When Sorry Isn't Enough

The Controversy Over Apologies and Reparations for Human Injustice

Roy L. Brooks

• Publisher: NYU Press
• Year: 1999
• ISBN:
  9780814709047
• Topic: Diritto
• Subtopic: Diritti civili in ambito legislativo

"How much compensation ought to be paid to a woman who was raped 7,500 times? What would the members of the Commission want for their daughters if their daughters had been raped even once?"
—Karen Parker, speaking before the U.N. Commission on Human Rights

Seemingly every week, a new question arises relative to the current worldwide ferment over human injustices. Why does the U.S. offer $20,000 atonement money to Japanese Americans relocated to concentration camps during World War II, while not even apologizing to African Americans for 250 years of human bondage and another century of institutionalized discrimination? How can the U.S. and Canada best grapple with the genocidal campaigns against Native Americans on which their countries were founded? How should Japan make amends to Korean "comfort women" sexually enslaved during World War II? Why does South Africa deem it necessary to grant amnesty to whites who tortured and murdered blacks under apartheid? Is Germany's highly praised redress program, which has paid billions of dollars to Jews worldwide, a success, and, as such, an example for others?

More generally, is compensation for a historical wrong dangerous "blood money" that allows a nation to wash its hands forever of its responsibility to those it has injured?

A rich collection of essays from leading scholars, pundits, activists, and political leaders the world over, many written expressly for this volume, When Sorry Isn't Enough also includes the voices of the victims of some of the world's worst atrocities, thereby providing a panoramic perspective on an international controversy often marked more by heat than reason.

1
Introduction

1
The Age of Apology

Roy L. Brooks

“Man’s inhumanity to man makes countless thousands mourn.” So wrote the poet Robert Burns two centuries ago. Burns was looking back over centuries of human injustices. But even now, long after the Enlightenment, we have not been able to reverse our proclivity to commit acts of injustice. Emotion still triumphs over reason, anger over restraint, and hate over love. Perhaps the only thing that has significantly changed through the centuries is the human capacity to say “I’m sorry.”

Mea culpa is not a post-Enlightenment sentiment, of course. Forever etched in Western culture as the symbol of remorse is the image of Henry IV standing barefoot and repentant at the castle of Pope Gregory VII in 1077. The excommunicated Holy Roman Emperor sought forgiveness from his papal adversary for having bickered with him over the question of lay investiture. But with apologies coming from all corners of the world—Britain’s Queen Elizabeth apologizing to the Maori people; Australia to the stolen aboriginal children; the Canadian government to the Canadian Ukrainians; President Bill Clinton to many groups, including native Hawaiians and African American survivors of the Tuskegee, Alabama, syphilis experiment; South Africa’s former president F. W. de Klerk to victims of Apartheid; and Polish, French, and Czech notables for human injustices perpetrated during World War II—we have clearly entered what can be called the “Age of Apology.”

What is happening is more complex than “contrition chic,” or the canonization of sentimentality. The apologies offered today can be described as “a matrix of guilt and mourning, atonement and national revival.” Remorse improves the national spirit and health. It raises the moral threshold of a society. German society is a much better place today because Germans have been forced, and have forced themselves, to face their guilt with deep humility and penitence. So painful and enduring is the moral stain on the German soul that it may lend some truth to Socrates’ argument that it is better to be the victim than the perpetrator of an injustice.

Heartfelt contrition just might signify a nation’s capacity to suppress its next impulse to harm others. The significance of this point cannot be overstated. Before working on this book, I was not conscious of the undercurrent of fear that exists among survivors of human injustices that the very same atrocity might be revisited upon them. Jews fear that the Holocaust could be repeated, if not in Germany then in some other nation in the “civilized world,” and Japanese Americans worry that relocation and internment could happen again on American soil, given the right set of circumstances. Head-bowed apologies from the leaders of Germany and the United States have only quieted the survivors’ apprehension. But without such apologies, there would be greater concern, perhaps not just among the survivors, that those shameful acts might be repeated.

One of the questions that arises from this book is whether some societies have a natural proclivity to do evil. There is enough information in this book to conclude, comfortably, that all societies have the capacity to do evil. No society holds a monopoly on the commission of human injustices, nor is any society exempted. To Max Frankel’s question—“Is there a beast in each of us waiting to be unleashed by extraordinary fear, greed or fury?”—I would have to answer, yes.

Many of the most heinous acts can be attributed to the military gone amok during times of war. Examples include Japanese soldiers raping and torturing three hundred thousand civilians within a three-month period in Nanking, China, during World War II; American GIs slaughtering 504 women, children, and old men in four hours at the Vietnamese village of My Lai during the Vietnam War; and Argentine Navy officials throwing as many as fifteen hundred suspected leftist dissidents into the ocean from airplanes (the so-called “death flights”) during Argentina’s “Dirty War” (1976–1983).

Most human injustices, however, can be tied directly to conscious political choice. Millions of Jews, Gypsies, and others were murdered as a result of Nazi policy before and during World War II. Millions of blacks were killed and millions more enslaved under three centuries of American domestic policy. Thousands of Native Americans were killed and mistreated under similar policies. And millions of blacks were killed and subjugated by a ruling white minority through Apartheid policies in South Africa.¹

Women seem to occupy an especially precarious position during times of war. Not only are women victims of the same injustices as men (e.g., slavery, assault, torture, looting, burning), but they are often singled out for additional sexual and reproductive brutalities (rape, sexual mutilation, and forced prostitution, sterilization, impregnation, and maternity). Throughout history, men have sexually abused women during times of war (and to an alarming extent during times of peace). Seen as an inevitability of war—a sort of “boys will be boys” extreme—rape is a historically well-documented war strategy that is highly effective for terrorizing the enemy.

In medieval times, unpaid soldiers’ only “compensation” was the opportunity to rape and pillage. As George Hicks notes in his contribution to this anthology, during the Crusades the king conscripted women to follow behind the troops to provide sexual services on demand. Some reports estimate that Allied soldiers raped more than one hundred thousand women in Berlin during the last two weeks of World War II. Also during World War II, approximately two hundred thousand Korean, Chinese, Filipino, Indonesian, and other women were forced into sexual slavery as “comfort women” for the Japanese military.

Catharine A. MacKinnon argues that rape during war is not just a harm that one enemy army does to another; it is also one gender enforcing domination over another. Rape occurs “among and between sides” and “the fact that these rapes are part of [a war] . . . means that . . . women are facing twice as many rapists with twice as many excuses, two layers of men on top of them rather than one, and two layers of impunity serving to justify the rapes: just war and just life.”² Perhaps this argument sheds some light on the otherwise unexplainable estimate by Joan Furey, director of the Center for Women’s Affairs at the Veterans Administration, that approximately half of American nurses were raped by American GIs while serving in Vietnam.

Making matters worse, the international human rights community has largely ignored women’s issues. “What happens to women is either too particular to be universal or too universal to be particular, meaning either too human to be female or too female to be human,” MacKinnon contends.³ Mass rapes and other sexual assaults, long ago established as war crimes, are not prosecuted in war tribunals as often as other war crimes. The cultural barriers to prosecuting rape in the United States exist in other countries as well. Silence about sexual atrocities is the norm, and shame is routinely placed on the victims of rape rather than the perpetrators. For example, Muslim victims of recent mass rapes in Bosnia are considered soiled and unmarriageable in Muslim culture. Some traditional Muslims believe that killing or exiling rape victims is the only way for husbands and families to cleanse themselves of their family shame.

Genocidal rape—mass rape for the purpose of eliminating unwanted ethnic groups from a territory—is a particularly egregious war crime that targets women. The Serbian rape of Bosnian women was implemented for this ghastly purpose. Serbians believe that a father’s sperm carries the genetic make-up of his baby, which means that all babies conceived from the mass rapes are Serbian. Hence, Serbian rapes were designed to remove Bosnian Muslims from disputed territory and populate remaining Muslim areas with Serbians.

In 1997, Bosnian Serb leader Radovan Karadzic was convicted in absentia in an American court for masterminding a genocidal rape strategy that involved approximately twenty thousand victims. This verdict has only symbolic significance because it can be enforced only if Karadzic enters the United States. One could not construct a more powerful argument in favor of an international criminal court with extensive jurisdictional reach.

Rather than relying on the community of nation-states to bring criminal proceedings against perpetrators of human injustices, the victims can take matters into their own hands by seeking civil redress—money or other forms of relief—from the perpetrators under certain conditions. Civil redress is a central focus of this book. However, some victims of human injustices find such redress morally objectionable. They see it as little more than “blood money.” While one must, of course, be sensitive to the concerns of the victims, I do not equate redress with “blood money,” nor do the many victims who seek monetary redress. True, a price cannot and should not be placed on suffering exacted by the Holocaust, Japanese American internment, African American slavery, and the like. But when rights are ripped away, the victim or his family is entitled to compensation and much more.

The essays in this book discuss various conditions that are necessary for successful redress of human injustices. These conditions can be woven into a theory of redress, which has four elements. First, the demands or claims for redress must be placed in the hands of legislators rather than judges. Legislators, quite simply, can do more than judges. In every nation of the world, the judiciary has the least lawmaking authority of any branch of government. “If it be true that the Cherokee Nation have rights,” Chief Justice John Marshall of the United States Supreme Court said in The Cherokee Nation v. Georgia, “this is not the tribunal in which these rights are to be asserted. If it be true that wrongs have been inflicted, and still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.”⁴ This message is particularly instructive because it comes from a judicial tribunal that probably has more lawmaking power than any other judiciary in the world.

Courts do, however, play a useful role in the redress process. They can and have been used to interpret and enforce extant rights and laws handed down by the legislature. Sometimes the legislature will create a court or quasijudicial body for the specific purpose of resolving redress claims. This happened in the United States with the creation of the now-defunct Indian Claims Commission. But most of the time, the highest court in the land can only apply existing rights and remedies; it cannot create new ones.

Within the legislative realm, successful redress movements have been able to reach the hearts and minds of lawmakers and citizens alike. But the success of any redress movement has depended largely on the degree of pressure (public and private) brought to bear upon the legislators—that is, politics—than with matters of logic, justice, or culture. Political pressure, then, is the second condition necessary for successful redress. This is a clear acknowledgment of the fact that not all meritorious claims succeed. Intuitions of public policy, the prejudices that legislators share with their constituencies, the willingness of political leaders to step forward and take political risks, and the simple exchange of favors have had a good deal more to do with the fate of redress than have the merits of the claims.

Strong internal support is a third element of successful redress. The victims themselves must exhibit unquestioned support for the claims being pressed. Redress must be a top priority within the group. Indeed, it is the absence of this element from the African American redress movement that, in my judgment, is most responsible for the refusal of American political leaders (including President Clinton, who has been more attentive to African American concerns than any other American president) to offer even an apology for slavery or Jim Crow. The redress movement is growing, as scholars Joe R. Feagin and Eileen O’Brien correctly note in chapter 53 below. But it has yet to reach the level of passion and necessity displayed in the successful Japanese American redress movement (discussed in Part 4).

Although the politics of redress claims overshadow their merits, such claims still must be meritorious. There must be something of substance for lawmakers to promote. This is the fourth and final element of my theory of redress. The critical question, of course, is what constitutes a meritorious claim.

Mari Matsuda has identified several prerequisites for a meritorious redress claim.⁵ These requirements find support in this book, if modified into the following factors: (1) a human injustice must have been committed; (2) it must be well-documented; (3) the victims must be identifiable as a distinct group; (4) the current members of the group must continue to suffer harm; and (5) such harm must be causally connected to a past injustice. The first and last prerequisites warrant further discussion.

The definition of “human injustice” can be formulated from the concept of “human rights.” The place to begin is international law, the United Nations Charter in particular. Article 55(c) of the Charter reads in relevant part: “The United Nations shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Various multilateral and bilateral conventions, covenants, resolutions, and treaties more sharply define the rights of all humans and provide for their enforcement in domestic courts. Also, although a specific list of rights legitimized and enforceable under customary international law is elusive, there are many clearly prohibited acts contained therein, the violation of which constitutes a human injustice.

Based upon a synthesis of these instruments of international law, we can say that a human injustice is the violation or suppression of human rights or fundamental freedoms recognized by international law, including but not limited to genocide; slavery; extrajudicial killings; torture and other cruel or degrading treatment; arbitrary detention; rape; the denial of due process of law; forced refugee movements; the deprivation of a means of subsistence; the denial of universal suffrage; and discrimination, distinction, exclusion, or preference based on race, sex, descent, religion, or other identifying factor with the purpose or effect of impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, social, economic, cultural, or any other field of public life. In sum, a human injustice is simply the violation or suppression of human rights or fundamental freedoms recognized by international law.

This definition does not cover war crimes, which are adequately codified in the Geneva Conventions. But to the extent that any of the acts specified in the detailed definition above are committed during times of war, they would be subject to civil redress, provided that the chosen court accepts jurisdiction over the claim. This definition also does not limit human injustices to the violation of “sacred rights”—rights that cannot be compromised during times of war or other national emergencies. Such rights are specified in instruments such as the International Covenant on Civil and Political Rights of December 16, 1966, and include the right to be free from arbitrary deprivation of life (Article 6); torture, cruel, inhuman or degrading treatment or punishment (Article 7); and slavery, servitude, or compulsory labor (Article 8). Finally, the definition of human injustice proffered here is not intended to be conclusive. Any such definition must be a living or evolving one. Furthermore, it should be informed not only by international standards, but also by “contemporary national” standards found in “liberal national constitutions,” to borrow from international law scholar Louis Henkin.⁶

The last prerequisite for a meritorious redress claim—that the harm must be causally connected to a past human inju...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• PART 1 Introduction
• PART 2 Nazi Persecution
• PART 3 Comfort Women
• PART 4 Japanese Americans
• PART 5 Native Americans
• PART 6 Slavery
• PART 7 Jim Crow
• PART 8 South Africa
• Appendix: Selected List of Other Human Injustices
• Contributors
• Permissions
• Index
• About the Editor