FORGIVENESS, RECONCILIATION, AND PARDON:FORGIVENESS AS POLITICAL, ETHICAL, AND LEGAL ISSUE

                                                      PART TWO

By Professor Tecola W. Hagos

 III. Forgiveness is hardly a political solution

In Part One in the introduction section of my essay, I stated, “I am starting this essay with the assertion that weak and/or despotic societies ‘forgive,’ but powerful/democratic communities dispense justice. This assertion may be as provocative as it is simple, indeed.” Very briefly, what I meant in the quoted statement is that in a strong democratic society, crimes are well defined in administrative traditions, in statutes and in case laws in advance. The legislative body in such a community is distinct from both the judiciary and the executive organs of the government; it is a body elected on a universal suffragette basis. The judicial system is well developed, transparent, and independent of the executive, and the prosecutors and investigators are well trained professionals with great moral integrity and abide by rules of procedures of the judicial system et cetera. What is paramount in such communities is the individual’s personhood with human and political rights and social integration, and that he or she is treated fairly and justly by the government of his or her nation. The State of Israel is a good model to follow as a strong government that is vigilant about the rights and protection of its citizens, another example is the United States. See how both countries prosecute even lower level Nazis involved in the Holocaust of the Second World War even over sixty years later.

By contrast, in a society or community where the government structure is weak, such society or community tends to be despotic where the executive body has as its primary function to stay in power through illegal and undemocratic means. Such political condition tends to subordinate the judiciary to the executive, and decisions made in courts or elsewhere are arbitrary due to the interference and control of the judicial process by the executive. The judiciary becomes very much dependant on the whims and caprices of the leader. And such a leader is usually a dictator whose power lies in the military that is not answerable to the people. A state of that form of political power structure could either be characterized as a fascist or totalitarian state. I exclude long-lived aristocratic structures from such generalizations; for a number of limitations against such leaders is in place usually through tradition and the balancing of power and interest of the many leading aristocratic families. The individual citizen is subordinated to the interest of the state as a whole as represented by the leader (dictator) and the in-group. There is no consistent application of the law if there is any law at all. Citizens are insecure, apprehensive of government representatives, and very fearful of their leaders. There are several examples of such violent and brutal governments around the world in the last fifty years, and the past and current Ethiopian Governments being illustrative examples.

“Pardon” as an official act of a government would represent a compromise of a negative type, in almost all instances and even more so in despotic and dictatorial Governments. It is a fact that such act of pardon leading to reconciliation betrays the fact that such a government is weak to enforce its own laws throughout a nation, and has to make arrangement with rebellious groups and/or criminals to forgo normal legal procedure in order to bring to closure conflicts that had resulted in the death of several people (at times in millions) and the destruction of their property. In limited instances the rebellious group might have the upper hand and maybe able to take power through negotiation on condition that most of the crimes and atrocities committed by the government in situ are “forgiven” and the officials are not prosecuted for their crimes.

The best argument usually offered in support of “forgiveness, pardon, and reconciliation” has to do with the possibility of settling irresolvable political conflicts through compromise and giving the parties to such conflicts new beginnings to live together in peace. The subjects of forgiveness are individuals or groups. Often, such criminal offenders are government officials or members of opposition political organizations. Usually the situation leading to such compromise is the possibility of resolving a political stalemate between such contending groups. It is essentially a pragmatic solution of compromise and has no true moral base, unless one considers bringing in a new beginning as a moral act. Political conflicts between contending groups may take years to resolve and result in the death and destruction of millions of people, usually innocent citizens caught in the crossfire.

AWhile Germany conducted a truth commission consistent with the definition adopted here, it focused on the former East Germany. Comparative regional measures do not exist for the pre- and post-unification East. Because comparisons cannot be made, the case is not included in the analysis.

I have quoted the above long list (needs updating) of commissions or committees established to investigate individual and/or collective crimes and atrocities committed by governments and political organizations in order to bring about some reconciliation to resolve such conflicts once and for all. Most have not succeeded, except a few that merely whisked the issues under the carpet of delusion and brought about unacceptable degrees of compromise that violated the legitimate rights of millions of victims

Let us take as our first consideration about the “reconciliation” case of Ethiopia after the downfall of the Military Regime in 1991. The 1991 Conference for Peace and Democracy called and organized by the EPRDF had elements of reconciliation, but was highly selective in the choices of partners and the individuals the EPRDF invited to the conference. The agenda for the Conference was already set by the EPRDF; however, some input must have been forthcoming from the OLF. Nevertheless, the whole exercise was simply some kind of a “fig-leaf” to shield the dictatorial characteristics of the new people in power. More specifically, it helped Meles Zenawi and close associates to mask their ant-Ethiopian personal power hegemonic program and allowed them enough time to structure the secession of Eritrea. It was argued then that it was necessary to exclude from the Conference of 1991 highly contentious groups, such as the EPRP, Meison, or those organizations and individuals who were intimately identified with Mengistu and his government at some point in the past and also those organizations and leaders who were involved in the Red Terror.

The situation in Uganda may provide us with the best illustration why any effort of reconciliation with a rebellious group, with amnesty to the leaders of such group, would violate both international law and domestic legal process. After years of atrocities, where hundreds of thousands of Ugandans were killed, the country is no where close to resolving its internal conflicts. Despite the fact that President Yoweri Museveni is far more accommodating and willing to negotiate with the Lord’s Army, there seems to be no end to the conflict despite the many agreements of reconciliation and amnesty offered to the leaders of the Lord’s Army leadership at a time when the ICC had already issued arrest warrants to some of the leaders.

In Uganda the form of internal division that is coming into prominent fault lines may lead someday to a breakup, with old Buganda kingdom under reconstruction at this time. The case of East Timor, which did conduct an investigation of past misdeeds by sympathizers with the occupation Government of Indonesia, may have shown limited success. East Timor had tried to foster national reconciliation, but failed at the end. A 2005 UN report concluded that the systems of reconciliation and adjudication had failed, and the Indonesian special court had folded as a result of such failed system. In fact, the tendency is toward fracturing and entrenchment of contending parties in their respective enclaves.

The recent referendum conducted in South Sudan is now predicted to be over 90% vote for independence. I am simply citing here a more recent occurrence to illustrate the paradigm shift where empires are breaking down into fragments as several tribal states. The case of Ethiopia in 1993 is a case where the secession of Eritrea from Ethiopia did not bring about peace, but led into further conflicts and atrocities. In fact, the extreme swing for breaking up entities into increasingly smaller states seems to have taken over and replaced the old sentiments of nationalism. In other words, reconciliation is not some form of magical remedy in state conflicts. I totally discount it as one of the reasons for the pardon of convicted Derg Members.IV. The Issue of Forgiveness as an Ethical Question

I think the inherent problem in ethics has to do with the problem of frail “mankind” attempting to live according to some high standards of his God or Gods. I am not being cleaver with words when I write such statements, but confronting the convoluted standard of behavior in ethics that is too high for our human nature or ability being a real problem in all of our human endeavors. In fact, in one of my past articles in defending ethics, I wrote in a rhetorical backhand slap stating ‘what is wrong in man trying to be close to his God’ by abiding by the Commandments of his God et cetera. Of course, my error then is in arguing and justifying the setting of a standard for apples in judging oranges. “Forgiveness” is a Godly and Heavenly act, and when used occasionally by mere mortals in imitation thereof in order to free criminals on Earth, then it created great dissonance in society and in the individuals who were direct victims of criminals.

It must be clearly understood at this outset that the act of “forgiveness” must be preceded by profound remorse or regrets by the wrong doer or convicted criminal in humility; without such remorse and humility on the part of the wrong doer or criminal it is impossible to even entertain the remote chance of forgiveness and pardon. In the case of the convicted Derg Officials, what I have read, and witnessed in pictures and videos is their utter arrogance and their claim that they have done nothing wrong. At any rate it is too late now, for the period of showing their profound remorse and regret of their horrendous crimes was before their conviction. An excellent example of a true remorse for ones crimes and sin is the Psalm of King David. There is a full range of lamentations and humility by David the King in front of his God and his People for all the wrongs he had committed.

Because we set our standards too arboreal, beyond our moral reach, we have to create devices like “forgiveness,” “pardon,” et cetera as connective structures in order to touch the pedestal of such edifice. This is our flawed high standard. The choice I offer here in regard to the convicted Derg Officials may not be pleasant, for it is justice to the victims with very minimal reward the criminal acts of the convicted Derg Officials who are murderers and torturers of tens of thousands of Ethiopians for seventeen years of reign of terror. Who are we to defy the established criminal law system and twist it in order to allow atrocities and murders and mayhem as excusable and pardonable acts? This injustice of process, this push for forgiveness and pardon, when I think about it infuriates me. What do we gain as a society by allowing such murderers who caused unimaginable pain and suffering, in order to allow them to walk out of prison freely and enter a society that they harmed beyond description? Do we really have any such obligations to pardon individuals who deliberately breached our sanctuary and sacred person and violently tortured and even murdered members of our community? Justice is too good for them for the crime they committed. Too often I have stated in my previous articles that the aim of the judicial process is not vengeance. I am, in fact, rethinking that position and question why we avoid a demand for vengeance against such atrocious criminals.As I stated in the First Part of this essay, the provocative article “On the Pleasure of Hating” by the Nineteenth Century celebrated curmudgeon William Hazlitt(6) is a proper essay to bring to the readers attention in order to remind all that there is more to seeking justice than mere philosophy and legalism—the psychological components are as important. In this regard, the ancient Greeks have a most expressive term Κάθαρσις “catharsis” that describes the psychological state of mind an individual undergoing such “catharsis.” The term can be roughly translated to mean “purification of” or “purging of” oneself from the pollution of the feeling of being a victim. In other words, it is not only “forgiveness” that allows the human inner self to clean itself of polluting feelings to move away from the confinement and negativity of victimhood, but properly conducted retaliation or “catharsis” would do as well. Both forgiveness and catharsis deal with the psychology of the individual and do not truly address the philosophical basis for such relief from victim-hood.

Justice has two elements in it as well: retributive justice and restorative justice. People might think that I am emphasizing and focusing solely on retributive justice. It may not be that apparent to some that properly delivered just punishment of against a convicted criminal has elements of restorative justice. Such rendition of justice restores society and the victims to some health; it also delivers justice to the criminal and forces him to mend his ways. Even in cases of capital punishment, there is enough time allowed for the criminal to reflect and restore his spiritual well being.

The major problem in discussion of living religions around the world is the fact that the scriptures (Mahabharata, Ramayana, Torah, New Testament, Qu’ran, et cetera) of such religions may not correspond with actual practices. Thus, people discussing the same issue and particular activity in the same religion may honestly disagree. God or Gods and Goddesses are central almost in all aspects of human interactions. It is imperative for me to discuss to what extent the role God or Gods and Goddesses play in the everyday-life of human beings when discussing the issues about justice and forgiveness. At the center of almost all religions, we find God or Gods and Goddesses. It is often argued by moral philosophers that the source of ethics is religion and “God” or “Gods and Goddesses” are the very life of religion. And thus the implication being that without religion the world will be in some kind of barbarism, violence, and atrocities.

The assumption being that without the ordering of “God” or “Gods and Goddesses,” mankind will lead a life no better than that of wild animals. However, that assumption of the significant role being played by “God” or “Gods and Goddesses” in ethics and morality seems to have been eroded and challenged considerably due to recent advancements in the sciences and social philosophy. The work on animal instinct and behavior has been tedious and gradual beginning with the pioneering works of Nobel Laureates Konrad Lorenz and Nikolaas Tinbergen, the two great ethologists. Environmental ethicists such as Peter Singer and James Lovelock have written several articles and books with new and refreshing perspective of ethics and morality involving animals and the whole eco-system. Currently, of the many scholars that have immensely advanced our understanding of the human condition in terms of our moral behavior, I particularly refer to Francis de Waal at Emory, and Marc Hauser at Harvard who have widened the door of knowledge that moral behavior might have genetic potency inherited from a more primitive ancestors. The implication is quite staggering.

I believe, as it is the case now, in the ancient world that the concept of forgiveness might have been submerged within a system of vengeful activities, and “forgiveness” might have been practiced less. The earliest recorded laws that of the Sumerians that predate the laws of Hammurabi (1810 BCE – 1750 BCE) incorporated what must have been for sometime the dominant practice and moral sentiment of the period: “an-eye-for-an-eye” approach. Much later, the Law of Moses[7] carried similar vengeful concept. In the Old Testament there are several references to vengeful retaliatory sanctions: 1) Exodus 21: 23-25 “shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe,” 2) Leviticus 24: 17-20: “He who kills a man shall be put to death. When a man causes a disfigurement in his neighbor, as he has done, so shall it be done to him: fracture for fracture, eye for eye, tooth for tooth,” and 3) Deuteronomy 19: 15-21 false evidence given by a witness during a trial against another person shall suffer the punishment that would have been given to the accused: “life for life, eye for eye, tooth for tooth, hand for hand.” One will not find such concept of vengeful and retaliatory mandate in Buddhism and in the New Testament! It is one of the reasons I believe that the New Testament has to be critically considered rather than be taken simply as an extension of the Torah or the Old Testament. The fact of the Jewish identity of the many individuals mentioned by name or otherwise in those Scriptures should not override the fact that the two religions are fundamentally very different.

In their mythology, we find the Greeks as contentious and vengeful as their counterparts in Mesopotamia or in Palestine. Forgiveness seems to be a rare concept in the ancient world to such an extent that in the 4th Century BC Plato representing the more enlightened view on civil life wondered, in the voice of one of the characters (Socrates, Plato’s teacher) in his dialogue, Crito, how rare “forgiveness” is as a moral act. In Crito, Socrates articulated the concept of “not to retaliate or render evil for evil to any one, whatever evil we may have suffered from him”[8a] in his rhetorical statement asserting that form of action as exceptionally difficult moral act to carry out by human beings. One may argue that the view expressed by Socrates is simply the first step in the process of forgiveness and does lack the element of reconciliation. Whereas, we find in Homer’s Odysseus the idea of “forgiveness” fully developed with a slight difference from its modern sense. Forgiveness in the Homeric sense seems to be accepted after some form of vengeance had taken place.

“Then [Athena] said to [Zeus], ‘Father, son of [Cronos], king of kings, answer me this question- What do you propose to do? Will you set them fighting still further, or will you make peace between them?’ And [Zeus] answered, ‘My child, why should you ask me? Was it not by your own arrangement that Ulysses came home and took his revenge upon the suitors? Do whatever you like, but I will tell you what I think will be most reasonable arrangement. Now that Ulysses is revenged, let them swear to a solemn covenant, in virtue of which he shall continue to rule, while we cause the others to forgive and forget the massacre of their sons and brothers. Let them then all become friends as heretofore, and let peace and plenty reign.’”[8b]

Of course, the characters in the quotation who are entertaining the concept of “forgiveness” are Greek Gods and Goddesses, not mortals, which fact seems to suggest that forgiveness is beyond the capacity of mortal human beings in Greek society of the period and equally true in all modern societies.

The practice in sub-Saharan African tradition, i.e., the act of “forgiveness,” has more of cultural utilitarian imprint than being a religious process or a philosophical insight. African traditional practice is rich with examples of acts of forgiveness as some form of practical solution to create harmony in an extended family based communities. Such distinction may be superfluous for the evolutionary markers between the two may not be there either. Professor Oguejio succinctly articulated the concept of forgiveness in several African cultures as follows: “The quest for peace makes reconciliation and forgiveness necessary. There is a realization that if peace is to reign, human beings must engage one another in mutual attempt to make peace a reality. Forgiveness and reconciliation is viewed not only as beneficial to one party in a dispute, but to all concerned, and in fact to the whole community. The Yoruba say that if we do not forget yesterday’s quarrels, we will not have somebody to play with tomorrow (Ti a ka ba gbage oro). It means that forbearance is an element in the effort towards peace. One may not insists on all his points if he is to gain peaceful relationship with his neighbours. The Oromo of Ethiopia concur to this idea: by saying “let it be” people remain together in peace. The Igbo of Nigeria say that malu ghalu bu uto (knowing and forbearing is the meaning of friendship). One who wants peace must sometimes ignore the foibles of the other people in order to go forward. A Yoruba proverb says ki a ri aye he Osan mu kalu, which is translated by another proverb in Igbo which says kalu mpoto kpuchie.” [9] I shall discuss the concept of “ubuntu” with its Zulu maxim umuntu [ngumuntu ngabantu] (“a person is a person through other persons”) of South Africa in Part Three and in Part Four.

I believe that all world religions and traditional practices include teachings on forgiveness, which provide some guidance for the practice of forgiveness. Almost all major living religions have the concept of “forgiveness” articulated in their scriptures in varying degrees. The earliest Textual reference and treatment of “forgiveness” is from over 5000 years ago in the Rig Veda treatment of the God Varuna of those who repent being forgiven. A much later book the Manu-Samhita provides also scant reference to forgiveness. This is in direct contradiction of the Caste system in Hinduism the idea of “reincarnation” that does not leave much room for a process of forgiveness since the evil doer is reincarnated in a lower form as a matter of the Cosmic process, as indicated in that religious scripture. [10a] My understanding of such texts is that “forgiveness” is an individual’s way of making peace with himself and his maker spiritually and has nothing to do with crimes adjudicated in secular national courts.

For the benefit of those who may be curious to know how the concept of “forgiveness” is incorporated in several religions of the World, I have here in below sketched some examples of “forgiveness” as expressed in different living traditions and religions. However, one must be careful not to translate the fact of such scriptural citations as proof of the practice of “forgiveness” in societies, for I have indicated also as much destructive and vengeful acts against mankind narrated in the same religions. With that great caveat in place, I may freely discuss scriptures that discuss the concept of “forgiveness” from a point of view of a lay person without any authoritative claims. In Buddhism the idea and act of forgiveness is an essential process of healing, which is a psychological remedy mainly against the harm to oneself of harboring anger. The Buddha said, “Holding on to anger is like grasping a hot coal with the intent of throwing it at someone else but you are the one who gets burned.” Sikhism has similar approach too, but it is outward directed in requiring not only forgiveness but also compassion to the offending party and not limited to just healing or protecting oneself. “Where there is forgiveness, there God resides.”[10b]

If we consider the Torah, [The Books of Moses] the Old Testament [for Christians], we see that there are numerous verses on forgiveness, even though the very human cosmos in the Torah is built on punishment and condemnation and serving great hardship starting from being ejected out of Paradise due to “an original sin” of disobedience by Adam and Eve [the supposed "parents" of all human beings]. God of the Torah had caused the total destruction of man and his civilization except for a handful of survivors spared by God in the story of Noah, and such Judaic scripture story is not helpful to us as a guide for forgiveness. The Torah is not the only sources, for the Books of the Prophets and historical personalities as well as Talmudic knowledge are also such sources. Here is a religion where man and God are constantly negotiating and modifying agreements, and expanding or limiting parameters. Moreover, we are confronted with an extremely violent and unforgiving God with unreasonable demands on human beings, and who repeatedly destroyed human beings on whimsical reasons [Expulsion from Paradise; the Great Flood; Sodom and Gomorrah]. However, Talmudic writings seem to temper such unforgiving violence of a God, with pious advice to circumspect God’s volatile temperament. “Who takes vengeance or bears a grudge acts like one who, having cut one hand while handling a knife, avenges himself by stabbing the other hand.” — Jerusalem Talmud, Nedarim 9.4. There are a couple of verses dealing with “forgiveness” that are on point in the whole of the Torah. “It is forbidden to be obdurate and not allow yourself to be appeased. On the contrary, one should be easily pacified and find it difficult to become angry. When asked by an offender for forgiveness, one should forgive with a sincere mind and a willing spirit.” Mishneh Torah, Teshuvah 2:1

Christianity is based wholly on concepts of forgiveness and nonviolence. It stands almost alone in the religions of the world next to Buddhism for its cardinal precepts of compassion for the poor and the disfranchised. Christianity unlike other religions has as its origin in the lives of ordinary peasants. By contrast, whether it is Buddhism, Islam, Zoroastrian et cetera had their origination in either elitist or highly influential militaristic groups. Christianity announces hope and salvation to its main origination body—the poor, and forgiveness for all that were in positions of power, which sets Christianity completely apart from all religions except perhaps Buddhism. The bunching of the teachings of the Christ with Judaism is a fallacious connection simply based on the biological identity of the Christ rather than his ideology. In Christian teachings, forgiveness of others plays an important role in the spiritual life of a Christian. For example, The Lord’s Prayer is the most conclusive guideline that laid out the true essence of the teachings of Jesus Christ. “And forgive us our trespasses, as we forgive those who trespass against us” (Matthew 6:9-13). Even at the moment of his painful death, the Christ’s last words from the cross were of forgiveness. “Father, forgive them, for they know not what they do.” (Luke 23:34). The teachings of the Christ are not simply reactive to wrongs done to us. He instructed his followers to love their enemies and turn the other cheek when accosted by enemies. (Matthew 5:9 & Luke 6:27-31). Such teachings are about spirituality and not about Earthly behavior of governments.

The word “Islam” is allegedly derived from the Semitic word “slm” meaning “peace,” but such semantic construction is after the fact by later generations not contemporaneous with the recitation of the Qur’an by the Prophet Mohamed. Thus, any attempt to derive the concept of forgiveness from the word “Islam” is farfetched. However, the descriptive adjectives for Allah as “Ar-Rahim” (The Merciful) and also “Al-Ghafoor” (The Forgiving) may provide a meaningful source for the concept of forgiveness. The “subtext” of mankind is far more complex and subtle than I am capable of handling in terms of either/or type propositions. If I try that I will be creating false dilemmas in places where there should be open discussions. I suspect that if one does clinical studies on the percentage distribution of violent behavior among the diverse communities around the world, there may be similarities rather than differences.

It is alleged by many Qur’anic scholars that the Qur’an makes some allowances for violence, but only to defend the religion and the property and the lives of the faithful. It is gross reductionism to think of the many historic wars waged by Moslem leaders, against Christians, Jews, Zoroastrians, Hindus and animists, as defensive wars. Nevertheless, there are limited numbers of references in the Qur’an on forgiveness. “They avoid gross sins and vice, and when angered they forgive.” (Qur’an 42:37). In another verse dealing with mercy or clemency, the Qur’an provides: “Although the just penalty for an injustice is an equivalent retribution, those who pardon and maintain righteousness are rewarded by God. He does not love the unjust” (Qur’an 42:40). A case in point is one of the statements by the great Moslem mystic Sa’di. “A falsehood resulting in conciliation is better than a truth producing trouble.”[11]

It is obvious that in society many individuals have been faced with wrenching ethical dilemmas in their lives, but few were uniquely tested as Simon Wiesenthal was tested as portrayed in his book The Sunflower[12] wherein at a time he was a concentration camp prisoner, he was called upon by a wounded Nazi soldier to forgive him (the soldier). The wounded soldier was a member of the very political power structure that had murdered millions of Jews. Simon Wiesenthal refused to participate and walked away leaving the Nazi soldier to die with his guilt. Wiesenthal was a young Jew from Ukraine who was first imprisoned in 1941 by the Nazis. Eighty nine members of his extended family including that of his wife’s parents and grandparents were murdered by the Nazis. If I were Wiesenthal, I would not have merely walked away, but shot the bastard. But this is the type of situation that one cannot know prior to the situation how one would act.

If we assume, for argument sake, that to forgive and pardon a criminal or an organization (community) that had committed some harm to an individual, a family, or a community is an ethical act and may even be considered as a courageous religious/spiritual behavior, there are certain conclusions that flow logically from such assumptions that we may not endorse. The obvious question that comes to mind is why the victims and their families should bear the burden of a difficult moral judgment to benefit the rest of society, especially when such society had failed to protect them from atrocities to begin with? If we consider ancient civilizations as different from our more relaxed and enlightened civilization, there is no point referring to events or ideas from such time. For example, why should Wiesenthal ease the last moment of life of a Nazi soldier who had committed unspeakable crimes against innocent people? In short religious precepts dealing with forgiveness and pardon are not as clear cut as claimed by some writers. I am of the opinion when in doubt the enforcement of justice exceedingly most responsible than indulging in Gordian entanglement of forgiveness and pardon.

V. The Issue of Forgiveness as a Legal Regime

Delaminating ethics from law was considered by many jurists (Austin, Hart et cetera) as a step forward in legal development. Is it possible to make similar claim by disassociating ethics from politics? May be the question is not a fair one, since politics is more of a process than a series of rules and limits as is the case with law, and thus far more difficult to distinguish questions of ethics from questions of politics. This disassociative outlook may be due to the empiricist and materialist view of ethics to be a result of emotion and not of reason wherein “Law” is perceived to be purely a process or result of reason. For example, Aristotle in his Politics stated that “the law is reason unaffected by desire.” [Aristotle, Politics, Book III, chapter 16, Benjamin Jowett translation]

It is impractical if not outright impossible to structure a legal regime around the concepts of “forgiveness, pardon, and reconciliation.” If a legal system uses, for example, “forgiveness” as one of its tools, it will be undermining far more important legal concepts, such as equal treatment, fair and just resolution of controversies, consistency and certainty in the treatment and adjudication of crimes et cetera all very fundamental concepts in any legal system. It counters and debase the concept of both social and legal Justice. In Ethiopia’s legal tradition, the great legal source and legal commentary was the Fetha Negest (ፍትሐ ነገሥት). The name of that book means “The Justice of the King(s). Ethiopians value Justice “ፍትሕ” above anything else. I could assert from my experience and discussions that I have had with a number of friends that Ethiopians through out our history valued Justice “ፍትሕ” over and above pardoning “ምሕረት.” That is the primary concern of the Ethiopian public. Ethiopians were renowned in the ancient World as the “most just men,” [Herodotus] and much later the Prophet Mohammad identified the Ethiopian Negus of his time as the “just” king. The delivery of “Justice” is the operative act here, not some caprice of forgiveness or pardoning.

Before the modernization of the Ethiopian legal system was initiated by Emperor Haile Selassie in the 1930s, the Sovereign was the ultimate judge of capital crimes and serious crimes; however, in the punishment phase of the process, family members of the victim were allowed a say in what type of punishment to impose on the criminal. Both oral tradition and the Fetha Negest are great sources of cases where the justice of past Ethiopian kings and Emperors could be studied and admired.

There are many troubling questions in connection with the concept of “forgiveness” especially if the implementation of which ends up pardoning and freeing individuals or groups who have committed serious crimes of murder, torture, and imprisonment in the name of national security or political change. Obviously, what is needed in such situations is justice in accordance with the criminal law of the state of jurisdiction and/or the use of international legal concepts that are peremptory norms of customary international law and practices whether derived from treaties or judgments of international courts, tribunals, or arbitration forums. Here I am mostly concerned with our domestic/municipal Penal Code and our criminal law judicial process. My insistence that our primary focus ought to be on the rendering of Justice, in no way excludes the “parole” system in the punishment phase under the legitimate operation of the Ethiopian Penal Code judicial system. Without much fanfare and on the basis of individual merit, each case may be considered for “parole” type hearing. That process will not be any kind of political manipulation, but a function of normal processes of the justice system of the country.

Recent repeated use by the Government of Meles Zenawi of a process of humiliating prisoners first by illegally detaining them and sentencing them to unusually long prison terms and having them beg the Government of Ethiopia “to pardon” them after admitting to everything the Government dictates is a blatant abuse of power and the violation of the rights and dignity of innocent victims of such oppressive government. Very many well established personalities such as Professor Ephraim Isaac, long distance running Champion Haile Gebre Selassie et cetera have been suckered into the devious scheme of the Government of Meles Zenawi.

The most recent victim of the Government of Meles Zenawi was Judge Birtukan Mideksa, who was rearrested and thrown into prison for violating terms of her “pardon” for making statements challenging the veracity of the many statements made by the Ethiopian Government on the sequence of events and the legality of the “Pardon” itself. It is to be recalled that Kinijit Leaders, which included Judge Birtukan, who were falsely accused and convicted for causing riot and public disorder resulting in the death and of several protestors and the destruction of property and also for subverting the Constitution subsequent to the 2005 Elections, were released from prison serving long prison terms through the “Pardon” procedure. Here is a case where the fundamental rights of an individual was clearly violated and yet has to go through the publicly humiliating process of “pardon” to gain freedom from such punishment, in order to improve and promote the tarnished images of the Prime Minister and his violent and oppressive Government.

Once there is some form of deviation from the normal legal channel to resolve a criminal conviction or activity yet to be tried in a court of law, it subjects or corrupts the system to slide down a slippery slop of increased caprices and whimsical arbitrariness by the political Leaders. The practice of Meles Zenawi in several cases involving the arrest, imprisonment, and pardon of political leaders is a clear example of the abuse and corruption of a system. In that process, even otherwise decent individuals were brought into the corrupt system of deforming and distorting the legal process by turning them into go-betweens and incorporating them into the corruption of the Ethiopian Government Leadership. The “Pardon” process has been corrupted already, and could not be used to bring about any form of “forgiveness” or “reconciliation” of the judicial, social, and political fracture created by the Government of Meles Zenawi and the EPRDF for the last eighteen years.

Where the atrocity or criminal act is a result of civil disobedience, it may be far more difficult to withhold special considerations such as forgiveness and pardon. However, even under such circumstances of civil disobedience, philosophers, such as Rawls, suggest that those who participate in activities of civil disobedience must not committee any violence or expect immunity from prosecution for their activities. But that approach does not address non-violent actions harmful to the security of a state. For the assumption in such form of dissention is that no one can be forced to live under laws that contravene fundamental human rights of individuals. Nevertheless, the attempt by some to distinguish the activities of the Derg Officials as political and thus not criminal is a distortion of the provisions of the Penal Code of Ethiopia where the violation of criminal behavior resulting in death or bodily harm is considered first and foremost as a crime and if it has political motivation such activity is simply cause for additional and compounding criminal charges. In no criminal activity political motive can be considered as justification or mitigating the degree and severity of the punishment or that of the crime. The Ethiopian Penal Code is a very sophisticated and “modern” criminal code.

There are precedent setting international conventions such as the Genocide Convention and others promoted through the United Nations system that are relevant to the resolutions of conflicts. For example, international customary law principles such as the Nuremberg Principles, the Japanese war crimes Commission, the Rwanda Commission, the decisions of the International Court of Justice et cetera that maybe used as the basis for setting standards to effect justice in the world before implementing a system of forgiveness and reconciliation.

As indicated in my introduction, the granting of “amnesty” or “pardon” the criminal acts of an individual or that of a group that violated international standards under the Genocide Convention or any other bilateral or multilateral treaties may itself be considered a violation that may be a subject of sanctions imposed by the international community. The Rome Statue has created the International Criminal Court, and the Court is already fully functional. Thus, signatory states to the Rome Statue have the obligation to cooperate with the International Criminal Court in the prosecution of individuals who have committed such crimes such as genocide or crime against humanity. The treatment of convicted criminals in other legal systems around the world my raise similar concerns as I pointed out for our local case of the convicted Derg Members. Indeed, it may require a separate discourse on its own.

If individual states negotiate with criminals and grant “amnesty” or “forgive” such crimes, such states would undermine the role of both their domestic/municipal law and the works of the newly instituted International Criminal Court. The question is whether we are putting the cart before the horse with such ideas of forgiving criminals? It is impractical and counterproductive to use the concept of “forgiveness” as public policy. At any rate, technically speaking, some may point out rightly, the question is moot in case of Ethiopia, for Ethiopia has not ratified the ICC Rome Statue. However, I would argue otherwise that ratification is not necessary for the universal application of the ICC/Rome Statue, for the Rome Statue may well be considered as Jus Cogens/Obligato Erga Omnes. ΩTecola W. Hagos, January 25, 2011

Washington DC*Some of the ideas in this series are incorporated from some of my past Essays and Articles.

To be Continued:

PART THREE: “FORGIVENESS” AND THE CASE OF SOUTH AFRICA

VI. Questions to Consider

PART FOUR: “FORGIVENESS” AND THE TRC

VII. The Truth and Reconciliation Commission (TRC)

PART FIVE: “FORGIVENESS” AND THE DELUGE

VIII. Ethiopia after the Pardon? The danger of old vipers.

Conclusion: What is Justice?

 

bRwanda is included because the commission was granted quasi-official status and received some cooperation from authorities.

cAlthough the commission issued its report in 1998, it continued to work on the granting of amnesty and making reparation recommendations. [So far over fifty six thousand victims have been listed out of whom about seventeen thousand victims have been compensated tiny amount of money of no significance.]

Sources: (Hayner, 1994; Bronkhorst, 1995; Hayner, 2001; USIP, http://www.usip.org/library/truth.html).

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