Institute for Historical Justice and Reconciliation

The IHJR seeks to dispel public myths about historic legacies
in societies divided by ethnic conflict

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The Inaugural Meeting Of The Institute For Historical Justice And Reconciliation

Hisashi Owada

Justice Richard Goldstone, Chairman of the IHJR Executive Committee,
Professor Laurens Jan Brinkhorst,
Excellencies,
Distinguished Guests,
Ladies and Gentlemen,

It is a great privilege as well as an honour to be given this opportunity to deliver an opening speech at the Inauguration of the Institute for Historical Justice and Reconciliation in this Great Hall of Justice of the Peace Palace. I have accepted this role, of course with great pleasure, in my capacity as President of the International Court of Justice, which is offering the venue for this inauguration of the Institute today. I wish to take this opportunity to thank the Carnegie Foundation for its co-operation in this regard.

There is, however, a much deeper background to my involvement in today’s ceremony. I have been personally associated with the work of the IHJR since the time of its inception five years ago. The IHJR was founded in 2004, as a project of the Salzburg Global Seminar, by Professor Elazar Barkan at Columbia and by Dr. Tim Ryback, then a resident director at the Salzburg Seminar. I was not only present at the creation of this project because of my long association with the Salzburg Seminar as a member of its Board, but have been one of the members of its Advisory Board, who care about the issue of justice and reconciliation in the present-day world.

In my earlier incarnation working in the field of international relations, I was heavily involved in issues relating to war and peace and witnessed human sufferings resulting from armed conflicts and under oppressive regimes, especially in East Asia. Some of these issues related to legacies of the past emanating from the time of World War II, such as wartime atrocities, while others arose in the context of postwar armed conflicts and acts of barbarity committed by oppressive hands such as in Vietnam, Cambodia, and East Timor.

In all situations of international and internal conflicts, massive human rights abuses can take place. Human history has witnessed massive atrocities committed in international as well as internal armed conflicts or under oppressive regimes. There are always perpetrators, victims and bystanders to the scene of atrocities. What is striking in our time, however, is the growing trend of contemporary conflicts in which we see not only a great number of perpetrators, victims and bystanders to the scene of atrocities but also the fact that the individuals involved can be all of them, i.e., the perpetrators, victims, and bystanders at the same time in many circumstances. In fact, one of the characteristics of modern conflicts is that these situations of conflict or oppression, be they inter-State or intra-State, not only result in loss of life and injuries on a massive scale but are very often accompanied as their integral part by large scale and systematic atrocities and gross human rights abuses inflicted upon civilians who fall victim to such conflicts or oppressions.

Faced with this situation, what should be the societal responses to it? Of course in a normal environment, victims are entitled to full justice, through trials of the perpetrators; the perpetrators cannot get away with impunity. If found guilty, they are given proper punishment. It is however not always the case. To quote the words of my esteemed colleague, Judge Richard Goldstone, it happens ever so often, that “that ideal is not possible in the aftermath of massive violence”, because “there are too many victims and too many perpetrators”. “It is for this reason”, so we are told, “that such societies have to find other solutions”.

While this may be a persuasive explanation for what happens in many cases, I personally wonder whether this is the whole truth about the reason why societies have to find other solutions. It is my personal view that there are more intrinsic reasons why the pursuit of criminal justice as such cannot always offer an ultimate solution to the issue of justice, especially in the context of the task of reconstructing a conflict-torn society. As my former colleague at Harvard Law School, Professor Martha Minow, argues so persuasively in her book Between Vengeance and Forgiveness, “there… are two purposes animating societal responses to collective violence:  justice and truth”. As she argues, “justice may call for truth but also demands accountability, but the institution for securing accountability—trial courts—may impede or ignore truth”. Then the crucial question is:  should justice or truth take precedence? If accountability is the aim, does it require legal proceedings and punishment?

These are tough questions to answer from a moral point of view. When one looks at a given situation from the viewpoint of strict application of the principle of criminal justice, the answer to a lawyer—a trial judge—may be simple enough. Either the indicted is proven to be accountable for the alleged act or not. If the former, he is guilty of that act and is to be punished. What is required is to achieve the objective that the perpetrator cannot get away with impunity. Justice is to be done. And that is the end of the matter.

If one looks at the situation from the viewpoint of ensuring an environment of sustainable peace with justice in a societal context, however, the picture becomes much more complex. On the one hand, urging forgiveness on the part of the victims in the name of societal peace and stability, forcing them to forget the unforgettable injustice that has been committed, obviously is not going to work. Injustice done can never be forgotten and therefore cannot be forgiven. This approach simply would not lead to a genuine reconciliation. Justice has to be done in order that the conscience of the victims of injustice, may be set at peace. This is a sine qua non to bring about a genuine reconciliation between the victims and the victimizers.

On the other hand, however, it should also be borne in mind that justice in this context is an objective notion that consists in restoring the balance of the right as against the wrong done in the societal context. This is not always synonymous or coextensive as vengeance at the individual level. As was said by an insightful observer, it must be true that “boundless vindictive rage is not the only alternative to unmerited forgiveness” (Susan Jacoby).

It should be clear from this analysis that to hold the perpetrator fully to account for the heinous act committed is absolutely essential to opening the way to genuine reconciliation. However, to subject him to punishment in a vindictive act of vengeance may not always be the right way of making justice prevail in a societal context; it may not even be the most appropriate way of doing justice to the victim himself/herself in the sense that the ultimate objective of justice to the victim consists in restoring the human dignity of the victim who has been wronged. As has been pointed out, “vengeance can lead to excesses and still fail to restore what was destroyed initially” (Martha Minow). At the personal level, the act of vengeance by itself alone can still leave the mental scar (trauma) intact and unhealed. At the societal level, it is pointed out, “memories or propaganda-inspired illusions about memories, can motivate people who otherwise live peacefully to engage in torture and slaughter of neighbours identified as members of groups who committed past atrocities.” (Ibid.)  This I believe is especially true with the memories of war atrocities in the last war in the East Asian context, as well as it has clearly been the case with the recent tragedies in the former Yugoslavia and Rwanda.

What I have said is particularly applicable to the issue of historical justice in its relationship with the process of reconciliation. Injustice that has been done cannot be undone. The wrong that has been committed in the historical past cannot and should not be erased from memory into oblivion. If such an attempt to annihilate the past wrong were to be made, justice would be left undone and the sense of injustice would remain deep and for ever in the mind of the victims and of the community that suffered the wrong in the societal context, inevitably sowing the seed for the emergence of a vicious circle of vengeance and retaliation. In this situation, the least one can hope for would seem to be to look into the past to reveal the truth. I firmly believe that to come to terms squarely with history through uncovering the truth to bring justice to the victim and the victimized community is the way to open the gate for genuine process of reconciliation. The minimum required to start this process is for the parties involved above all to acknowledge the historical truth and to go into the soul-searching exercise of squarely facing this historical truth.

The work of the IHJR is wide-ranging in its geographical scope, covering issues arising in Europe, Africa, the Middle East and Asia. It is also wide-ranging in its temporal scope, ranging from issues that happened in the truly historical past at the turn of the last century, to issues relating to the last World War and to contemporary issues that are still shrouded in political controversies. Given the complexity involved in the moral-philosophical basis of the problem, it is to be emphasized that each individual case is so different in its moral, legal, emotional, and societal context that no general theorization is possible. Each case has to be explored, analysed and evaluated on its own merits with its specific characteristics, in order to arrive at a possible path to reconciliation.

This is a highly ambitious task that we, the members of the Institute, have set to ourselves. We do not expect that we shall be successful in all of the endeavours that we have embarked upon or are going to embark upon in the future. If we can succeed in opening the gate for others to join us in such joint endeavours for approaching historical justice with a view to genuine reconciliation between nations, ethnic groups and diverse communities that have inflicted or suffered injustices in the past, the Institute will be making a modest but significant contribution to the cause of peace and justice in the contemporary world.

As a member of the Institute, I wish to take this opportunity to express my deep gratitude to all those who have contributed so much to the work of the Institute, and especially to the Government of the Netherlands, which has decided so generously to support our common cause.