Transitional justice as a discipline has several decades of experience to draw on to inform and shape its practices. This track record underpins the analysis in this section of several post-transition societies, identifying particular factors that may have been key in triggering shifts from transition-era settlements towards fuller post-transitional accountability.

The authors in this section share the premise that the achievement of ‘posttransitional justice’ requires that citizens perceive the justice processes as legitimate. They explain that this legitimacy can be achieved through demanding ‘accountability’ for politically motivated human rights abuses and through pursuing truth recovery processes. The authors review experiences of pursuing accountability for ‘the crimes of the past’ in the post-transitional societies of Latin America, Central-Eastern Europe and South Africa – highlighting the different trajectories that have led them to reconsider transitional justice processes long after the transition has ‘officially’ ended.

This commentary highlights the most compelling and contentious elements of each chapter, then turns to offering a critical perspective on the overarching theme of accountability explored in this section. Against the background of these chapters, this commentary argues that accountability understood as a willingness to accept responsibility for one's actions and to be answerable for them describes a quality of being that holds out hopeful possibilities for the realisation of a society that demonstrates a communal commitment to respect for the law and a sense of confidence in the possibility of justice. It hints at the possibility of people being able to develop ‘a democratic conception of justice which is both compassionate and principled and makes the best sense of both the past and the constitutional vision for the future.’ This vision articulated by Justice Kate O’Regan of the South African Constitutional Court provides a more substantial definition of the content of a fuller, post-transitional accountability – a richer expression of what justice as a societal value might provide.

In the context of Latin America, Cath Collins notes that the justice system initially played a limited role in addressing historical crimes as the region emerged from military dictatorships. This was because debates in the region have historically been framed as choices between democracy and justice. It has consequently taken some forty years to address de facto or de jure impunity of perpetrators of political violence in these countries.

INTRODUCTION

Recent decades have seen a gradual shift in international criminal law towards greater victim recognition and centrality, which in many respects parallels the rise of victims’ rights and restorative justice (RJ) in Western national criminal justice systems. Since the start of the twenty-first century the UN has issued Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (adopted under resolution 2002/12) and, in 2006, the UN Handbook on Restorative Justice. We are witnessing the appearance of RJ-styled objectives – whether implicitly or explicitly – in a number of UN resolutions and international instruments (e.g., the 200 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (the 2006 Basic Principles) and the Rome Statute of the International Criminal Court (the Rome Statue)). There has also been an increasing focus on RJ in the academic and jurisprudential discourse surrounding international criminal tribunals, courts and transitional justice more generally. The growing prominence of RJ within this context – and in particular the introduction of material and symbolic reparations – flows, to some extent, from the recognition that ‘justice,’ in response to crimes against humanity, requires more than the myopic application of traditional (often Western-styled) paradigms of retributive and deterrent justice. It must instead encompass forms of justice (embracing notions such as truth, reconciliation, and reparation) aimed not only at punishing offenders, but also healing victims and repairing communities in which the social fabric, as well as the economic and physical infrastructure has, in many cases, been torn apart.

The growing prominence of RJ in international criminal law and transitional justice has coincided with increasing regret expressed by many criminologists and criminal justice practitioners at the reluctance of legislators and policy makers in domestic criminal justice settings to recommend RJ for anything but quotidian categories of crime. However, while RJ has been kept largely within the shallow end of domestic criminal justice, criminologists have, by and large, failed to engage with the challenges posed to RJ from crimes against humanity.

INTRODUCTION

Sierra Leone was one of the first post-conflict countries to simultaneously employ amnesty, prosecutions, truth-finding and reconciliation initiatives, and more recently reparations, in the framework of transitional justice. The question is whether there remains a transitional justice gap in Sierra Leone and, if so, whether there is a need to fill it and how tradition-based justice can contribute. Traditional culture still plays an important, though contested, role in rural Sierra Leone, as acknowledged in the mandate and the report of the Truth and Reconciliation Commission (TRC). This chapter assesses the role of traditionbased justice in ongoing justice and reconciliation initiatives and the challenges to its use.

The chapter situates itself in the ongoing debate on the localisation of transitional justice: moving away from one-size-fits-all solutions and externally imposed models, the current transitional justice landscape presents a variety of mechanisms and tools, which are supposed to complement each other. Along this spectrum, local mechanisms to deal with past crimes have come to the fore in recent years. These may include traditional conflict resolution mechanisms, i.e. ‘non-state justice systems which have existed, although not without change, since pre-colonial times and are generally found in rural areas’. Other mechanisms have shifted further away from traditional practices but are inspired by underlying traditional values, in which case I prefer to call them tradition-based. Both traditional and tradition-based mechanisms are part of the broader group of local justice mechanisms, ranging from informal to formalised, some of which can even be entirely new or modern. In this definition, I suggest, ‘local’ does not necessarily refer to their applicability in a limited geographic area, but rather to the origins of the mechanisms, stemming from a bottom-up approach as opposed to external imposition.

This chapter first assesses whether key goals of transitional justice – accountability, truth-finding, reparations and reconciliation – have been met by the mechanisms enacted in Sierra Leone. To ascertain whether there is a transitional justice gap, the outcomes of the transitional justice mechanisms are compared to the findings of research, including my own, concerning perceptions on the ground of dealing with the past. In this regard the popular saying ‘we forgive and forget’ will be analysed and compared to what is needed to obtain ‘a cool heart’. Examples are given of ongoing initiatives to assess whether traditionbased justice mechanisms can fill the gap.

INTRODUCTION

The question of forgiveness in politics has attained a certain cachet. Indeed, in the fifty years since Hannah Arendt commented on the notable absence of forgiveness in the political tradition, a vast and multidisciplinary literature on the politics of apology, forgiveness, and reconciliation has emerged. A number of historical events can account for this sudden turn: the efforts of former Soviet Bloc countries to acknowledge state spying and other infractions on the rights of their citizens; the establishment of truth commissions in Argentina, Uruguay, Chile (among others) to investigate state-sanctioned disappearances, kidnappings and tortures; and, perhaps most famously, the work of the Truth and Reconciliation Commission (TRC) in South Africa. At the same time, there have been gestures by parties to World War II on both sides of the conflict to apologize and repair for various war crimes and infractions, and settler societies like Canada, the USA, and Australia have been called to task for past injustices by various members of their own citizenry: indigenous peoples, the descendants of former slaves, linguistic and ethnic minorities, and immigrant groups who have suffered from discrimination and exploitation.

Analyses of these new politics typically touch on the potential role for a political notion of forgiveness, although few have provided a detailed or consistent theoretical explanation of what would make an act of forgiveness political, and what distinguishes political forgiveness from its more familiar counterparts in everyday life. Instead, this task has fallen to philosophers, and they have embraced it with no small degree of cynicism. To a novice scouring the relevant literatures, it might appear that the only discordant note in this new veritable symphony of writings on political forgiveness has been sounded by philosophers writing on the topic. Where others see new hope for politics, philosophers fear an uncritical promotion of forgiveness, which risks distorting and cheapening forgiveness as a moral ideal, on the one hand, and ignoring justice, accountability, and the need to end harmful relationships, on the other. After all, when philosophers take up the question of forgiveness, it is usually in order to shape it into something resembling a rationally defensible moral ideal.

In the wake of initiatives by Nelson Mandela and Archbishop Desmond Tutu, there was a surge of interest in the idea that forgiveness could play a constructive role in political life and help to prevent cycles of violence. Of late, there has been considerable skepticism about that notion, with some even suspecting Tutu of boosterism about the notion of forgiveness. The grounds for that skepticism are important to consider and set the theme for this book. I do not claim to address all relevant arguments against the notion of public forgiveness; rather, I will attempt here to counter major logical and ethical objections. I argue that there is a viable concept of public forgiveness, one that is defensible in the context of fundamental philosophical criticisms. Although public forgiveness may be difficult to achieve, I believe that it is worth seeking and should not be dismissed as theoretically ill-founded or practically impossible.

The topic of public forgiveness has been of interest mainly due to its connection with another topic, that of reconciliation between groups and individuals alienated in the aftermath of bitter conflict or repression. Reconciliation requires the establishment of social trust between previously opposed factions – enough social trust so that they can cooperate as needed to coexist in a decent society. This account of reconciliation in terms of trust is not a minimalist account, based simply on coexistence without violence. Rather, it requires the development of attitudes facilitating cooperation between former enemies. Nor is it a maximalist account: it does not require warm emotion, apologies and tears of remorse – but instead enough social trust and good will for formerly alienated people to function together within social institutions. Wilhelm Verwoerd and I argued for such an account in a 2002 paper on trust and national reconciliation and I developed it further in my book, Taking Wrong Seriously, published in 2006.

For the purposes of this discussion, I define forgiveness as follows:

Forgiveness requires:

• a. The overcoming of resentment and bad feelings towards a person or persons believed to have accountably committed serious wrongs in the past;

• b. The re-framing or shift in attitude toward such persons so as to regard them as capable of engaging in decent relationships in the present and future;

• c. The setting of the wrongful deeds in the past.

INTRODUCTION

November 2009 saw the commemoration of the twentieth anniversary of the notorious massacre of six Jesuits, their housekeeper, Elba Ramos, and her daughter, Celia, at the University of Central America. March of 2000 commemorated the thirtieth anniversary of the assassination of Archbishop Oscar Romero and the following December marked the kidnapping, rape, and murder of the four American churchwomen – Maura Clarke, Ita Ford, Dorothy Kazel and Jean Donovan. Such commemorations are important for the world, but they are especially important in El Salvador because of the way in which memories of injustice have been systematically denied and repressed. All of these figures were deeply committed to peace in El Salvador, but they insisted that the way to attain authentic peace is through justice. Their lives were rooted in a Catholic Christian faith and enlivened by the Second Vatican Council, according to which the church is most herself when she walks in solidarity with the poor and advocates policies to end structural injustice.

Thirty years after Romero's martyrdom, we are now in the age of “transitional justice” in which the language of reconciliation has come to play an increasingly important role in our moral lexicon. This is particularly true of Christian ethics, especially after the public successes of the South African Truth and Reconciliation Commission and its charismatic chair, Archbishop Desmond Tutu. The international acclaim of the TRC (not always articulated as loudly in South Africa itself) sometimes tempts us to forget that the language of reconciliation was employed in El Salvador, as well as in Chile and Argentina, well before the South African experiment was conceived. Yet human rights activists in Latin America often suspect that appeals to reconciliation amount to a subtle attempt to evade accountability. Nowhere is this more the case than in El Salvador, whose history from colonialism to the present has been pervaded by impunity.

The church promotes mercy, forgiveness, and reconciliation as primary expressions of the virtue of charity, the grace inspired love of God and neighbor. Christian contributions to transitional justice around the world have often focused on reconciliation.

INTRODUCTION

Over the last decades the notions of forgiveness and reconciliation have increasingly been expressed in the public sphere in many countries. There is a pervasive trend towards public apologies, forms of national introspection and public appeals to grant forgiveness.

Archbishop Tutu's motto that “there is no future without forgiveness” is well known. He has argued that forgiveness is the only way to liberate oneself from the prison of past animosity and rancour. Partly due to Tutu's efforts, the South African Truth and Reconciliation Commission (TRC) has become an important model and source of inspiration for many other countries that want to deal with their past grievances and internal conflicts. For others, however, to speak of forgiveness in politics is inappropriate and risky. What is more unforgivable than the atrocities of the powerful? Forgiveness is seldom a servant of justice, some claim.

The opposition between proponents and opponents of public forgiveness raises conceptual, philosophical, empirical and practical questions: What does ‘forgiveness’ mean, how does speaking in terms of ‘forgiveness’ function, and under what conditions can it foster transitional justice processes?

Section 2 will start with some philosophical questions regarding the meaning of ‘public forgiveness’ and we will relate these to questions about the conditions under which the oratory of public forgiveness does occur. We will elaborate two positions, one labelled ‘minimalist’, in section 3, and the other ‘maximalist’, in section 4. In section 5 we will discuss the notion of ‘invitational forgiveness’ and the question whether a forgiving attitude is a necessary aspect of mitigating a confrontational social climate. In section 6 we will pay attention to some cultural and religious contexts in which public forgiveness may occur. Which conditions do promote or impede that process?

WHAT IS PUBLIC FORGIVENESS?

Philosopher Trudy Govier stated: “Some find the notion of forgiveness in politics naïve to the point of absurdity.” An extension of the use of forgiveness to the public realm does indeed evoke many questions. What exactly is “forgiveness”? Do we have to distinguish between different kinds of forgiveness? To what extent is it bound to “face-to-face” relationship between individuals? Under what conditions can people grant forgiveness or ask for it?

The Epilogue of Ricoeur's Memory, History, Forgetting is entitled ‘Difficult Forgiveness’, indicating that forgiveness is neither easy nor impossible. As the common horizon of memory, history and forgetting, it is always attracting but never reached. Ultimately its two dimensions diverge: below the awareness of guilt, above the gift of forgiveness. There is no conceptual middle ground between them. Neither can we construe a form of reciprocity between the demand of being forgiven and the offer to forgive, nor build on the symmetry between an agent binding herself to an action (as in promising) and releasing her from this bond (as in forgiving). Forgiveness points to a realm beyond established social relationships, a realm where an agent is regarded a priori as a moral subject, i.e., as someone capable of rejecting what she did wrong in the name of the good. Both a negative and a positive consequence follow from that. The negative one reads that there is no public dimension in forgiveness, that ‘the people’ cannot be the agent of forgiving, and that there cannot be political institutions of genuine reconciliation. While individuals can, polities cannot pose as agents summoned by a moral norm. In other words, they are unable to relate the wrongness of their actions to their selfh ood. In the final analysis they can neither bear nor lift moral guilt. What they can do is to engage in ‘a culture of considerateness’, moderation, or clemency, in order to normalise their relationships. Certain public gestures can further this disposition to considerateness on a public scale, but this does not amount to public forgiveness. The positive thesis is that forgiveness can only be thought in a time beyond time, in the optative mode of wish and hope rather than in the indicative mode of description or the imperative mode of prescription. For this anticipation of a memory that will once turn out be unequivocally ‘blessed’, Ricoeur uses the theological term ‘eschatology’, though in a radically philosophical (rather than a theological) sense.

In an equally philosophical vein I propose to ask what is the protology correlate with this eschatology? What is the ‘beginning’ of times, or the ‘time before time’, that is both preparing for and recaptured by ‘the end of times’, or the ‘time beyond time’?

INTRODUCTION

Hannah Arendt's theorizing of forgiveness has become a frequent reference in conflict resolution literature and has rightly prompted many commentaries by theologians and political theorists. The concept itself is controversial, and this chapter reviews some of the critical comments addressed to Arendt. However, the chapter's main purpose is to offer a theoretical complement to the interpretations of Arendt's contribution to theories of peace-making, and a three-fold empirical illustration of this argument. Most discussions of Arendtian forgiveness fail to take into account the other human capacity that palliates the irreversibility and unpredictability of action: promising. The connection between forgiveness and promising is what endows forgiveness with its political character and secures justice. Moreover, although Arendt was wary of the political impact of self-improvement efforts, she theorized reconciliation as the attempt to understand one's place in the world, a kind of pondering that admits of self-reflection, but is quite unlike forgiveness. This rather idiosyncratic form of reconciliation as a process of understanding, which stimulates political judgment, is crucial to empower the public actor. The “gift of the understanding heart,” as Arendt called it poetically, like the connection between forgiving and promising, has provoked few academic commentaries. To make the most of Arendt’ contribution to the theorizing and practices of conflict resolution requires taking into account her analyses of three key political concepts – forgiving, promising and reconciliation as “understanding” – jointly rather than discretely. The first part of the chapter develops this argument by examining Arendt's theorizing and the critiques leveled especially against her discussion of political forgiveness. The second part discusses three real life examples to illustrate why this theoretical argument matters to politics: Arendt's concepts, taken together, can work as analytical categories to decipher and assess empirical processes of conflict resolution. The chapter examines the role of promising and forgiveness in the launching of the 1952 European Coal and Steel Community and the deficit of understanding; in the South African Truth and Reconciliation Commission and the deficit of promising; and the deficit of forgiveness and understanding in some of the early Iraqi and US reconciliatory attempts.

INTRODUCTION

Public forgiveness in Northern Ireland, if it has a place at all, still lies in the future. The Northern Ireland Executive's recent policy statement, Strategy for Victims and Survivors, once again kicks the can down the road with regard to deciding on a definition of who was a victim and on a truth recovery process. Strategy for Victims and Survivors lowers expectations for reconciliation and proposes that victims discuss and give input on the character of a future truth process. Is this tantamount to concluding that no process leading to public forgiveness will happen in Northern Ireland? This paper explores this question, highlighting the deeply divided nature of Northern Ireland society, which provoked the conflict in the first place, reduces the likelihood of a truth commission, and hobbles those in leadership from making reconciliatory gestures. Paradoxically, public forgiveness in Northern Ireland will have to come from the grass roots, given the challenges of Northern Ireland's “consensus” politics.

NORTHERN IRELAND AFTER 1998

The Good Friday Agreement of 1998 found a formula, through power-sharing, by which two long opposed parties engaged in a zero-sum conflict could work together. It did not, however, represent new found political solidarity. Both parties retain, unaltered, political goals that are antithetical to one another. These political goals are shored up by narratives that draw on a rich history of successive violent events. From both perspectives, victimhood is part of the political narrative. Though nationalists view the 1998 plan more positively than unionists because they see power-sharing as a way-station en route to the eventual unification of Ireland, neither politicized group considers the current constitutional arrangements to be a long term solution to its aspirations.

Tensions got so bad in 2002 that Westminster took back into its own hands the running of Northern Ireland. The Stormont government was restored in 2007, with the Reverend Ian Paisley as First Minister and former IRA operative Martin McGuinness as Deputy First Minister. Paisley has now given his place to a younger colleague, Peter Robinson.

Despite political tensions, the work of rehabilitating the society after its thirty years’ war continues, by many measures quite effectively. Foreign investment and job creation have helped lift the economy despite persistent high unemployment in certain areas most associated with the conflict.

SPEAKING, TO A QUESTION

What if the question remains? Amidst all the public discussion of forgiveness, there is the question of the inquiry with which it begins, the question that appears in the name of beginning anew – Will you forgive me? Charged if not loaded, the very sound of this question resonates. Asked in time, it strikes us as an opening, a moment of potential given to (re)turning history from fate. Posed in the wake of that which changes everything, however, the inquiry smacks of contrivance, an artifice that recalls if not (re)inflicts a hollowing wound. Between a gesture of redress and an unthinking affront…this variation is telling. Addressed to a subject that has suffered a particular wrong, a transgression whose precise depth may touch the very limit of articulation and defy complete knowledge, the question of forgiveness is never quite the same even if its grammar is altogether familiar. Its inquiry composes a unique imposition, a posing with (dis)respect to an event, a posture that makes reference even as it has neither the comprehension nor the standing needed to refer to that which it addresses. Before a reply, the captivating problem of whether forgiveness is permissible and perhaps even desirable, there is then the matter of hearing the question, of listening to what it renders questionable. Without promise, the question of forgiveness arrives already divided, an inquiry caught between its own expression and its query as to what remains (in)expressible. A speech act that troubles the action of speaking – in public and perhaps for publicity's sake – the question of forgiveness asks after the (im)potentiality of (its) speak-ability and inquires into our experience of (its) language.

In how many ways does the (un)speakable haunt the question of forgiveness? We do not always remember – we may not be able to remember – that the question appears in the aftermath, a moment in which the capacity to ask and the capacity to answer are not given.

INTRODUCTION

What is the function of law, or, more precisely, legal institutions, in response to historic injustice? A period of injustice and violence can be followed by an urge to forget what has happened or indeed specifically to remember it or alternatively to seek reconciliation and forgiveness. Sometimes the legal system takes it upon itself to forget, to remember or to forgive.

This article is based on the assumption that collective processes of forgetting, remembering and forgiving are related to societal efforts of structuring time in response to historic injustice. In the figure of remembering, the past is “relived”, whereas in the figure of forgetting the present is (temporarily) disconnected from its relationship with the past. In the figure of forgiving the relationship with the past is released, while the future is being anticipated.

Although these three collective figures, with their respective strong points and weaknesses, continue to play their roles as markers of historic changes, it will be argued that the specific role of legal institutions is primarily of a mundane, workaday nature. Legal institutions are well-equipped to keep some distance from the collective urges to forget, to forgive or to remember. On the one hand these bodies have to ensure that historical injustice is not ignored, while on the other hand they need to be able to take binding decisions on such injustice that will bring conflicts of the past to legal closure and will be accepted by those involved. By allowing people access to legal action, providing finite answers to injustice, a system of law can help counteract the possibility of historic injustice creating permanent victimhood.

This article is structured as follows. Firstly the relationship between the legal order and the collective duties to forget or to remember the past is discussed in sections 2 to 4. Secondly I examine the relationship between law and the collective duty to forgive in sections 5.1 to 5.4. The conclusion follows in section 6.

THE SOUTH AFRICAN TRUTH AND RECONCILIATION COMMISSION

The South African Truth and Reconciliation Commission was called into existence in July 1995. The Preamble of the Promotion of National Unity and Reconciliation Act No 34 of 1995 (the TRC Act) stated that the objectives of the TRC were to promote national unity and reconciliation, amongst others by establishing as complete a picture as possible of the gross violations of human rights which were committed under apartheid, by facilitating the granting of amnesty to apartheid perpetrators under certain conditions, and by providing recommendations to prevent future violations of human rights. In order to achieve these ambitious tasks, three committees were put into place: the Committee on Human Rights Violations (HRVC), the Amnesty Committee and the Committee on Reparation and Rehabilitation.

The HRV Committee – which is the focus of this article – was in charge of collecting written victim statements and of organising the Human Rights Violations hearings, where a representative sample of victims was allowed to testify in public. The HRVC gathered close to 22,000 statements, covering 37,000 violations; this is more than any other previous truth commission had achieved. These statements were recorded by trained statement takers who conducted interviews with victims of apartheid all over the country. Between April 1996 and June 1997 a little under 2000 of these victims told their stories before the HRV Committee. Over these 15 months 83 hearings took place in public places such as town halls, schools, churches and civic centres. The emphasis of the HRV hearings was on “the validation of the individual subjective experiences of people who had previously been silenced or voiceless”. Supporters of the TRC claimed that to tell their stories of suffering and misery was a healing and cathartic experience for most of the victims. The mere fact that these survivors were allowed to talk about the past meant a lot to them; it showed that their experiences were officially acknowledged and this made them feel respected as human beings.

Because of the impact it had on the victims and also because the media brought this Committee to the attention of the national and international public, the Human Rights Violations Committee has often been considered as one of the most successful components of the TRC.

SYMPATHY AND POLITICAL RECONCILIATION

In a series of recent writings, I have offered an account of political reconciliation as the process combining the resolution of formal questions between adversaries (e.g. who has a right to what) with the inculcation of sympathetic attitudes. I use ‘sympathy’ in its philosophical signification, as the ability to imaginatively switch places with others and view the world from their perspective. This definition is arrived at by way of elimination. There is surely more to reconciliation than the cessation of hostilities. After all, no one would claim that the fighting factions in Iraq have reconciled just because they stopped shooting at each other for a while. There is also more to reconciliation than two or more enemies reaching a fair agreement on how to settle their claims and how to distribute disputed resources. Israel and Egypt reached such an agreement rather quickly in the late 70’s. The Sinai peninsula was returned to the Egyptians, prisoners were exchanged, the war dead exhumed and shipped back home. Since then Israelis and Egyptian have had few claims against each other. They have also wanted nothing to do with each other. Can this state of affairs count as political reconciliation?

Reconciliation, then, involves more than the cessation of hostilities and more than the fair settlement of mutual claims. But what more is needed? Is forgiveness the missing element? I have argued elsewhere that it is not. Since this volume centers on the idea of political or “public” forgiveness, let me reiterate the contours of that argument.

It has become fashionable of late to speak about the importance of forgiveness in politics. The most prevalent argument in favor of political forgiveness concerns its potential to release victims and wrongdoers from the effects of vindictiveness. A desire for revenge, so the argument goes, can generate a never-ending violent cycle, trapping both sides in a dynamic of blow and response, eventually destroying all those involved. As Ghandi famously put it, “an eye for an eye canmake the whole world blind”. The argument is intuitively compelling, but forgiveness is not the only way to quell the desire for revenge.