Breaking the Cycles of Hatred: Memory, Law, and Repair, by Martha Minow introduced and with commentaries edited by Nancy L. Rosenblum (Princeton University Press, 2002), 264 pages.
Rather than a mere collection of thematically conjoined essays, Breaking the Cycles of Hatred: Memory, Law, and Repair is a conversation.
The first section of this unusual anthology is an extended essay, in triptych form, by Harvard Law School professor Martha Minow. Her chief theme, as the book's title suggests, is hate crimes, and the mechanisms, both personal and collective, for recording and, ultimately, remediating them. The balance of the volume comprises 10 short essays, written by historians, political theorists, psychologists and lawyers, that respond to and expand on elements of Minow's text. The views expressed in these supporting essays diverge in varying degrees from the positions staked out by Minow. This form of instant critique encourages the reader to consider alternative approaches to difficult questions. In short, this is the book that deconstructs itself.
Minow's urtext, as noted, is divided into three parts: "Memory and Hate," "Regulating Hatred" and "Between Nations and Between Intimates: Can Law Stop the Violence." Although these divisions are facially coequal, the first defines the core themes of the book, posing questions that resonate through all of the subsequent essays. In this way, "Memory and Hate" is a skeleton key of sorts for the volume overall.
In "Memory and Hate," Minow starts with the proposition that hate crimes, specifically crimes involving mass violence, hold a unique potential for instigating cycles of vengeance. While Minow's essay is highly conceptual, and so somewhat abstracted from real-life examples, she cites the repression of Kosovar Albanians by ethnic Serbs, the Holocaust and the death squads of Chilean dictator Augusto Pinochet as examples of the kind of group violence to which her essay is addressed. The victims of such broad-scale assaults, and those affiliated with victims through group association, are naturally inclined to harbor an abiding grudge against their oppressors. Given the chance, the victimized groups will return the favor in kind. In this way, cycles of resentment and violence are established. In order to break such cycles, according to Minow, it is necessary to discover organized methods for documenting crimes, deterring future violence and making victims whole - no small tasks.
In Minow's view, the key to finding a successful model for obtaining ordered redress lies in the concept of memory. When mass hate crimes are committed, Minow notes, "[s]ome people will always remember what happened, but if there are no collective efforts to remember, a society risks repeating its atrocities by failing to undo the dehumanization that laid the groundwork for them. The question, then, is not whether to remember, but how."1 The problem, Minow suggests, is that many people, even thoughtful, well-intentioned people, are drawn to unproductive extremes in formulating responses to hate crimes; namely, either punishment or forgiveness. Neither approach, she asserts, is likely to capture the memory of the underlying injustice in a manner that will promote social healing.
According to Minow, punishment, whether vigilante reprisal or some form of state-sponsored censure, merely promotes group polarization, and so is likely to foster, not reduce, the cycle of hate crimes. Needless to say, the desire for vengeance in the face of hate crimes is natural. "A person who does not resent moral injuries done to him . . . is almost entirely a person lacking in self-respect."2 However, the temptation to demand punishment purely for the sake of vengeance does nothing to erase the gulf between victim and oppressor; rather, it widens it. More important, at least in Minow's view, a response informed purely by a desire for vengeance focuses attention on the individual culpability of the oppressor, and not on the inhumanity of his act or the broader social context that enabled it. Finally, vengeance-focused punishment may suggest that once the oppressor has received his comeuppance, the score has been settled and the slate wiped clean. In short, punishment for punishment's sake does little to memorialize the facts, let alone the causes of hate crimes. It is the path to forgetting.
The other extreme, forgiveness, is likewise fraught with danger, according to Minow. In the first place, obtaining uncoerced forgiveness can be a tricky thing. There is often a strong social desire to eradicate the memory of mass hate crimes from the collective consciousness. As a result, communal pressure may be exerted on victims to forgive their oppressors. However, as Minow notes, this amounts to a second violation: "[f]orgiveness cannot be arrogated from survivors without inflicting a new victimization . . . '[U]surp[ing] the victim's exclusive right to forgive his oppressor' . . . fail[s] to respect fully those who have suffered."3
However, even where forgiveness is voluntary, Minow contends that a danger still is posed. She suggests that, as with vengeance, forgiveness ineluctably leads to forgetting. "Official forgiveness usually means amnesty, exemption not only from punishment but also from communal acknowledgement of the harms and the wrongs. . . . Once the apology is performed, the government - and the community - may assume that the topic is closed and no more need ever be said about it."4 Just as when vengeance is extracted, the slate is wiped clean, erasing the memories Minow contends are essential to breaking cycles of group hatred. Thus, Minow concludes, "the search is for responses to collective violence that etch a path between vengeance and forgiveness."5
In her quest for a middle path between vengeance and forgiveness, Minow looks to three specific mediums for obtaining redress for the victims of mass hate crimes: international tribunals, reparations and truth commissions. The common thread among these approaches, according to Minow, is that they embody "a special emphasis on accountability and truth-telling . . . they each offer forms of collective memory, carrying the chance - just the chance - of rebuilding societies" disrupted by hate crimes.6 For any of them to succeed, she observes, they must be undertaken as "collective efforts."7 Minow examines each in turn.
In the context of mass hate crimes, the chief advantage of an international tribunal over a national court lies in the international body's ability to create and enforce norms that are detached from the political, social and historical milieu in which atrocities occur. As an initial matter, this has the practical effect of "wresting . . . prosecutions from politicized deliberations . . . ," thereby increasing the chance of achieving a just result.8 Even more important, an international tribunal provides a neutral, objective stage for presenting the details of large-scale hate crimes. In such an environment, situational justifications for violence have a tendency to melt away, laying bare the pure barbarism that lies at the root of such offenses. The international tribunal, in this way, helps the oppressors better understand the quality of their crimes, and the extent to which they have defied universal norms; at the same time, the international court also provides victims with a forum for vindicating their sense of injustice by reference to the standards of a neutral third party. In this way, by rarifying the conflict from the context in which it arose, Minow suggests that the potential for reconciliation is significantly increased.
Minow acknowledges the limited ability of international courts to impose meaningful sanctions or to deter future atrocities - few despots seriously weigh the possibility that they might one day be extradited to The Hague or Strasbourg when contemplating genocide. Rather, such bodies exist principally to remediate the underlying conditions that give rise to existing cycles of hatred and violence. By providing a forum for unvarnished truth-telling, and then creating and publishing to the world a record of same, Minow suggests that international courts serve a narrow, but crucial purpose. "It would be too much to expect that [international tribunals] would effect deterrence. Instead, the tribunals and their work offer rituals of accountability, defying impunity and public acknowledgment, defying forced forgetting."9
In contrast to international tribunals, an organized system for allocating reparations to the victims of hate crimes does not contain any outward mechanisms for eliciting public testimony, establishing norms or attaching opprobrium. Moreover, it generally does not rely on the intervention of third parties. Rather, reparations are an act of symbolic contrition on the part of the oppressor, aimed at acknowledging past wrongs. As such, Minow contends they can be a powerful basis for reconciliation. "Apologies are most meaningful when accompanied by material reparations; and reparations are most meaningful when accompanied by acknowledgment of their inadequacy in the effort to apologize and make amends."10
Minow concedes, however, that reparations pose some of the same dangers as forgiveness; "[o]nce paid, compensation may wrongly imply that the harms are over and need not be discussed again."11 While she struggles to salvage the concept of reparations as a productive response to hate crimes, ultimately her arguments are unconvincing. It is left to lawyer and political scientist Marc Galanter, in his responsive essay, "Righting Old Wrongs," to find a place in Minow's memory-focused schema for the concept of reparations. Galanter's contribution is a good illustration of how well the 10 supporting essays in Breaking the Cycle of Hatred enrich Minow's basic themes.
Galanter makes the strong point that the payment of reparations is often an occasion for overthrowing false memories: a moment for righting errors in the historical record rather than merely a means of providing compensation for injury to actual victims. As he puts it: the payment of reparations "represents an impulse to confront and undo the injustice of history, to retrospectively and retroactively move the line separating misfortune and injustice. . . . It attempts to make history yield up a morally satisfying result that it did not the first time around."12 In short, reparations are a way for an oppressor group to validate the often forcibly suppressed memory of its victims.
Viewed in this way, reparations fit nicely into Minow's thesis. Not merely an occasion for unearthing buried truth and apologizing for past offenses, reparations also provide an opportunity to atone for the further injustice of suppressing the truth in the "hegemonic stories of the majority," i.e. the historical record.13 Moreover, to the extent that the payment of reparations holds the potential to alter the majority's self-image by compelling the majority to confront past wrongs long suppressed, the occasion can have powerful prospective impact. While Minow opines reparations might "imply that the harms are over and need not be discussed again," reparations, in fact, can be a starting point for future dialogue based on a new sense of shared history.14
Finally, Minow looks at truth commissions, principally South Africa's Truth and Reconciliation Commission, as a vehicle for breaking cycles of vengeance-driven hate crimes. The truth commission is an odd creature. It has the outward appearance and investigative powers of a judicial tribunal. Further, like an international tribunal, its findings typically are addressed as much to the outside world as the home audience. However, its core function is not to assess guilt or mete out punishment, but to document atrocities and hate crimes in careful detail - 22,000 people offered statements to the South African TRC. Their testimony, much of it broadcast live on national television, created a powerful and comprehensive collective memory of a long-obscured period in the country's past.
The appeal of the truth commission to Minow is obvious. It incorporates the best aspects of international judicial tribunals - i.e. live testimony on a world stage that subjects past atrocities to judgment on the basis of international norms - with the best aspects of public reparations - i.e. opportunity both to correct misrepresentations in the historical record and for the majority to acknowledge past misdeeds. However, it also poses risks; namely, truth commissions, by their very nature, are homegrown. Frequently they are created (as in South Africa) by a newly ascendant, formerly oppressed class. As a result, they may be infected by the same kinds of political biases that make national courts less well suited than international tribunals for prosecuting hate crimes.
While Minow does not answer these concerns directly, social historian and political scientist Nancy Rosenblum explores the merits and demerits of truth commissions in her responsive essay, "Justice and the Experience of Justice." Rosenblum points out that truth commissions have many advantages over judicial proceedings as a means of assembling the sort of collective memory Minow deems essential to breaking cycles of hatred. In the first instance, truth commissions, unconstrained by the rules of evidence or indeed court procedures of any kind, are far more conducive to the type of narrative testimony essential to creating a clear record of hate crimes. Further, in the absence of any opportunity for cross-examination, Rosenblum suggests that truth commissions provide a more compassionate environment for victims of atrocities to present these personal histories. Finally, since there is no question of protecting the rights of criminal defendants, truth commissions are free to disseminate all of their findings in any convenient form, assuring the widest audience possible. There is never any question of privilege or prejudice.
As for the possibility of bias, Rosenblum observes that truth commissions typically are surrounded by an aura of "magnanimity."15 In the South African case, for example, participants - both victims and former oppressors - displayed a remarkable ability to set aside self-interest in favor of making an effort toward reconciliation. Rosenblum ascribes this altruism to the nature of the proceedings: "the public framing of conflict and confrontation brings antagonists into a safe site and models a civil, nonviolent universe. It reminds every party to the cycle of hatred of their inseparable political and economic connection to one another."16 In many ways, the truth commission is the ideal expression of Minow's fundamental concept in "Memory and Hate" of repair through constructive remembering.
Needless to say, Minow does not purport to present an exhaustive review of the broad range of possible responses to group violence. In particular, she omits any real consideration of the role of international human rights organizations in documenting wide scale abuses, or the possibility for intervention by standing international bodies such as the United Nations. Based on the views she expresses in "Memory and Hate," however, it seems likely that Minow would question the viability of these approaches, handicapped as they are by the wide perception that such institutions are infected by fixed political agendas.
Likewise, Minow does not discuss the thorny problem of how to contend with isolated but persistent incidents of hate crimes within generally peaceable nations - like the United States. Such countries typically rely on the criminal justice system to deal with these occurrences. Is this a satisfactory statement of social opprobrium? Or is it merely a means for the mainstream to distance themselves from the sentiments of a perpetrator by cloaking him with the outsider status of a criminal - even when his views, in fact, are widely, if secretly, held? "Hate and Memory" certainly suggests that the rule of law, focused as it is individualized punishment, is unlikely to promote "any collective efforts to remember" crimes, or place them in the kind of broad social context conducive to broad social repair.
Minow concludes her essay with the following admonition:
The fate of our fate is in our hands. Especially for those of us who feel we are bystanders in a world of atrocities, we have a challenge. We find a flawed, only partly remembered world; we can and must have a hand in what we come to remember so we can transform the future that awaits.17
Galanter, Rosenblum and Minow's other collaborators in Breaking the Cycle of Hatred take up this challenge. Collectively, Minow and her coauthors explore many varied themes, including our own historical revisionism (with a focus on racial prejudice, mistreatment of indigenous peoples and the internment of Japanese-Americans during World War II), statutory approaches to deterring hate crimes, the mechanics of memory, storytelling as a coping mechanism in abusive families and much more. However, the pieces are bound together by the motifs set out in Minow's "Memory and Hate."
The message of all of the essays, at some level, is a simple one: our memories define our sense of justice. The key to doing justice lies in the recognition that memory is no mere passive process of content-neutral absorption, but rather a highly selective process of filtered accretion. The first step, therefore, in taking responsibility for the way we treat others, is taking responsibility for what we choose to admit to our memories. Breaking the Cycle of Hatred: Memory, Law, and Repair is highly recommended for lawyer and non-lawyer alike. Roger Michel
1. Martha Minow, Breaking the Cycles of Hatred: Memory, Law, and Repair 16 (2002).[back]
2. Id. at 17.[back]
3. Id. at 18.[back]
6. Minow, supra note 1, at 19.[back]
8. Id. at 22. [back]
10. Id. at 23-24.[back]
11. Minow, supra note 1, at 23.[back]
12. Id. at 122.[back]
14. Id. at 23.[back]
15. Id. at 94.[back]
16. Minow, supra note 1, at 95.[back]
17. Id. at 29.[back]