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BETWEEN VENGEANCE AND
FORGIVENESS: FACING HISTORY AFTER
GENOCIDE AND MASS VIOLENCE1
by Martha Minow2
I.
INTRODUCTION
"Never again!" is the credo promoted after every instance of genocide and mass violence. 3 "Never again," however, has proven little
more than an aspiration; recent decades have seen repeated viola4
tions of basic human rights in countries all over the world.
The unimaginable atrocity of the Holocaust, the systematic
abuse of South African blacks under apartheid, and the ruthless
practices of "ethnic cleansing," including rape and mass murder,
5
in Rwanda and the former Yugoslavia all occurred this century.
Recently, the world has also witnessed crimes against humanity
in Kosovo and government-sanctioned kidnapping, torture and
1. MARTHA
MINOw,
BETWEEN
VENGEANCE
AND
FORGIVENESS:
FACING
HISTORY AFTER GENOCIDE AND MASS VIOLENCE (Beacon Press 1998).
2. Martha Minow is a professor of law at Harvard Law School. She has authored
several books exploring different aspects of law. Professor Minow resides in Cambridge, Massachusetts.
3. See Henry T. King & Theodore C. Theofrastous, From Nuremberg to Rome: A
Step Backward for U.S. Foreign Policy, 31 CASE W. RES. J. INT'L L. 47, 67 & n.76
(Winter 1999) (explaining how "never again" came into common use after World War
II's Nuremberg Trials). The cry "never again" resounded throughout the world after
the Holocaust, expressing the people's commitment to condemning and preventing
mass atrocity and genocide in the future. See id.
4. See MINOw, supra note 1, at 1 (listing numerous instances of mass violence
and genocide in twentieth century).
5. See 1993 I.C.J. 3 (Gen'l List No. 91 of Apr. 8, 1993) (listing human rights
violations in Bosnia including murder, torture, kidnapping and rape); Joseph G. Bergen, Note, Princz v. The Federal Republic of Germany: Why the Courts Should Find
That Violating Jus Cogen Norms Constitutes an Implied Waiver of Sovereign Immunity, 14 CONN. J. INT'L L. 169, 172-73 (1999) (detailing one man's tragic personal experience during Holocaust); Emily W. Schabacker, Reconciliation or Justice and
Ashes: Amnesty Commissions and the Duty to Punish Human Rights Offenses, 12 N.Y.
INT'L L. REV. 1, 1, 16-17 (1999) (detailing gross human rights violations committed
against blacks during apartheid); Jose E. Alvarez, Crimes of Hate: Lessons from
Rwanda, 24 YALE J. INT'L L. 365, 365-66 (1999) (making statement that compares
mass atrocity in Rwanda with Holocaust); Anne Bodley, Note, Weakening the Principle of Sovereignty in InternationalLaw: The InternationalCriminal Tribunal for the
Former Yugoslavia, 31 N.Y.U. J. IN'L L. & POL. 417, 430-31 (1999) (relaying brief
account of crimes against humanity in former Yugoslavia). See generally Alvarez,
supra, (discussing impact of Rwanda in detail).
212
SUFFOLK TRANSNATIONAL LAW REVIEW
[Vol. 24:1
murder in Latin America. 6 In the aftermath of each horrific episode, the world watched each suffering society's attempt to re7
build itself.
Martha Minow, one of America's brightest legal minds, has
written an insightful book that considers the various courses of
action available to societies torn apart by mass violence and genocide. 8 In Vengeance and Forgiveness:Facing History After Genocide and Mass Violence, Minow considers the benefits and
shortcomings of trials, truth commissions and reparations as responses to mass atrocity. 9 After a thorough evaluation, Minow
finds each alternative lacking. 10 Minow also explores the concepts of vengeance, forgiveness, memory and forgetting as each
relates to individual victims and nations." This review critiques
Minow's analysis and comments upon her conclusions regarding
the efficacy of trials, truth commissions and reparations to heal
individuals and societies after mass violence and genocide.12 In
Part II, this note articulates Minow's thesis. 13 Part III of this
6. See Anne-Marie Slaughter & Steven R. Ratner, The Method is the Message, 93
AM. J. INT'L L. 410 (1999) (referencing conflict in Kosovo); Thomas Buergenthal, The
United Nations Truth Commission for El Salvador, 27 VAND. J. TRANSNAT'L L. 497,
502-03 (1994) (describing human rights violations in El Salvador). Slaughter and
Ratner convey a sobering image by beginning their article with the words "[als this
symposium goes to press, NATO bombs are falling in Kosovo while NATO planes are
airlifting the refugee victims of ethnic cleansing." Slaughter & Ratner, supra, at 410.
7. See generally MINow, supra note 1 (discussing various societies' efforts to rebuild after genocide).
8. See MINow, supra note 1, at 2-3 (summarizing briefly various responses to
mass atrocity and giving examples of implementation in different countries).
9. See MINOW, supra note 1, at 25-51, 52-90, 91-117 (discussing trials, truth commissions, and reparations respectively).
10. See MINOw, supra note 1, at 2, 147 (stating author's conclusion that no legal
response to mass atrocity and genocide is adequate).
11. See MINOw, supra note 1, at 9-24 (discussing vengeance and forgiveness and
impact of each upon healing after mass atrocity); Id. at 60-62 (exploring proper
amount of memory versus forgetting necessary in context of truth commissions). Minow expresses the relationship between the concepts of vengeance, forgiveness, memory, and forgetting when she states that "[t]o seek a path between vengeance and
forgiveness is also to seek a route between too much memory and too much forgetting." Id. at 118.
12. See infra notes 92-130 and accompanying text. Commentator Mark Osiel has
also discussed the role of law after mass atrocity. See generally Gary Jonathan Bass,
Mass Atrocity, Collective Memory, and the Law, 97 MIcH. L. Rnv. 2103 (1999) (reviewing MARK OSIEL, MAss ATROCITY, COLLECTIVE MEMORY, AND THE LAW (1997)
and MINOW, supra note 1) (comparing Minow's view with that of Osiel, another renowned legal scholar).
13. See infra notes 19-30 and accompanying text (discussing Minow's stance on
trials); infra notes 31-41 and accompanying text (articulating Minow's position regard-
2000]
BOOK NOTE
note offers a brief history of the legal issues inherent in societal
healing after mass violence and includes examples of responses
that societies have employed in the past. 1 4 Finally, Part IV of
15
this note analyzes Minow's views and evaluates her approach.
II.
POSSIBLE RESPONSES TO MASS ATROCITY EVALUATED
In Vengeance and Forgiveness: Facing History after Genocide and Mass Violence, Martha Minow explores the emotional
and legal repercussions of crimes against humanity and considers ways in which victims and nations can heal. 1 6 In her thesis,
Minow discusses the merits and deficiencies of trials, truth commissions and reparations as methods of healing victims, bystand7
ers and even perpetrators of genocide and mass violence.1
Minow concludes that although each response has value, none
proves entirely sufficient to remedy the catastrophic injuries inflicted by perpetrators of mass violence.18
ing truth commissions); infra notes 42-67 and accompanying text (summarizing Minow's thesis with regard to reparations, including restitution and apology).
14. See infra notes 68-91 and accompanying text (detailing instances in which
societies used each option to heal after mass violence).
15. See infra notes 99-106 and accompanying text (discussing Minow's views regarding trials); infra notes 107-112 and accompanying text (examining Minow's opinion of truth commissions); infra notes 113-130 and accompanying text (analyzing
Minow's discussion of reparations).
16. See generally MiNow, supra note 1 (considering trials, truth commissions, and
reparations).
17. See MINOW, supra note 1, at 25-51 (discussing trials as response to mass violence and genocide); Id. at 52-90 (discussing use of truth commissions to heal societies
after mass violence and genocide); Id. at 91-117 (evaluating different types of reparations used in response to mass violence and genocide); see also id. at 146 (cautioning
against dehumanizing perpetrators and stressing that any response should affirm "humanity of everyone").
18. See MINOW, supra note 1, at 2, 147 (conceding insufficiency of any legal response after atrocity). Minow is aware that "[t]he legal responses may seem puny and
always insufficient after massacres, state-sponsored tortures, systematic raping of
groups of women, bombing of children." Id. at 2. Minow also observes that
"[r]esponses to collective violence lurch among rhetorics of history (truth), theology
(forgiveness), justice (punishment, compensation and deterrence), therapy (healing),
art (commemoration and disturbance), and education (learning lessons). None is adequate." Id. at 147.
214
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A.
[Vol. 24:1
Trials
After some instances of mass violence, international or domestic tribunals prosecute alleged perpetrators. 19 In Chapter
Three, Minow discerns five positive aspects of trials.20 In Minow's view, trials can both "air issues" and create an "aura of
fairness." 21 Prosecutions also produce some sense of accounta19. See MINOw, supra note 1, at 25 (discussing "embracing" rule of law through
trials as response to mass atrocity); Id. at 26 (explaining trial by international tribunal
and process of prosecution for atrocity); Id. at 26-27 (giving examples of prosecutions
by international tribunals after mass atrocity). One author has traced the use of the
international criminal tribunal as far back as the 1474 trial of Peter von Hagenback,
Burgundian Governor of Breisach, whose troops committed grave wrongs against civilians in wartime. See Bodley, supra note 5, at 471 n.24 (detailing operation of earliest recorded international criminal tribunal). Bodley also describes the trials held in
Germany's own supreme court after World War I and catalogs their failure. See id. at
423 (noting inefficacy in trials of World War I war criminals). "Of the 896 Germans
accused of war crimes by the Allies, only twelve were tried and of those only six were
convicted (and given token sentences)." Id. at 423 (quoting Virginia Morris &
Michael Scharf, AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL
FOR THE FORMER YUGOSLAVIA (1995)). After World War II, the Allied Powers held
trials in Nuremberg, Germany and Tokyo, Japan to prosecute certain war criminals.
See MINow, supra note 1, at 27 (making reference to Nuremberg and Tokyo trials);
Bodley, supra note 5, at 424 & nn.29-30 (reciting history of Nuremberg trials and
Tokyo tribunal); Steven Fogelson, The Nuremberg Legacy: An Unfulfilled Promise,63
S.CAL. L. REV. 833, 834-57 (1990) (explaining Nuremberg trial and history leading up
to it); Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Criminal Court, 33 COLUM. J. TRANSNAT'L L. 73, 81-83 (1995) (discussing Nuremberg and Tokyo trials). After a lapse of approximately 40 years, the international
community again undertook to try perpetrators of mass atrocity in Rwanda and the
former Yugoslavia before an international tribunal. See MINOW, supra note 1, at 2728 (noting "gap" between World War II trials and implementation of tribunals for
Rwanda and former Yugoslavia). The International Criminal Tribunal for the Former
Yugoslavia also has jurisdiction to prosecute the perpetrators of very recent mass
atrocity in Kosovo. See Associated Press, Key Elements of U.N. Resolution, http://
www.cnn.com/interactive/specials/9906/Kosovo.un.resolution/content.html(last visited
Oct. 22, 1999) (articulating United Nation's demand for all parties' full cooperation
with International Criminal Tribunal). The Associated Press stated that the "[U.N.]
resolution demands full cooperation by all governments and the international security
force in Kosovo with the International Criminal Tribunal for the Former Yugoslavia."
Id. Indeed, the tribunal has recently indicted Slobodan Milosevic, Yugoslav President, for crimes against humanity. Id. Minow articulates three elements necessary to
effectively prosecute those responsible for mass violence: "a commitment to redress
harms" by applying "preexistingnorms;" "administration by a formal system committed to fairness and opportunities to be heard;" and treatment of individuals "in light
of particular, demonstrated evidence." MINOW, supra note 1, at 25 (emphasis added).
20. See MINOW, supra note 1, at 50 (listing benefits of using trials to respond to
mass atrocity).
21. See MiNow, supra note 1, at 50.
2000]
BOOK NOTE
bility and establish (or reestablish) the "rule of law."'2 2 Fourth,
trials provide both an opportunity to learn from past atrocity
and a warning not to commit future violence.23 Finally, trials
generate a public record of atrocities.24
Ultimately, however, Minow posits that trials have proven
"ill-suited" to the process of healing after mass atrocity.25 Specifically, Minow finds trials a problematic solution for four reasons.2 6 First, trials for international war crimes and atrocities
27
may retroactively apply an international standard of conduct.
Second, international tribunals depend on politics for their very
existence and, consequently, the processes of the tribunals may
be "politicized."28 Third, trials can be problematic because lim22. See MINOW, supra note 1, at 50. According to Minow, the phrase "rule of
law" embraces three elements: "a commitment to redress harms with the application
of general, preexisting norms;" "administration by a formal system itself committed to
fairness and opportunities for individuals to be heard both in accusation and in defense;" and, finally, a proceeding "aim[ed] at treat[ing] each individual person in light
of particular, demonstrated evidence." Id. at 25.
23. See MINOW, supra note 1, at 49 (expressing Minow's view that trials both
educate and deter the public with regard to mass violence). Minow states: "the trial
enables others to learn from the past and to warn those in the future. Thereby, it
contributes to the aspiration for justice." Id.
24. See MINOW, supra note 1, at 50 (noting trial transcripts serve to evidence
atrocity). But see id. at 47, 58 (cautioning that trials do not generate full account of
mass atrocity).
25. See MINOW, supra note 1, at 51 (concluding trials not optimal choice after
mass violence). "Trials, in the end, are ill suited to deal with the subtleties of facing
the past." Id.
26. See MINOW, supra note 1, at 30, 58 (noting frailties intrinsic in trials).
27. See MINOW, supra note 1, at 33 (explaining retroactivity argument in context
of defense argument in Nuremberg trials). One may define retroactivity as applying
new principles of law to condemn perpetrators' past actions. See id. (discussing retroactivity). The perpetrators could not possibly have known the law when they acted
because it was not yet articulated. See id. at 32-37 (explaining retroactivity argument
and giving examples); Fogelson, supra note 19, at 860-63 (summarizing then ultimately
rejecting retroactivity argument in context of Nuremberg trials). But see MINOW,
supra note 1, at 34 (stating Nuremberg trials established precedent rejecting retroactivity argument). Minow observes that many credit the Nuremberg trials with "establishing that there is no injustice in punishing defendants who knew they were
committing a wrong condemned by the international community, even in the absence
of 'a highly specified international law."' Id. (quoting Marquardt, supra note 19, at
82). Minow also notes that, despite many commentators' concern regarding retroactivity with regard to the Nuremberg trials, the majority of German citizens believed
the proceedings to be fair. See MINOW, supra note 1, at 34 (citing Stephen Breyer,
Crimes Against Humanity Nuremberg, 1946, 71 N.Y.U. L. REV. 1161 (1996)).
28. See MINOW, supra note 1, at 37 (stating politics may overcome rule of law in
tribunals dependent upon "political actors and developments"). Minow discusses the
international tribunal for the former Yugoslavia to exemplify her concerns regarding
216
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[Vol. 24:1
ited resources and political considerations may result in "selective prosecution" of a few, low-ranking perpetrators while those
who engineered the mass violence remain unpunished. 29 Finally, Minow finds the trial process at odds with individual healing because healing often requires that victims unburden
themselves to an uncritical listener; cross-examination, however,
30
necessarily subjects witnesses to "interruption or skepticism."
B.
Truth Commissions
In some instances, governments or private parties established truth commissions to officially investigate wrongs committed in the course of mass violence and genocide. 31 According
politicization because, there, the government that presided over the atrocity remained
in power. See MINoW, supra note 1, at 37. The establishment of the Yugoslavia tribunal, Minow asserts, was purely political and symbolic as evidenced by the appropriation of slight resources and the lack of international support for more direct action in
the war itself. See id. Minow also observes that retroactivity and confusion are compounded because international criminal law is lacking in detail, sometimes forcing
international tribunals to refer to the law of the perpetrators' nation state, as was the
case with the Yugoslav tribunal. See id. at 38 (describing necessity of consulting domestic law of former Yugoslavia to obtain "full range of criminal and penal authority"
(citing Keith R. Chaney, Pitfalls and Imperatives:Applying the Lessons of Nuremberg
to the Yugoslav War Crimes Trial, 14 DICK. J. INT'L L. 57 (1995))); see also James
O'Brien, The InternationalTribunal for Violations of InternationalHumanitarianLaw
in the Former Yugoslavia, 87 AM. J. INT'L L. 639, 643 (1993), cited in MINoW, supra
note 1, at 159 n.34 (emphasizing Yugoslav tribunal for atrocities committed in Bosnia
"accountable to defendants" and defendants may challenge tribunal's authority); Fogelson, supra note 19, at 858 (recounting accusation that Nuremberg trials were "political show trials" before refuting that proposition).
29. See MINOW, supra note 1, at 40-46 (detailing causes and implications of selective prosecution and providing examples). Minow asserts that scarce resources may
result in selective prosecution. See id. at 45. Mass atrocity impacts many victims,
involves many separate violations of human rights and many perpetrators, and, as
Minow observes, "[t]here may simply not be enough courtrooms, lawyers, witnesses,
experts, or time" to prosecute every culpable actor. Id. at 45. Political fears may also
prevent the prosecution perpetrators who were or are powerful in government. See
id. at 58. In Minow's view, whatever the causes, selective prosecution makes trials
unfair in the public view, particularly when prosecutions are pursued on one side of a
conflict but not the other. See id. at 41, 45. Minow also fears that selective prosecutions make martyrs of those perpetrators that are tried and punished. See MINow,
supra note 1, at 45.
30. See MINOW, supra note 1, at 58 (discussing effects of trial practice).
31. See MINOw, supra note 1, at 52 (discussing South African government's Truth
and Reconciliation Commission to explain truth commission concept). Minow defines "truth commission" in the context of the South African Truth and Reconciliation
Commission as "an official investigation into the facts of atrocities, tortures, and
human rights abuses." Id. Other truth commissions include Argentina's Commission
for the Disappearances of Persons in Argentina and Chile's National Commission for
2000]
BOOK NOTE
to Minow, truth commissions offer many advantages. 32 First,
truth commissions by definition seek to record a full account of
the atrocity and adeptly produce a more complete public record
than trials.3 3 Second, truth commissions emphasize the plight of
victims and include those most affected by mass atrocity when
drafting the historical narrative. 34 Third, truth commissions aid
victims by enabling them to experience the "potential restorative power of truth-telling."3 5 The presence of sympathetic commission members also plays an important role for victims in the
healing process. 3 6 Finally, truth commissions require perpetrators, as well as bystanders who did not attempt to prevent further atrocity, to publicly acknowledge the injury inflicted upon
37
the victims of mass violence.
Truth and Reconciliation. See id. at 54 & 164 n.6 (listing these and other examples of
truth commissions). The United Nations formed a truth commission for El Salvador
to investigate human rights violations perpetrated in that country in the years 19801991. See generally Buergenthal, supra note 6 (describing investigation process of El
Salvador's Truth Commission and author's personal participation as commissioner).
For a short time, many nongovernmental groups joined together and implemented a
truth commission for Rwanda. See id.
32. See MINOW, supra note 1, at 57 (remarking on benefits of truth commissions).
Minow states that truth commissions may surpass trials when healing is the paramount concern. See id. Minow finds that "[t]he very vocabularies of healing and
restoration are foreign to the legal language underpinning prosecutions." Id. at 63.
But see Schabacker, supra note 5 (finding duty to punish perpetrators of gross human
rights violations); Naomi Rhot-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 CAL. L. REV. 451
(1990), noted in MINOW, supra note 1, at 157 n.8) (declaring governments have obligation to prosecute human rights violations under international law). See generally, Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of
Prior Regime, 100 YALE L.J. 2537 (1993), mentioned in MINOW, supra note 1, at 157
n.8 (making detailed argument for duty to prosecute human rights violations).
33. See MINOW, supra note 1, at 60; see also id. at 76 (describing how truth commissions can distill rumor and legend to provide facts regarding mass atrocity).
34. MINOW, supra note 1, at 167 n.34.
35. See MINOW, supra note 1, at 66-70.
36. See MINOW, supra note 1, at 70-74.
37. See MINOW, supra note 1, at 74-79 (discussing "constructive roles of perpetrators and bystanders"). Minow emphasizes that "society as a whole" must acknowledge what happened to victims. See id. at 74. This means that bystanders must accept
responsibility and overcome guilt for failing to take action against mass atrocity. See
id. at 74-75, 172 n.110 (citing Paul Harris, Tutu Asks Whites to Support Work of His
Reconciliation Panel, B. GLOBE, Feb. 19, 1998, at A8). With regard to perpetrators,
Minow praises the process employed by the South African Truth and Reconciliation
Commission ("TRC"). See id. at 76-77. The TRC requires perpetrators desiring amnesty to apply and to testify regarding their own acts of atrocity. See id. (describing
TRC's conditional amnesty process). The TRC may then approve or deny a perpetrator's application for amnesty, depending upon the circumstances. See MINow, supra
218
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[Vol. 24:1
Truth commissions, despite their many advantages, possess
two faults. 38 They may seem "unrepresentative" of the population.39 In addition, those who establish truth commissions generally impose significant constraints on both time and resources,
which makes generating and publishing a complete record of the
atrocity difficult.40 Further, truth commissions do not test witnesses' assertions because members wish to avoid criticizing victims, which can potentially draw the accuracy of the historical
41
record into question.
C.
Reparations
Reparations consist of money or other valuable resources
'
bestowed upon victims as "symbolic redress for violations.5 42
note 1, at 77. Requiring full testimony by perpetrators seeking amnesty increases the
scope and accuracy of the historical record and may lead those who committed acts of
atrocity to acknowledge their wrongs. See id.
38. See MINOW, supra note 1, at 60 & 167 n.33 (discussing truth commission's
frailties).
39. MINow, supra note 1, at 60. Truth commissions sometimes purport to represent the public and thereby publicly acknowledge victims' injuries. See id. Minow
cautions, however, that a commission "may instead seem marginal, unimportant, or
unrepresentative." Id. The South African TRC is somewhat removed from this concern because the employment of a truth commission in that instance arose from extensive public discourse, rather than governmental decree. See id. at 53-54.
40. See MINOW, supra note 1, at 60 & 167 n.33 (noting truth commissions must
often operate under severe time constraints).
41. See MINOW, supra note 1, at 72 (stating TRC does not cross-examine victims
who testify and discussing implications); see also id. at 87 (suggesting truth commissions self-impose fact-checking requirements).
42. MINow, supra note 1, at 117 (defining reparations). History is rife with examples of governments or other parties attempting to regain equilibrium after mass
atrocity by offering reparations. See id. at 105 (providing examples of reparations).
For instance, Japanese prime Minister Ryutara Hashimoto recently offered $20,000
and an apology to each woman now living who was used by the Japanese army as a
"comfort woman," e.g. a captive, sexual slave, during World War II. See id. at 105 &
182 n.57 (describing atrocity of forced prostitution and nature and source of reparations offered); see also MINow, supra note 1, at 182 n.57 (citing Seth Mydans, WWII
Victim Accepts JapaneseReparation,DALLAS MORNING NEWS, Dec. 13, 1996, at A61)
(telling story of one former "comfort woman" who accepted reparations). Most of
the surviving "comfort women," however, chose to reject the reparations because
they did not come directly from the Japanese government. See Mydans, supra; MINOW, supra note 1, at 105 & 182 n.58. In an instance involving the United States,
Congress enacted the Civil Liberties Act of 1988. See 50 App. U.S.C. § 1989b-4, cited
in MINOW, supra note 1, at 100 & 180 n.37 as 38 U.S.C. §4214 (1988). In the Civil
Liberties Act of 1988, the government apologized for the internment of Japanese
Americans during World War II and provided payments of $20,000 to each survivor.
See 50 App. U.S.C. § 1989a(a) (1990); 50 App. U.S.C. § 1989b-4(a)(1); MiNow, supra
note 1, at 100. Although the Civil Liberties Act of 1988 provides no redress for Ger-
2000]
BOOK NOTE
Minow maintains that although reparations are a valuable step
in the healing process, they cannot and should not replace a
more explicit acknowledgement of the atrocity and the consequent harm visited upon victims. 3 Offering reparations, however, does provide several benefits. 44 First, Minow finds
substantial value in the process of seeking reparations because it
increases public awareness of the atrocity and builds public support for victims. 45 Second, receiving reparations gives victims a
sense of recognition and renewal.46
Minow does cite some potential problems with reparations. 47 Society may believe that people no longer need to discuss the atrocity or its consequences merely because the
government or some other party has made amends. 48 Minow
also fears assertions that monetary reparations can remedy per49
sonal or emotional harms.
1.
Restitution
Restitution is a specific type of reparation where a government or private party returns property seized or stolen from vicman Americans detained during World War II, the court has upheld the statute as
constitutional. See MINOW, supra note 1, at 180 n.37 (citing Jacobs v. Barr, 959 F.2d
313 (1992)) (upholding 1988 Civil Liberties Act against challenge by an American of
German ancestry). A government or society offers reparations to remedy the injury
inflicted upon victims, rather than to punish perpetrators. See MINOW, supra note 1,
at 91.
43. See MINOW, supra note 1, at 117.
44. See MINOW, supra note 1, at 93, 99, 100-01, 114-16 (listing benefits of reparations); see also id. at 104 (noting reparations result in "a kind of justice" because
victims deserve compensation for their injuries).
45. See MINow, supra note 1, at 93. The author suggests that, in actuality, the
process of seeking reparations may hold more value than the reparations themselves,
particularly because reparations are always symbolic and can never be adequate to
remedy injuries from mass atrocity. See id.
46. See MINoW, supra note 1, at 93-94 (describing receipt of reparations as valuable because it results in acknowledgement and acceptance of responsibility by
perpetrators).
47. See MINow, supra note 1, at 93 (noting foibles of reparations).
48. See MINOW, supra note 1, at 93 (recognizing limitations on societal
reparations).
49. See MINOW, supra note 1, at 93 (stating monetary reparations can never compensate for certain types of harm); id. at 102-03 (discussing inadequacy of reparations
in context of Japanese-American internment during World War II); see also supra
note 42 and accompanying text (discussing nature of reparations for internment of
Japanese Americans during World War II).
220
SUFFOLK TRANSNATIONAL LAW REVIEW
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tims of mass atrocity.50 Restitution seems a particularly just
response to mass atrocity because it rectifies a specific injury.51
only
Minow posits that, in certain cases, restitution may be the
52
moral choice available to an artifact's current possessor.
From Minow's viewpoint, however, restitution does have its
drawbacks. 53 First, finding the property may itself prove difficult, if not impossible, if much time has passed since the atrocity.54 Second, returning property to victims of mass atrocity may
require destroying the rights of innocent parties far down the
chain of ownership.55 In addition, a new government cannot
possibly reconcile its decision to provide restitution with its policy of protecting property rights of individuals. 56 As a means of
skirting this potential briar patch of conflicting interests, Minow
50. See MINOW, supra note 1, at 107-12 (discussing restitution as response to
mass atrocity). One example of restitution is the Native American Graves Protection
and Repatriation Act, which requires federal agencies or museums in possession of
Native American human remains or sacred objects to return those items upon request
of a known lineal descendant or owner. See 25 U.S.C. § 3005(a), cited in MINow,
supra note 1, at 183 n.76. In some instances, the federal agency or museum must
return objects or remains to the owner's tribe if no lineal descendant can be found, or
if the tribe itself was the owner. See id.; see also MiNow, supra note 1, at 183-84
(discussing Native American Graves Protection and Repatriation Act).
51. See MINOW, supra note 1, at 107 (noting restitution restores lost property to
victim); see also supra note 42 and accompanying text (discussing restitution in context of returning Native American ancestral bones and sacred objects).
52. See MiNow, supra note 1, at 110-111 (citing restitution as moral imperative in
certain cases). Minow finds restitution is required "as a moral, if not legal, matter"
when expropriated property is "unique and nonfungible." Id. Minow further perceives a risk that failing to provide restitution may result in violent acts of revenge by
victims. Id. at 111 (relating fictional account of museum attorney getting his comeuppance for refusing to return ancestral bones).
53. See MINOW, supra note 1, at 107, 109 (expressing various concerns regarding
reparations' efficacy as response to mass violence).
54. See MINOW, supra note 1, at 107 (detailing difficulty of locating missing
property).
55. See MINOW, supra note 1, at 107 (observing practical difficulty in providing
restitution "especially after many intervening years"). Minow borrows the example
of tribal claims to New Zealand's west coast stemming from forcible colonization long
ago. See id. at 107 & 183 n.69 (citing PAUL BRODEUR, RESTITUTION: THE LAND
CLAIMS OF THE MASHPEE, PASSAMAQUODDY, AND PENOBSCOT INDIANS OF NEW ENGLAND (Boston: Northeastern University Press 1985)). But see MiNow, supra note 1,
at 108 (noting "innocent" takers of wrongly seized property not entirely blameless
because benefited from expropriation).
56. See MiNow, supra note 1, at 109 (discussing South African paradox of offering restitution while pledging protection of white minority's property rights).
2000]
BOOK NOTE
suggests making "symbolic reparations5 and negotiated settlements" as opposed to pure restitution. 7
2. Apology
The dictionary defines an apology as "an admission of error
or discourtesy accompanied by an expression of regret." 58 Minow recognizes significant advantages in apologizing for mass
atrocity. 59 First, government officials of the new regime or the
old regime that presided over the atrocity can make an official
apology to facilitate healing after mass atrocity.60 Second, apologies are simple and cost-effective. 61 Third, those apologizing
for mass atrocity fully accept responsibility for their actions and
admit to violating the moral code of their community. 62 Finally,
apologies can restore the victims' sense of control by giving
63
them the power to accept, reject or simply ignore the apology.
57. MINOW,supra note 1, at 112.
58. Webster's Ninth New Collegiate Dictionary at 95 (Merriam-Webster, Inc.
1991). Apology has had its place in many reparation efforts. See 1988 Civil Liberties
Act 50 App. U.S.C. § 1989a(a) (expressing Congress' apology for internment of Japanese Americans during World War II); MINOW, supra note 1, at 113 (discussing President Clinton's apology to survivors of study in which those afflicted with syphilis went
untreated); id. (noting British Prime Minister Tony Blair's apology for Irish Potato
Famine); id. (explaining history of Australia's "Sorry Day" holiday to commemorate
those harmed by government-sanctioned kidnapping of Aboriginal children); id.
(mentioning Japanese and East German governments' apologies for World War II and
the Holocaust). Public opinion is divided as to whether the United States government
should proffer an apology for slavery. See id. at 113 (stating conflict over slavery
apology and basis for opposing arguments); MINOw, supra note 1, at 184 n.87 (citing
DeWayne Wickham, Why Clinton Must Stop Dodging Slavery Apology, USA Today,
Dec. 16, 1997, at A15) (advocating United States government apology for slavery);
MINOW, supra note 1, at 184 n.87 (citing Bill Nichols, Should the National Apologize?
Critics Argue Substance is Need, Not Symbolism, USA Today, June 18, 1997, at Al)
(detailing public opinion opposing government apology for slavery).
59. See MINoW, supra note 1, at 114-15. Another commentator has also expounded upon the benefits of apology, albeit in the more general context of legal
practice. See generally Jonathan R. Cohen, Advising Clients to Apologize, 72 S.CAL.
L. REV. 1009, 1015-23 (1999) (discussing how clients may benefit by making apology).
60. See MINoW, supra note 1, at 114 (explaining who may apologize for
atrocities).
61. MINOW, supra note 1, at 114 (noting apologies perhaps "most inexpensive
and least difficult actions available").
62. MINOW, supra note 1, at 114-15 (noting an acceptance of responsibility must
necessarily accompany an apology).
63. MINow, supra note 1, at 115 (noting apologies "empower" victims).
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Enumerated benefits aside, apologies pose certain
problems. 64 In rapid succession, Minow lists three inadequacies
of apology as lack of sincerity, failure to change behavior, and
failure to completely acknowledge the wrongful acts committed.65 In addition, apologies may be deficient when made by
people other than the actual perpetrators or their government,
or those "who have only a remote connection with either the
wrongdoers or the victims." 66 Finally, Minow questions the
value of entirely symbolic apologies unaccompanied by other
.conciliatory action.67
III.
HISTORICAL USE OF TRIALS, TRUTH COMMISSIONS AND
REPARATIONS AS RESPONSES TO MASS VIOLENCE
A.
Trials
Many societies, including Rwanda and the former Yugoslavia, sought healing after mass violence by prosecuting perpetrators.68 According to one commentator, the international
community made its "first serious attempt[ ]" to establish an international criminal tribunal after World War 1.69 Ultimately,
however, those first efforts to create an international court
70
failed.
The Nuremberg and Tokyo trials after World War II constitute the most noted use of trials as an international response to
mass violence, and many commentators credit those proceedings with beginning the expansion of international criminal
law. 7 1 The Nuremberg and Tokyo trials spawned decades of
64. MINOW, supra note 1, at 112 (enumerating problems with apology as response to mass violence).
65. MINow, supra note 1, at 112 (listing inadequacies of apology).
66. MINOW, supra note 1, at 112; see also id. at 113 (observing remoteness of
current government officials from slavery as potentially weighing against governmental apology).
67. See MINOW, supra note 1, at 112. Minow states: "Perhaps most troubling are
apologies that are purely symbolic, and carry no concrete shifts in resources or practices to alter the current and future lives of survivors of atrocities." Id.
68. See supra note 19 and accompanying text (discussing past prosecutions of war
criminals after mass atrocity).
69. Marquardt, supra note 19, at 79.
70. See Marquardt, supra note 19, at 79-80 (discussing failure of efforts to establish international courts after World War I).
71. See Fogelson, supra note 19, at 833 (declaring Nuremberg "landmark event in
the development of international law"); MINOW, supra note 1, at 27 (stating that many
viewed Nuremberg and Tokyo trials as "landmark contributions" to "struggles for a
2000]
BOOK NOTE
scholarly debate regarding the fairness and efficacy of the proceedings as a response to the Holocaust.7 2 More recently, during the apartheid era, the effort to establish an international3
court to try those promulgating apartheid proved unsuccessful?7
B.
Truth Commissions
Several societies, most notably post-apartheid South Africa,
have implemented truth commissions to restore equilibrium after horrific mass violence. 74 The results have been disparate, as
have the means of implementing and operating the commissions
themselves. 75 Some truth commissions, such as the South African TRC, took hold and produced a partial record of events,
just world order"); Stephen Breyer, Crimes Against Humanity Nuremberg, 1946, 71
N.Y.U. L. REV. 1161, 1163 (1996) (crediting Nuremberg trials with increasing "concern for the protection of basic human liberties" worldwide). Specifically, Minow
states that the Nuremberg trials accomplished the following:
[Llaunched a remarkable international movement for human rights
founded in the rule of law; inspired the development of the United
Nations and of nongovernmental organizations around the world; encouraged national trials for human rights violations; and etched a set
of ground rules about human entitlement that circulate in local, national, and international settings.
MINOw, supra note 1, at 47. Fogelson, by contrast, declined to "provide an exhaustive
list," but stated simply that "Nuremberg was fertile ground from which a number of
humanitarian principles grew." Fogelson, supra note 19, at 870 n.275.
72. See Marquardt, supra note 19, at 81 (noting that scholars have "exhaustively
documented and analyzed" Nuremberg trials).
73. See Marquardt, supra note 19, at 89 (detailing failed attempts to try perpetrators of apartheid).
74. See supra note 31 and accompanying text (discussing truth commissions and
providing examples of nations that have implemented commissions in the past).
75. See MINOW, supra note 1, at 53 & n.3 (discussing creation of truth commissions in several nations). The legislative fiat formed the South African Truth and
Reconciliation Commission, which Minow offers as a good example of an effective
truth commission after much public discourse. See id. at 53 & nn.3-4. Other countries
created truth commissions by different means, including acts of parliament, presidential order, negotiation, or actions of international and domestic nongovernmental organizations. See id. at 53-54 & nn.3, 6 (giving examples of countries that used above
methods to establish truth commissions). One of the most interesting efforts to assemble a comprehensive record of atrocity took place in Brazil without governmental
approval. See id. at 54. The Catholic archbishop of Sao Paulo financed a secret investigation into alleged acts of atrocity in Brazil. See MINOW, supra note 1, at 54. The
investigators summarized their findings in a book, the title of which may be translated
as Brazil: Never Again. See id. The book details nearly 2,000 murders and incidents
of torture. See id. Minow states that the book was "an unprecedented best-seller in
Brazil." Id. at 54.
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while others faltered or disbanded early on.76 In the hope of
gaining a more complete account of the atrocity, at least one
77
commission granted amnesty to perpetrators who testified.
C.
Reparations
Recently, many governments have sought to address long
ignored instances of mass atrocity by offering reparations to victims.78 For instance, the United States proffered reparations to
Japanese-Americans who were forcibly interned by the U.S.
government in a frenzy of war hysteria surrounding World War
II. 79 In addition, a coalition of private Japanese donors offered
reparations to "comfort women" forced into prostitution during
World War 11.80 Some victims have accepted reparations for
reasons ranging from forgiveness to economic necessity while
others have rejected the reparations as inadequate or because
they did not come from the government that presided over the
atrocity.81 Whatever the response, offering reparations seems to
generate press coverage and public discourse regarding both the
atrocity itself and the attempt to make amends. 82
76. See MINOW, supra note 1, at 52-54 (detailing efforts of TRC and mentioning
existence of "short-lived" Rwandan truth commission).
77. See MINOW, supra note 1, at 59 (explaining South African TRC's "conditional grants of amnesty" to perpetrators). Although granting amnesty to perpetrators in return for testimony may provide an incentive for them to testify, the trade of
justice for truth does not always please victims' family members. See id. at 56
(describing victims' families' unsuccessful lawsuit alleging amnesty grant violated constitution because usurped families' right to sue).
78. See supra note 42 and accompanying text (discussing use of reparations to
heal society and surviving victims of mass atrocity).
79. See supra note 42 and accompanying text (describing Congress' decision to
provide reparations to Japanese-Americans interned during World War 1I).
80. See supra note 42 and accompanying text (exemplifying concept of reparations by discussing money offered to Japanese "comfort women").
81. See Mydans, supra note 42, at A61 (discussing one "comfort woman's" decision to accept reparations). Mydans also notes, however, that most "comfort women"
rejected reparations because the money did not come directly from the Japanese government. See id.; MINOW, supra note 1, at 105 (noting that money for reparations to
"comfort women" came from private sources in Japan). Some victims may reject reparations because "no monetary payment could remedy the horrors and humiliation
they experienced" and any attempt to assess the "value" of their suffering may seem
"inappropriate[ ]." See MINOW, supra note 1, at 104-05.
82. See MINOW, supra note 1, at 102-03 (stating that reparation offer "at best
ends the inaction and silence after the violation"); see also Mydans, supra note 42, at
A61 (serving as an example of public discourse on subject of "comfort women").
2000]
1.
BOOK NOTE
Restitution
Some societies favored restitution as a response to mass violence in situations where perpetrators deprived victims of specific property, such as artwork, tribal artifacts, or even ancestral
bones. 8 3 For instance, the United States government enacted a
statute mandating the restitution of various items that hold tribal significance to Native Americans. 84 Even when restitution is
purely symbolic, the process acknowledges the wrong visited
upon victims and facilitate healing. 85 Conversely, failing to provide restitution sometimes causes dissent and resentment within
86
the victimized groups.
2. Apology
Many societies have sought to acknowledge past atrocity
and atone for a government's involvement by issuing an apology, another type of reparation.87 Some commentators look
with cynicism upon the recent avalanche of governmental apologies as merely the cheapest way to silence victims and counteract negative publicity. 88 Apology proponents, however, note the
healing potential of a sincere apology and its ability to empower
victims by furnishing them the choice to accept or reject it once
given. 89 At the very least, a public apology brings past atrocities
to the forefront and creates a new opportunity for societal dis83. See supra note 50 and accompanying text (exploring concept of restitution by
discussing return of Native American ancestral bones and artifacts).
84. See supra note 50 and accompanying text (discussing 25 U.S.C. § 3005(a) addressing restitution of tribal artifacts to Native Americans).
85. See MINOW, supra note 1, at 110 (discussing importance of symbolic reparations); see also supra note 45 and accompanying text (recognizing process of seeking
reparations may overshadow actual reparations in importance).
86. See supra note 52 and accompanying text (discussing risk of retribution and
ill will if requests for restitution denied); MINOW, supra note 1, at 111-12 (explaining
effect of public outcry against Swiss banks retaining long-dormant accounts opened
during World War II).
87. See supra note 58 and accompanying text (addressing apology and providing
examples of societies apologizing in response to mass violence).
88. See Nichols, supra note 58, at Al (cataloging recent use of governmental
apologies). Many people believe that substantive change, not apology, is needed in
the context of slavery. See id. (detailing opinions of those who espouse this view).
Nichols comments upon the "growing list of official governmental or institutional [sic]
regrets for past actions." Id.
89. Supra notes 59-63 and accompanying text (discussing Minow's and another
authority's view regarding positive aspects of apology).
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cussion and healing. 90 The United States' apology for Japanese
internment during World War II and President Clinton's apology to subjects of a syphilis study who were, unbeknownst to
them, forced to suffer without treatment serve as two recent examples of public governmental apology. 91
IV.
MINOW's ARTICULATE AND IMPARTIAL EVALUATION OF
EACH POSSIBLE RESPONSE TO MASS ATROCITY
Minow dispassionately and thoroughly evaluates each possible response to genocide and mass violence, properly recognizing that no "magic formula" exists for healing. 92 Instead of
propounding some homogenous solution, her analysis embraces
the many cultural differences of societies fraught with mass violence. 93 Minow's willingness to recognize the inadequacies and
benefits of each option renders her book a genuinely useful tool
94
in evaluating various societal healing processes.
Minow clearly and succinctly discusses the benefits and
shortcomings of each response, citing examples and authority
for each proposition. 95 The only relevant sources that do not
90. See Nichols, supra note 58, at 1A (exemplifying public discourse spawned by
possibility of apology for slavery); Wickham, supra note 58, at 15A (illustrating public
discourse regarding potential apology for slavery); cf. supra note 82 (noting offer of
reparations at least "ends the silence" regarding mass atrocity).
91. See supra note 58 and accompanying text (discussing numerous examples of
public apology).
92. See Bass, supra note 12, at 2107 (noting Minow lists options but chooses not
to endorse any one in particular). According to Bass, Minow "presents a long list of
possible alternative responses, without placing too much hope in any of them." Id.
Contrary to embracing any one "perfect solution," Minow refers to her book as "a
fractured meditation on the incompleteness and inescapable inadequacy of each possible response to collective atrocities." Id. See also MINOw, supra note 1, at 5 (acknowledging insufficiency of any legal response).
93. See MINOW, supra note 1, at 4 (recognizing different societies require different means of recovery after atrocity). Minow states: "[t]he variety of circumstances
and contexts for each nation, and indeed each person, must inflect and inform purposes in dealing with the past and methods that work or can even be tried." Id.
94. See Bass, supra note 12, at 2107-08 (praising Minow's willingness to use her
legal expertise to criticize trials). Bass lauds Minow's consideration of "a broad range
of policy tools that might help [restore shattered societies]." Id. at 2109. In his foreword, Judge Richard J.Goldstone refers to Minow's book as "an essential resource
for anyone interested in finding a means of curbing war crimes and human rights
abuses." See MINOW, supra note 1, at xiii (quoting Foreword to MINOW written by J.
Richard J. Goldstone).
95. See MINOW, supra note 1, at 25-51 (discussing trials); id. at 52-90 (articulating
Minow's views on truth commissions and reasons therefore); id. at 91-117 (examining
reparations).
2000]
BOOK NOTE
factor into Minow's discussion are those published after her
book went to press in 1998.96 Clearly having spent much time
researching the subject of mass violence, Minow declines to rush
any aspect of her discussion, instead, frequently pausing to summarize and demonstrate how each option achieves societal healing.97 Minow's book evaluates the means by which a nation may
move forward after mass atrocity and would greatly aid those
seeking to fashion a remedy in their own society.98
A.
Trials
History has shown that prosecuting perpetrators of mass
atrocity can be both difficult and unsatisfying. 99 Although trials
offer certain benefits, Minow concludes that prosecution of perpetrators ultimately suffers severe shortcomings as a response to
mass violence. 1°° As Minow observes, politicization, retardation
96. See generally Bergen, supra note 5 (discussing Holocaust in order to address
issues involving Princz v. The FederalRepublic of Germany); Schabacker, supra note
5 (addressing duty to punish human rights violations); Alvarez, supra note 5 (discussing mass atrocity in Rwanda); Bodley, supra note 5 (examining International Criminal
Tribunal for the Former Yugoslavia); Slaughter & Ratner, supra note 6 (articulating
authors' views during Kosovo crisis regarding methods of holding perpetrators of
atrocity accountable); Key Elements of U.N. Resolution, supra note 19 (detailing
United Nations resolution regarding Kosovo); Cohen, supra note 59 (expounding
benefits of apology).
97. See MINOW, supra note 1, at 88-89 (comparing trials with truth commissions
and assessing possibility of employing both after mass violence); id. at 91 (drawing
truth commissions and reparations under umbrella concept of "restorative justice");
id. at 90 (providing summary of author's commentary on truth commissions); id. at
117 (summarizing concept of reparations).
98. See generally Bass, supra note 12 (praising Minow's approach); J. Richard J.
Goldstone, Foreword to MINOW, supra note 1, at xiii (calling Minow's book "essential" to those who seek to prevent further mass atrocity).
99. See Bodley, supra note 5, at 423 (characterizing Germany's prosecution of
war criminals after World War I as failure); Marquardt, supra note 18, at 79-80 (discussing failure of German war crimes trials and stating those convicted often "escaped" imprisonment). Bodley, in support of her characterization, cites the pitifully
small number of convictions (six) in relation to the large number of persons accused
(896). See Bodley, supra note 5, at 423. Indeed, only 12 of the 896 accused were even
tried. See id. Many have criticized the Nuremberg trials as well. See Fogelson, supra
note 19, at 858-67, cited in MINOW, supra note 1, at 30 n.11 (recounting arguments
leveled at Nuremberg proceedings); MINOW, supra note 1, at 30 & n.11 (listing numerous sources containing critics' accusations regarding Nuremberg trials).
100. See supra notes 24-30 and accompanying text (relating Minow's views regarding problematic aspects of trials). Another commentator agrees with Minow that
trials are far from the ideal solution. See Bass, supra note 12, at 2108 (stating
"[h]uman rights trials, as we know them, are not yet ready to deliver anything close to
perfect justice").
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of healing by cross-examination, retroactivity and "selective
prosecution," are valid concerns, but there may be some means
of addressing the last two issues.101 Specifically, a "two-tiered"
approach involving the implementation of a truth commission
followed by trials could provide a fair means of selecting those
offenders that will be prosecuted: perpetrators who refuse to
testify should be tried. 10 2 In addition, informing wrongdoers
an
that failing to testify will result in prosecution would provide
10 3
commission.
the
before
speak
incentive for perpetrators to
Minow's conclusion that prosecutions alone generally fail to
adequately remedy mass atrocity is essentially sound, even taking into consideration any counterbalancing factors that may exist.104 First, an immense number of wrongdoers escape
prosecution and punishment due to scarce resources. 10 5 Second,
if the government that held power during the atrocity remains in
10 6
control, the efficacy of trials is questionable.
101. See Fogelson, supra note 19, at 860-63 (rejecting retroactivity argument in
context of Nuremberg trials). Selective prosecution may be fixed by removing the
objectionable element, e.g. arbitrariness. See MiNow, supra note 1, at 40 (asking
whether selection may be "judged as a matter of fairness rather than arbitrariness").
Later in the book, Minow herself touches upon the solution when she suggests that a
truth commission could, perhaps, "report to a prosecuting authority the names uncovered through its investigation." Id. at 87. One possibility for abolishing the arbitrariness of selective prosecution might be for a truth commission to grant amnesty to
perpetrators who provide testimony; the commission could then submit to a prosecuting authority the names of perpetrators who refused to testify (uncovered during the
commission's investigation). See MINOw, supra note 1, at 77 (describing South African Truth and Reconciliation Commission's conditional grants of amnesty); id. at 59
(suggesting government consider prosecuting only those perpetrators who decline to
testify before truth commission); supra note 36 (explaining operation of South African Truth and Reconciliation Commission).
102. See supra note 101 (presenting chain of reasoning supporting implementation of truth commissions followed by trials).
103. See supra note 101 (presenting chain of reasoning supporting use of truth
commissions accompanied by subsequent trials).
104. See Bass, supra note 12, at 2107-08 (indicating Bass's accord with Minow's
critical opinion of trials); supra notes 27-30 and accompanying text (recounting Minow's view of problems inherent in trials).
105. See supra note 29 and accompanying text (discussing lack of resources resulting in selective prosecution); see also Bass, supra note 12, at 2108 (declaring tribunals cannot possibly try all perpetrators). "Tribunals never punish anything remotely
near the number of actual perpetrators, so the guilt or innocence of vast numbers of
individual Germans or Serbs remains a mystery." Id.
106. See MINOW, supra note 1, at 37 (discussing "symbolic" nature of trial conducted in response to Bosnian atrocity when perpetrators still held power); see also
Bass, supra note 12, at 2107 (noting politics and law may conflict).
2000]
BOOK NOTE
B.
Truth Commissions
Minow seems to invest the most hope in the implementation of truth commissions and, in particular, praises the South
African Truth and Reconciliation Commission.107 Although Minow is careful to point out the shortcomings of the truth commission as a response to mass violence, the truth commission
seems the best choice when a society's goal is healing.108 To Minow, healing victims is of primary importance and, in order to
heal, victims need to tell their story to an uncritical listener.109
Truth commissions are far superior to trials in terms of permitting victims to tell their stories because truth commissions do
not employ cross-examination.1 0 Truth commissions also provide a more comprehensive record of the atrocity than trial transcripts.,
If Minow appears to express more optimism with
regard to truth commissions, she is justified in doing so based
12
upon their relative success in terms of public acceptance.
C.
Reparations
In Minow's view, providing reparations is beneficial as one
part of the restoration effort; reparations, however, are always
insufficient, particularly absent some accompanying acknowledgement of the wrongdoing.' 13 Minow correctly recognizes the
107. See MINOW, supra note 1, at 56, 59, 72 (containing language praising aspects
of South African Truth and Reconciliation Commission's operation).
108. See MINOW, supra note 1, at 56-57 (praising South African Truth and Reconciliation Commission as promoting "ubuntu" or societal healing).
109. See MINOW, supra note 1, at 58 (observing communication of victim's story
crucial to healing); id. at 66-70 (discussing healing attributes of "truth-telling"). Minow comments that prosecutions force "[v]ictims and other witnesses [to] undergo the
ordeals of testifying and cross-examination." Id. at 58. She emphatically supports the
opportunity truth commissions provide victims to deliver a narrative of their experiences. Id. In Minow's view, "[t]he chance to tell one's story and be heard without
interruption or skepticism is crucial to so many people, and nowhere more vital than
for survivors of trauma." Id.
110. See MINOW, supra note 1, at 58 (discussing drawbacks of trials in light of
victims' need to tell their stories); id. at 72 (stating TRC does not cross-examine victims who testify and discussing implications); see also id. at 58 (expressing opinion
that testimony and cross-examination constitute "ordeals" for victims).
111. MiNow, supra note 1, at 58-59 (asserting truth commissions more likely to
produce detailed accounts than trials).
112. See MINOW, supra note 1, at 54 (noting Brazilian best-seller status of truth
commission report entitled "Brazil: Never Again"); id. at 53-54 (praising process of
public debate that gave rise to South African Truth and Reconciliation Commission).
113. See MiNOW, supra note 1, at 117; see also supra note 79 and accompanying
text (addressing one group's refusal to accept reparations).
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value inherent in the process of seeking and receiving reparations, but also realizes that reparations themselves can never
truly compensate for the injury visited upon victims.114 The
value in seeking reparations lies in victims' regaining control
over their lives; starting a movement to attain reparations may
15
empower victims by enabling them to regain their dignity.1
Additionally, the opportunity to speak about the atrocity encourages both individual healing and societal education regarding mass violence.116
Nonetheless, Minow may underestimate the value of the
new or revived discussion accompanying a battle for reparations
because she mentions the advantage, but does not go into detail.117 Indeed, after she mentions the possibility of increased
public debate, Minow subsequently discounts its value, saying
only that offering reparations "at best ends the inaction and silence after the violation."118 "Ending the silence," however, is
crucial to victims' healing because the public must care enough
to listen to victims' stories; absent an uncritical listener, healing
through narration cannot take place.1 19
1.
Restitution
Minow embraces restitution as equitable, particularly in
light of her view that all subsequent owners of wrongfully seized
property shoulder some of the blame for the original injustice.12o
114. See MINOW, supra note 1, at 93 (placing much value on process of seeking
reparations); id. at 104 (recognizing impossibility of valuing losses from torture and
murder); see also supra note 45 and accompanying text (discussing Minow's assessment of value inherent in process of seeking reparations). Minow propounds that
"[v]aluing the losses from torture and murder strains the moral imagination." MiNOW, supra note 1, at 104.
115. MINOW, supra note 1, at 93 (noting purpose of reparations to empower victims); id. (observing that seeking reparations may restore victims' dignity).
116. See MiNow, supra note 1, at 66-70 (exploring healing properties of speaking
about mass atrocity); id. at 93, 102-03 (noting struggle for reparations increases public
awareness of atrocity and precipitates dialogue). Minow extols the value inherent in
"[tihe process of seeking reparations, and of building communities of support while
spreading knowledge of the violations and their meaning in people's lives." Id. at 93.
117. See MINOW, supra note 1, at 103 (mentioning only briefly that an offer of
reparation "ends the ... silence"); but see id. at 93 (expressing concern that victims'
acceptance of reparations may actually retard further discussion of original atrocity).
118. MINOW, supra note 1, at 102-3.
119. See supra note 109 and accompanying text (stressing importance in healing
process of relaying victims' account to sympathetic audience).
120. See MINOW, supra note 1, at 108 (pointing out "one group was unjustly enriched by its injury to [another]").
2000]
BOOK NOTE
She recognizes, however, that practical difficulties ensue when
attempting actual restitution and, thus, Minow fully accepts restitution only in cases involving "social and religious meanings
rather than economic values." 12 1 Indeed, when items are
"unique and nonfungible," such as burial grounds or artwork,
Minow views restitution as a moral imperative.122 Minow's approach emits justice in instances involving property of such cultural import as burial grounds or ancestral bones. 123 Although
convenient, Minow's decision to impugn everyone who ever
benefited from any long ago wrongful appropriation is somewhat unrealistic when discussing restitution.124 To extrapolate
from Minow's view, the government might tax members of today's society to compensate Native Americans for the land
25
seized by Colonists approximately 300 years ago.
2.
Apology
Minow surmises that an apology is "inevitably inadequate."'126 Apology does suffer certain limitations, particularly
in relation to events long passed. 127 Given the concededly un121. MINOW, supra note 1, at 110 (discussing when restitution should be used).
Minow concedes that burdening only current owners with providing restitution
"would seem unduly burdensome and accidental." Id. at 108. Minow further refers to
the issue of restitution after a long delay as "[a] political, moral, and legal morass."
Id. at 112. Although Minow would impugn all those in the subsequent chain of ownership of wrongfully seized property, she implicitly acknowledges the difficulty inherent in forcing the masses to swallow such a bitter pill. See id. at 108 (stating
subsequent owners share blame for original misappropriation). She therefore recommends "symbolic reparations and negotiated settlements" instead of pure restitution.
id. at 112.
122. MINOW, supra note 1, at 110 (focusing on moral importance of property
with religious or cultural value).
123. See MINoW, supra note 1, at 110 (stating parcels of real estate with religious
significance constitute "especially ... worthy candidates for restitution").
124. See MINOW, supra note 1, at 108 (acknowledging that forcing current owners to surrender property in restitution "unduly burdensome and accidental"); Id. at
107-09 (denoting commentator Jeremy Waldron's argument against restitution based
upon rights of intervening property holders).
125. See MINOW, supra note 1, at 108 (conceding restitution of real property impractical and proposing tax).
126. See MINoW, supra note 1, at 114 (detailing author's view of governmental
apologies).
127. See MINOW, supra note 1, at 112-13 (addressing problem of current government officials apologizing for remote events); see also supra notes 65-67 and accompanying text (discussing drawbacks of apology as instrument of healing after atrocity);
see also supra note 88 and accompanying text (recognizing somewhat cynical view that
government officials apologize because apologizing is inexpensive and easy).
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predictable nature of forgiveness, Minow's contention that cer128
tain acts of violence are "unforgivable," is debatable.
Accordingly, no act is absolutely "unforgivable" because a survivor may always choose to forgive. 129 Otherwise, Minow's assessment of the value of apology is thoughtful and accurate, and her
commentary includes several examples for those seeking to pro130
mote healing.
V.
CONCLUSION
Far from wholeheartedly embracing any one response to
mass violence, Minow demonstrates an acute awareness of each
possibility's frailties. Her candor and thoroughness in cataloging the pros and cons of trials, truth commissions, and reparations make her book a genuinely useful implement in appraising
ripostes to mass atrocity. Like all of us, the magnitude of
human suffering staggers Minow. Like few of us, Minow steadfastly undertakes to determine what we can do to stop that suffering. There are no happy endings after the horror of mass
atrocity. Minow does show, however, that there can be peace.
Kerry O'Shea Gorgone
128. See MINow, supra note 1, at 116 (noting forgiveness unpredictable). Minow
does recognize that survivors alone choose whether to forgive. See id.
129. See MINOW, supra note 1, at 116 (observing that victim holds power to
forgive).
130. See MINOw, supra note 1, at 113 (discussing examples of various societies'
employment of apology in response to atrocity). One of the most interesting examples of apology cited in Minow's book is Australia's holiday, "Sorry Day," which commemorates the release of a report on government-sanctioned kidnapping of
Aboriginal babies. See id.