartheid rule in the early 1990s, it set up a Truth and Reconciliation Commission (TRC) “for the investigation and the establishment of as complete a picture as possible of the nature, causes and extent of gross violations of human rights committed”[7] between 1960 and 1994.[8] Between 1996 and 1998 the TRC took statements from more than 21,000 victims documenting allegations of over 38,000 human rights crimes, including 10,000 murders. There were more than 8,000 applications for amnesty from prosecution (although only a small minority of these were approved).[9] The hearings gave victims the opportunity to speak in public and have their grief and anger heard by perpetrators and the nation. It enabled a new era of South African history to be built on the foundations of a human rights culture and truth about the past, so that the crimes of apartheid could never be denied (as has sometimes happened with the Holocaust). Nevertheless, the TRC has been widely criticised for two main reasons. First, reparations to survivors and the families of victims were generally regarded as inadequate and have been slow to materialise. Second, offenders were guaranteed amnesty from prosecution if they agreed to appear before the TRC and tell the whole truth. Some victims — most notably the wife of murdered activist Steve Biko — took the TRC to the nation’s highest court (unsuccessfully) on the grounds that it had taken away their right to seek justice.[10] Mere confessions were not enough: many also wanted contrition and some demanded punishment. In this respect the TRC’s hands were tied. The amnesty guarantee was part of the deal made in 1994 between the African National Congress and the apartheid government of F. W. de Clerk that led to the elections which ended the era of white rule.[11] This compromise resulted in the addition of a postamble to the 1994 Interim Constitution which articulated “a need for understanding but not vengeance, a need for reparation but not retaliation, a need for ubuntu [humaneness and community interdependence] but not victimization.”[12] The TRC was therefore intended from the outset to be an exercise in restorative rather than retributive justice.[13] As TRC Chairman Archbishop Desmond Tutu saw it, restorative justice “is concerned not so much with punishment as with correcting imbalances, restoring broken relationships — with healing, harmony and reconciliation.”[14] Central to Tutu’s vision for the TRC were two principles: the healing power of truth and memory, and forgiveness as an alternative to revenge. Hearings were held under a banner that read “Truth: the road to reconciliation.”[15] In one hearing Tutu stated that “This process is not about... persecution... It's about getting the truth, so that we can help to heal...”[16] For victims and offenders, black and white, having the opportunity to remember and confess their crimes or express their pain in a supportive environment was thought to help the healing process — whether or not it was accompanied by contrition on the part of offenders, their prosecution and punishment under criminal law, or reparations for victims. Offenders were not asked to do anything other than tell the whole truth. Instead, Tutu spoke of “substituting forgiveness for revenge and reconciliation for retribution.” [17] Forgiveness, he says, is “the best form of self-interest, because I’m also releasing myself from the bonds that hold me captive”.[18] At TRC hearings victims were sometimes encouraged to forgive their offenders, even in the absence of contrition. As well as helping victims to come to terms with their grief, forgiveness was believed to be helpful to national reconciliation.[19] While this encouragement sometimes worked quite powerfully, other victims felt it to be forced, false, or offensive to their grief.[20] Although there had been earlier truth commissions, South Africa’s TRC gave the world a legacy of establishing truth as the foundation of reconciliation, the critical role of public hearings, the importance of cultural concepts such as ubuntu, and the healing power of forgiveness. However, it also emphasised the need for other transitional justice processes to consider the relevance of criminal trials; to implement a range of restorative justice measures other than forgiveness; to balance the needs of individuals and the community; and to offer appropriate reparations to victims. Timor-Leste Some of the shortcomings in South Africa’s TRC were recognised
in the transitional justice processes that have taken place in Timor-Leste
since the UN intervention following the vote for independence from
Indonesia in August 1999. While there has been no demand for, or
offer of, reparations from Indonesia, the amnesty problem was theoretically
solved by having minor crimes committed during the period of Indonesian
occupation between 1975 and 1999 handled without prosecution by
the Reception, Truth and Reconciliation Commission (CAVR in its
Portuguese acronym). Allegations of major crimes committed in 1999
(rape, torture, murder, war crimes and crimes against humanity)
would be referred to the Serious Crimes Process (set up by the UN
in 2000) for possible prosecution. However, the outcomes have been,
if anything, less satisfactory in Timor-Leste than in South Africa.
The CAVR process[21] is generally regarded by East Timorese and international observers as a qualified success. It had community legitimacy and involvement; more than 1400 cases involving less serious crimes committed in the context of past political conflicts between 1974 and 1999 were resolved through Community Reconciliation Procedures involving community service and/or customary law;[22] and it is said by some to have helped to create a climate conducive to the return of East Timorese refugees (including former militia members) from West Timor.[23] Nonetheless, CAVR’s success was qualified because it favoured the need for repatriated militia members to be reintegrated into the community over the needs of individual victims for justice. It was also criticised for re-opening painful wounds without resolving them; for raising unfulfilled expectations about justice for more serious crimes; and for the leniency of many reconciliation acts.[24] Although it resulted in 391 charges for murder and 75 jail terms, the Serious Crimes Process is universally regarded as seriously flawed. It lacked legitimacy and local ownership. It had no mandate to investigate human rights abuses prior to 1999. It was insufficiently resourced and it had no jurisdiction to bring to justice the great majority of the accused: Indonesian military (including General Wiranto) and civilian leaders and East Timorese militia leaders now living in Indonesia.[25] The failure of the serious crimes process also undermined the limited success of the community reconciliation process, since only the “small fish” were caught in the net of justice. Neither could the people of Timor-Leste rely on the Indonesian legal system to bring the perpetrators of the 1999 violence to justice. Only sixteen people were charged by the Ad Hoc Human Rights Court in Jakarta, resulting in eight convictions. On appeal the convictions of all six Indonesian military officers were quashed, leaving only the two convicted East Timorese civilians to face jail terms. Even these two men, former Governor Abilio Soares and militia leader Eurico Gtuerres, are now free. Since the 1999 referendum, East Timorese leaders have expressed ambivalence about the need to achieve justice for past crimes while also rebuilding the country and establishing good relations with Indonesia. For instance, President Xanana Gusmao has spoken of the need to achieve social rather than criminal justice. He has also argued that a focus on war crimes trials and prison sentences would divert attention and resources away from the work needed to improve the everyday lives of the people.[26] The most obvious manifestation of this ambivalence is the new Commission for Truth and Friendship (CTF) which was negotiated between Timor-Leste’s leaders and Indonesia. Like South Africa’s TRC, the CTF will have the power to grant amnesties but not to prosecute alleged offenders. Gusmao described the CFT as a “mammoth task to seek truth not retribution.”[27] Yet critics argue that the truth about what happened in 1999 is already largely known, and the amnesty guarantee means that the perpetrators of the violence will escape prosecution forever.[28] This is not what the UN Security Council intended when it demanded in 1999 that “all those responsible for such acts [of violence] be brought to justice”.[29] Accordingly, UN Secretary-General Kofi Annan sent a Commission of Experts to Dili and Jakarta in May 2005 to recommend what further action needed to be taken. Their report recommended that Indonesia be given six months to prosecute those of its citizens implicated in human rights violations in 1999 or face the establishment of a UN war crimes tribunal.[30] The governments of Indonesia and Timor-Leste rejected the report shortly before the CTF opened in August 2005. As in South Africa, a charismatic leader who had made peace with his oppressors inspired the reconciliation process in TimorLeste. Forgiveness of past crimes is as important for Gusmao as it was for Mandela and Tutu. In her autobiography, TimorLeste First Lady Kirsty Sword Gusmao told of a public meeting where many people spoke of their wish to see perpetrators of violence punished. Gusmao was “a little sad” that so many wanted retribution, until an old man with disfigured hands and arms spoke movingly and with a powerful message:
This public meeting was held in November 1999. We do not know how long it took the old man to come to a place of acceptance regarding “this crime... committed many years ago”. At the time of this meeting, many of the crimes committed against the Timorese people were barely a month old. As in South Africa, there was a gulf in Timor-Leste between the spirit of reconciliation promoted by a charismatic leader and some victims’ need for retributive justice. Lessons for Australia Like South Africa and Timor-Leste, Australia is a nation still trying to come to terms with a history of one group being oppressed by another.[32] To see ourselves as we have seen these other countries in the recent past — as fractured or wounded and in need of healing — would be a significant step on the road to reconciliation.[33] The truth commissions of South Africa and Timor-Leste also remind us that uncovering the past is the bedrock of reconciliation.[34] As in our personal relationships, it is difficult to come together if we cannot agree on what has torn us apart. While polls show that most Australians agree that Aboriginal people were mistreated in the past,[35] the nature and extent of this mistreatment has been the subject of much debate in recent years.[36] Neither is it enough to face the truth about the past and then expect to simply “move on.” Reconciliation usually requires justice as well as truth. The more effective the application of restorative justice processes, the less need there may be for retributive justice. For instance, public expressions of sorrow and contrition for past mistakes — or at least recognition of past injustices — can be effective parts of the healing process as long as they are sincere and are not substitutes for practical measures. More public education may also help to distinguish between remorse and responsibility, so that people today do not feel they are being asked to take on the sins of the past if they are asked to say sorry.[37] And reparations (such as for the Stolen Generations) may be a valid element of restorative justice mechanisms in Australia as elsewhere.[38] This brings us to the vexed issue of forgiveness. Just as some victims in South Africa and Timor-Leste were not ready to forgive their attackers, so we should not expect Indigenous people in Australia to “forgive and forget” the past just because they may be benefiting from practical programs to improve health, housing, employment, education and the like. As Indigenous leaders have said repeatedly, both practical and symbolic measures are important[39] — as is what has been called “substantive” reconciliation or the “rights agenda,” including land rights, political representation, and a formal treaty or agreement to place relations between Indigenous and non-Indigenous Australians on a legitimate legal and moral basis.[40] A final lesson concerns the importance of leadership. Because Mandela and Gusmao emerged from long periods of imprisonment without harbouring resentment against their oppressors and were able to speak of the need for peace and tolerance, they served as powerful examples of reconciliation for their people. In Australia, by contrast, no political, Church or community leader — black or white — has been willing and able to galvanise public support for reconciliation.[41] In the absence of national leadership, in 1997 Indigenous leader Pat Dodson called for a “people's movement for reconciliation.”[42] The people responded: nearly a million voted with their feet in the bridge walks of 2000, and many local reconciliation groups sprang up around the nation. Since then, though, the movement has gradually stagnated in the vacuum of political and moral leadership. Conclusions On the one hand, as East Timor researcher Lia Kent points out, there are no universal blueprints
Yet in seeking to move from conflict to harmony there are basic human needs and processes, such as the need to uncover the truth in order to grieve properly and the roles of remorse and reparations in mitigating calls for retribution, that are shared by different people and cultures.[44] Applying these insights to the Australian context is made difficult by the relatively small proportion of Indigenous Australians and the length of time the nation has been working with these issues. Nevertheless, there is cause for hope. The work of oral and other historians and government inquiries is helping to uncover more of the truth about our past. The bridge walks, Sorry Books, Sea of Hands and the patient work of local reconciliation groups remind us that restorative justice can take many forms and can even be joyful and spontaneous. The plethora of agreements made over recent decades in relation to land rights and land use are creating a culture of agreement-making that eventually may lead to a formal treaty or agreement establishing European settlement and the place of Indigenous people on a legitimate legal and moral basis. The generous spirit of most Indigenous people in seeking to reconcile without rancour or revenge is a source of inspiration. We look forward to a time when effective national leadership also emerges on this issue, and the relationship between Indigenous and other Australians becomes a source of pride rather than shame.
Thanks to Suganthi Singaraya, Lia Kent, Fr Michael Lapsley, Minh Nguyen, Sr Patty Fawkner and Sr Margaret Press for their comments on drafts of this paper. *Dr Mark Byrne is Project and Advocacy Officer for Uniya Jesuit Social Justice Centre.
[1] These countries were chosen because the South Africa’s TRC has been a model for other transitional justice processes, while Timor-Leste provides a current case study close to home in which there has been Australian participation. [2] From the website of the New York-based International Center for Transitional Justice (ICTJ) (www.ictj.org, June 23 2005). Transitional justice can be implemented through a variety of processes including truth commissions; criminal prosecution of perpetrators of serious crimes; community reconciliation processes between perpetrators of minor crimes and their victims; reparations or other measures to compensate victims; and structural changes (to legislation, institutions and employment practices) to reduce the likelihood of similar conflicts recurring. [3] The Nuremberg trials of Nazi war criminals are the most famous example. [4] Restorative Justice Online (www.restorativejustice.org, July 1 2005). [5] However, the use of restorative justice processes is regarded by many advocates of transitional justice as inappropriate to large-scale human rights abuses and serious crimes. Proponents of this view argue that criminal trials bring about better outcomes by promoting the rule of law and deterring future human rights abuses, among other things. For instance, according to the ICTJ, “Criminal justice is an essential part of an integrated response to massive human rights violations, and should be pursued whenever possible.” (www.ictj.org, July 18 2005)
Others question “whether criminal trials are a desirable or useful means of social reconciliation or healing.” In theory, there is little reason why similar outcomes could not be achieved by well-designed and managed restorative justice processes, although to date this has not happened in the cases of political and/or military leaders accused of war crimes and human rights abuses (Llewellyn & Howse, op. cit.). On the application of restorative justice to war crimes, see, eg., Laura Stovens, When the enemy comes home: Restoring justice after mass atrocity. Restorative Justice Conference, Vancouver, June 1-4, 2003 (www.sfu.ca, July 18 2005). [6] To quote the name of a documentary about the TRC: see http://irisfilm.igc.org (July 10 2005). [7] From the preamble to the Act (www.doj.gov.za, July 10 2005). [8] The TRC carried out its mandate through three committees: Amnesty, Reparation and Rehabilitation, and Human Rights Violations. [9] According to Amnesty International’s 2003 report Truth and Justice: Unfinished Business in South Africa, “By June 2001, when the [Amnesty] Committee was closing its operations, it had granted amnesty or immunity from prosecution to a total of 1,160 people from 7,094 applicants.” (http://web.amnesty.org, August 10 2005). [10] See, e.g., Heidy Rombouts , The Legal Profession and the TRC: A Study of a Tense Relationship. Research report written for the Centre for the Study of Violence and Reconciliation, February 2002 (www.csvr.org.za, August 10 2005). [11] As a press report put it in after the TRC finalised its work in 2003,
Thus the preamble to the Act continues:
[12] South Africa, Interim Constitution (Old) (www.oefre.unibe.ch, July 10 2005). The spirit of ubuntu is apparent in the comment of former South African Communist Party President and white anti-apartheid activist Joe Slovo, whose wife was killed by government agents: “…the best revenge… that I can think of for those men who murdered my wife, is that they be made to live in peace in a system that they had fought so brutally against”, (Gillian Slovo, Making history: South Africa’s Truth and Reconciliation Commission. openDemocracy 5 December 2002, 3 [www.opendemocracy.net, July 1 2005]). [13] Bronwyn Leebaw, The South Africa Truth & Reconciliation Commission (http://irisfilms.org, July 1 2005). [14] Quoted in Maggie Helass’s review of Russell Daye, Political Forgiveness (http://jmm.aaa.net.au, July 1 2005). [15] Another slogan adopted by the ANC during this period was “Revealing is healing”, (Slovo, op. cit., 3). [16] In another hearing Tutu attempted to comfort the mother of a black youth killed by white security forces by saying, “We hope that the Lord will support and comfort you and strengthen you, because we don’t have any more ways to comfort you”, (interviewed in the documentary Long Night’s Journey into Day [www.irisfilms.org, July 1 2005]). [17] Quoted in Maggie Helass’s review of Russell Daye, Political Forgiveness (http://jmm.aaa.net.au, July 1 2005). [18] No forgiveness, no future: An Interview with Archbishop Desmond Tutu. US Catholic (www.uscatholic.org, July 1 2005). [19] Tristan Anne Borer, Reconciling South Africa or South Africans? Cautionary Notes from the TRC. African Studies Quarterly Vol 8, No 1, Fall 2004, 20-38, passim (www.africa.ufl.edu, July 11 2005). [20] This split is reflected in an incident reported by Fr Michael Lapsley, a New Zealand-born Anglican priest and former anti-apartheid activist who suffered serious injuries after opening a letter bomb sent by security forces in 1990 and is now Director of the Institute for the Healing of Memories:
Fr Lapsley explains that “People have been given the impression, especially by the Church, that forgiveness is something glib and cheap and easy, while most find it costly, painful and difficult — but liberating when it does happen.” (pers. comm.) The question for us is what is needed to get to a place of genuine forgiveness, and whether formal reconciliation processes that offer amnesty from prosecution in order to advance the cause of national reconciliation help or hinder a necessarily long and complex psychological, cultural and spiritual process in which victims and survivors express an understandable desire for retributive justice. Gilian Slovo also reports that:
[21] UNTAET regulation 2001/10 specified the following principal objectives for the CAVR:
[22] “In particular, the CRP sought to build on the concept of nahe biti (lit. stretching, rolling the mat), which involves a process of meeting and discussion in order to seek consensus amongst opposing parties.” Kent, op. cit., 9. [23] See Fausto Belo Ximenes, The Unique Contribution of the Community-Based reconciliation Process in East Timor. Judicial System Monitoring Program, Dili 2004, 18. (www.easttimor-reconciliation.org, July 13 2005). However, other commentators disagree. For instance, according to the Lia Kent, “This was one of the rationales for establishing the CAVR but I don't think there is any evidence to suggest that anyone returned from West Timor because of the existence of a reconciliation process” (pers. comm.). [24] Kent, op. cit., passim. (www.jsmp.minihub.org, July 13 2005). [25] For a critique of the Serious Crimes process, see Judicial System Monitoring Programme & Amnesty International, Justice for Timor-Leste: The Way Forward (www.jsmp.minihub.org, September 14 2005). [26] For instance, according to the CAVR website,
[27] East Timor - justice denied? ABC Asia Pacific - April 6, 2005 (www.asia-pacific-action.org, July 4 2005). [28] See, e.g., Truth Known, East Timorese Need Justice: Accountability for Rights Crimes Remains an International Responsibility. Common Dreams Progressive Newswire, March 9 2005 (www.commondreams.org, July 13 2005). [29] See www.un.int/usa/sres1264.htm (July 14 2005). [30] An executive summary of the COE report can be found at www.etan.org (July 13 2005). [31] Kirsty Sword Gusmao, A Woman of Independence: A story of love and the birth of a new nation. Sydney, Pan Macmillan Australia, 2003, 285. [32] It is tempting to use the term “post-conflict”, except that in Australia the conflict continues. [33] It would, however, require a cognitive leap that may be difficult for many Australians to make, given the invisibility of Indigenous people to most urban Australians, and the evidence of opinion polls that the majority of Australians have no desire to dwell on the past (see, e.g.,Newspoll, Quantitative Research into Issues Relating to a Document of Reconciliation, 2000, e.g., 9-10). [34] See note 33 above. [35] See, e.g., Newspoll 2000, 9. [36] On the ambivalence of most Australians towards acknowledging the past mistreatment of Indigenous people, see Newspoll 2000, 10. On the “history wars”, see Stuart Macintyre and Anna Clark, The History Wars. Melbourne, Melbourne University Press, 2003. [37] Whether or not they bear responsibility through their continued, if often unwitting, involvement in systems and practices that perpetuate injustice is another matter. [38] This has been raised in respect of the Stolen Generations and stolen wages. See, e.g., Andrew Gunstone, The formal Australian reconciliation process: 1991-2000. Paper prepared for the National Reconciliation Planning Workshop, Old Parliament House, Canberra30-31 May 2005, 4 (www.reconciliation.org.au, July 10 2005), 5, and the ANTaR Stolen Wages campaign (www.antar.org.au, July 18, 2005). [39] As former Senator Aden Ridgeway put it, “"We blackfellas can walk and chew gum at the same time… We can operate many agendas and work on many fronts, just like the rest of Australia." Quoted in Michael Gordon, Moving Forward, The Age, May 28 2005 (www.theage.com.au, June 24 2005). [40] See Gunstone, op. cit., 4. [41] The high point of reconciliation rhetoric probably came with Prime Minister Paul Keating’s Redfern speech in 1993, but Keating was ahead of public opinion at the time. For the text of Keating’s Redfern speech, see www.australianpolitics.com (July 13 2005). [42] See Patrick Dodson, Reconciliation at the Crossroads. Address to the National Press Club November 28 1997 (http://kirra.austlii.edu.au, September 26 2005). [43] Lia Kent, personal communication. [44] This commonality is reflected, for instance, in the Catholic sacrament of penance and reconciliation; by techniques of conflict resolution (including victim conferencing); and even in literature. The sacrament of penance and reconciliation moves from Contrition through Absolution to Penance. More specifically, it starts with an acknowledgement of wrongdoing. This is followed by sorrow or contrition; public articulation or acknowledgement; absolution or forgiveness; the purpose of amendment (i.e., the intention to live better); and finally penance or restoration. One cannot simply move from truth (step 1) to reconciliation (step 6). This is a summary of the Church’s teachings on the sacrament of penance and reconciliation from the Catechism (see, e.g., www.usccb.org/catechism, July 10 2005. See also the document Reconciliation and Catholic Social Teaching on the Education for Justice of the Center of Concern, www.coc.org/ej/cst/sac.html, July 11 2005). Thanks to Andrew Hamilton SJ for elucidating this teaching for me. These insights also concur with the process of conflict resolution, a micro-example of restorative justice in which both sides are encouraged to “speak their truth” while respecting the other’s point of view as a precursor to finding ways to work together for a mutually acceptable solution. See, e.g., Personal Courage and Conflict Resolution at Work: Conflict Resolution Steps http://humanresources.about.com (August 10 2005). A similar logic can also be found in literature, as Marina Warner has shown:
Marina Warner, Sorry: The present state of apology. openDemocracy, November 11 2002 (www.opendemocracy.net, July 14 2005).
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