Can There Be Historical Justice

Introduction The question of whether there can be historical justice rests on whether we believe that past wrongs can be righted by present-day actions; the fault line of the debate lies in how much we can really make up for pervasive human rights abuses by acting in the present. Typically these abuses have to have occurred on a large scale for them to be considered 'worthy' what we would call historical justice because often communities have a much longer shared memory than any individual member of a group. If a whole community is affected by the injustice then it will remain a source of ill-feeling in excess of living memory. This is not to say that claims cannot be valid when made my individuals, either those affected directly or their descendants. Often these sort of claims take the form of class actions though with many similar cases being made together.

The different means by which Historical Justice might be achieved There are different types of processes which can be undertaken in an attempt to achieve a notion of Historic Justice. There are varying degrees of efficacy amongst them as well as a difference in how widely they can be applied to differing cases. The three means towards Historic Justice discussed here will be reparation, lustration and criminal prosecution. Reparation is often one of the first avenues that is explored when considering how to achieve Historical Justice. Reparation is the financial 'compensation' for the losses, economic or otherwise, that are felt by those affected by gross injustice. Janna Thompson describes three different kinds of recipient of reparations; there are those individuals who are directly affected by acts of injustice, the cultural groups or communities that are targeted by the crimes and then the most problematic for Thompson are the individuals who are descendants of those who were subjected to violations. For Thompson these first two groups are more obviously entitled to reparations for mistreatment. Jeremy Waldron argues for the idea that the notion of Historic Injustice is liable to supercession over time. Specifically Waldron argues that the claims we might have to land, or property or indeed the significance of severe abuses of human rights have a tendency to fade in strength as time passes. What is wrong about the initial crimes is the way that the way of life of the victims are impinged upon, if the victims and their descendants form a new way of life then their claim to the property or to reparation is weakened precisely because their way of life no longer centres on having that property. There is an interesting point left to the end of Waldron's article that refers to the difference between expropriation of land with negative economic consequences for the harmed and the unlawful taking of religiously significant land. There is a much stronger argument to be made in favour of the return of land that still holds a religious significance to its original owners than there is for land that might once have provided economic advantage. Waldron explains that this is because in religious cases the land retains its religious significance for a much longer time than a particularly fertile piece of land for example because it is not so easily replaceable. Lustration is another way in which states transitioning from periods of severe atrocities might try and come to terms with their recent pasts. Lavinia Stan explains in her introduction to 'Transitional Justice in Eastern Europe and the Former Soviet Union' that in Eastern Europe and the former soviet union it was typical for new governments to prohibit the participation in politics or even civil service of those who had been involved in either working for or informing the previous regime. One of the immediate questions we can raise about lustration is for how long it might be considered to be effective. Realistically this prohibition can only effect the generation of informers themselves and rather than acting to help the affected it serves to punish the wrongdoers - this is by no means a bad thing but it might leave difficulties for members of affected communities trying to come to terms with the injustices in their past generation later. There is nobody to see punished for the later generations and in this sense it is unclear how long lustration can remain symbolically powerful. There are also often objections raised that those excluded are only the top members of the administration and that their places are frequently filled by their subordinates.

Criminal prosecutions of perpetrators is a similar method of achieving Historic Justice, but one that aims toward a more definitive punishment of those primarily accountable for atrocities. What makes criminal prosecution different to lustration is that it offers more than just a prohibition of participation in public life and actually presents punishments to those considered to be the most involved in the crimes. This acts as a public acknowledgment by the state that it no longer has any association with these kinds of actions and thus distances the new government from the atrocities perpetrated by the old. These attempts doubtless serve to restore some sense of authenticity to a government that until recently was treated with distrust by its population.

The idea of prosecuting the main culprits is appealing in that it attempts to call to account those most responsible but it could be argued that it does not go as far as lustration in excluding all those involved. Lustration at least attempts to ensure that nobody involved with previous regimes gains a position of power in the new ordering. There is also a serious criticism of criminal prosecution made by Leslie Vinjamuri who highlights the way in which such actions can lack authority or meaning when not appropriately backed by other nations. Vinjamuri goes as far as to say ;

"recent international criminal tribunals have utterly failed to deter further subsequent abuses" This is due to the lack of co-operation that is received both from important global powers like the United States as well as the unwillingness to accommodate the processes of international justice by those within the countries affected. Conclusion The idea of historic justice is certainly a morally admirable concept. There is no reason to argue that communities that are the victims of previous injustices should not be made to feel as though a wrong has been righted or made up for. What is at question though is through which means this can be practically achieved. The idea of fiscal reparation seems to be a flawed concept, aimed as it is at redressing an economic imbalance which it cannot be directly proved resulted from the previous injustice. A case that might exemplify this would be the descendants of African slaves who seek financial compensation for the hardships that their ancestors were subjected to and the consequent disadvantage that they were put at. As Jeremy Waldron explains It is hard to ascertain how far these descendants were actually disadvantaged by their ancestors' mistreatment because of the random factor of free choice making it impossible to determine how events may have unfolded. Lustration and Criminal Prosecution also have their practical flaws which make them difficult to implement wholesale. Historic Justice can certainly be an effective means of redressing past imbalances created in the past but it is often difficult to achieve a practical solution to a symbolic problem. It is much more important to make a significant symbolic gesture to the same effect. It is the symbolic power of unjust events that lets them live longer in the wider community's shared memory than they would be remembered by individuals and this is also why symbolic gestures are most important. In Waldron's paper he mentions the "token sums" that were paid to the families of Japanese-Americans who were interned in camps during world war two. These sums were not sufficient to constitute compensation for the indignities suffered by their ancestors but were rather a symbolic admission of fault on the part of the American government. It is this symbolic quality that gives weight to the idea of Historic Justice.