The passing of Nelson Mandela is by now old news, but it has gotten me thinking the last few weeks about punishment and reconciliation. It is clear by now that the global Left wishes, rightly, to claim Mandela as one of their own—and especially to save his legacy from the posthumous beatification that America bestows upon so many great liberators of history-- the sort that kills radicals with kindness, rather than bullets. This is all to the good; however, one can also detect a residuum of doubt on the Left about Mandela, even after his passing, with regard to the Truth and Reconciliation Commission, which many felt at the time and still feel today was far too forgiving to the former agents of apartheid. As Immanuel Wallerstein once summarized the position, without necessarily sharing it himself, the TRC was “strong on reconciliation and short on justice.”
I have an instinctive aversion to this claim, as I do to most arguments from the Left that seem to be conceived in a like spirit. It is almost always where the left or the human rights movement start to speak of “accountability” that I break ranks. I can’t find in me, though I’ve tried, any real desire to see George W. Bush hauled out of his innocuous, portrait-painting retirement to face charges of war crimes (Dick Cheney? That one’s a bit more tempting, but still no). I can only thank Gerry Ford pardoning Nixon, even though it was probably flatly undeserved. And so on.
This is so despite the fact that "accountability" seems a perfectly legitimate ideal-- and holding political leaders responsible for crimes they have committed likewise essential to the rule of law. For these reasons, I have taken my own queasiness with the “accountability” camp to be a sign of personal weakness. I am, after all, one of those "bourgeois sentimentalists" whose presence and support the Old Left was always bitterly lamenting-- the ones who sometimes wander perversely into mass movements or party politics-- and then blanch as soon as the first harsh or tough-minded action is required of them.
So I thought in this case I was just guilty of a madness for mercy, which, after all, can be an injustice in its own right. Thus, I have tried to think my way around to “accountability” as an ideal. I have found in the past on matters of politics, however, that my stomach is often several paces ahead of my brain—my gastric compass more straight and true than my moral or intellectual one. It suggests to me that my digestive processes can sense moral peril before the rest of me is fully conscious of it, so I am going to lead with my belly on this one—and see where it takes me.
Perhaps the most obvious reason to be skeptical of the anti-Truth and Reconciliation argument is the quarters from which it often comes—left-wing Western academics who never had to contend with racial oppression themselves in any direct form. When a man like Mandela, who lost so many years of his adult life and countless comrades to the apartheid regime, is willing to be more magnanimous in victory than Western intellectuals on the other side of the globe, a red flag should go up that we are dealing with some sort of armchair sadism on the part of the latter, rather than a sense of outraged justice.
This sort of thing is predictable, however lamentable. Bloodlust is more satisfyingly quenched from great distances—and in the abstract. It was easy for Jean-Paul Sartre, say, to defend terrorism in Algeria’s War for Independence when he was not likely to be faced with the consequences of that violence at first-hand. But for Camus, who had family among the pieds noirs of French Algeria, terrorism took on a more visceral aspect. As his oft-quoted observation had it: “People are now planting bombs in the tramways of Algiers. My mother might be on one of those tramways. If that is justice, then I prefer my mother.”—a remark which many on the left at the time saw as regrettably self-centered, but which in fact registers a simple human objection to indiscriminate violence: it is indiscriminate.
But obviously, the punishment demanded by “accountability” in the case of South Africa was not to be indiscriminate, and it needn’t have been “violent,” except in the sense in which all imprisonment must rest on violence. So what, then, is the problem that my gastrointestinal tract has brought to my attention?
It is partly a nausea of pragmatism—so it is usually in instrumental terms that I have been inclined to justify my unease with accountability. In the American case, for instance, one hesitates to open the floodgates by convicting George W. Bush of war crimes, when the Obama administration has itself killed citizens without trial and kept much of of Bush’s international regime of torture and “extraordinary rendition” intact. If we start prosecuting American political leaders, we might discover that there is a case to be made that virtually all of them deserve prosecution. In that case, there seems a real danger that in pursuing accountability, we might devolve into the sort of banana republic in which each successive administration puts its predecessors behind bars. Even a relatively healthy democracy could not long survive such a procedure.
In South Africa, likewise, one of the often-reiterated justifications for the Truth and Reconciliation Commission was that both sides to the conflict were guilty of atrocities. One does not have to draw a moral equivalence between the South African government and the anti-apartheid guerillas to see that, if this is the case, and if the ANC government had one-sidedly pressed for “accountability” against its enemies while granting itself immunity, it would have carried the new nation several steps down the road toward kangaroo courts and show trials. On the other hand, if “accountability” had been pressed equally on both sides, free South Africa's entire political class might have been jailed at the very outset of its history. I suppose one could have asked for more contrition alongside the truth that was divulged in the Commission, but contrition is not readily quantifiable for legal purposes.
But even after acknowledging all of this, however, there is still a deeper philosophical problem with accountability and this is its invocation of retribution as a goal in itself—and I think this, more than the pragmatic concerns, is the true root of my unease. Of course, there are reasons other than retribution to favor accountability, as I will come to below. I am using "retribution" in a narrow theoretical sense to refer to the belief that inflicting punishment on wrongdoers is desirable in itself, and one clearly does not have to share this belief to still hold that punishing political criminals may be a worthy objective for other reasons. My concern, however, is that accountability, especially in the often doctrinaire form it assumes in the human rights movement, appeals to a belief that no abuse should ever remain unpunished. This claim, in its evident totalism, seems not to leave much room for the circumstantial and contingent defenses of punishment for which I have more sympathy.
Admittedly, retribution appeals to some elemental moral intuitions, and these should not be treated with that brand of merciless condescension typical of people who are secure from violence. On its most basic level, retribution is an appeal to equity. It is the inverse of the golden rule, the Confucian ideal of reciprocity, the categorical imperative, and every other principle which tells us that human beings have equal moral worth and equal moral claims. If I have suffered a wrong from you, retribution asks, should I not be entitled to demand something back in return?
This makes intuitive sense. If we probe deeper, however, we discover that it contains a spurious assumption. If I am demanding something "back" from you, we are assuming that I have something to gain by punishing you, and this is a highly questionable assumption indeed.
Nietzsche has much to say on this in On the Genealogy of Morals. In one of his many moralistic critiques of morality—his excoriations of the cruelty of opposition to cruelty—all equally paradoxical and eventually self-refuting—Nietzsche asserts that origins of the concept of retribution lie in the logic of economic transaction. If you commit a crime against me, you are in debt, and I can legitimately demand something in return. That something is usually your suffering-- at the very least, the deprivation of your freedom.
But, Nietzsche wonders, what is it exactly that I “gain” from you when I inflict punishment on you in this way? What benefit could I possibly receive from knowing that you are in pain, or that you suffer? Unless, that is, I enjoy the chance to vent my own cruelty by exacting a "pound of flesh"-- your flesh. In short, according to Nietzsche, the concept of retribution is only a possible one to hold if we regard the chance to inflict suffering on another as a positive good for us—only then could it be seen as recompense for a wrong we have sustained.
The most powerful ethical system to ever call this scheme into question is the ethic of Christ in the Sermon on the Mount -- yet this has not, tragically, served to keep retribution out of Christian theology, which has maintained for millennia that an eternal hell and a bloody atonement on the cross are requisite to God’s justice. The question in both cases, as humane spirits have always pondered-- more Christian than the Church in this regard--, is this: what sort of repayment is it to God or to those wronged in this life, to have their debtors writhe in hell-- or to have the son of God suffer in their place? How does it make it right that some suffer injustice on Earth to know that still others will suffer even more grievously somewhere else? Is not justice better served by precisely the opposite: by the protection of life, by the elimination of suffering, by the soothing of pain?
I am mostly criticizing the Left and the human rights movements in this post for similarly corrupt reasoning, but the more obvious examples of misguided retributivism come from the modern American right. One is put in mind mostly of right-wing defenses of the death penalty, but can also see this retributivism at work even in the position of some right-wing critics of the death penalty, who regard the taking of a person's life as insufficiently onerous a penalty for certain malefactors. Leave it to Bill O’Reilly for instance, to come up -- on a rare occasion when he felt compelled to share a position with the Left -- with the most spiteful and small-minded reason for doing so. His basis for opposition to the death penalty is precisely, he states, that its punishment is quick and merciful compared to what he has in mind-- that it fails to extend its indignities over the entire course of an inmate's life ("a life of constant pain and deprivation," he crows with relish). Reading this sadistic fantasy is an instructive reminder that, however odious the death penalty may be, there are man-made hells that would render it a relative mercy. Oscar Wilde once queried the assumption made in Victorian Britain that we should "regard death as worse than penal servitude," and remarked that it was "a point on which our criminals, I believe, disagree."
In the case of Bill O'Reilly it is easy enough to see the spirit of malice at work in the rhetoric of retribution. As happens with all moral bullies, his incapacity to identify with the human claims of the violent criminal increases in direct proportion as his mindset and instinct for cruelty approximates the latter's. What, however, about the desire for retribution from the actual victims of violent crime? Surely theirs cannot be chalked up to a similar sadism.
Yes, this is true-- and I am only too conscious of the fact that my own hostility to retributive theories of justice comes in part from the insulation from violent crime in which I have always lived. But however blameless the instinct for revenge must be in the cases of those wronged by the state or by violent individuals, it is also true that, when our minds are obscured by a passion for revenge, we lose sight of our own higher desires and inclinations. I suspect that should the instinct for vengeance be sated, victims will invariably find that, after all, it did not bring them the peace of mind they sought, it did not make up for what had been taken from them-- in short, that their own pain was not in fact compensated by the pain of another. Orwell has once again said succinctly and poignantly what it is taking me pages of equivocation to convey: "Revenge is an act which you want to commit when you are powerless and because you are powerless: as soon as the sense of impotence is removed, the desire evaporates also." This fundamental psychological fact-- that the infliction of cruelties can never make up to us the cruelties we have borne-- reveals in stark colors the basic absurdity of retribution.
There is another instinct, however, which can actually be satisfied by systems of punishment, which can provide some small recompense to us in the face of our victimhood. It is the instinct for the protection of life-- the desire to prevent others from having to endure what we have endured. We can in fact feel our losses a little less keenly knowing that we have helped keep others from feeling them after us.
A large part of the deepest psychological pain we face when we are the victims of rape or murder or torture is the abyss of our helplessness before an unequal exercise of power. What we demand, rightly, of justice, is that it deprive those of power who are using it to commit these crimes-- and therefore protect the equal moral claims of their future victims. This must mean, in the case of severely violent individuals, depriving them of the freedom and the mobility within society that they employed to hurt people. In the case of state crimes, it must mean depriving certain individuals of state power, when they have abused it, and perhaps depriving them of their freedom as private citizens as well-- a freedom they might one day use to return to state power.
It seems to me that "accountability" has legitimacy only in so far as it serves this protective instinct-- in so far as it aims at the elimination of suffering rather than its more equitable distribution. And I have no doubt that the human rights movement could attempt to make a case for accountability on this basis in all of the instances I named above.
However, the more completely certain war criminals and state terrorists have been removed from power, the less plausible this case becomes, and the more futile, sadistic, and ultimately undesirable-- even to the victims-- becomes the quest for punishment.
In South Africa, Truth and Reconciliation took place after the apartheid government had basically been defanged and rendered helpless. The possibility of its returning to power was by that point a non-issue. In the United States, deprivations of power are in order in the case of those currently wielding it to incinerate people from the skies without trial and leave people languishing indefinitely in a globalized system of torture and imprisonment-- but ideally, these will be deprivations carried out through elections rather than imprisonment. As for those, like the former president in Texas, who are out of office and likely to remain so-- and who, unlike their erstwhile seconds-in-command, seem content to keep aloof of politics-- perhaps the best case scenario is that they simply remain where they are and paint.
Crucially, this is not because Bush or the agents of apartheid (not moral equals, by any means, but both criminal in their way) really deserve to be immune to the forces of accountability. But, to quote Rupert Giles-- far and away the greatest intellectual I have ever cited on this blog-- "To forgive is an act of compassion, [...] it's not done because people deserve it." Meanwhile, suffering in all forms is an evil-- and inflicting it, even on the guilty, does not ultimately serve any end in itself, other than to extend suffering's domain on Earth.
I am reminded of an Israeli film I saw as a teenager in which a young German man confronts the fact that his grandfather is a former Nazi war criminal. He meets and befriends an Israeli who is tasked by his government with tracking down such men, and in the final scene of the film, both of the protagonists have a chance to finally end the life of the former Nazi, who is now nonagenarian, bedridden, and senile. The Israeli, who has the greater cause for vengeance, finds he is unwilling to do it. The German, however, quietly unplugs the oxygen tank at his grandfather's side and watches him die.
The poignancy of the scene does not derive from any pity it generates for the supine war criminal, who passes quietly and unconsciously. One wonders whether he deserves even this small mercy, when he never showed any mercy toward the people he helped to asphyxiate, gun down, or slowly work to death in concentration camps. Rather, the poignancy derives from the ultimate futility of his death-- the fact that justice was not truly served by it, that none of the world's sorrows were healed or wounds assuaged by his last gasping breaths.
Making others feel the suffering we have undergone seems desirable in the abstract, but in the very moment of its satisfaction, the desire is shown up at last to be hollow and insubstantial. It is "stumbling up the breathless stair/ To burst into fulfillment's desolate attic," as Philip Larkin once put it.
So long as "accountability" concerns itself with tracking down every human rights abuser and throwing him behind bars, no matter how little threat he now poses to others, it will be conceived in this same futile spirit. It will not serve its own goal of justice, which depends on the elimination of suffering, rather than on spreading it around more thickly.