Guest blog #24 (continued): Claire Whitlinger on amnesty and ecological justice

Yesterday, I ended the post with a few questions that we must grapple with given the critiques of amnesties that have surfaced over the past decades. How might amnesties function when pursuing ecological justice within a (largely) functioning democracy? Furthermore, what can truth commissions teach us about the possibility of granting amnesty for ecological injustice? Here are some initial thoughts on these questions.

First, one must contend with the general public’s distrust of amnesties. Any efforts to pursue amnesties for ecological injustice would have to pursue a massive media campaign to convince the public that allowing an individual or corporation “off the hook” for ecological wrongdoing has some social utility that could not be achieved otherwise.

Second, one must recognize as Martha Minnow does in her book, Between Vengeance and Forgiveness (1999), that “an amnesty is credible only as a humane means to remember, not as a legislation of forgetfulness.” The challenge would be to design an amnesty program that both honors victims, and holds perpetrators morally accountable.

And third, one must take seriously the difference between individual perpetrators of human rights violations and corporate perpetrators of ecological injustice. The greatest difficulty I foresee in applying amnesties towards ecological injustice is getting representatives of corporations to come forward. Even if corporations were protected from repercussions in a court of law, they could still be held accountable in the court of public opinion. Without the legal or political power to compel confessions on the part of corporations, or the ability to protect them from reputational trauma, the potential financial ramifications of confessing seem unlikely.

All this being said, in my research I find that the truth alone – without financial reparations or legal justice – can be restorative for some. For example, when I was in Mississippi studying the attempt to establish a statewide truth commission, I listened to a woman speak about what justice would mean for her family. Her grandfather had been murdered in 1961, shot by a state legislator who falsely claimed self-defense and was never arrested. Despite eyewitness accounts that the victim had not provoked the legislator, this woman’s grandfather was found at fault for his own death. Forty years after the fact, the family merely asked that the state of Mississippi recognize the cause of death as murder and that that be reflected on the death certificate. In my opinion, this seemed a modest request, and one that could bring healing to this particular family.

So, rather than pursuing a uniform program of amnesties or even an ecological “court of justice,” I think it would be most advantageous to work with victims and victims groups individually to figure out what justice would be for them.

Guest blog #24: Claire Whitlinger on amnesty and ecological justice

(Here are some perspectives on forgiveness from Claire, a doctoral student in sociology here at the university, continuing a recent thread of thought.)

What truth commissions can teach us about the possibilities of ecological justice: some thoughts on amnesties

In The Human Condition, Hannah Arendt makes a provocative and troubling assertion: “that men are unable to forgive what they cannot punish and they are unable to punish what has turned out to be unforgivable.”

This quotation came to mind when thinking about the steps needed to promote a peaceful and ecologically holistic world.

My interest in transitional justice stems from the time I lived in South Africa. I was fascinated by how a country having suffered decades of racial oppression could transition to democracy with relatively little violence. I began to wonder how any society could overcome such systematic oppression and violence. What could (or must) societies do to confront a past ridden with atrocities so deep and vast that no court of justice could possibly adjudicate every claim? Over the past twenty-five years, this question has been central to the emergence and professionalization of the transitional justice field – a field that has institutionalized a number of mechanisms (truth commissions and amnesties, included) to facilitate national transitions from totalitarianism and authoritarianism to democracy.

Having studied transitional justice, in general, and the global proliferation of truth commissions, in particular, my initial response to the possibility of using amnesties to address ecological injustice was one of skepticism.

So what are amnesties? Put simply, amnesties are a form of legal forgiveness. They are generally legislative or executive acts that restore a guilty person to the status of innocent.

Within the transitional justice field, amnesties are most notable for having been utilized by the South African Truth and Reconciliation Commission. In this instance, amnesty was the result of a political compromise between then-President F.W. de Klerk and Nelson Mandela. Rather than a blanket amnesty in which all perpetrators would be excused, the Amnesty Committee (one of three institutional bodies making up the South African Truth and Reconciliation Commission) granted amnesties on an individual basis. In exchange for confessing their crimes, individual perpetrators could receive amnesty. Setting aside the little known fact that out of over 7,000 applications, only 849 received amnesty (roughly 12%), in the wake of the South African TRC, scholars began to debate the social utility of exchanging “truth” for “justice.” By and large, scholars and human rights practitioners came to the conclusion that amnesties were neither eliciting truth nor justice. They feared that amnesties were at the best, ineffective, and the worst, harmful for a nascent democracy.

In 2009, I attended a workshop at Stanford Law School sponsored by the International Center for Transitional Justice. The majority of participants were human rights practitioners and came from all corners of the world. Many attended to learn how to implement transitional justice mechanisms in their own country. When the issue of amnesties came up, I was surprised by how vehemently anti-amnesty the participants were. Amnesties were associated with amnesia, not truth-telling, as I had been led to believe. In fact, some deemed to be absolutely unacceptable, a threat to rule of law. They argued that democracy could not flourish without holding perpetrators legally accountable.

Given that these mechanisms, and consequently, these critiques emerged in a particular political and historical context, how then might amnesties function when pursuing ecological justice within a (largely) functioning democracy? Furthermore, what can truth commissions teach us about the possibility of granting amnesty for ecological injustice?

More thoughts tomorrow...