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The Reek of Cruelty and the Quest for Healing—Where Retributive and Restorative Justice Meet

Published online by Cambridge University Press:  25 September 2015

Charles Villa-Vicencio
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Extract

[T]his is the awful privilege of our generation and of my people, no one better than us has ever been able to grasp the incurable nature of the offence, that spreads like a contagion. It is foolish to think that human justice can eradicate it. It is an inexhaustible fount of evil; it breaks the body and the spirit of the submerged, it perpetuates itself as hatred among survivors, and swarms around in a thousand ways, against the very will of all, as thirst for revenge, as a moral capitulation, as denial, as weariness, as renunciation.

Primo Levi.

The Holocaust remains imprinted on western consciousness as the epitome of a crime “which no human justice can eradicate.” Primo Levi, an Italian Jewish survivor of Auschwitz, knew this well. The tragedy of the Holocaust is that the cry “never again,” which came in its wake, has failed to control human evil. Stories of the former Yugoslavia, Rwanda, Burundi, apartheid South Africa and elsewhere remind us of the capacity of humankind to commit the kind of heinous crimes that no amount of human justice nor reparation can assuage. This tragic reality motivates Carlos Nino in Radical Evil on Trial to pose the all-important question: “How shall we live with evil? How shall we respond to massive human rights violations committed either by State actors or by others with the consent and tolerance of their governments?”

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Articles
Information
Journal of Law and Religion , Volume 14 , Issue 1 , 1999 , pp. 165 - 187
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1999

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References

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39. He at the same time recognises that there may be illegitimate reasons for failing to prosecute. These include, political timidity, the preservation of privileges associated with political office, the concealment of the involvement of members of the new government in human rights abuse, and a willingness to pander to the interests of the political and economic elite.

40. Rome Statute, art 75.2.

41. See Mahomed J, AZAPO and Others v the President of the RSA and Others, 1996 (8) BCLR 1015 (CC). In a unanimous ruling, Mahomed DP stated that the country “has neither the resources nor the skills to reverse fully [the] massive wrongs” of the past. He argued that

the resources of the state have to be deployed imaginatively, wisely, efficiently and equitably, to facilitate the reconstruction process in a manner which best brings relief and hope to the widest sections of the community, developing for the benefit of the entire nation the latent human potential and resources of every person who has directly and indirectly been burdened with the heritage of the shame and the pain of our racist past.

Of the nine judges, only Didcott J. provided a separate concurring judgment, giving his own reasons for supporting the findings of the Court. He questions whether the court is in a position to conclude that it is impossible to compensate all victims of apartheid, suggesting that there is no way of assessing the cost involved. Accepting that the Act allows for “some quid pro quo for the loss” suffered as a result of gross human rights violations, Didcott J. concedes that nothing “more definite, detailed and efficacious could feasibly have been promised at this stage.” His substantial argument is, however, that § 33 (2) of the Interim Constitution allows for amnesty for vicarious liability. It is necessary in this regard to note that § 2, 32 (4) of the Interim Constitution allows that no section of the Constitution, including the postscript on amnesty should be regarded as having less validity than any other part of the Constitution.

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49. See note 41.

50. In a joint sitting of Parliament to debate the Report of the TRC on Feb 25, 1999.

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54. Speech delivered at the Witwatersrand U Graduation Ceremony, Sept 1, 1998. Text provided in press release by Dr. Russell Ally, Project Manager, UN Office of the High Commissioner for Human Rights, Johannesburg (copy on file with the author).