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Critical Response to David Scheffer
- University of Virginia Press
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117 Critical Response to David Scheffer dav i d l i t t l e David Scheffer’s edifying essay illustrates in several ways the pertinence of international considerations to our discussion of justice and mercy. First, he calls attention to experiments like South Africa’s Truth and Reconciliation Commission, which are efforts to find “nonjudicial” means, as Scheffer refers to them, for handling crimes related to societies with an authoritarian past. Incidentally, of the various arguments usually given in support of such arrangements, which also include political and practical considerations, two of them illuminate with particular clarity the connection to the justice/mercy discussion. One argument contends that in situations where whole societies are caught up in patterns of widespread abuse, ordinary criminal remedies are at least partially inadequate. Since most of such a society’s institutions are systematically organized so as to encourage or shield criminal behavior , rather than restrain it, the normal standard of individual accountability , so central to retributive justice, is compromised, at least for many lesser offenders. There is no doubt still a point to prosecuting top military and political officials, as Scheffer proposes. The degree of their individual responsibility, should they be convicted, is not typically in doubt. But the guilt of lesser offenders is thought to be mitigated up to a point, and thus not readily susceptible to standard judicial proceedings. The other argument favors overhauling retributivism, either partially or totally, so as to make room for “restorative justice” in the interest of reconciling estranged members of previously repressive societies. The focus would be less on punishing offenders as an end in itself, and more on rehabilitating relations between offenders and victims, as well as between offenders and the rest of society, by means of techniques like amnesty and V4366.indb 117 V4366.indb 117 8/22/07 3:21:21 PM 8/22/07 3:21:21 PM 118 david little other acts of mercy, and by otherwise recasting modes of punishment as primarily “reparative” rather than retributive. A second way Scheffer’s essay relates to the question of mercy and justice is in regard to his discussion of international law. As Scheffer develops his imaginative notion of “atrocity law” and urges its implementation, he, by implication, underscores and reaffirms the irreducibly retributive feature of existing human rights law. With all the concern to find extrajudicial means for coping with crimes committed by the members of authoritarian societies (a concern he also shares), Scheffer nevertheless vigorously discourages us from altogether setting retributive justice aside. At least those individuals accused of “atrocity crimes” would, on Scheffer ’s account, appropriately be dealt with within the framework of conventional judicial procedures. Of course, lesser offenders might still be handled in extrajudicial ways. Atrocity Law and Retributive Justice Let us now turn to examine more closely this argument of Scheffer’s concerning the retributivist character of atrocity law, keeping in mind our overarching interest in the justice/mercy discussion. “Atrocity law” is intended to identify a category of crime, namely, gross human rights offenses, which are to be understood, according to Scheffer, in an irreducibly retributivist way. Scheffer is very explicit about this in taking issue with the position of Nigel Biggar, who advocates an extreme version of the argument about restorative justice we just mentioned. As a way of “burying the past” (the title of his edited book), Biggar seems to favor the complete replacement of retributive with restorative justice, recommending “nonjudicial remedies and rehabilitation,” including “forgiveness and nonpunitive” measures as the only the appropriate means for dealing with the crimes of previously authoritarian societies. As quoted by Scheffer, Biggar contends that “there are ways of vindicating the victim that do not involve the punishment of the perpetrator: namely, by recognizing the injury, supporting the victim, and discovering the truth.” Scheffer strongly dissents from Biggar’s position, claiming that in regard to atrocity crimes at least, the victims can, in fact, “tolerate [nothing ] less than maximum punishment for the perpetrator.” He goes on: “Judges on international criminal tribunals and on domestic courts (not to mention the victims) may find it a bit difficult, after hearing the eviV4366 .indb 118 V4366.indb 118 8/22/07 3:21:21 PM 8/22/07 3:21:21 PM [44.200.49.193] Project MUSE (2024-03-29 11:09 GMT) Critical Response to Sche...