It is commonly believed that trial and punishment on the one hand and reconciliation on the other are fundamentally at odds, and that reconciliation is morally superior to punishment. The implication is that a nation must choose one or the other. But can these two sides co-exist? This essay by David Crocker, of the Buffalo Criminal Law Centre, critiques Archbishop Desmond Tutu’s belief in the dichotomy between punishment and reconciliation and argues that they are intrinsic goods that can actually reinforce each other.
Across the globe societies, states and international institutions are deciding how to reckon with past atrocities, including war crimes, rape and torture. However, the choices faced in dealing with such crimes are not merely, as Tutu assumes, the immoral world of politics on one hand and the moral/religious realm of forgiveness on the other. Both penal justice and reconciliation should be balanced in morally appropriate ways. Tutu inadequately conceptualises the goals of reconciliation and penal justice; for Tutu they are unalterably at odds. Tutu views punishment as limited to revenge, while reconciliation requires that the wrongdoer be immune from punishment and unconditionally forgiven. Crocker debunks this theory and asserts the following:
- Legal punishment can be viewed as justified because it is ‘just’, or at least not unjust, to punish the wrongdoer in a way that does not exceed his crime (apart from other good consequences.)
- Defining reconciliation not as social harmony – which might threaten individuals’ rights – but as peaceful co-existence can be justified. Citizens would respect others’ rights and tolerate differences.
- Each goal can instrumentally promote the other. Former enemies can agree to live together under the rule of law. This can lead to agreement that it is not wrong to punish those on both sides who are most guilty.
- Punitive justice can have benefits in that people perceive justice to have been done and therefore perpetrators can be more quickly reintegrated into society.
There is some tension between the two goods of penal justice and reconciliation: morally justified punishment is orientated toward the past whilst reconciliation is an ideal for creating a better future. Ways of addressing the clash of these two ideas and other important issues for the policy sphere include:
- The creation of new tools can promote the joint realisation of just punishment and reconciliation. For instance, the Spanish indictment and request for the extradition of Pinochet.
- A clash of ideals can be resolved by addressing divisions of labour. Trials and truth commissions can work co-operatively, for example the International Criminal Tribunal for the Former Yugoslavia.
- The clash of ideals can be addressed by embodying them sequentially.
- Reconciliation was prominent in the initial stages of both Chile’s and South Africa’s transition to democracy. More recently prosecutions have taken place.
- Societies should design institutions in which the ideals of just punishment and reconciliation are realised simultaneously. Fair trials and just punishments can bring people together and reject a culture of impunity.
- Adequate truth commissions provide the occasion for societies to deliberate about the past and to recommend prosecution and provide evidence to judicial authorities.