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Research in Peace and Reconciliation
Edited by Martin Leiner in co-operation with Benot Bourgine (Louvain-la-Neuve), FranÅois Dermange (Genf), Dennis Doyle (Dayton/Ohio), Matthias Gockel (Jena), Makoto Mizutani (Kyoto), Arie Nadler (Tel Aviv), Bertram Schmitz (Jena) and David Tombs (Belfast/Dublin) Volume 3
Vandenhoeck & Ruprecht
Asia-Pacific between Conflict and Reconciliation Edited by Phillip Tolliday, Maria Palme and Dong-Choon Kim
Vandenhoeck & Ruprecht
With 1 figure and 5 tables
Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data available online: http://dnb.d-nb.de. ISSN 2198-820X ISBN 978-3-525-56025-9 You can find alternative editions of this book and additional material on our Website: www.v-r.de Ó 2016, Vandenhoeck & Ruprecht GmbH & Co. KG, Theaterstraße 13, D-37073 Göttingen/ Vandenhoeck & Ruprecht LLC, Bristol, CT, U.S.A. www.v-r.de All rights reserved. No part of this work may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without prior written permission from the publisher. Printed in Germany Typesetting by Konrad Triltsch GmbH, Ochsenfurt Printed and bound by Hubert & Co GmbH & Co. KG, Robert-Bosch-Breite 6, D-37079 Göttingen Printed on age-resistant paper.
Phillip Tolliday Between a Rock and a Hard Place The Politics of Indigenous Suffering in Australia
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Deborah Stevens New Zealand’s Te Tiriti o Waitangi-Treaty of Waitangi: The past, contemplated in the present, is a guide to the future . . . . . . . . . .
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Priyambudi Sulistiyanto and Sentot Setyasiswanto Still Seeking Truth and Reconciliation for the 1965 Victims: Is it possible? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Bo-Hyug Suh Two Koreas’ Efforts of Reconciliation After 1990 . . . . . . . . . . . . .
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Ann-Sophie Schoepfel Dynamics of Justice in Indochina (1944–1946): France’s Commitment to the Rule of Law and the Punishment of Japanese War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Farrah Tek and Christoph Sperfeldt Justice and Truth-Seeking for Survivors of Gender-based Violence under the Khmer Rouge . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Jude Lal Fernando Is Sri Lanka in a Post-Conflict or Post-War Situation? The Way Forward: Regime Change or Transformation of the State?
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Contents
Maung Maung Yin Myanmar in Transition: Problems and Prospect The Strategic Location of Myanmar . . . . . . . . . . . . . . . . . . . . 173 Martin Leiner Thinking differently about Identity and Harmony – The Potential of Asian thinking for Reconciliation Is reconciliation a topic for East Asia? . . . . . . . . . . . . . . . . . . 183 Annette Weinke Reconciling through International (Criminal) Law? The Nuremberg Trials and their Impact on Concepts and Practices of Reconciliation in Postwar Germany . . . . . . . . . . . . . . . . . . . . 205 Liu Liangjian Thinking through Kang Youwei’s Doctrine of datong (Great Unity) and World Political Order in a Glocal Age . . . . . . . . . . . . . . . . . . . 219 Leo D. Lefebure Dharma and Reconciliation: Thich Nhat Hanh, Nikkyo Niwano, and the Quest for Peace Seiko Mimaki Norm Dynamics and Reconciliation-Japan, US, and East Asia Register of Illustrations
Phillip Tolliday (*1957) is Senior Lecturer in the School of Theology for Charles Sturt University and Academic Dean at St. Barnabas’ College, Adelaide, Australia. His field is Systematic Theology as well as the areas of Forgiveness and Reconciliation. He has published essays on “Suffering and Affiliation in Culture, Theory and Critique” (2011), “Obedience and Subordination in Barth’s Trinity in MykHabets” (2011), “After Violence and the Anzac Tradition” in Andrea Bieler et. al., After Violence: Religion Trauma and Reconciliation (Leipzig: Evangelische Verlagsanstalt, 2011). Maria Palme (*1985) is doing her Ph.D. at the European University, Flensburg and she works as research assistant at the Jena Center for Reconciliation Studies (JCRS) at the Friedrich-Schiller-University Jena (Germany). Her dissertation compares German and Korean political reconciliation and truth seeking processes during and after the transformation period to democracy in the 1980s and 1990s. She has been specialized on Truth and Reconciliation Commissions, transitional and restorative justice, as well as and institutionalized reconciliation policy. Additionally, she works on quantitative research criteria, e. g. reconciliation-barometer / indices to validate reconciliation instruments. She holds a M.A. in Contemporary History, Romance and German Studies from the Friedrich-Schiller-University Jena in 2011. She is project coordinator of the JCRS and leads education programs, such as the annual Summer School series ‘Societies in Transition”, with focus on different global geopolitical war and post-conflict regions. Dong-Choon Kim (*1959) is Professor at the Department of Sociology and Director of the Institute of Democracy at Sung-Kong-Hoe University in Seoul, South Korea. He worked under the Korean government as standing commissioner of the Truth and Reconciliation Commission, Republic of Korea (TRCK) (2005–2009) (A vice–minister class, nominated by the President Noh, Moo-hyun). He got his Ph.D. from Seoul National University (1993). The research areas that he has focused are historical sociology of Korean politics, working class formation and the Korean War. He also has acted as an organizer of progressive academic movements since the 1980s and has participated in several civil movements in South Korea (co-builder of PSPD in Korea). In 2004, The Hankyoreh (Korea’s most progressive newspaper) nominated him as a
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About the Editors
member of ‘100 people, who will lead Korean society’. He was awarded the 20th ) in 2005 for his academic achievements and social DanJe Prize ( activities.
About the Authors
Jude Lal Fernando is Assistant Professor of Intercultural Theology and Interreligious Studies at the Irish School of Ecumenics at Trinity College Dublin. He specializes in interreligious studies and international peace studies. His main research interests are religion, peace, and conflict, with a specific focus on the role of interreligious dialogue in peace-building, and ethno-nationalisms and geopolitics, focusing on Sri Lanka in particular, and South Asia. He was honored with the James Haire Prize for best dissertation on “Dynamics of Essentialist Representations of Nationhood and the Politics of Interpretation: The Role of Religion in the Making and Unmaking of the Sri Lankan ‘Nation’ State” in 2005. Since 2010, he has taught Peace and Conflict in South Asia at Dublin City University, and has lectured at Carlow College since 2007, with modules on World Religions; Primal Traditions; Interfaith Dialogue; and Religion, Peace, and Conflict. Leo D. Lefebure is Professor and Chair of the Matteo Ricci Institute inthe Department of Theology at Georgetown University in WashingtonD.C. He did his Ph.D. at the University of Chicago Divinity School in Christian Theology, with distinction. He is an expert in the field of inter-religious encounters, mediation and dialogue building processes with main focus on MuslimChristian Relations. One of his recently published books is “True and Holy : Christian Scripture and Other Religions” (2014). Martin Leiner is Professor of Systematic Theology/Ethics at the Faculty of Theology (since 2002) and Director of the Jena Center for Reconciliation Studies (JCRS), both at Friedrich-Schiller-University Jena, Germany. He edits the series on “Research in Peace and Reconciliation”. Since 2013, he leds the Palestinian-German-Israeli Trilateral Project “Hearts of Flesh - Not Stone,” funded by the German Science Foundation (DFG). He studied Philosophy and Theology and completed his doctorate at Ruprecht-Karls-University Heidelberg with a dissertation on Psychologie and Exegese. Grundfragen einer textpsychologischen Interpretation des Neuen Testaments (1995). His second thesis (Habilitation) at Johannes-Gutenberg-University Mainz was a study on Martin Buber Gottes Gegenwart. Die dialogische Philosophie Martin Bubers und der Ansatz ihrer theologischen Rezeption bei Friedrich Gogarten und Emil
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About the Authors
Brunner (2000). From 1998 to 2002 he was Professor of Systematic Theology and Hermeneutics in Neuchtel, Switzerland. Liu Liangjian is Assistant Professor of Philosophy at the Institute of Modern Chinese Thought and Culture at the East China Normal Universiy in Shanghai. He received his Ph.D. in Philosophy from East China Normal University (ECNU), Shanghai. He recently authored “Virtue Ethics and Confuciacism: A Methdolological Reflection” (2013) and “Heaven, Humans, and the Fluctating Boudary” (2007). Seiko Mimaki is Assistant Professor at the Department of Foreign Studies at the Kansai Gaidai University in Japan. She was a Harry & Helen Gray/AICGS Reconciliation Fellow from August 1 to September 15, 2014 investigating how to institutionalize multi-layered efforts at the societal level toward building ties of reconciliation among East Asian countries. From 2010 to 2012, Prof. Mimaki participated in the “Global Institute for Asian Regional Integration (GIARI)” project at the Graduate School of Asia-Pacific Studies (GSAPS), Waseda University, which resulted in her co-edited book, Historicizing Asian Regional Integration (in Japanese, 2012). Ann-Sophie Schoepfel is a Ph.D. Student at the Karl Jaspers Centre for Advanced Transcultural Studies with a focus on the interaction between war crimes trials policy in Asia and Europe. She graduated from History, Art History and Anthropology at Tübingen University, Aix-en-Provence University and Strasbourg University. She wrote two Masters Theses dealing with aspects of memory of World War II in East Asia. She was visting scholar and guest lecturer at Kyoto University (2014) and Sciences Po Paris, France (2013–2014). Sentot Setyasiswanto is a human rights practicioneer who actively been campaigned for finding human rights accountability in Indonesia since the fall of Soeharto regime in 1998. He worked as a researcher at Institute for Policy Research and Advocacy “ELSAM” and was also involved in a number of assignments under the auspice of the National Commission on Human Rights to investigate gross human rights abuses in Indonesia. Currently he is working on a documentary film-making project on the plight of the Chinese community who were forced to leave their homes by the Indonesian military during the anti-communist campaigns in West Kalimantan from 1968 until the end of 1970s. Christoph Sperfeldt is a Ph.D. student at the Center for International Governance and Justice (CIGJ) at the Australian National University in Canberra. He has gained practical expertise in the fields of human rights and transitional justice, with a focus on Southeast Asia during his long lasting
About the Authors
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work as Regional Program Coordinator at the Sian International Justice Initiative (AIJI), a joint program of the East-West Center and UC Berkeley’s War Crimes Studies Center. Prior to this, Sperfeldt was Senior Advisor with the Gesellschaft für Internationale Zusammenarbeit (GIZ) in Camobodia. He worked from 2007–2010 as an Advisor to the Cambodian Human Rights Action Committee (CHRAC) and as Reperations Advisor to the Victims Support Section of the Extraordinary Chambers in the Courts of Cambodia (ECCC), 2010–2011. Deborah Stevens works as a researcher and educator at the Bioethics Centre, which is associated to the University of Otago in New Zealand. She holds a Ph.D. in Bioethics from Waikato University, New Zealand. She authors New Zealand’s first bioethics curriculum and provides expert advice on implementing the values and key competences. Dr. Stevens’ latest educational initiative is the national Bioethics Roadshow for secondary schools. Bo-Hyug Suh is Professor for Humanities at the Institute for Peace and Unification Studies (IPUS) at Seoul National University (SNU) in South Korea. He has worked as an expert advisor on North Koran human rights issues at the National Human Rights Commission of Korea in 2003–2006. Prof. Suh majors in North Korea and unification, international relations theory, and peace building. His recent writings include “Inter-Korean Relations and International Relations Theory” (2012), “The Helskinki Process and Security and Cooperation in Northeast Asia” (2012), and “Korean Human rights” (2011). Priyambudi Sulistiyanto is Senior Lecturer at the School of International Studies and Academic Director of Jembatan, at Flinders University, Adelaide, Australia. He is a political scientist with teaching interests in the areas of Indonesian politics and the comparative politics of Southeast Asia. Dr. Setyasiswanto’s current research looks at the politics of reconciliation and local politics in post-Soeharto Indonesia. His publications include Thailand, Indonesia and Burma in Comparative Perspective (Aldershot, UK and Burlington, USA: Ashgate, 2002). His articles also appeared in Pacific Affairs, Australian Journal of Political Science, Third World Quarterly, Journal of Contemporary Asia, Sojourn, Indonesia, Kasarinlan, Inside Indonesia and Dignitas. Farrah Tek is currently a Ph.D. student in Political Science at the University of Minnesota, specializing in the study of rule of law and human rights in transitioning countries. Recently, she was awarded as best fellow from the National Science Foundation (NSF). Her dissertation focuses on how citizens interact with formal and informal rule of law systems. Tek was a Fulbright scholar in Cambodia, where she conducted research on victims’ perspectives toward justice. In Cambodia, she also worked at the Victims Support Section
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About the Authors
(VSS) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) on outreach and reparations. Additionally, she continued to work in Cambodia and co-authored a report for a human rights organization in Phnom Penh, Cambodia on economic land concession. Annette Weinke has finished her second thesis at the Philosophical Faculty, Jena University in 2014. She works as research assistant at the Jena Center for 20th Century History in the History Department of the Friedrich-SchillerUniverisity Jena, Germany. She was guest lecturer at the University of North Calorina and the American University in Washington D.C. 2003–2004. She was Visiting Professor at the University of Massachusetts in 2002. She wrote her dissertation in early modern (history) and modern history at Potsdam University. Maung Maung Yin is Associate Professor for Christian Ethics at Myanmar Institute of Theology and alsoVice President of the Peace Studies Center in Myanmar. He graduated with his Ph.D. from Yangon University, Harvard Divinity School and Andover Newton Theological School. He holds several degrees, including a Master of Sacred Theology and Master of Theological Studies.
Phillip Tolliday
Introduction to the Present Volume
The essays in this third volume of the Research in Peace and Reconciliation (RIPAR) series were generated by the Summer School at the Friedrich Schiller University in Jena, in 2013 which considered the practices of reconciliation, truth-telling and peace-making in the region of Asia and Australasia.1 They continue the explorations in the first two volumes, with their emphases on Latin America and Sub-Saharan Africa respectively.2 The geopolitical area under consideration is immense and the editors of this volume do not imagine that it is possible to attain anything approaching a comprehensive perspective. On the contrary, our aim has been rather more modest. It has been to provide representative case studies that, by shining a light on one particular situation, may serve to assist the reader to illuminate his or her own particular sphere of interest and research. My own particular focus of interest is Australia. During my childhood Australians underwent what was called a cultural cringe because they felt disconnected from their British roots. Children studied British and European history ; scant attention was paid to Australian history and almost none at all to Asia. Indeed it was not really until the 1970s that successive Australian Governments were able to acknowledge the importance of Asia, and not until Paul Keating’s incumbency as Prime Minister in the 1990s that it was publicly proclaimed that Australia was part of Asia. Certainly our parents would still have heard the phrase ‘the Far East’ as meaning Asia; and that without the slightest trace of irony given Australia’s geographical location! In the past two generations the message that Australia is part of Asia, and that our paths and destinies are interwoven is so obvious as to no longer require justification. Trade is a major reason for the collaboration between Australia and some of her Asian neighbours, as for example, the recent mineral boom in Australia with its direct relationship to China’s once seemingly insatiable hunger for iron ore testifies. Of course trade is not confined to mineral resources, though it is one of the larger revenue paths. Trade is also brisk between Australia and 1 The editors wish to thank Petina Venkova, Natalie Niedoba, Joram Tarusarira and Marcel Urban for their editorial assistance and additional research. 2 We would like to thank the Volkswagen Foundation for the funding of the 3rd International Summer School. Furthermore, we like to thank the Evangelical Church in Central Germany (= EKM) and the Evangelical Church Pfalz for their financial support.
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Japan, however Government ministers find themselves involved in delicate negotiations with Japan and China as they try to please each but without displeasing the other. For example in 2014 the Australian Government finally achieved a free trade agreement with Japan. This was part of the Australian Prime Minister’s mission to North-East Asia. Mark Beeson, a Professor of International Politics at Murdoch University observed that ‘The mission’s experience in China could be altogether different—not least because of the warmth of its reception in Japan. The seemingly implacable reality in NorthEast Asia is that economic ties cannot be separated from the geopolitical context in which they are embedded.’ Careless speech, albeit well-intended can result in unforeseen and unintended consequences. ‘This is why Abbott’s remark about Japan being Australia’s “best friend” in the region went down so badly in China. The symbolism of Abbott’s address to Japan’s National Security Council was not lost on China, either. This is simply one example of how Australia, a relatively small player in Asia, can be affected by the geopolitical situation that exists between two of its comparatively distant (geographically speaking) neighbours. Australia also finds itself involved in peace-keeping work with some of its Asian neighbours, for example, in Papua New Guinea and East Timor. And historically, since the Second World War it has been involved in Malaya and Vietnam. Security information is exchanged between the authorities and this seems to be increasing as Australia collaborates with some of her Asian neighbours in an effort to prevent or at least forewarn about terrorist activity. Bi-lateral discussions are continually taking place regarding the situation of refugees and asylum seekers. These are just some of the ways in which Australia finds itself intentionally involved in Asia as indeed part of Asia. There was one key feature of the Summer School; namely, that of difference that underlies many of these essays and provides the constant accompaniment to reconciliation. The work of Emmanuel Levinas has explored the motif of difference in some depth. Indeed Levinas’ own experience of the ways in which difference could be applied in the field of human relationships owed much to his incarceration in a German prisoner of war camp during the Second World War. From him we have learned that difference—whether of culture, religion, ethnicity, nationality, class or gender—is not only inevitable and enduring; it is to be affirmed for the positive value that it brings to human community and for its indispensable role in reconciliation and peace-building. The Hölderlin principle claims that reconciliation happens in the midst of strife. Thus there is no sudden peace that breaks out, as it were, and in the wake of which, reconciliation happens. On the contrary, reconciliation is slowly, hesitantly, and tentatively worked out, with more than a few blind turns and false starts. Thus reconciliation is inevitably connected with human hope, and the theologian Paul Tillich was not wrong when he drew a connection between hope and courage – for nothing disappoints so cruelly as hope, and courage is constantly required to keep hope, and thus reconciliation, alive.
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It would be tempting, because so easy, to give up hope in reconciliation. It would be such a seemingly simple and ‘quick fix’ to elide the differences that seem to divide, polarise and lay the seedbed for aggression. But there will not be any Hegelian-like resolution of difference into an ultimate sameness or homogeneity. Instead we must learn to value difference, not to make the other into a carbon copy of oneself, but rather to comport oneself so that the other might exercise an ethical claim upon us in order that our own frame of reference might be enlarged. We must learn to respond to the other with compassion, empathy and civility. But let us not imagine that these journeys of reconciliation end up as tales with happy endings: sometimes they do, but just as often they don’t. On the contrary, we find that such journeys leave, even in their resolution, what Clemens Sedmak refers to as an open epistemic wound that continually provokes and disrupts us. Perhaps this is part of the claim that reconciliation brings in its wake; a disruption, or, as Lily Gardner-Feldman says of history, an irritant. It is therefore a complex background against which the principles and practices of reconciliation unfold. Not the least of these concerns the meaning we shall give to the word ‘reconciliation.’ In her book, Germany’s Foreign Policy of Reconciliation: From Enmity to Amity (2012), Lily Gardner-Feldman notes that unlike English, the German language has two terms for ‘reconciliation,’ Versöhnung and Aussöhnung, conveying respectively a spiritual/emotional aspect and a practical/material element. These may not be the happiest of adjectives to convey the difference in meaning, however, they do the job of distinguishing between an interior form of transformation and one that is more structural or political and is perhaps amenable to legislative arrangements. In a deeper analysis Gardner-Feldman discusses five discrete models of reconciliation: they are based variously in the multiple disciplines of theology, philosophy, social psychology, law, political science and history. The purpose of mentioning her observations here is to underline the complexity of reconciliation and the dialectic that mediates between the body personal and the body corporate (indeed, the nation states).3 This dialectic is continual and does not have as its final aim the sublation of difference but rather, ‘the development of friendship, trust, empathy and magnanimity’ and thus the preservation of difference. History is a primary arena in which the journey of reconciliation must unfold. Let us admit from the beginning that history, which is to say, one’s narrative, is value-laden. Indeed it may be laden with values of which we are unaware. History is not simply telling the tale of the past, it is also the presenting of one’s presence to the other in the present and making a claim to 3 Similar distinction of the definition from “reconciliation” are also mentioned by Appleby, RS 2000, The ambivalence of the sacred: religion, violence, and religion, Rowman & Littelfield, Lanham et. Al.; Nadler, A 2008, The social psychology of intergroup reconciliation, Oxford University Press, Oxford.
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shape the future. In the journey to reconciliation two competing narratives or histories rub awkwardly against each other. The purpose of this awkward coming together is not for one history to overwhelm or submerge the other, nor is it as Gardner-Feldman points out, to equalise or homogenise views when different interpretations of history exist. The reason why we apply an historical lens to situations requiring reconciliation is not to eviscerate difference but to testify to its creative and positive durability and in this process historical analysis is to act as a constructive irritant. Nonetheless, though the stories and histories differ from each other it does not follow, in postmodern fashion, that one story is just as good as any other story. The owning of a necessary complexity in all these situations does not mean that victims cannot be identified; recognition of nuance in our historical narratives does not cancel out our ethical and moral obligation to those who are victims. As with the previous two volumes in the series the essays are divided into case studies which seek to examine both historical and contemporary situations of reconciliation and conflict (Tolliday, Stevens, Sulistiyanto, Suh, Schoepfel, Tek & Sperfeldt, Lal Fernando and Maung Yin), and chapters that address comparative and global perspectives (Leiner, Weinke, Liangjian, Lefebure and Mimaki). In his chapter on the politics of indigenous suffering, Phillip Tolliday discusses some of the complexities in the plight of Australia’s indigenous people. Dispossessed from their land by the arrival of White settlers in the late eighteenth century, they have endured the erosion of much of their culture, and for a large part of the twentieth century the forced removal – for the alleged purpose of assimilation – of many of their interracial children. Rightly shamed by these events successive Australian Governments have resolved to embrace the path toward reconciliation. This paper analyses two of these moments or events in the past decade: the Apology offered by the Federal Government to the Stolen Generations and the Northern Territory Emergency Response into dysfunctional Indigenous communities. In the example of the apology, the paper seeks to analyse its symbolic ‘weight’ and import. In the second case, the author seeks to demonstrate that the immediate intended good may (a) not be so clear ; (b) never be unalloyed; and (c) create unintended long-term systemic problems. Nevertheless, despite the undoubted complexities the process of reconciliation does advance – most readily through personal relationships. In her paper written in collaboration with Ma¯nuka Henare, Deborah Stevens focusses upon the Treaty of Waitangi in order to situate reconciliation within the twin perspectives of cultural translation and contextual hermeneutics. The paper highlights that which had been long hidden: the Ma¯ori version of the treaty, and compares it with the contemporaneous English version. The authors point to the Ma¯ori pre-understandings, their metaphysic, and their religious worldview – all so very different from extant European
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conceptions. The signing of the Treaty masked but did not dissolve the discordant pre-understandings between the two groups. Thus to take one example: Ma¯ori notions of power are about the locus or place of power. They argue that in recognising the sovereignty of Queen Victoria, Ma¯ori were simply recognising that Victoria herself was the centre of power under the English system and that she ought to exercise it over her own people, not Ma¯ori people. Instead, it was for the hereditary people to exercise their power over the Ma¯ori. The paper concludes by observing that within the tension that calls out for reconciliation is the endless struggle—to know, to read with, to understand, to work with, to engage with, others. In his case study based on historic events in Indonesia, Priyambudi Sulistiyanto and Sentot Setyasiswanto take the well-known case of the purges of 1965 that marked the transition to the so-called ‘new order’ and the elimination of the Indonesian Communist Party. The killings also demarcated the rise to power of Soeharto who then began a thirty year presidency. The author notes that Indonesia in the post-Soeharto period has failed to deal with these past human rights abuses and neither has it encouraged the reconciliation process. The chapter describes the events of 1965 in a broad sense so as to encompass not only the contemporaneous victims, together with their families, but also those who today suffer ongoing discrimination as the consequence of those purges. Divided into four sections, the author firstly examines the proposed new law on a Truth and Reconciliation Commission being prepared by the Ministry of Law and Human Rights. The second section looks at the advocacy work of NGOs and the ways in which they have sought to negotiate the reconciliation agenda in order to keep the quest for truth and reconciliation alive. The third section takes seriously the notion that victims may be seen as active agents, who, by telling their stories may inspire and enkindle the truth telling mechanism in Indonesia. A variety of media is employed in order to make this point. The author concludes that these ‘bottom up’ strategies to encourage reconciliation and truth telling are having a positive impact – and this despite the fact that there has been no success in establishing an official path to reconciliation. Bo-Hyug Suh analyses the dilemma of how North and South Korea may go about seeking reconciliation in the midst of a divided system. The author outlines a summary view of the history of family separation that took place as a consequence of the Korean War. He notes that it was not until 1985 that the first reunions of separated families began to occur and that it was not until 1990 that the reunions were officially affiliated with government policy. This was due to the ending of the Cold War. After 1990 three successful agreements were brokered and adopted, however in 2008 the Lee Myungbak Administration in South Korea adopted a more confrontational stance toward the North. After 2010 tensions escalated because of the nuclear weapons crisis precipitated by North Korea. The paper concludes by noting that one of the most significant challenges to the prospects of reconciliation is to be able to
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distinguish security concerns from humanitarian issues. Only by such a parallel approach will it be possible to effect a continuous improvement in relationships between North and South Korea. In a fascinating chapter Ann-Sophie Schoepfel examines the triangulated relationship between Indochina, France and Japan in the context of decolonisation. Following the French capitulation to Germany in 1940 Indochina retained its French sovereignty by dint of the fact that the Governor-General of French Indochina represented the collaborationist Vichy regime in France. Consequently, when they arrived Japanese troops enjoyed freedom of passage throughout Indochina and the French were viewed by them as allies. However, when De Gaulle’s government was installed in Paris in October 1944 it became apparent that the French presence in Indochina would be responsible to the Free French and thus at enmity with Japan. In March 1945 the Japanese gave the French an ultimatum to disarm, which they refused. This led to widespread massacres from March until the war ended in August 1945. It was at this point that the Viet Minh, led by Ho Chi Minh, urged the people to revolt against their colonial masters and not pay their taxes. It was against this volatile background that the French wished to assure the international community that they were still able to administer Indochina. The second part of the paper outlines the role of the French in the war crimes trials against the Japanese. Here they sought to argue that they, no less than the people of Indochina had been the victims of the Japanese. But as the author points out, that will depend on whether one believes the war between France and Japan started in 1940 or 1945. The paper concludes by affirming that the Japanese played a significant role in influencing the decolonialising discourse in Indochina. The case study co-authored by Farrah Tek and Christoph Sperfeldt addresses the task of examining the case of survivors of sexual and genderbased crimes, with a focus on forced marriage, under the regime known as ‘Democratic Kampuchea.’ This initiative, of forced marriages, perpetrated by the Khmer Rouge was a deliberate strategy aimed at an extensive transformation of the Cambodian society. In the aftermath of the regime the paper examines both judicial and non-judicial approaches to justice and truth telling. Although the judicial approach was criticised for sometimes failing to take sexual and gender-based crimes seriously, it nevertheless proved to be true that when defendants were indicted, the indictment alone contributed to ending the silence surrounding these crimes. Non-judicial approaches through NGOs have implemented restorative projects for survivors of violence without any direct link to the judicial process. This leads the authors to conclude that the two forms of justice and truth telling are compatible with each other and not mutually exclusive. In this somewhat longer chapter Jude Lal Fernando considers the conflict in Sri Lanka. The author’s guiding assumption is that Sri Lanka is in a post-war situation rather than one that is post-conflict. That is to say, it is a state of war
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by other means. The government has ensured that the Sinhala polity has been strengthened against its Tamil counterpart. Fernando argues that it is important to consider the conditions under which regime change is effected. For example, the regime change in Sri Lanka in 2001 created some political space for the transformation of the state, whereas the transitions that took place after 2009 and most recently in early 2015 function as a reinforcement of exclusionary democracy. After a comprehensive survey and analysis of the roots of polarisation and the move from a Tamil demand for inclusion to the demand for a de facto state, the author concludes that the root cause of the conflict in Sri Lanka may be found in the unitary state structure and its associated Sinhala Buddhist ideology. A peace, of sorts, has been achieved, but it is a victor’s peace. It is far even from the negative peace that was achieved in 2002. Reconciliation is much more than the absence of conflict, but in order to achieve it we must understand the conditions and processes that underpin the historical dynamics of state formation. In this case study on Myanmar Maung Maung Yin steers readers through the problems of reconciliation and the prospects of success. Myanmar is a very diverse country with 135 ethnic groups and 35 main languages. The richness of pluralism and diversity is, in fact, the richness of the country. Nevertheless, since the beginning of colonial rule in 1886 and the successive military regimes since Independence – with a brief interval of parliamentary democracy – the country’s natural pluralism has coexisted in tension with successive authoritarian regimes. This background has led to a culture of war, retaliation and violence in various forms. Maung Yin provides the example of the government’s attempt to construct a mega-dam in the state of Kachin. The project, in collaboration with China became a flashpoint for community anger, especially among those who had not been consulted about its construction. But surprisingly, in this case, the Minister of Industry responded by listening to the people and announcing a stop to the dam. This is one example of a powerfully symbolic project where an initial government strategy has, at least for the present, been diverted from its original course, thus giving a sense of hope that the voice of the people might yet be heard in Myanmar. Turning now to the comparative and global studies we begin with the two papers that formed the key note addresses for the Summer school. In his paper Martin Leiner addresses the issue of whether the notion of reconciliation is specifically Western or whether it can be translated into an Eastern idiom. However, the author is also attuned to the fact that translation always changes meaning and in this case it yields a new and fresh concept of reconciliation. The major section of the essay seeks to explore how reconciliation may be translated into traditional Asian concepts. Areas for convergence include a desire to come to terms with the past; a mutual acknowledgement of truth telling; the importance of memorialising the past and the role of empathy, just to name a selection. The author discusses the issue of personal identity through time, observing that a sine qua non of the western model of
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reconciliation is that victims and perpetrators remain identical even decades after the atrocities. Such an assumption dovetails neatly with a desire for trials long after the events. This contrasts with East Asian and particularly Buddhist thinking that tends to deconstruct the identity of both the victim and the perpetrator. Leiner notes that this deconstruction detaches one from the past and in that detachment is to be found the East Asian equivalent to what the West has understood as forgiveness. Similar but different, is the conclusion reached by the author. By emphasising harmony, detachment and passivity, the East Asian perspective sheds new light on what we have traditionally understood by reconciliation and enriches its meaning. If the eliding of difference through the processes of assimilation, compulsory inter-marriage and, in extreme circumstances, of genocide, creates the conflict, despair and hatred that mark the need for reconciliation and the normalising of relationships between people, what is it that may help to ameliorate this situation? In the second keynote address reproduced here in slightly expanded form, Annette Weinke assesses the impact of the Nuremberg Trials on the concepts and practices of reconciliation in post-war Germany. She points to the emergence of ‘new style’ international criminal courts that arose in the 1990s and that have adopted categories from the ‘hybrid Nuremberg human rights law.’ The near universality of the application of many of these principles in situations requiring reconciliation has led some in Germany to adopt a ‘self-congratulatory tone’ and to imagine it as their ‘patented invention.’ However, in a penetrating analysis the author demonstrates that the reception of Nuremberg and the subsequent trials immediately following the IMT was anything but smooth. She refers to the way in which the churches sought to develop a ‘grammar of exculpation’ by which to critique Nuremberg. Thus a discourse of reconciliation—in this case, specifically Christian—was pressed into service in order to reject the Nuremberg trials. Yet, in the longer term, the reception of Nuremberg was one of both rejection and appropriation, with the latter gradually becoming ascendant. The author notes that in time the war crimes trials held in the 1960s and 1970s—this time under the principles of a domestic penal code—stimulated approval and the beginning of the normalising of relationships with Poland and Israel. From this she draws the conclusion, vindicating her observation regarding the complexity that underlies any attempt to assess the impact of the Nuremberg Trials on the concepts and practices of reconciliation, as she notes that ‘when we tackle the issue of self-transformation from within and transformation from without, we are always dealing with complicated entanglements and transfer processes.’ In her essay Liu Liangjian addresses the issue of a world political order in a Glocal Age. She argues for a version of justice that transcends the presuppositions of the modern atomic and national individual; presuppositions that form the fundament of the nation state. She uses the doctrine of datong (Great Unity) to argue for a ‘nature-human community’ that exercises
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zhengyi – a form of justice that emphasises the importance and the universality of innate moral affections. Her conclusion is that in order to bring about reconciliation, which she interprets as grand harmony, it is necessary to move beyond the confines of the nation state, for the nation state is innately competitive and cannot therefore be the ultimate telos of reconciliation. Leo Lefebure commences his chapter by noting that the well-known Buddhist precept against violence needs to be nuanced by the acknowledgement that Buddhism contains within its history actions of violence and even justifications of violence in the name of Buddhism. Citing the work of Christopher Ives, he notes that when the choices have narrowed between a desire for institutional security or a total rejection of violence, the first has generally won out over the second. The twentieth century has witnessed the difficulties posed for Buddhism when it is situated in the midst of strife and violence. The author outlines the thought and practice of two principal figures: Thich Nhat Hanh in Vietnam and Nikkyo Niwano in Japan. In both cases, the political situations in which they found themselves immersed meant that they became prophetic and thus to large extent discordant voices in their communities. Yet in the case of Niwano he has left an enduring mark on interreligious dialogue and his work led him to help organise the first Conference on Peace and Religion held in 1969. The final essay in the collection is written by Seiko Mimaki in which she seeks to address a range of issues that are designed to normalise Japan’s relationships with her Asian neighbours, in particular China and South Korea. She begins by noting that the Abe government has put more effort into strengthening its ties with European countries – and here we might include the United States – than it has with its Asian neighbours. Yet if Japan is to be seen as a ‘normal’ country, it seems that regional reconciliation is an essential precondition. Japan’s neighbours become anxious whenever they hear that the path to Japanese normalisation may involve a military presence in international peacekeeping. Indeed this has been on the agenda, yet unresolved, since the first Gulf War in 1991. The author points out that despite the fact that the U.S. has never apologised for dropping atomic bombs on Japan, nevertheless the move by the Obama Administration toward a ‘world without nuclear weapons,’ is one that was well received by Japan. Since 1995 there has been growing rapprochement between the two countries. A sign of this ease between nations was evidenced in the fact that Abe became the first Japanese Prime Minister to give an address to the Joint Session of the U.S. Congress in April, 2015. However, the memory of Japan’s aggression toward her neighbours, China and South Korea in particular, has not been ameliorated by her better relationship with the U.S. The flashpoint in this case has been the contested discourse about the Comfort Women who were forced into sexual slavery during the war. The author concludes that this issue is one of universal human rights and that the Japanese experience must be judged from that context and perspective.
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The editors hope that the essays in this volume may stimulate further interest and research in the area of reconciliation, truth telling and peace building in the Asia region. We take this opportunity to thank all the participants of the Summer School, the JCRS and last but not least, the authors, some of whom were not present at the Summer School, but nevertheless kindly offered to contribute to this volume. Thank you!
Phillip Tolliday
Between a Rock and a Hard Place The Politics of Indigenous Suffering in Australia
Introduction The expression ‘between a rock and a hard place’ suggests that one finds oneself situated between two equally unpalatable and intractable alternatives. The cultural and political landscape of Aboriginal Australia is made up of a coincidence of opposites. On the one side are to be found those who advocate for indigenous self-determination, albeit with assistance from State and Federal Government funding. On the other side are some who are opposed to what they see as the huge amounts of Government funding directed toward indigenous communities and associated support programs. These latter argue that such funding produces a welfare mentality and often serves to exacerbate social problems in indigenous communities. This, then, is one seemingly intractable discussion about Aboriginal Australia. A further coincidence of opposites may be found when we consider the socalled ‘history wars.’ On the one side stand scholars like Colin Tatz (Verso 2003) who claim that White Australia has a genocidal past in relation to the way we have treated Indigenous Australians. While from a diametrically opposed perspective Kevin Windschuttle (Macleay 1996) has claimed that the accounts of the massacres of Aboriginals in the nineteenth and early twentieth centuries are much exaggerated and that most deaths happened as the result of disease. What now seems to be clear is that in the settlement of Australia there was a high level of conflict and violence that has been largely ignored (Reynolds 2013). During the past two decades films have been screened that have sought to deal with issues concerning Australia’s indigenous peoples and these films have outlined a similar tale of complexity. In 1997 a film entitled The Castle recounted a humorous story of a white working class family living in a modest suburban house situated unfavorably on the edge of the Melbourne Airport. The film is about what happens when the Government steps in to acquire their property, indeed their home, by compulsory acquisition. The trials and travails of this working-class family are laid out to public scrutiny as they fight one hopeless court battle after another with the seemingly inevitable prospect of defeat. They are told that they cannot possibly win because the Government authority ‘makes the rules. It owns the game!’ Improbably a retired QC takes up their cause pro bono and it is decided by the High Court that the
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Government authority has acted in contravention of no less than the Constitution of the Commonwealth of Australia. The subtext behind this film was the issue of Aboriginal land rights: a story played out in the courts in the judgements in favour of indigenous people under the now well-known names of Mabo (1992) and Wik (1996). It is significant that even at the late stage of 1997 the issue of indigenous land rights had to be masked, as it were, beneath a non-indigenous veneer in order to be capable of evoking the requisite feeling of empathy. By 2002 the makers of the film Rabbit Proof Fence had discerned that the Australian public was now ready to view films about indigenous history and suffering without any gloss. This particular film, based on the 1931 story of three aboriginal girls being taken from their mother, forcibly re-located to a mission home, and from there making their escape by following the ‘rabbit fence,’ was no longer masking its message beneath a white veneer. The film was uncompromising and even chilling. It played to large audiences who, for the most part, were disturbed by what they saw. The history of what came to be called The Stolen Generations and the tragedy of people dispossessed from their homes made for uncomfortable viewing, but it also raised the question of whether indigenous people were correctly perceived if understood only as victims. Could the landscape of indigenous Australia be understood totally from the perspective of their having been (and indeed continuing to be) victims? In 2012 the multi-part series Redfern Now, screened on ABC Television painted a much more complex and indeed nuanced picture. Set in the inner Sydney suburb of Redfern, the series sought to give viewers a window into the lives of six different Aboriginal families. No longer was the emphasis on a status of unrelieved victimhood, nor was there any inclination to hark back to the tradition of the so-called ‘noble savage.’ Instead, the indigenous families in the series come across to the viewer as urban, working class and with lives that are sometimes more and sometimes less integrated. In summary, they are portrayed not as other, but as just like us. Complexity and contradiction continue to be developed in film and recent docu-drama. In 2012 a documentary entitled The Croker Island Exodus delved into the lives of several elderly aboriginal women who had been removed from their families and taken to a Methodist mission on Croker Island off the northern coast of Australia. With the supposed imminent threat of Japanese invasion in 1942 the missionary sisters were instructed to take their young charges on a dangerous journey overland until their eventual destination in Sydney. The film is a combination of their remembered love for the mission and the missionaries, as well as lament for their removal from family and culture. It points to the deep ambivalence that often undergirds the experience of being removed from one’s culture and it introduces nuances and complexities not evident, for example, in Rabbit Proof Fence just a decade earlier. However, most recently, in 2014 the journalist John Pilger made a
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documentary entitled Utopia. The documentary depicts Third-World living conditions in some aboriginal communities and recounts the long history of dispossession. The film has been criticized for its lack of objectivity and lack of balance. Here no deference is paid toward nuance and complexity. These are just some of the contemporary examples that can be provided in order to show how contested is the cultural and political landscape in matters concerning indigenous issues in modern Australia. In this paper I seek to focus upon two main issues that inform considerations about reconciliation between indigenous and non-indigenous people in Australia. The first of these is the apology from the Federal Government given by Prime Minister Kevin Rudd in February 2008. This was an event that had been long awaited and in which many Australians vested much promise for the future. The second issue to which I want to draw the reader’s attention is the Northern Territory Emergency Response, more commonly known as the Intervention.
An Act of Decency Whose Time Has Come In 2008 the then Prime Minister, Kevin Rudd made an official apology on behalf of the Commonwealth Government of Australia to the indigenous people and in particular —and this is significant— to the members of the Stolen Generations. It is important to note several points about the apology from the outset. Firstly, although the previous Prime Minister, John Howard had expressed his ‘personal and profound regret,’ he had not said, ‘Sorry,’ nor had he apologized on behalf of the Federal Parliament. Despite repeated calls for him to do so, he steadfastly refused. Many people believed that the national apology was long overdue and were grateful that Kevin Rudd was going to deliver it. However, it would have been interesting and instructive to have conducted a poll on the day prior to national apology, asking just how many people knew that all of the States and Territories within the Commonwealth of Australia had already made their official apologies and most of them prior to the centenary of Federation in 2001. The Apology was lengthy, running to eight pages, but the essence of it may be captured from the first page, which I will quote. I move that today we honour the Indigenous peoples of this land, the oldest continuing cultures in human history. We reflect on their past mistreatment. We reflect in particular on the mistreatment of those who were Stolen Generations—this blemished chapter in our nation’s history. The time has now come for the nation to turn a new page in Australia’s history by righting the wrongs of the past and so moving forward with confidence to the future. We apologise for the laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians. We apologise especially for the removal of Aboriginal
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and Torres Strait Islander children from their families, their communities and their country. For the pain, suffering and hurt of these Stolen Generations, their descendants and for their families left behind, we say sorry. To the mothers and the fathers, the brothers and the sisters, for the breaking up of families and communities, we say sorry. And for the indignity and degradation thus inflicted on a proud people and a proud culture, we say sorry. We the Parliament of Australia respectfully request that this apology be received in the spirit in which it is offered as part of the healing of the nation. For the future we take heart; resolving that this new page in the history of our great continent can now be written (Rudd 2008). It is fair to say that this was one of those moments when as a nation we paused and listened. It was, we were told, a powerfully symbolic gesture. Emotions ran high and video footage of the day shows that for many people the apology was not only overdue, it was also profoundly cathartic and healing. Of course not everyone thought that the Government should apologise. Some disagreed with the apology because they thought that later generations had no need to apologise even if their forebears had committed acts worthy of an apology. They argued that they were neither guilty nor responsible for any acts committed by their forebears. Other opponents of an apology disagreed with the history that lay behind it. They argued that not only they themselves, but also their forebears had no reason to make an apology either now or then, because in their view nothing had been done that required an apology. Still others disagreed with an apology because they believed that it constituted an admission of liability and thus opened up the Federal Government to possible litigation and claims of compensation. But, as Noel Pearson acknowledged at the time, ‘the majority of Australians—black and white, progressive and conservative, Labor and Coalition, young and old—believe that the apology is the right thing to do’ (Pearson 2011, p.380). In an article entitled ‘When Words Aren’t Enough,’ Pearson, who comes from the Cape Yorke Peninsula had some very pertinent comments to make about the apology. Pearson began by noting that the imperative to apologise ‘was a product of Australia’s culture wars of the past decade’ (Pearson 2011, p.380). He outlined briefly how the Right’s culture wars were themselves a ‘reaction to the Left’s own vociferous cultural crusades of the 60s and 70s’ (Pearson 2011, p.380). John Howard’s refusal to apologise to the stolen generations was used by those who opposed his prime ministership as a moral and political bludgeon with which to beat him. Their chief motivation was not policy or spirit or moral philosophy ; it was cultural war. The progressives wished for Howard either to humiliate himself by saying sorry or to show, by refusing to apologise, how much of a heartless bastard he was. To the end, Howard refused to prostrate himself in the way his cultural opponents demanded, and in retrospect they can say that he was out of step with the
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feeling of decent Australians. But this was not the case for four consecutive parliamentary terms (Pearson 2011, pp.380–381).
Secondly, Pearson noted the philosophical prism through which the apology could be viewed and here he put the focus upon the issue of compensation. Usually Noel Pearson would be found at the opposite end of the spectrum from Keith Windschuttle, not least because of Windschuttle’s denial of much of the violence of white settlers toward indigenous Australians throughout the nineteenth century. However, in this particular case, Pearson credits Windschuttle with having identified the issue of sincerity at the root of the apology. Windschuttle had posed a critical question: which, he asked, is the more sincere of the following two propositions? To say, ‘We will not apologise to the stolen generations – and we won’t pay compensation’ or, ‘We will apologise – but we won’t pay compensation’ (Pearson 2011, p.381)? While it was undoubtedly true that some indigenous people did not want compensation; that was certainly not the case for all victims. At the same time that Pearson was writing, legal grounds for compensation for the Stolen Generations had already been tested in the case involving Bruce Trevorrow. The judgement found that Trevorrow was indeed entitled to receive compensation. Pearson also noted that while it could be argued that the liability for compensation was a responsibility incumbent upon the States rather than the Commonwealth, it did at least raise the question of whether if ‘the Commonwealth is this week going to assume moral responsibility on behalf of the country, then why not assume the responsibility for redress?’ (Pearson 2011, p.381). It was indeed a fair question. The third perspective from which the apology could be viewed was a psychological prism. Pearson focused his attention on the Prime Minister’s wish, expressed during his speech; that he hoped as a result of the apology that the country would now be able to ‘move on.’ Part of the impetus for a national apology to the indigenous peoples was fuelled by a desire that we might now as a nation be able to put this shameful chapter behind us. But what did it mean to ‘move on’? There were, said Pearson, two possible ways in which this hope could be interpreted. The first is ominous: that it represents a hope to dispose of the apology in as decent (and politically and financially costless) a way as possible, and to put the whole subject into the ‘that box is ticked’ category. The second is optimistic: that it represents a necessary starting point for a genuinely hopeful era in Indigenous affairs (Pearson 2011, p.382).
Pearson made it clear that while he thought many White Australians would be able to ‘move on,’ he very much doubted whether the same could be said of Indigenous Australians. Indeed he felt that many of those people who had been removed from their families and felt entitled to some compensation would probably never be able to move on and were likely to ‘die with a sense of
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unresolved justice’(Pearson 2011, 382). Pearson worried that the apology had the largely unforeseen and unintended consequence of turning Aboriginal people into victims. Thus he wrote that one of his misgivings about the apology ‘has been my belief that nothing good will ever come from our people viewing themselves as victims and making our case to the wider community on the basis of our status as victims’ (Pearson 2011, p.382). He sought to make a clear distinction between the history of victimization—something that was undoubtedly the case, Keith Windschuttle notwithstanding—and the politics and psychology of victimhood. The latter, he believed, would lead only to a further loss of power, agency and selfdetermination among indigenous people. Whatever moral power we might gain over white Australia by presenting ourselves as victims, we lose in ourselves. Our people have survived two harsh centuries because of the agency of our ancestors – not because of the charity of the wider society. Indeed, our ancestors underwrote our survival as a people notwithstanding gross and widespread un-charity. My worry is that this apology will sanction a view of history that cements a detrimental psychology of victimhood, rather than a stronger psychology of defiance, survival and agency (Pearson 2011, p.383).
Further thoughts about the national apology came from the anthropologist Peter Sutton who opined that the Rudd apology of 2008 probably wouldn’t change anything, but at least ‘the decency has been good’ (Sutton 2009). In the Foreword to Sutton’s book, Inga Clendinnen noted that Sutton was ‘skeptical, indeed sardonic, regarding the efficacy of the collective symbolic acts of the official reconciliation program, implying that formal reconciliation is essentially a whitefella’s project and a romantic one at that’ (Sutton 2009). Sutton’s long experience of living in various indigenous communities had given him a good sense of how things stand inside many of those communities. On the basis of his experience he argued that within many indigenous communities …the more important, visible, daily and emotionally consuming ties and conflicts are not with 19.5 million non-Indigenous people, most of whom they will never meet, but with other Indigenous families, and neighbourhoods of their own kindred and township and district (Sutton 2009).
Indeed it was more likely to be these kindred ties that would bind, chafe and (sometimes) strangle. Before we leave the discussion about the apology we should note that its primary focus, indeed if one examines the Prime Minister’s speech, its exclusive focus, was upon the Stolen Generations. On the same day, the leader of the Opposition, Brendan Nelson, was also called upon to make a speech of apology to the indigenous people. After Rudd the speech from Nelson had a sense of flatness about it. What he had to say was received for the most part in silence. His speech delimited our responsibility to understanding ‘what happened here, why it happened, the impact it had not
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only on those who were removed, but also those who did the removing and supported it’ (We are sorry – 2007). Yet Nelson did make one critically important allusion to a long history of violent dispossession that was absent from the Prime Minister’s speech. It was about the violent history between white settlers and aboriginals. He remarked, ‘That it was in brutally harsh conditions, from the small number of early British settlers our non-indigenous ancestors have given us a nation the envy of any in the world. But Aboriginal Australians made involuntary sacrifices, different but no less important, to make possible the economic and social development of our modern Australia’ (We are sorry – 2007). It could, after all, have been argued with some plausibility that the removal of children from their families had been a consequence of dispossessing aboriginal people from their culture and ancestral homes.
The Northern Territory Emergency Response commonly called ‘The Intervention’ Peter Sutton, Noel Pearson and Marcia Langton hold in common a strong advocacy on behalf of the rights of indigenous people and communities. For decades they have also shared a disavowal of the liberal consensus that was set in place in the 1960s and was at its peak during the 70s and 80s. Each has lived experience of various indigenous communities and they bring to the debate on indigenous affairs both a critical intelligence as well as an authentic existential perspective. Each of them held a robust and largely positive view as they analysed the Northern Territory Emergency Response. In what follows, I will outline their appreciation of the Intervention in summary and then provide a critical appraisal of their perspective. The Intervention signified in a particularly poignant way what Peter Sutton has referred to as the politics of suffering. In 2007 the Northern Territory government released the report Little Children Are Sacred. The report recognized that sexual abuse in Aboriginal communities is one consequence of the breakdown of Aboriginal culture and society, and results from the combined effects of poor health, alcohol and drug abuse, gambling, unemployment, poor education and housing, pornography and a general loss of identity and control. It suggested that Aboriginal people are willing and committed to solving the problems, that existing programs need to work better and be coordinated in a more helpful manner, and that there needs to be funds and resources committed for the long term. The NT government sat on the report for quite some time and seemed unwilling to act. On June 21, 2007, the Prime Minister of Australia [John Howard] declared the matter of sexual abuse in Indigenous communities to be a national
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emergency, apparently without consultation with the Northern Territory government or with Aboriginal people. A number of strategies were announced, and police and military personnel were immediately sent into communities to increase protection for children. Alcohol restrictions were introduced on Aboriginal land, all children under sixteen years were to have compulsory medical examinations (this was later withdrawn), welfare reforms tied income support to desired social behavior (eg., attendance at school, meals at school); and the federal government took control of townships and land. None of these measures was found in the recommendations of the Northern Territory report (Budden 2009). That is a summary outline of the background to the Intervention. It was a time of high emotions, captured perhaps by the title of an article to appear later in the Australian Indigenous Law Review, ‘Never mind human rights, Let’s save the children.’ It did seem as if two competing rights were at stake: the rights of Australia’s Indigenous people on the one hand, and the rights of their children to live in safety, on the other. Australians arranged themselves into three categories: those who supported the Intervention unreservedly, those who opposed it unreservedly, and those who, like the author believed something surely needed to be done but weren’t sure whether the Intervention was the right way to do it. The framers of the Intervention operated on an assumption—longstanding—that all aboriginal communities are the same as each other. When referring to indigenous communities it is very tempting to be lulled into a false sense of their being homogenous. The truth, as always, is more complex. Some indigenous communities are highly functional, while others are dysfunctional and chaotic. It is the latter that usually make news headlines. But even within dysfunctional indigenous communities it is surely unreasonable to lump people into an homogenous group. Indigenous people have, it is true, general characteristics by which they may be described, but no more or less than their non-indigenous counterparts. Whatever general character traits we may choose to put under scrutiny must not be allowed to override the individual efficacy for good and evil that is embodied by humans everywhere. The generality of the term indigenous communities must always be severely qualified by the specificity of this or that particular indigenous community. We turn now to the responses made to the Intervention by Marcia Langton, Noel Pearson and Peter Sutton. While these three were in broad agreement, they were not without their nuances of difference and neither, in my view, could their views be simply written off as examples of neo-conservatism. Marcia Langton Langton supported the Intervention, regarding its occurrence as an inevitable consequence of the failure of previous governments (Budden 2009). She
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believed that the Intervention was justified because of the widespread abuse in many aboriginal communities. Moreover, she believed it would protect women and children who were the ones most at risk in these dysfunctional communities. Langton argued that inactivity on the part of the government could not be defended in terms of Indigenous control, because ‘the children and women who were being abused had no control. To speak of selfdetermination and control where there is none, is to continue the abuse’ (Budden 2009). Like Pearson, she was concerned that policies and practices might be implemented that could turn aboriginal people into perpetual victims. She made the point that it was …axiomatic to most Australians that Indigenous people be poor, sick, and forever on the verge of extinction, rather than capable, economically empowered, free-thinking, independent people. This image of a people capable of taking an active role in Australian society has been set to one side because it is more interesting to play with the warm, cuddly, cultural Aborigine, the one who is so demoralized that the only available role is as a passive player (Budden 2009).
In the Boyer Lectures of 2012, Langton had argued that there was indeed what she called a quiet revolution taking place among many aboriginal communities as a result of a deal made between local Indigenous people and the resident mining companies. Such agreements had proven to be mutually beneficial and were moving toward genuine self-determination. Of course, this situation was very far from being universal, but even where it was in place, it was, she noted sadly, generally not known because rarely reported.
Noel Pearson Pearson was in broad agreement with the Intervention. For him the nonnegotiable argument was the suffering and abuse of children. In a poignant reflection he wrote the following: Child protection is not like poverty or education under-achievement or general socioeconomic disadvantage. Time and deliberation can be taken when considering solutions to these large structural problems. But what do you do when a child is being subjected to abuse this very day? What do you do when a child is likely to be abused next week? What do you do if the abuse is going to happen the week after next? If it were your child at risk of this suffering, would you think this a matter of emergency? This is not a moral panic. The abuse is real. This is not a media or political beat-up. Something has to be done to relieve the suffering now, not in six months, not in two years. Now. We can’t rehabilitate people from alcohol or drug dependence immediately. We can’t fix the poor education immediately. We can’t fix up the poor health immediately. But we must stop the suffering straightaway. Everyone,
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from the Prime Minister, to his bitterest opponents, focuses on the fate of the children. No-one can escape this fact: the fate of the children is the bottom line (Pearson 2011, p.302).
Pearson adopted two-step reasoning in his support for the Intervention. The first step was that one had to have knowledge of what happens in such communities on a regular basis. There was no substitute for legitimate knowledge and he suggested that urban-based critics simply did not know the realities (Pearson 2011, p.309). He also claimed—though the basis of this claim wasn’t made clear—that prior to the Intervention 90 % of Australians had no idea of what was taking place in these communities. The second step in Pearson’s reasoning was that once we had knowledge of these realities we were then morally obliged to find the abuse unacceptable. This meant that one necessarily supported the Intervention. By all means we can argue about the kinds of interventions that should be undertaken, but two things are not negotiable in that discussion. The first is that action had to be taken immediately. The second was that there had to be a primary focus on safety and the restoration of social order by increasing police services and controlling the rivers of grog (Pearson 2011, p.310).
Indeed Pearson identified drugs and alcohol as being among the primary causes of dysfunction in aboriginal communities. He observed that as far back as 1991 the Report from the Royal Commission into Aboriginal Deaths in Custody had demonstrated that alcohol had been a significant cause in the problem of the over-representation of indigenous people in custody. But notwithstanding this finding, the Commission did not make the confrontation with alcohol a principal target of policy and action. Pearson went on to claim that Aboriginal communities were now ‘paying the price for the intellectual and policy failure of those royal commissioners.’ He wondered, ‘How much of today’s problem could have been avoided had we got the thinking and policy right back then’ (Pearson 2011, p.305).
Peter Sutton The key thesis that Sutton brought to the debate about the Intervention— though it was not confined to the Intervention—was that there must come an end to Aboriginal suffering. Sutton’s professional background is in anthropology. He began work in the late 1960s and together with other anthropologists in the early 1970s undertook research in Cape York. It was the quality of this pool of work that underwrote successful Native Title claims in the mid1990s, and Sutton was at the forefront of this (Godwin 2010). Sutton had spent many years living in indigenous communities and was intimately acquainted
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with their spiral into despair and violence. One reviewer of Sutton’s book noted how the book …opens with a harrowing account of a Wik woman at Aurukun, on Cape York Peninsula – a person whom he called ‘niece’ through his incorporation into the kinship system, and who hanged herself in 1998 at the age of twenty-seven. Formerly a lively child at an outstation that Sutton helped to establish in the 1970s, by the 1990s she was drinking heavily, repeatedly bashed, and twice examined in hospital after giving details of how she was pack-raped by local Aboriginal boys. A stream of such horrific events over the past two decades has led this talented researcher to despair at what he terms ‘the ersatz, cavalier, causal theory’ (Trigger 2009).
It was from this perspective that Sutton judged the Northern Territory Emergency Response. He did not consider the Intervention to be perfect. On the contrary, he referred to it as a ‘pretty blunt instrument.’ The Minister responsible for its implementation was ‘rough but he made people sit up and take notice’ (Sutton 2009). He defended the government’s decision to send in the army, on the basis that ‘the feared needed something to fear, otherwise behavioural change in the area of gender antagonism and woman-bashing was going to be just pie in the sky’ (Sutton 2009). Based on his experience of having witnessed increasing levels of suffering among the Aboriginal people, Sutton made clear his starting point with regard to the Intervention. My starting point when thinking about Australia’s indigenous policy framework, or specific events like the Intervention, is not narrowly political, in the sense of trying to fix unjust or unequal distributions of power. Nor can I admit to that other common political purpose, the appeasement of vocal sectional interests. Those pathways are geared to creating benefits for politically or bureaucratically active adults, in the first instance. Nor is my starting point the need to preserve what is left of traditional Indigenous culture, or to maintain the older forms of connection between people and the land. These heritage matters are arguably serious considerations. I say this after a lifetime of placing the highest value on Indigenous languages, land rights, social organization and the visual arts. The first consideration, instead, must be to focus on those conditions that are conducive to the emotional and physical well-being of the unborn, infants, children, adolescents, the elderly and adult women and men. It is remarkable how many people living in the comfort, affluence and healthy surroundings of Australia’s suburbia have, in the debates over Indigenous policy and especially over the Intervention, covertly promoted the view that respect for cultural differences and racially defined political autonomy takes precedence over a child’s basic human right to have love, wellbeing and safety. It is as if political feelings and political values are more important than one’s emotional feelings and moral values as fellows of those other human beings in the ghettos (Sutton 2009).
Both Sutton and Pearson were familiar with the situation in Cape York and both were able to testify to the fact that restrictions made on the purchase of
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alcohol by the Queensland State Government from 2003, which is to say four years prior to the Intervention in the Northern Territory had already begun to demonstrate change for the better. Severe alcohol restrictions were imposed on Aurukun in 2003. The only legal drink now was low-strength beer in regulated quantities served during limited hours. These new rules applied to all residents. Aurukun Hospital figures in late 2006 indicated that the average number of sutures required per week, as a result of trauma induced by physical conflict, had gone down by 90 % since the change. In the four years 1999–2002, there were six suicides and six homicides in this community of less than a thousand people. That was an annual murder rate of 150 per 10,000, nearly forty times the national average. In the almost four years after the introduction of alcohol controls, there were only two suicides and one death caused by ‘trauma,’ and no confirmed homicides … In Cape York as a whole, in the four years from January 2000, there were nine murders and alcohol was a factor in each. By contrast, in the eighteen months until 3 January 2007, during the restored alcohol-control era, there were no murders (Sutton 2009).
Each of the three people we have considered, Langton, Pearson and Sutton, had a history of activism of behalf of Indigenous communities. None of them could be discounted as marionettes controlled by conservative think-tanks. Each was well respected in his or her chosen academic field. And each of them has, at one time or another, been accused of breaking faith with the liberal tradition and going over to ‘the other side’ i. e., the side of the conservatives. Indeed such an accusation seemed to have prima facie plausibility when Marcia Langton argued that it was necessary to suspend the Racial Discrimination Act. Was there not, in the entirely legitimate and understandable haste to ‘save the children’ a danger that we might find ourselves, albeit unwittingly and unintentionally, undoing hard-won progress that had been made in human rights?
A View From The Other Side Of The Hill Advocates against the Intervention argued their case from the perspective of ‘rights.’ Louise Pounder sought ‘to critique the NTER and its purported aims for Indigenous children’ by using ‘the standards and principles set down in international human rights law and in particular the Convention on the Rights of the Child (CRC), (Pounder 2008). While Pounder agreed that child protection was a serious human rights issue for Indigenous children she nevertheless concluded that the ‘policy framework, measures and processes employed by the NTER fall short of the principles and standards mandated by a rights-based approach’(Pounder 2008). In what follows I will look at the way in which she interpreted a rights-based
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approach to address the twin issues of (a) characterisations of Indigenous children, their caregivers and the State, and (b) the relationship between the Rights of Indigenous Children and the Wider Indigenous Community. In relation to the characterization of Indigenous children, their Caregivers and the State, Pounder noted that a ‘rights-based approach is premised on the understanding that all people, including children, possess certain fundamental rights … It also, correspondingly, identifies duty-bearers, who have an obligation to ensure that these rights are respected, protected and fulfilled. In this respect, a rights-based approach represents a significant departure from traditional welfare approaches that position children as passive objects of adult concern’ (Pounder 2008). In relation to the State, she held that a rightsbased approach obliged the State ‘to assist and support Indigenous parents in the performance of their child-rearing responsibilities’ (Pounder 2008). She concluded that this approach would reconceptualise the power relationship between children, adults and the State. In other words, there would be a proper acknowledgement of the intrinsic rights and causal powers of each. Certainly there would be no place for what she called a ‘paternalistic logic.’ But it was precisely a paternalistic approach that it was adopted by the Howard Government. There were calls to ‘save Indigenous children.’ Indigenous parents were portrayed as ‘the problem’ because they were not adhering to ‘normal community standards’ and their ‘parenting behaviours had broken down.’ The State, therefore, had been cast in the role of the non-Indigenous savior ‘who would assume complete responsibility for the welfare of Indigenous children’ (Pounder 2008). Noel Pearson, whose perspective on the Intervention has been outlined previously, was aware of the paternalistic nature of the response, but he suggested that a ‘bit of paternalism is just what the terrified child huddling in the corner needs’(Pearson, cited in Pounder 2008). The public became caught up in the Howard Government’s claim that ‘the Intervention was a sweeping assumption of power and a necessary assumption of responsibility’ (Pounder 2008). That was a ‘sweeping assumption of power’ there can be no doubt. But that it was a ‘necessary assumption of responsibility’ is a claim that is very much open to question and criticism. In the midst of this rhetoric there was no mention of the fact that the Little Children are Sacred Report had found that most Aboriginal people were willing and committed to solving problems and helping their children. Instead, there was the inference ‘that all Aboriginal parents were neglectful or abusive and no reference was made to any positive role they might have in ensuring their children’s wellbeing’ (Pounder 2008). Louise Pounder concluded that this paternalism, though perhaps well intentioned, was grounded in an outmoded and now largely discredited understanding of welfare. Moreover, she claimed that it tapped into assumptions that were themselves indebted to biological determinism and assumed that children needed to be rescued from their parents, because the
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parents lacked ‘the innate qualities, rights values and correct behaviours’ that were conducive to the child’s wellbeing. To put it bluntly : children needed to be rescued because there was something about Aboriginality that seemed essentially dysfunctional. ‘These attitudes propelled the policies and practices behind the Stolen Generations’ (Pounder 2008). She argued that the Intervention had effectively served to disempower both Indigenous children and their parents. While, on the other hand, the non-Indigenous State had ‘framed itself as benevolent and discretionary’ (Pounder 2008). What had happened to the principle of consultation? Moreover, why were not the findings of the Little Children are Sacred Report acted upon rather than ignored? The second fundamental point Pounder made in her article concerned the nature of relationship between the Rights of Indigenous Children and the Wider Indigenous Community. The NTER imposed a range of measures, including income management, thus implying that the Howard Government believed that the rights of the children were in fundamental conflict with the rights of the wider Indigenous community and where this was the case, the rights of the wider community could be properly abandoned. A rights-based approach to the relationship between Indigenous children and the wider community recognized that all ‘human rights are indivisible and interdependent’ (Pounder 2008). While, in the immediate sense, child safety was paramount, there was also a longer-term view in which it was argued that there must be strategies put in place to ensure ‘safe, healthy communities and a meaningful life for the children born into these communities in years to come’(Pounder 2008). The Intervention, by adopting the protection of Indigenous children as a ‘meta-goal’ suggested that the Howard Government was implying that this goal had an absolute priority and that it could not or should not be ‘balanced with other human rights concerns’ (Pounder 2008). Within the parameters of such reasoning, flawed though some thought it to be, it made sense to suspend the Racial Discrimination Act 1975 (RDA). Pounder concluded that there was no doubt that something had to be done in many Aboriginal communities. In many cases she approved of measures that were taken to protect the children. However, she faulted the NTER for strategies that were often ignorant of findings in the Report; for policies and practices that were often punitive and short-term, and which, moreover, failed to address the structural, systemic and underlying causes behind the suffering of the children. She faulted the process for treating all Indigenous parents and communities as dysfunctional. And finally, she found the process flawed to the extent that it failed to provide proper participation to the wider Indigenous community, and in some cases could be said to have actively sought to deny such participation. In 2012 Desmond Manderson spoke about the introduction through the Australian Parliament of the Stronger Futures Bills. The purpose of this
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legislation, which came to apply in the Northern Territory, was ‘to continue the policies of the Intervention and in some cases extend them’(Manderson 2012). The legislation was bad enough, but in Manderson’s view what was worse was the ‘bad faith on the part of the Government’(Manderson 2012). Despite a recognition of the principle and obligation to consult with respect to laws concerning Indigenous people, Manderson demonstrated that such consultation had not happened effectively ; indeed, it had hardly happened at all. This was a significant lapse on the Government’s part because Australia is a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), one of the principles of which is that it obliges governments to implement special measures only on ‘the basis of prior consultation with affected communities and the active participation of such communities’ (Manderson 2009). The so-called Stronger Futures consultations, which led to the currently enacted legislation, were conducted with indecent haste. The Discussion Paper about the proposed legislation was released in June and was often made available to community members only at the door of the community meeting. But nevertheless, consultations were complete by August and a glossy Report on the consultation process was released in October. By late November, hundreds of pages of complex legislation had been introduced to Parliament’ (Manderson 2012).
An independently commissioned report entitled Listening But Not Hearing was scathing of the consultation process and detailed very different findings from Indigenous communities about the measures to be implemented during the Intervention. Manderson concluded his article by suggesting that the real crisis was about our relations with Aboriginal people. Each new law, he said, only intensifies our arrogant paternalism and their dependence, now increasingly not just a welfare dependency but a criminal dependency (Manderson 2012). The issues were complex. How was it that Desmond Manderson and Louise Pounder could be so passionate about the rights of Indigenous people and so intent upon doing whatever was possible to remove their crippling dependency ; and in this desire, be totally at one with advocates like Peter Sutton, Marcia Langton and Noel Pearson, and yet adopt two radically differing perspectives on the Intervention? To touch on this question is to begin to tease out some of the complexities about the reconciliation debate.
Reconciliation: A Rite in Search of a Meaning? In 1998, writing of reconciliation, Aboriginal scholar Anne Pattel-Gray noted that it was the current ‘buzz’ word and, taking her point of departure from Joel
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Kovel, wrote that Aboriginal ‘people are facing justice by facsimile—distant enough to spare whites’ direct guilt, yet close enough to allow a symbolic correspondence’ (Kovel 1998). These were harsh sentiments. Did they contain a grain of truth? In the closing section of this chapter I will outline the view of Peter Sutton and specifically the distinction he made between so-called ‘sacramentalist’ and ‘pietistic’ approaches to the issue of reconciliation. Sutton’s book contained a delightful chapter simply entitled Unusual Couples. In it he recounted the stories of three relationships, or perhaps more accurately, friendships, between an Aboriginal and a non-Indigenous person. These stories are spread across time and encompass both genders. Presumably they were just three of many such stories that could have been chosen. The first is between Biraban (John McGill) and Lancelot Threlkeld; it is situated in the period from the 1830s to the 1840s. The second is between Billy Mammus and Ursula McConnel; a friendship that endured between the 1920s and 1930s. And thirdly there was the long friendship between Durmagam (‘Smiler’) and WEH Stanner that stretched from the 1930s through until the 1950s. In each vignette Sutton brought out the quality of the personal that sustained the encounter between the two parties. Acquiring ‘the art of the negotiated relationship begins when we learn to relate to just one other person’ (Sutton 2009). There is certainly a profound truth in this claim. He argued that these encounters, which were themselves unusual, were complex, ‘they may have been at times emotionally intense, and often had an impact on both individuals over a long period’(Sutton 2009). Sutton’s purpose in providing his readers with these stories was to encourage ‘resistance to the submergence of the personal in the historical and emblematic’ (Sutton 2009). He believed—in my view, correctly—that it was from the perspective of the personal rather than the political or corporate or emblematic that reconciliation might be framed and indeed formed. Sutton entitled the final chapter of his book On Feeling Reconciled. It was a significant phrase, standing out by its use of the word ‘feeling.’ One might have expected instead to see a chapter heading that read, ‘Being Reconciled.’ However, feeling fit well with his development and indeed his privileging of the personal and individual rather than the corporate and ceremonial. Sutton called these two perspectives the pietistic and the sacramentalist. The sacramentalist approach was distinguished by its need for collective and ceremonial action, whereas the pietistic on the individual and the personal. Sutton argued that the sacramental approach to reconciliation ‘demands a joint and public ritual, one in which the substance of the mass relationship between two historic peoples is transformed’ (Sutton 2009). When such a process is done well and with sincerity, he believed it offered the prospect of a conjoint catharsis. Yet it was significant that Sutton raised this perspective only to dismiss it, and it seemed apparent from the scant treatment he afforded it, that it was a perspective for which he did not have a lot of credence. He worried that the sacramental or corporate approach to reconciliation was
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likely to result in a ‘politics of appeasement.’ He was concerned also lest reconciliation was reduced to nothing more than a compact or agreement made between settler descendants and the First People; a settlement whose objective would be to silence complaints and, in the words of the Prime Minister’s apology, to ‘move on.’ The view suggests that Reconciliation is something the non-Indigenous have to do, while the Indigenous sit back gratefully silent, or merely nod their acceptance, or just don’t want to hear, or, in some cases, spit back our solicitude. But surely that is not Reconciliation; that is more an apology. And we have had the governmental apologies (Sutton 2009).
One reviewer of Sutton’s book noted that readers needed to recognize that Sutton is against the corporate or sacramentalist approach to reconciliation because ‘his ontology of the local is integral to his anthropological humanism’ (Rowse 2009). Persons are always more important and more fundamental than categories. Sutton makes the judgement that reconciliation is an emotional work, a work of empathy and indeed of friendship. It is, he claimed, a ‘state of being between persons and a resolution of issues within one’s consciousness’ (Sutton 2009). He made a credible case for concluding that there could not be empathy between categories or statistical entities, but only between individual human beings. ‘The more a commitment to a formal Reconciliation becomes a measure of one’s political rectitude, the more it lends itself to unsavoury displays of moralism. These require no coming to terms with the feeling self ’ (Sutton 2009). Thus far one might be in sympathy with Sutton’s observations, but as some critics pointed out, he was not himself above indulging in some of his own categorical thinking. Sutton’s long-term exposure to Indigenous communities enabled him to use insider knowledge to critique the possibility of corporate reconciliation – a position he had arrived at previously by other means. He argued that there was a radical difference between the moral worldview of Indigenous and nonIndigenous people. Based on his knowledge of Aboriginal languages, Sutton argued that Blame in the classical Aboriginal scheme of things is consistently directed outwards to others, not inwards to the self. In Aboriginal languages there is no word for ‘sorry,’ in the sense of a self-accusing apology, although there are interjections of regret … Words sometimes translated as to do with apologizing tend to refer to the restoration of being on good terms, not to any admission of blame or guilt (Sutton 2009)
There are, of course, Aboriginal words that convey the feeling of being sorry for someone, in the sense of compassion. Sutton concluded that while the moral equivalence of persons did not, of course, rest upon a shared scheme of morality, it might nonetheless give us pause for thought. After all, ‘where people do not share a scheme of social morality it can be difficult to assert that they are in the same activity when negotiating something called, for example,
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Reconciliation’ (Sutton 2009). It came as no surprise to learn that Sutton’s comments attracted criticism for his own strikingly categorical thinking. Some critics wondered whether the credibility of his thesis throughout the book rested upon the reader’s willingness to accept that ‘Sutton’s witnessing of particular places at particular times was a reliable source of knowledge of Indigenous Australia and of its relationship with non-Indigenous Australia’ (Rowse 2009).
Conclusion Sutton’s bifurcation between the sacramental and the pietistic is not compelling. It is too simple, perhaps even simplistic. He is surely right to remind us that true reconciliation is always an event between persons rather than categories. However we have also seen—and from Sutton himself—that the use of categories proves inescapable. Tempting though it might be from time to time to place persons or, as in the case of the NTER some persons (women and especially children) in front of all other considerations, including racial discrimination and conventions on human rights, we have, I think, seen the potential for inherent danger in such a perspective. Sutton, Pearson and Langton pose a salutary warning to policy makers who would seek to ‘fix’ Indigenous communities without respecting the fact that (a) in many cases the level of consultation with the communities in question is non-existent or merely cursory ; (b) that an Indigenous community, just like a non-Indigenous community is made up of a range of people of differing abilities, behaviours and dispositions; and (c) that sometimes Indigenous Elders have a better grasp of what is destroying their ‘mob’ even if their view does not fit with the current political wisdom. On the other hand, the experience of Pearson and Sutton is deep rather than wide, incisive rather than comprehensive, specific rather than generalized. They know their communities and they know them intimately. They have developed, as Rowse saw so clearly, an ontology of the local. It is then somewhat ironic that they are prepared to generalize this knowledge of the local and specific and suggest, at least by implication, that their experience is the litmus test for all Indigenous communities. But this, I think, is just what they are doing and they are doing it for the best of reasons. The wisdom they bring to the debate is this: we have seen this work in our communities, why can it not work in others, and perhaps, in all? A preliminary answer might be— because not all Indigenous communities are the same; there exists no panAboriginal identity. If reconciliation is to take root in Australia, then it must, I think, adopt both the personal (pietistic) and corporate (sacramental) approach. The apology was not only the ‘decent thing’ to do, it was also a powerful symbol. We know that symbols, unlike signs, participate in what they symbolize – that is to say
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they effect or bring about what they signify. When a symbol works as it should, there is an essential relationship between the actual symbol, in this case, the apology, and what it actually symbolizes, that is, reconciliation between Indigenous and non-Indigenous Australians. The Prime Minister’s apology in February 2008 was certainly symbolic. Whether that symbol lives or dies will depend upon the ways in which the ‘politics of suffering’ are worked out. To be situated between a rock and a hard place is the uncomfortable reality of reconciliation at the moment and there is a temptation to jump first to one ‘simple’ solution and, when it fails to leap to another ‘simple’ solution. I doubt whether there is an easy solution to reconciliation but lest this note be seen too dismal or pessimistic, we can perhaps take heart that the world is changing faster than our perceptions of it. One example will, I hope, make the point. In an Australia that is multi-cultural and increasingly multi-racial the ‘rate of mixed marriages (one Aboriginal and one non-Aboriginal partner) of 46 % in 1986 had risen to 71.5 % in 2006’ (Sutton 2009). This in itself is significant but even more noteworthy is the fact that …the construction of Aboriginal identity is decreasingly founded on cultural differences or differences of appearance … there is an inevitable homogenizing effect on how people look and live … but this is not resulting in a diminution of Indigenous identification … 87 % of the children of interracial unions were identified as Aboriginal (Sutton 2009).
Increasingly many Indigenous people are not distinctive by their looks. In the early Twentieth century this would likely have resulted in their removal from their families and forced assimilation into White culture. The aim of such assimilation was to bring about the gradual but inevitable demise of the Indigenous people. There is then more than a trace of irony in the fact that today more and more Indigenous people, many of them the products of interracial unions are identifying themselves as such. Far from Indigenous people dying out, numbers are increasing and this too, must re-frame what is meant by reconciliation.
References Budden, C 2009, Following Jesus in Invaded Space: Doing Theology on Aboriginal Land, Pickwick, Eugene OR. Croker Island Exodus 2012, Australian Broadcasting Commission General Recommendation 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of Racial Discrimination 2009. Godwin, L 2010, ‘The Politics of Suffering: Indigenous Australia and the end of the Liberal Consensus,’ Australian Archeology, no. 71, pp. 81–83.
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Manderson, D 2012, C ¸ rocodile Tears,’ Indigenous Law Bulletin, vol.7, no. 30, pp. 8–11. Pattel-Gray, A 1998, The Great White Flood: Racism in Australia, AAR Scholars Press, Atlanta. Pearson, N 2011, Up From The Mission: Selected Writings, Black Inc, Collingwood. Pounder, L 2008, ‘Never Mind Human Rights, Let’s Save the Children: The Australian Government’s Emergency Intervention in the Northern Territory,’ Australian Indigenous Law Review, vol.12, no.2. Rabbit-Proof Fence 2002, (Video Recording) Miramax Films. Redfern Now 2012, Australian Broadcasting Commission. Reynolds, H 1988, The Law of the Land, Penguin, Ringwood. Reynolds, H 2005, Nowhere People, Penguin, Camberwell. Reynolds, H 2013, Forgotten War, University of New South Wales Press, Sydney. Rowse, T 2009, ‘Review Essay : The Politics of Suffering, Indigenous Australia and the End of the Liberal Consensus,’ Aboriginal History, vol.33, pp. 234–244. Sutton, P 2009, The Politics of Suffering: Indigenous Australia and the End of the Liberal Consensus, Melbourne University Press, Melbourne. Tatz, C 2003, With Intent to Destroy : Reflecting on Genocide, Verso, London. The Castle 1997, (Video Recording) Village Roadshow Australia. Trigger, D 2009, ‘Sustaining Fictions: Challenging the politics of embarrassment,’ Australian Book Review, November, pp. 42–43. Utopia 2013, John Pilger, Australia. Windschuttle, K 1996, The Killing of History : How a Discipline is being Murdered by Literary Critics and Social Theorists, Macleay, Paddington.
Deborah Stevens
New Zealand’s Te Tiriti o Waitangi-Treaty of Waitangi: The past, contemplated in the present, is a guide to the future And within this tension between contradictory realities is the ake ake ake, the endless struggle – to know, to read, to understand, to work with, to engage with, others. (Jones 2007)
Introduction The Treaty of Waitangi is popularly regarded as Aotearoa-New Zealand’s founding document. Signed in 1840, the Treaty marks a significant point in the relationship between the Ma¯ori Tangata Whenua, the ‘land’ or ‘first people’ of Aotearoa-New Zealand, and the landed or landing people, the Pa¯keha¯, predominantly of British origin. Informed by different cultural, spiritual, political, economic and geographic environments, these two peoples, tangata whenua, the indigenous peoples, and all immigrant peoples since 1840 faced, and continue to face, distinct challenges in seeking to develop a lasting and peaceful relationship. While it is too early to predict a long term outcome, historically speaking, the future looks promising, particularly with the emergence of a more culturally diverse society. Diversity matters for a successful treaty. There was a substantial and noteworthy history of interaction between Ma¯ori and Pa¯keha¯ prior to the signing of Te Tiriti o Waitangi and the Treaty of Waitangi, and the pervading assumption that Ma¯ori-Pa¯keha¯ relations were founded at the time of the 1840 Treaty is incorrect. Archival evidence including letters and artefacts indicate that there “were fifty solid years” of engagement between Ma¯ori and Pa¯keha¯ before the signing of the Treaty of Waitangi (Jones 2012). This engagement included Ma¯ori, particularly from the north, visiting Australia and England in the first two decades of the 19th century. Ma¯ori rangatira, hereditary leaders, of this period were agents of change adapting as they were exposed to new technologies, methods of commerce and governance. As they adapted, Ma¯ori rangatira had purposive intent to build Aotearoa into a Ma¯ori nation working symbiotically with British settlers. The dominant historical narrative of Pa¯keha¯, or the Anglosettlers, however, is that Ma¯ori ceded sovereignty in perpetuity with the
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signing of the Treaty of Waitangi. Through the discussion of Ma¯ori philosophy and metaphysics and the study of six significant events in the years prior to the signing of the Treaty, this chapter constructs a mana Ma¯ori history that challenges this dominant narrative. At the time of signing in 1840 there were nine different English versions of the Treaty of Waitangi and one Ma¯ori version, Te Tiriti o Waitangi. There is now only one English version surviving, and this is considered to be the official version. To differentiate between the English translation and the Ma¯ori, they will be referred to as The Treaty of Waitangi and Te Tiriti o Waitangi respectively. Ma¯ori had clear expectations of what they were agreeing to when the rangatira signed Te Tiriti o Waitangi, and those expectations were that the mana of rangatira and their hapu¯ would be preserved, maintained and enhanced by the relationship with the British. Ma¯ori had a clear expectation that Ma¯ori institutions of government would be preserved and the institutions of western government, which Ma¯ori had been briefly introduced to, would be modified to suit Ma¯ori needs and would accommodate and support Ma¯oriselfgovernance. As early as the 1820s the expectation of some North Auckland Ma¯ori leaders was that Pa¯keha¯ would “whakama¯oritia ra¯tou”, meaning Pa¯keha¯ could live in New Zealand but must conform to Ma¯ori values and institutions (Jones & Jenkins 2011). Such expectations were rooted in the Ma¯ori view of the world derived from generation upon generation of life experience. While there is archival evidence of the developing relationship and its nature between Ma¯ori and Europeans from late 1700s to early-mid 1800s, there is no evidence to suggest that the decades of effort toward nationhood was abandoned by Ma¯ori rangatira in favour of ceding their mana, or sovereignty, to Queen Victoria or any other institution. The Treaty as a source of conflict between Ma¯ori and Pa¯keha¯, and as a reference for resolution of conflict, is best understood within the context of these historical interactions. To provide a context for the conflict aspects of the Treaty of Waitangi, it is necessary to give an outline of the historical settlement of Aotearoa-New Zealand, including an exploration of the various names given to the country (i). The Treaty of Waitangi and some of the translational differences with Te Tiriti o Waitangi will then be explained (ii). The impact of the Treaty and British colonisation will be outlined (iii), leading to discussion of the establishment of the Waitangi Tribunal (iv). To understand the changing relationship between Ma¯ori and Pa¯keha¯ in contemporary Aotearoa-New Zealand, it is necessary to gain an understanding of what Ma¯ori rangatira agreed to in signing Te Tiriti o Waitangi. This requiresthe explanation of the late 18th early-mid 19th century Ma¯ori world view, including Ma¯ori philosophy, metaphysics and moral codes (v). A matrix of cardinal ethics is identified that underpin political, economic and social decision making of Ma¯ori leadership of the period. These ethics, values and protocols constitute the pre-understandings that Ma¯ori brought to the signing
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of Te Tiriti, and are contrasted with the pre-understandings of the British in that period. These cardinal ethics also underpinned Ma¯ori understanding and interaction with Pa¯keha¯ during six significant events toward nation building that occurred in the decades prior to 1840 (vi). The chapter concludes with discussion of how the past, contemplated in the present, provides guidance for the future (vii).
A brief History of Aotearoa, Nieuw Zeeland, New Zealand, Nu Tireni Via the study of dialect, the heritage of Ma¯ori may be traced back to Java, Taiwan, parts of India and Madagascar. It is thought that canoes departed from these areas three to five thousand years ago. Anthropologists believe that migration into the Pacific began during the first millennium, with modern day Fiji, Tonga and Samoa being the first islands to be settled. Pacific Island cultures emerged during hundreds of years of constant habitation on small islands, atolls and reefs that are spread over thousands of kilometres of an oceanic world and its multiplicity of ecosystems and species diversity (Rappaport 1979). In this oceanic environment distinctive human cultures developed and are often referred to as Micronesian, Melanesian and Polynesian. Ma¯ori of Aotearoa are Polynesians. Ma¯oritraditions tell of exploratory voyages prior to settlement in Aotearoa-New Zealand. According to oral tradition, Aotearoa is an ancient name associated with the first human discovery of New Zealand by Kupe and his wife Kuramarotini. Settlement of Aotearoa by Ma¯ori is considered by archaeologists to be some time in the 13th century. European discovery occurred in the 17th century when in 1642 Abel Tasman, a Dutchman, hove to on the shores of Aotearoa and named it Nieuw Zeeland. The British Captain, James Cook arrived in 1769. Having been named Nieuw Zeeland by Tasman, translated by the English as New Zealand, Ma¯ori developed the transliteration, Nu Tireni as their encounters with Europeans developed.1 From the time of James Cook in the late 1700s, when the French and Russians also had fleets around New Zealand, trade and travel began to flourish. Whaling became significant in the South Pacific and whaling boats from Australia and as far afield as North America travelled to New Zealand. A number of young Ma¯ori men travelled on these whaling boats. Such encounters brought a new dynamic and inevitable change. Ma¯ori became interested in new farming practices and had access to new technologies, 1 The traditional name, Aotearoa, was deliberately re-asserted during the intensity of the establishment of the British settler colonial administration, land acquisitions by the new settler government and as the flood of British settlers began to outnumber the Ma¯ori population. Aotearoa is now widely used by both Ma¯ori and Pa¯keha¯.
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including the written word, iron tools and muskets, together with new forms of animals and crops including horses, cows, sheep and potatoes.
Te Tiriti o Waitangi/The Treaty of Waitangi The two language Treaty of Waitangi, an initiative of the British government and Queen Victoria, was signed between the British Crown and the rangatira of Te Whakaminenga o nga¯ hapu¯ o Nu Tı¯reni, rendered as the United Tribes of New Zealand. One Ma¯ori version, Te Tiriti o Waitangi, and nine English versions of the Treaty of Waitangi were circulated. Today, however, there is one English translation document that is deemed to be “official”. Regardless of this, it is now recognised that the English versions of the Treaty of Waitangi were not a translation of Te Tiriti o Waitangi. The versions were written separately and at different times. The Treaty of Waitangi is in three parts: the Preamble, the Articles and a Concluding Statement. The preamble provides the context for the Treaty. It tells who the Treaty is for (the parties), the intention of the Treaty, and how the Treaty was going to be achieved. The four articles of the Treaty say what was agreed. As the English and Ma¯ori versions were not direct translations of each another, the parties to the Treaty – the Ma¯ori Tangata Whenua and the British Pa¯keha¯ – had a different understanding of what they were agreeing to. The core dispute is between Articles 1 and 2. In Article 1 of the Ma¯ori text it can be determined that Ma¯ori grant Kawanatanga, “functions of government”, to the Queen in Article 1. In Article 2 of the Ma¯oritext, the Crown confirms tino rangatiratanga, that is, Ma¯ori independence: “The Chiefs, the tribes, and all the People of New Zealand have full (absolute) authority and power (chieftainship) of their lands (pl) (o ra¯tou wenua), their settlements and surrounding environs (ka¯inga), and all their valuables (property) (taonga)” (translation, He¯nare 2010, para. 366).
It seems straightforward that the rights in Article 2 supersede the rights granted in Article 1 in the Ma¯oritext. In Article 1 of the official English version, however, the Ma¯ori tribes cede Kı¯ngitanga “all sovereign power and authority” to the Queen. There is a disconnect between the two versions of the Treaty as neither Kı¯ngitanga, “sovereignty”, nor Rangatiratanga, “independence”, are ceded in Tiriti o Waitangi. When the English Treaty of Waitangi is considered, Ma¯ori cede “absolute sovereignty” to the British. This is at odds with Te Tiriti o Waitangi, and as will be discussed in a following section, is at odds with the understanding established in He Whakaputanga o Te Rangatiratanga o Nu
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Tireni, the Declaration of Independence of New Zealand, signed prior to the Treaty, in 1835. Notwithstanding, in 1840 Britain proclaimed sovereignty over the North Island by cession, the voluntary transfer of territory between nations by treaty, and over the South Island by discovery, the act of finding unknown land. This, however, is problematic as the South Island2 had already been discovered and settled by Ma¯ori. Furthermore Nga¯i Tahu rangatira had signed the Treaty in the South Island. The British proclamation of sovereignty was publicly notified on 2nd October, 1840 in London through publication in the Gazette. This put other Imperial powers, for example France, who had also shown an interest in New Zealand, on notice that Britain was claiming New Zealand as part of its empire.
The Impact of the Treaty and British Colonisation Following the signing of the Treaty, the British set about living by their versions. More and more settlers arrived and demand for, claims on, and tension over, land developed. Ma¯ori came to realise that under the British terms of the Treaty, Ma¯ori could only sell their land to the Crown and no one else. Land sold to the government was sold on to settlers, habitually at a significantly higher price than had been received by the Ma¯ori owners. Although the Treaty assured Ma¯ori that “The Chiefs, the tribes, and all the People of New Zealand have full (absolute) authority and power (chieftainship) of their lands, their settlements and surrounding environs”, as pressure for land for new settlers increased, the Crown confiscated land that was not physically occupied by Ma¯ori, declaring these areas to be wastelands. Naturally, this was not received well by Ma¯ori, who refused to accept colonial authority and the acquisition of land by British settlers for farming and residential areas. Within the first decade from the signing of the Treaty, Ma¯ori began to bring grievances and appeals over land before the Crown. These claims and appeals met with no success and tensions between Ma¯ori and Pa¯keha¯ intensified, culminating in a series of armed conflicts, known collectively as the New Zealand Land Wars. The New Zealand Land Wars3 took place between 1845 and 1872. While initially over economic goods and land, a number of these conflicts were 2 The original name for the South Island is Maahunui, the Nga¯i Tahu tribal name of the canoe of ancestral explorer Ma¯ui. Another name is Te Wai Pounamu, the waters of greenstone, and for the North, Te Ika a Ma¯ui, meaning the great fish of Ma¯ui. 3 While termed the New Zealand land wars, the armed conflicts mainly took place in Auckland, Hawke’s Bay and Taranaki.
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instigated by the British in an effort to destabilise the flourishing Ma¯ori economy. The British also wanted to destabilise the two nationalist movements, known respectively as the Te Kotahitanga or Ma¯ori solidarity movement and the Ma¯ori King Movement. Te Kotahitanga emerged from Waitangi, Bay of Islands, the proclamation place of the 1835 declaration of independence, and signing of the 1840 Treaty. The Ma¯ori King Movement arose in the central North Island during the 1850s when a number of Ma¯ori tribes, aiming to halt the alienation of Ma¯ori land, joined together to establish a Ma¯ori monarch similar in status to that of the British monarch4. The so called Land Wars involved some 18,000 British troops and approximately 4,000 Ma¯ori warriors. Over the course of two of the most significant campaigns, the Taranaki and Waikato campaigns, some 1,800 Ma¯ori and 800 Europeans lost their lives in armed combat. In addition to this loss of life, the Land Wars resulted in further government confiscation of large areas of land from Ma¯ori. By the 1860s, Ma¯orihad become a minority population. In addition to the huge numbers of incoming settlers, encounters between Ma¯ori and Europeans over control of the economy and export earnings, led to famine conditions and systemic poverty of Ma¯ori and increasing prosperity of settlers. The combination of the collapse of Ma¯ori business infrastructure and consequent poverty, together with the introduction of alien diseases including measles, tuberculosis, typhoid and venereal disease, became significant factors in Ma¯ori population decrease into the 20th century.5 The loss of control over the economy, country and destiny came about despite what Ma¯ori understood to be the 1840 Tiriti of friendship with the British Crown. Ma¯ori signatories considered Te Tiritio Waitangi would guarantee their sovereignty and expected economic, social and political developments (He¯nare 2014). However, the British Crown and later New Zealand settler governments assumed that sovereignty was ceded to them in perpetuity. By 1877 the commitments entered into within the Treaty had been dismissed to the point where a judicial ruling by Chief Justice Prendergast more or less nullified it. In 1844 in a letter to Governor Fitzroy, the then Colonial Secretary wrote that he: … repudiated the notion that the treaties which we have entered into with these people are to be considered as a mere blind to amuse and deceive ignorant savages. …
4 The position of Ma¯ori monarch was constituted in 1858 by chiefs (rangatira) from many tribes, predominantly in the central North Island. Today, the Ma¯ori monarch is a non-constitutional role with no legal power from the perspective of the New Zealand government. Reigning monarchs retain the position of paramount chief of several important tribes and wield some power over these, especially within the Tainui iwi. 5 By the end of the 19th century, observers considered Ma¯ori a dying race as the population had been reduced to less than 42,000 by 1891 (Pool, 1991) The Ma¯ori population is estimated to have been 125,000 in the late 1830s.
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You will honour and scrupulously fulfil the conditions of the Treaty of Waitangi (Waitangi Tribunal 1987).
The fact that the Secretary felt the need to strenuously oppose the idea that Ma¯ori were nothing more than ignorant savages suggests that the idea was actively being debated and pursued in certain important circles at this time. The Ma¯ori as savage theme received something akin to official legal sanction in 1877 when Chief Justice Sir James Prendergast made his aforementioned ruling that the Treaty of Waitangi was a “simple nullity” (Wi Parata 1877). Prendergast based his finding not on matters of law but on the assertion that barbarians and savages were not capable of signing treaties with civilised nations. Ma¯ori were therefore incapable of signing, in an English rational sense, a treaty with civilised societies and nations. Conditioned by what Sorrenson (1993) describes as the “war psychosis and heightened racism of the time”, Prendergast’s line of argument, or prejudice, is significant in that Ma¯ori as individuals and as a group would no longer be considered a civilised nation. The Prendergast ruling provided the settler community with the moral-legal force to take whatever steps were necessary for a total social, economic and political acquisition of the balance of land and other natural resources required to meet the aspirations of settler society. While part of Prendergast’s ruling was later over-ruled by the Privy Council at the start of the 20th century, the substantive part stuck and marked a shift in Pa¯keha¯ constitutional and legal thinking. The treaty was now a “simple nullity” and the ruling became orthodoxy that effectively blocked Ma¯ori from invoking Te Tiriti of Waitangi before the Courts. Ma¯ori endeavours for legal and constitutional remedies based on the Treaty were negated (Brookfield 1985). Mana Ma¯ori or sovereignty were both ignored and set aside. The judiciary had joined the economic, political and military instruments of war against Ma¯ori. The effects of this ruling dominated New Zealand legal and constitutional law for a hundred years, until 1975 with the passing of the Treaty of Waitangi Act. Throughout this time and across the century from 1860 to 1960, efforts were made to eradicate traditional Ma¯ori beliefs and assimilate Ma¯ori into Pa¯keha¯ society. Across education, health and justice the Ma¯ori culture and language were denigrated; seen as “lesser”. To be equal, Ma¯ori needed to embrace European habits, customs and language. For example, Government-sponsored Ma¯ori-language newspapers such as Te Karere Ma¯ori or the Ma¯ori MessengerTe Manuhiri Tuarangiand Ma¯ori Intelligencer invited Ma¯ori to surrender to “the regulating of all things, for with him is wisdom and power and wealth and nobility, and he will preserve the government (Kawanatanga) of your island… cast aside the Ma¯ori life, and adopt the usages of the Pa¯keha¯” (Meredith & Higgins 2012). The 1867 Native Schools Act decreed that English should be the only language used in the education of Ma¯ori children. It was not until 1987 that Te
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Reo, the Ma¯ori language, was made an official language of New Zealand. A further example of the government policy of assimilating Ma¯ori into European life comes from 1912. A provision was introduced to the Native Land Amendment Act enabling Ma¯ori to apply to the Native Land Court to be declared a European in law. This Europeanization was not based on their proportion of non-Ma¯ori blood but on social factors such as knowledge of the English language, basic European education, and sufficient income from a profession, trade or land. Before the provision was repealed in 1931, 77 Ma¯ori were declared Europeans (Meredith and Higgins 2012). However, the 1960s, 70s and 80s saw a shift in the way Ma¯ori interacted with the state. Having tried to resolve grievances with the Crown through legal means, including petitions and court cases across the century 1860 to 1960, the 1960s and 1970s saw a growing Ma¯ori protest movement over current and historical treatment of Ma¯ori in society. Ma¯ori began to speak out on government policy with respect to land, education and justice. This led the New Zealand government to consider how to partner with Ma¯ori and to become more genuinely bi-cultural. The 1960s saw a movement toward integration adopted as an ideology with respect to “Ma¯ori” policy. However, during the 1960s integration moves were essentially symbolic, including for example, giving government departments Ma¯ori names. During the 1970s and 80s, Ma¯ori began to radicalise. There was a growing Ma¯ori voice within employment unions; and a growing Ma¯ori feminist movement. The protest movement called for greater social equality for Ma¯ori, for the revival of Ma¯ori culture including the Ma¯ori language, and for a halt to the sale of remaining Ma¯ori land. One such protest was the 1975 Land Hı¯koi. Te Ra¯rawa leader Whina Cooper6, then 79 years old, believed that it was time to make Ma¯ori grievances, both historical and current with respect to the control of the 1.2 million hectares of land still in Ma¯ori hands, more visible. Beginning at Te Hapua in the far north of the North Island, Whina Copper began to walk the 1000 km to Wellington. Accompanied by 50 people at the start, more than 5000 people arrived at Parliament with a petition containing over 60,000 signatures. As a result of the Land Hı¯koi, a peace march, and the
6 Whina Cooper, MBE, DBE, ONZ, was foundation president of the Ma¯ori Women’s Welfare League, and was active in creating regional branches. By the mid-1950s the League had over 300 branches and 4,000 members. The Ma¯ori Women’s Welfare League greatly improved living conditions for Ma¯ori who had recently moved to the cities and faced discrimination in housing and employment. In the 1953 Coronation Honours Cooper was appointed a Member of the Order of the British Empire for services to the Ma¯ori people. In the 1974 Queen’s Birthday Honours, Cooper she was promoted to Commander of The Order of the British Empire for services to Ma¯ori welfare and culture. In the 1981 New Year Honours Cooper was further promoted to Dame Commander of the British Empire and on 6 February 1991, she became the twentieth appointee to The Order of New Zealand, New Zealand’s highest civil honour.
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wider protest movement, Matiu Rata, the then Government Minister of Ma¯ori Affairs established, with the support of Cabinet, the Waitangi Tribunal.
The Waitangi Tribunal, a Court of Enquiry The Waitangi Tribunal was established in 1975 to resolve grievances with respect to the Treaty of Waitangi. It is a lower court of enquiry that is required to interpret the meaning of the words contained in the Ma¯ori and English texts, and articulate principles of the two language treaty. The Waitangi Tribunal has only recommendatory powers, leaving politicians of the day to have the final say. Initially, the Tribunal’s jurisdiction was only for claims post 1975. However, the Treaty was signed in 1840 and therefore, grievances clearly predated 1975. Accordingly, the Waitangi Tribunal’s initial jurisdiction did little to address the grievances of the past, including the discrepancies between the versions of the Treaty and the outcomes resulting from these discrepancies. As a result the Tribunal had little impact for a number of years. Then, in 1984, the government extended the authority of the Tribunal, giving it retrospective power to investigate claims dating from the 1840 signing of the Treaty of Waitangi. The Waitangi Tribunal confirms that the texts of Te Tiriti o Waitangi and the official English version of the Treaty differ. The Waitangi Tribunal found that in signing Te Tiriti o Waitangi, Ma¯ori believed they were forming an alliance with the Queen; Ma¯ori believed that Ma¯ori and the Governor would be equal in power. The British, according to the Waitangi Tribunal, had a different understanding. The British assumed that Ma¯ori understood that they were going to maintain possession of the land on the authority of the Queen. The British also assumed that all lands not under the direct possession of Ma¯ori would belong to the Crown. The Waitangi Tribunal found that there was no deceit involved, it was simply miscommunication; talking past each other. One of the initial misunderstandings is based in the fact that for Ma¯ori the locus of power was located in the person of the Queen, where as to the English it was located in the institution of parliament, of which the Queen is a figurehead and a symbol of sovereignty and power. Therefore, there is a philosophical clash between Ma¯ori personalism and English institutionalism. Rangatira were agents engaged in a culture and in a world already changing in which they were principal actors. When they arrived at Waitangi, or at any signing site, they represented the aspirations and anxieties of their people. At the same time they came with their own particular view of themselves, their people, their way of life and their everyday experience of the world as they knew it. It is timely, therefore, to consider the pre-understandings that Ma¯ori and Pa¯keha¯ brought to the signing of the Treaty. This requires a description of Ma¯ori philosophy,
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metaphysics and religion, and a return to historical events of the late 17th and early-mid 18th centuries.
Pre-understandings: Ma¯ori philosophy, metaphysics and religion Pre-understandings are sourced from cultural, educational, national, collective and individual experience. The metaphysical, social, economic and political experiences of Ma¯ori prior to the arrival of Europeans constitute preunderstandings at the time of Te Whakaputanga and Te Tiriti o Waitangi. Humankind has reflected philosophically on life, its meaning and the relationship between people, their environment and other living creatures, throughout the centuries. Through traditions and experience, each of the world’s cultures have developed values, reflected through protocols and laws, which govern social and environmental interaction, and shape that culture’s world view (Durie 2010). As already described, Ma¯ori philosophy has its roots in the Pacific-Asia. Kawa-tikanga-ritengaare the combination of Ma¯ori terms that may be defined as Ma¯ori virtues, ethics, values, customs, traditions, and appropriate forms of behaviour that have been handed down through time from tu¯puna, the ancestors. Kawa-tikanga-ritenga is a holistic system that has regulated social, economic, spiritual and environmental aspects of Ma¯ori life right through to the present day (He¯nare, 1988). The protocols and codes of Kawa-tikanga-ritenga are rooted in a Ma¯ori world view that is informed by cosmology (spirituality); whakapapa (common descent that binds the generations); collective and social relationships among wha¯nau, hapu¯, iwi, Ma¯ori; and the ultimate goal of maintaining balance among the diverse elements of Ma¯ori society. Kawa-tikanga-ritenga encompasses expression of certain ethical values and in this way sets out certain rules and behaviours that Ma¯ori should abide by. Figure One details the ethics that constitute a coherent philosophy, metaphysics and religion for Ma¯ori. While protocols may vary from place to place, there are certain principles to kawa-tikanga-ritenga that are common to the whole of Ma¯oritanga, Ma¯ori society. These principles are based on collectivism, the we-I philosophy. The rights of individuals are intertwined with their relationship with the spiritual world, the cosmos, the natural world, and the community.
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Table 1: Matrix of virtue ethics that constitute a coherent philosophy, metaphysics and religion for Ma¯ori (He¯nare, 2001, 2010) Tikanga
Ethic
Tikanga te ao ma¯rama
ethic of wholeness, evolving, cosmos
Tikanga te ao hurihuri
ethic of change and tradition
Tikanga wairuaethic of the spirit and spirituality wairuatanga Tikanga mauri
ethics of life essences, vitalism, reverence for life
Tikanga tapu
ethic of existence, being with potentiality, power, the sacred
Tikanga mana
ethic of power, authority and common good; sovereignty ; actualisation of tapu
Tikanga hau
ethic of the spiritual basis of reciprocity in relationships with nature economics; life force; breath of life
Tikanga tika-tikanga
ethic of the distinctive nature of things, of the right way, of the quest for justice
Tikanga wha¯nau- ethics of belonging, kinship, family, foundation of society, whanaungatanga reverence for society Tikanga manaaki
ethic of generosity towards others; of love and honour, solidarity, reciprocity
Tikanga kotahitanga
ethic of solidarity with people and the natural world and common good
Tikanga tiakitiakitanga
ethic of guardianship of creation, land, seas, forests, environment, resources
Tikanga hohou rongo
ethic of peace and reconciliation; restoration; thus to negotiate a peace agreement that holds through time
These cardinal ethics and virtues explain motivation for Ma¯ori agency in the 19th century. They also describe motivation for Ma¯ori in contemporary 21st century society. They inform Ma¯ori relationships between Ma¯ori, and between Ma¯ori and the world at large. Specifically in terms of this chapter, it is these ethics that informed historical relationships between Ma¯ori and Pa¯keha¯, particularly those between British Kings and Queen and other officials during the early-mid 1800s, and with the current Crown and government. These
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cardinal ethics have application to economic and political events in the earlymid 19th century as they do in the new millennium. In Ma¯ori cosmological thought, the mauri, together with the tapu, mana, hau and wairua, came from Io matua kore, the supreme cosmic being that has no parents. Io is the parent of Ranginui, Sky Father, and Papatu¯a¯nuku, Earth Mother. It is through and from these primal parents that the cosmos of Ma¯ori knowledge and understanding emanates. In traditional belief, creation is described as a dynamic movement that is expressed as “I te kore, kite po¯, kite ao ma¯rama”, rendered as “out of the nothingness, into the night, into the world of light” (Shirres 1997). Te korekore is the world of potential; the ‘pin-prick’ from which everything emerges. Te Po¯ is a transitional or liminal state between darkness and the world of light. Te Po¯ is the realm of becoming, or coming into being. This realm may include chaos. According to Ma¯ori thought, various conditions of Te Po¯ exist in every facet of life. Te Ao Ma¯rama, the realm of being, refers to the world of light and by extension, enlightenment. At the heart of this view of the creation process is an understanding that humanity and all things of the natural world are always emerging; always unfolding. Within this knowledge and enlightenment-seeking framework, Ma¯ori and other peoples of the Pacific have, says Anne Salmond (1997, p. 509), “their own ideas on how relations between people and between people, earth and sea must be conducted.” The cosmic religious worldview of Ma¯ori is as old as the culture itself having its roots deep in the heart of the Pacific Ocean and tapping into Austronesia-Asia. Pacific languages are languages of metaphor and symbol, where words and phrases often have layers of meaning and context is important. They are also vitalistic languages expressive of life forces, metaphysics and cosmic energy. Ma¯ori is no exception in such narrative, where primary sources of knowledge and history in oral form have been passed down to the present from ancestors. Ma¯ori history consists of genealogies, kinship systems, poetry, myths, proverbs, songs, ritual dances, carving, weaving and tattoo. Together these constitute a narrative of identity. Rather than originating in Aotearoa, fundamental religious and metaphysical concepts such as tapu, mana, mauri, hau and wairua were brought with the founding East Polynesians ancestors. This philosophy, metaphysics and religion of the Pacific blossomed and was transformed in the new, complex environment of Aotearoa. Traditional indigenous philosophical, metaphysical and religious beliefs remain the core of a contemporary Ma¯ori world view, where the framework of virtue and ethical concepts remains intact and informs current Ma¯ori practice. It is these cultural and metaphysical underpinnings that shaped Ma¯ori understanding of the political events that unfolded in the period leading to the signing of Te Tiriti o Waitangi. Following the arrival of Pa¯keha¯ in Aotearoa, Ma¯ori became aware of other methods of social organisation and in turn took the first steps toward Ma¯ori nationhood. Ma¯ori communities set themselves up for participation in the emerging international world and a new level of identity became explicit. The
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convergence of two forces, one internal and the other external occurred. Ma¯ori began to realise that to gain increased benefits from new technology and trade, and new ways of producing goods and services, a new political process was needed. The seeds of a new political system of governance were sown gradually as Ma¯ori-European interaction intensified. These included discussions with missionaries and traders who expounded ideas of government; direct observations of the British monarchy and parliamentary systems in both England and Australia during the first two decades of the 1800s; and the proposals of James Busby, the ‘First British Resident’, which led to the formation of a nascent national pan tribal collective called Te Whakaminenga o Nga¯ Hapu¯ and the Declaration of Independence, He Whakaputanga o Te Rangatiratanga o Nu Tireni, in 1835. The following section will explore each of these significant events.
Six Events in Nation Building When considered through a study of six decisive events, there is the basis of a new interpretation of the two languages Treaty of Waitangi. A number of these events, in their time, are internationally recognised symbols of nation and state building. These events begin with the visit of two Nga¯ Puhi rangatira, Tu¯ai and Tı¯tere, who were emissaries and sent to Madeley, England in 1818. They were the first Ma¯ori to witness the early stages of the industrial revolution of England and Europe Following them in 1820, were two close relatives, Hongi Hika and Waikato.7 Hongi Hika, one of the most powerful Ma¯ori leaders of the 7 Others travelled to London and elsewhere much earlier than 1818. The beginnings of Ma¯ori overseas experience, including the 1769 kidnapping of Ranginui by de Surville, and the tragic death of Ranginui in 1770 when he succumbed to scurvy, were hardly auspicious and the adventures somewhat mixed. Further kidnappings followed including those of Tukitahua and Hurukokoti, two young men who in 1793 were kidnapped from the Bay of Islands by an English captain, and taken Norfolk Island. During their six months on Norfolk they taught the British Lieutenant-Governor, Philip Gidley King, some Ma¯ori words, 300 of which King recorded phonetically. Tukitahua also drew King a map of New Zealand to explain the politics and geography of the country (Jones & Jenkins 2011). Many Ma¯ori visited Australia, particularly New South Wales, some working their passage on whaling boats. Tuai, Titere, Hongi Hika and Waikato were neither the first or the only Ma¯ori to travel to England. Perhaps the first Ma¯ori to visit London was Moehanga of Korora¯reka, who travelled with Dr John Savage in 1805. While not introduced to the King, Moehanga was able to observe aspects of London life. Upon his return his ability to speak English enable him to become a postman delivering letters to sea captains when they were in harbour. According to Samuel Marsden, observations of Moehanga of the Royal family, the London water system, horses, carriages, houses and furnishing, roads and agriculture were listened to attentively by Ma¯ori and Pa¯keha¯. A Ma¯ori by the name of Matara is known to have been taken to London in 1807. The third Ma¯ori to London was Ruatara in 1809. It was upon his return voyage that Ruatara met the Rev. Samuel Marsden. An enduring relationship was established. Fascinated by new technologies including that of the written word, Ruatara while visiting
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generation, and the younger rangatira Waikato were accompanied by Thomas Kendall89. During their year-long trip Hongi Hika and Waikato sojourned at Queens College, Cambridge University. They met with cabinet ministers and the dignitaries of London and English society. During their visit to the House of Lords, Hongi and Waikato observed first hand a meeting of British leaders. This is significant as the prominent British missionary Samuel Marsden and others had already sowed the seeds of the idea of a parliament for Ma¯ori as a new way of settling inter and intra tribal disputes. Vitally, Hongi and Waikato also met with King George IV. The tone of the encounter was such that Hongi was not overawed by the experience of meeting the British King, but rather considered the affair as a meeting of equals, of rangatira. Hongi returned from England with an understanding that he had reached an agreement with King George IV. From the point of view of Hongi, and in terms of Ma¯ori ethics and values, the relationship was based on the pleasantries exchanged namely tikanga manaaki; the exchange of interests, tikanga mana; and culminated with the shaking of hands and exchange of gifts, tikanga hau o to¯ taonga. In the thinking ofHongi Hika and later Nga¯ Puhi, it was understood that a special spiritual and practical bond was established (Orange 1987; He¯nare 2010). To Hongi, there was now a personal, reciprocal relationship with King George IV, signified by the personally led tour of the Tower of London and the exchange of gifts.10 The meeting of Hongi with important dignitaries in England, highlighted by the meeting with King George IVand the visit to the House of Lords were in his eyes recognition of the mana of Waikato and himself, which was the principal reason for his visit. Hongi believed he had secured a new long-term relationship with the King and with England, including that in return for allowing the King’s people to live in Nu Tireni, in peace Ma¯ori would be treated like a British subject when in Australia and England (He¯nare 2003, 2010). In Nga¯ Puhi tradition, the formal relationship of Ma¯ori and British royalty started with the handshake between Hongi and King George and the Treaty of Waitangi is the affirmation of this relationship. The second event is a letter written by thirteen rangatira and personally Marsden at his home in Parramatta Australia, issued an invitation for a teacher to come to Nu Tireni to teach young Ma¯ori (Jones & Jenkins 2011; Jones 2012). Marsden subsequently located a British teacher, Thomas Kendall. A number of Ma¯orileaders including Ruatara, Hongi Hika and Korokoro travelled to Parramatta to collect, accompany and transport Kendall and the first formal party of Pa¯keha¯ settlers back to the north of New Zealand in late December, 1814. 8 For an explanation of Kendall’s arrival to New Zealand at the invitation of Ma¯ori, see Jones and Jenkins 2011. 9 Hongi Hika, Waikato and Kendall took passage on the whaling boat New Zealander. The journey to England took twenty-three weeks, during which time Kendall wrote his Guide to the Study of the New Zealand Language (Morgan 1927). Little is known of the activities of Hongi and Waikato during the voyage, but it can be assumed that they assisted Kendall in his task. 10 The gifts given to Hongi Hika by King George IV included a musket and a suit of armour from the Tower.
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addressed to King William IV in 1831. Composed and written in Ma¯ori the letter went together with an English translation to London via Sydney. Significant is the way that many rangatira began to speak to an outside world in written form. At the same time, through literacy, rangatira progressed the identification of themselves and Ma¯orias a people in a wider world. This is seen in the opening statement of the letter when after addressing King William the rangatira identify themselves and their country by writing “Ko ma¯tou ko nga¯ rangatira o Nu Tireni”: “We are the leaders of Nu Tireni”. This was to be a standard way of rangatira addressing others in the world. In the letter the rangatira request friendship and guardianship of Nu Tireni from the King due to a perceived threat from the French and “of thy people” who “should be troublesome or vicious toward us (for some people are living here who have run away from ships) we pray thee to be angry with them that they may be obedient, lest the anger of the people of this land fall upon them” (Yate 1831). Partly in response to the rangatira letter of 1831 together with relevant information and representations of the missionaries and traders, the third event in the articulation of a Ma¯ori nation was the appointment of James Busby as the First British Resident. James Busby arrived in 1833 and established his office in the Bay of Islands. Busby had regular meetings with rangatira at his home in Waitangi. The Busby residence functioned in the Ma¯ori mind like a marae, which explains why many rangatira from all over the country were comfortable meeting in the space and were able to encounter kanohi kite kanohi – face to face – the new world of Europe. Busby’s arrival in Nu Tireni and subsequent meeting with Ma¯ori led to the adoption of the first indigenous flag. The selection of a national flag in 1834 had both symbolic and practical significance including international recognition of Ma¯ori sovereignty. Addressing the gathering of rangatira on March 20th 1834 in Ma¯ori, Busby explained that King William IV of England considered himself and Ma¯ori as friends, “Kua wakaae te Kı¯ngi of Ingarani ki a koutou, hei hoa mona” (He¯nare 2010, para. 248). Further, the King hoped that settlers and Ma¯ori would continue to live in peace. For the Northern Ma¯ori, William was simply restating and reaffirming understandings reached between King George IV, Hongi Hika and Waikato in 1820 whereby such a mutually beneficial relationship was established. For the remainder of Busby’s address he explained that three flags had been brought to the rangatira for their consideration and told them the procedure for the selection of one flag from the three on display. During the flag selection dialogue an unambiguous offer of protection is made in the King’s name should William approve the flag chosen by the Ma¯ori leaders and it be in future flown on their trading ships. The King’s offer is his tapu and mana, which means that the individual and collective mana of both Ma¯ori and the British is enhanced. The flag and the international recognition accorded to it, enabled Ma¯ori and Pa¯keha¯ traders based in Nu Tireni to sail the open seas guaranteed of protection by the East Indies and China Command, and the later Pacific
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Figure 1: The Flag of the Independent Tribes of Nu Tireni
Command. However, the flag is also a good example of the cultural appropriation of symbols. Replaced by the Union Jack, the flag of Great Britain, after the signing of the Treaty, the Flag of the Independent Tribes was to become a potent metaphor of the 19th century and a symbol, sometimes in war a prize, used by tribes as a sign of their tribal mana and Ma¯ori sovereignty.11 The fifth event is the formation of a nascent national collective of Ma¯ori tribal leaders called Te Whakaminenga o nga¯ Hapu¯ o Nu Tireni (the sacred Confederation of the Tribes of New Zealand) and the critical role in national identification played by the subsequent issuing of He Whakaputanga o Te Rangatiratanga o Nu Tireni, a Declaration of Independence of New Zealand, in 1835. This sacred assembly of leaders also occurred on James Busby’s lawn. By coming together to establish a tribal social compact and declaring to their own people and the world at large the freedom of Ma¯orifrom any intended political and economic domination, the rangatira were founding a constitutional basis for Ma¯ori law making. The Declaration states that in their collective capacity, the Confederation of Tribes would meet in Congress and pass laws for justice, peace and trade. There were two versions of the 1835 He Wakaputanga o Nga¯ Rangatiratanga o Nu Tireni, The Declaration of Independence of New Zealand, a Ma¯ori version12 determined by the rangatira, the hereditary chiefs, of the northern part of New Zealand, and an English translation offered by Busby. Each was considered to be a translation of the other. Figure 3 translates sections from Articles of He Wakaputanga o Nga¯ Rangatiratanga o Nu Tireni. Article 1 of Busby’s explanationuses the term rangatiratanga to mean independence, declaring New Zealand a “whenua Rangatira” (independent state) to be known as Te Whakaminenga o nga¯ Hapu¯o Nu Tireni (The United Tribes of New 11 For example, the flag was chosen by Te Heuheu Iwikau as the flag to be flown at Pukawa, Lake Taupo¯ for the selection of Te Wherowhero as first Ma¯ori King. It should be noted that not all hapu¯-iwi joined the Kı¯ngitanga, known also as the King Movement. For instance Nga¯ Puhi are not members of the Kı¯ngitanga, however, they have very strong kinship ties with Waikato people. 12 The Ma¯ori scribe, the kai tuhituhi, in the declaration was a mature adult, Eruera Pare Hongi, who was acting as an assistant to Busby.
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Zealand). Article 2 of Te Whakaminenga refers to Kı¯ngitanga, which Busby’s English explanation translates to “sovereign power and authority”. A little further on, the Ma¯ori term Kawanatanga is explained by Busby as “foundations of government”. Busby explainsthat no Kawanatanga, no government, would exist except by persons appointed by the assembly of hereditary chiefs. The Declaration of Independence indicates that the British crown recognized the authority and sovereignty of Ma¯ori. Ma¯ori New Zealand in 1835 was acknowledged as a “sovereign and independent state” (Orange 1987, p. 30) and mana Nu Tireni was proclaimed. The final event is the 1840 Treaty of Queen Victoria of Great Britain. While a written document is significant, Ma¯ori public debate at this time was based primarily on the spoken word. Therefore, the signing of a document such as a letter, declaration or treaty would have been understood as a way of concluding substantive agreements reached orally. All of the conversations at the signing of the Treaty were in Ma¯ori not in English. Therefore, to understand and interpret the actions of rangatira signatories to the Declaration and the Treaty, the Ma¯ori text rather than any English translation or explanation best captures the mind of the signatories (McKenzie 1985; He¯nare 2010). Further, in law, contemporaneous documents are documents made at similar times, by either the same or similar parties, using the same language (Mohsen 2012). Contemporaneous documents are useful when there is confusion. He Wakaputanga o Nga¯ Rangatiratanga o Nu Tireni, The Declaration of Independence of New Zealand, signed in October 1835, is founded upon the principles enunciated in Emerich de Vattel’s Law of Nationsand Te Tiriti o Waitangi, The Treaty of Waitangi, signed in February 1840, are contemporaneous documents. The wording and intention of the Declaration are relevant to the interpretation and understanding of the Treaty. Considered, not as isolated or unrelated activities but as a process, these six events elucidate the phenomenon of the making of a Ma¯ori nation.
The Past is in Front for Guidance To struggle with another is to give active and proper attention to the other, to relate to the other. Even as an enemy you are hoariri or hoa whawhai – an angry ‘friend’: one with whom it is worth engaging, someone with whom you have a relationship of struggle (Jones 2007). Ma¯ori notions of tapu-mana and Pa¯keha¯ notions of sovereignty are, philosophically speaking, about the locus of power. In recognising the sovereignty of Queen Victoria, Ma¯ori were simply recognising that Victoria herself was the centre of power under the English system and that she ought to exercise it over her own people, not Ma¯ori people. In this framework, the rangatira would exercise their mana over Ma¯ori people and not Pa¯keha¯. This
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Table 2: Translation of sections of He Wakaputanga o Nga Rangatiratanga o Nu Tireni, The Declaration of Independence of New Zealand. Ma¯ori text
Busby’s explanation, 1835 Historical-semantic translation by Ma¯nuka He¯nare (2003, (Archives New Zealand) 2010)
Article 1: Ko ma¯tou, konga¯ Tino Rangatira o nga¯ iwi o Nu Tireni i raro mai o Hauraki, kua oti nei te huihui i Waitangi, i Tokerau, i te ra¯ 28 Oketopa, 1835.
We, the absolute leaders of the tribes (iwi) of New Zealand (Nu Tireni) to the north of Hauraki having assembled in the Bay of Islands (Tokerau) on 28th October 1835
We, the hereditary chiefs and heads of the tribes of the Northern parts of New Zealand, being assembled at Waitangi, in the Bay of Islands, on this 28th day of October 1835,
Ka wakaputa i te Rangatiratanga o to ma¯tou wenua; a ka meatia ka wakaputaia e ma¯tou he Wenua Rangatira, kia huaima, “Ko te Wakaminenga o nga¯ Hapu o Nu Tireni”.
[We] declare the authority and leadership of our country and say and declare them to be prosperous economy and chiefly country (Wenua Rangatira) under the title of ‘Te Wakaminenga o nga¯ Hapu o Nu Tireni (The sacred Confederation of the Tribes of New Zealand).
declare the independence of our country, which is hereby constituted and declared to be an Independent State, under the designation of the United Tribes of New Zealand.
Article Two: Ko te Kı¯ngitanga, ko te mana I te wenua o te wakaminenga o Nu Tireni, ka meatia nei kei nga¯ Tino Rangatira anake i to¯ ma¯tou huihuinga; a ka mea hoke, e kore e tuku e ma¯tou te wakarite ture ki te¯tahi hunga ke¯ atu, me te¯tahi Kawanatanga hoki kia meatia i te wenua o te wakaminenga o Nu Tireni,
The sovereignty/kingship (Kı¯ngitanga) and the mana from the land of the Confederation of New Zealand are here declared to belong solely to the true leaders (Tino Rangatira) of our gathering, and we also declare that we will not allow (tukua) any other group to frame laws (wakarite ture), nor any Governorship (Kawanatanga) to be established in the lands of the Confederation,
All sovereign power and authoritywithin the territories of the United Tribes of New Zealand is hereby declared to reside entirely and exclusively in the hereditary chiefs and heads of tribes in their collective capacity, who also declared they will not permit any legislative authority separate from themselves in their collective capacity to exist,
Ko nga¯ ta¯ngata anake e meatia nei e ma¯tou, e wakarite ana kite ritenga o o¯ ma¯tou ture e meatia nei e ma¯tou ¯ı to¯ ma¯tou huihuinga
unless (by persons) appointed by us to carry out (wakarite) the laws (ture)we have enacted in our assembly (huihuinga)
nor any function of government to be exercised within the said territories, unless by persons appointed by them, and acting under the authority of laws regularly enacted by then in Congress assembled.
framework was expressed in 1820 at the meeting with King George; contained in the 1831 letter to King William; is implicit in the flag ceremony of 1834; and expressed clearly in the declaration of 1835. With this appreciation of what they had to offer many rangatira were more than happy to be engaged in and with Victoria’s empire, but on Ma¯ori terms. There were no assumptions of deference to a superior being or culture, but rather an expectation of an
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enduring relationship based on tikanga whanaungatanga and tikanga hau; of belonging to an empire based on reciprocity at political, social and economic levels. For example, Ma¯ori recognised the Queen, not her parliament, as the locus of English power. However wrong this understanding might have been in the minds of Pa¯keha¯ missionaries, traders, the Resident, Governors and others in the English political and jurisprudential discourse, it does not change the intentionality of Ma¯ori in their conversation. Furthermore, the recognition of the English Queen’s sovereignty did not necessarily mean that Ma¯ori were ceding their mana as may be implied in English rhetoric. Rather, according to Ma¯ori pre-understandings, they believed in a spirit of tikanga kotahitanga and tikanga hau, of solidarity and reciprocity. That is, that Victoria was willing to help Ma¯ori develop their mana and that Ma¯ori were willing to develop Queen Victoria’s sovereignty. This thematic can be seen right through the remainder of the 19th and into the 20thcentury, when generations of Ma¯ori challenged the notion that mana-sovereignty was gifted or ceded to the Queen and her descendants in perpetuity. The British also had pre-understandings. According to English history and world view (Hobson 2004), Ma¯ori were savages to be civilised and ruling colonies and the sending of migrants were an integral part of their society and way of life. In this way, English Imperialism both described a past and prescribed a desired course for the future. Hobson, Busby and other Pa¯keha¯ participants and eyewitnesses to the signing of the Treaty, had their own preunderstandings of what was intended, namely colonisation and the acquisition of Ma¯ori land for emigration purposes and the extension of the influence and power of England. The English, both in London and the early settlers, had their own view of what constitutes a nation and a state. They failed to recognise that Ma¯ori not only had their own view, but those views were valid and met any criteria of nation and state. All the leading characters, both Ma¯ori and Pa¯keha¯, involved in the signings of the Treaty had their pre-understandings. Ma¯ori endeavours between 1820 and 1840 constituted an effort to maintain cultural integrity and to locate a Ma¯ori centre of power so that continued self-determination and independence could be organised and maintained. For the rangatira the past involved a long slow process of encounter with whalers, traders and missionaries; the travel of Ma¯orileaders to Sydney, London and other parts of the Pacific where they experienced different forms of society, leadership and of exercising mana; the knowledge of a relationship between Hongi Hika, Waikato and King George IV; the arrival of the First British Resident, James Busby in 1833; and the relationship between Pa¯keha¯ and Ma¯ori tribal groups that ensued. Ma¯ori were compressing in one generation what took many other nations, such as Britain, centuries of slow development. Ma¯ori pre-understandings involved an expectation of operating according to the set of ethics and the complex set of complementary values associated with them. These ethics and values guided rangatira behaviour within their
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kinship groups, between Ma¯ori from different tribal areas and with the foreigners. For example, rangatira exercised manaaki through their hospitality and their tiaki role in terms of protecting the missionaries and other Pa¯keha¯ traders. All these concerned the exercise of mana and the maintenance of the groups that they led. However, in the first half of the century the movement towards expressing themselves as a Ma¯ori nation occurs within a culture and society in transition and transformation, particularly in the context of an engagement in a greater global arena. The historical importance of the six events described, which have not previously been accorded significance in settler histories, is now being recognised. Archival, anthropological, and Ma¯ori empirical evidence suggests that Ma¯ori were open to new ideas and moving towards nationhood. The history of Ma¯ori encounters with European settlers (including the events described here and others prior to 1818), which have been interpreted in significantly different ways, involves consideration of religion, economics and politics. The present is made up of what has gone before and the potentiality of what is yet to come. Ma¯ori engaging in these events bring with them their own pre-understandings; their understandings of society, their understanding of the economy and their understanding of nation. This is set against the very different pre-understandings of Kings George and William, the British Resident James Busby, Queen Victoria, Captain William Hobson, the Christian missionaries, traders and settlers involved in the encounters. In Article 1 of the English text of the Treaty of Waitangi, the language explicitly states that Ma¯ori agree to cede to the British queen forevermore their sovereignty. Philosophers usually concede that people do not cede sovereignty unless they are under duress and are forced to do so. From the context of Ma¯ori philosophy and understanding, and historical events toward nation building, there is no basis for Ma¯ori to cede sovereignty. Based on their experience of Te Whakaminenga o nga¯ Hapu¯ o Nu Tireni (the sacred Confederation of the Tribes of New Zealand) and the subsequent issuing of He Whakaputanga o Te Rangatiratanga o Nu Tireni Ma¯ori (a Declaration of Independence of New Zealand), Ma¯ori tribal leaders had a pre-understanding that the Treaty would consolidate the locus of power within Ma¯oritanga, or Ma¯ori society, not relinquish it. The preamble and the articles of Te Tiriti include many concepts Ma¯ori had discussed with Busby during the writing of the Declaration. The ceding of sovereignty idea in the Treaty is only important for the British government and its immigration intentions. With the establishment of the Waitangi Tribunal, the emergent treaty and development rights jurisprudence, and progress through settlement claims, the conversation between Ma¯ori and the Crown continues. Jones (2007) understands the idea of “struggle” as necessary ; difficult yes, but positive, energising and “engaged”. This last word is crucial, for struggle is engagement, not dis-engagement. The colonial history and Ma¯ori experience of it, together with Aotearoa-New Zealand society’s attempts to deal with its past
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and make a new present so as to move into the future, represents a new experience. Acknowledging the differences between the versions of the Treaty, the Waitangi Tribunal draws upon the principles of the Treaty to resolve grievances. Accordingly, New Zealand courts have moved away from the sole reliance on the Articles of the Treaty and now consider the principles, the spirit, of the Treaty. Ma¯ori scholars agree that the principles of the Treaty are contained in the preamble. The preamble of Te Tiriti o Waitangi guarantees that the good life as Ma¯ori define it would be protected. The preamble of Te Tiriti o Waitangi translates as: To preserve to them their full authority as leaders and their country and that lasting peace (te rongo) may always be kept with them, and continued life as Ma¯ori people ¯ tanoho). (A
The fundamental promise of the British to Ma¯ori was that life as Ma¯ori values determine it will be guaranteed, and in return the Ma¯ori people said the British people could live in New Zealand in peace. This is reinforced in Article 4 (the Protocol) of the Treaty. In Article 4 the Governor agreed to respect all faith’s spirituality and also agrees to respect Ma¯ori custom – that is, to respect Ma¯ori law. The Treaty principles are not seen as an interpretation of the Treaty, but as a guide to the courts about how they should interpret statutes. The base line is the safe-guarding of Ma¯ori interests. The idea is to create a structure that brings Ma¯ori and Pa¯keha¯ systems together. The remit of the Human Rights Commission, which functions under the 1993 Human Rights Act, is to “promote by research, education, and discussion a better understanding of the human rights dimensions of the Treaty of Waitangi and their relationship with domestic and international human rights law” (section 5 (2) (d), Human Rights Act 1993): The Treaty of Waitangi established a set of rights and obligations and a relationship between Crown and Tangata Whenua which remains in place today. It created a governance framework for the nation (kawanatanga) affirming the existing rights of Tangata Whenua (rangatiratanga) and guaranteed shared citizenship and equal rights for all (rite tahi). The Treaty has been described as “A promise of two people to take the best possible care of each other.” The human rights dimensions of the Treaty of Waitangi include both universal human rights and indigenous human rights (Human Rights Commission, Statement of Intent, 2009–2010). New Zealand is incrementally moving toward hearing the Ma¯ori account of history more clearly. This is altering the dynamic – creating and establishing different tensions. Following Westminster or English jurisprudence, the legal convention is that Te Tiriti/ Treaty has legal effect only when specific legislation gives it effect. Accordingly, the Treaty of Waitangi has slowly become part of the social fabric as well as part of New Zealand’s domestic law as more and more legislation include
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specific references to the Tiriti/Treaty and the principles. While an incrementalist approach to the legal recognition of Treaty principles is acceptable to many Ma¯ori, the historical Ma¯ori view is preferred; Te Whakaputanga and Te Tiriti/Treaty ought to be a body within New Zealand’s supreme law, and all legislation must recognise and give effect to the principles of the Declaration and the Treaty. For the last twenty years the Crown and Ma¯oritribal claimant groups, generally hapu¯ or iwi, have been involved in negotiating Treaty settlements. For some time consideration has been given to challenge,in the International Court of Justice, the notion that ancestors ceded sovereignty in perpetuity and that sovereignty is vested solely in the New Zealand Crown and its governments. However, some 380 hapu¯ leaders of Nga¯ Puhi, the largest tribal group of New Zealand, decided to lodge a sovereignty claim before the Waitangi Tribunal. After years of hearings where evidence was presented drawing on both oral traditions and renewed historical research the Tribunal agreed with Claimants that the rangatira who signed te Tiriti o Waitangi in February 1840 did not cede sovereignty to the British Crown (Waitangi Tribunal 2014, Appendix One). There is a developing awareness of the Declaration of Independence and of Ma¯ori-Pa¯keha¯ relationships before the signing of the Treaty. This developing knowledge and understanding dwells within the “tension” and “the ake ake ake, the endless struggle – to know, to read, to understand, to work with, to engage with, others.” The difficult but positive, energising and “engaged” struggle necessary “to give active and proper attention to the other” (Jones 2007).
References Brookfield, FM 1989, ‘The New Zealand Constitution: the search for legitimacy’ in Waitangi: Ma¯ori and Pa¯keha¯ Perspectives of the Treaty of Waitangi, ed I-H Kawharu, Oxford University Press, Auckland, pp. 1–24. Busby, J 1834, James Busby’s address to the Chiefs on the occasion of the adoption of a flag. BR 1/1, Ma¯ori and English texts. National Archives of New Zealand, Wellington, p. 139. de Vattel, E, 1916 [1758], The Law of Nations or The Principles of Natural Law. Translation of the 1758, Carnegie Institution of Washington, Washington. Durie, M 2010, ‘Ma¯ori Philosophy’, in Companion to Philosophy in Australia and New Zealand, eds G Oppy et al., Monash University Press, Melbourne. Hamilton, B nD, Te Mana i Waitangi: Human rights and the Treaty of Waitangi. Available from: . [9 October 2013]. He¯nare, MA 1988, ‘Nga¯ Tikanga me Nga¯ Ritenga o Te Ao Ma¯ori – Standards and Foundations of Ma¯ori Society’ in The April Report, Future Directions Associated
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Papers, vol. III Part 1, Report of Royal Commission on Social Policy, Government Printer, pp. 3–41. He¯nare, MA 2003, ‘The Changing Images of Nineteenth Century Ma¯ori Society : From Tribes to Nation’, August 2003 – Document AO16 on the Waitangi Tribunal’s Record of Inquiry. He¯nare, MA 2010, ‘Brief of evidence before the Waitangi Tribunal WAI 1040, in the matter of the Treaty of Waitangi Act 1975 and the Te Paparahi o Te Raki Inquiry’. He¯nare, MA 2014, ‘Brief of evidence before the Waitangi Tribunal Wai 1040, in the matter of the Treaty of Waitangi Act 1975 and the Paparahi o Te Raki Inquiry’, 21 November. Hobson, JM 2004, The Eastern Origins of Western Civilisation, Cambridge University Press, Cambridge. Jones, A 2012, Radio New Zealand National. Available from: . [25 August 2012]. Jones, A & Jenkins, K 2011, He Ko¯rero: Words Between Us: First Ma¯ori Pa¯keha¯conversations on paper, Huia Publishers, Wellington. Meredith, P & Higgins, R 2012, ‘Ma¯ori engagement with the state – Implementing ka¯wanatanga’, in Te Ara–- the Encyclopedia of New Zealand. Available from . [9 April 2013]. Minutes 66 Executive Council (1831). National Flag Company, Official transcripts and microfilm, 209/1, Micro-2 343, p. 124, CO 209/1 pp. 219–228 and pp. 234–237. McKenzie, DF 1985, Oral Culture, Literacy and Print in Early New Zealand: The Treaty of Waitangi, Victoria University Press and Alexander Turnbull Library Endowment Trust, Wellington. Morgan, G 1927, Cambridge and New Zealand An Early Look, The Cambridge Review, pp. 148–150. Moshen al A 2012, Law and Society, Law 121, University of Auckland course notes. Available from: . [15 August 2015]. Orange, C 1987, The Treaty of Waitangi, Allen & Unwin, Port Nicholson Press, Wellington. Pool, I 1991, Te Iwi Ma¯ori: A New Zealand Population Past, Present and Projected, Auckland University Press, Auckland. Rappaport, RA 1979, Ecology, Meaning and Religion, North Atlantic Books, Richmond California. Salmond, A 1997, Between Worlds. Early Exchanges Between Maori and Europeans 1773–1815, Viking, Auckland. Shirres, M 1997, Te Tangata. The Human Person, Accent, Auckland. Sorrenson, MPK 1993, ‘The Constitutional Settlement’ in Council for Aboriginal Reconciliation/Constitutional Centenary Foundation: The Position of Indigenous People in National Constitutions. Speeches from the Conference, Canberra, [4–5 June 1993], Australian Government Publishing Service, Canberra.
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Tauroa, H & Tauroa, P 2004, Te Marae: A guide to Customs and Protocol, Raupo Publishing, New Zealand. Te Ahukaramu ¯ Charles Royal, n.d., ‘Papatu¯a¯nuku – the land – Tu¯rangawaewae – a place to stand’, in Te Ara – the Encyclopedia of New Zealand. Available from: . [4 April 2014]. Waitangi Tribunal (1987), Report of the Waitangi Tribunal on the Orakei Claim. Wai-9. Available from: . [10 February 2010]. Waitangi Tribunal, (2014), He Whakaputanga me te Tiriti The Declaration and the Treaty : The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry. Available from: . [15 August 2015]. Yate, W 1831, An Account of New Zealand; and the Formation and Progress of the Church Missionary Society’s Mission in the Northern Island, Seeley and W Burnside, London.
Appendix Treaty Signatories Did Not Cede Sovereignty in February 1840 – Waitangi Tribunal A historical and jurisprudential break through occurred in October 2014 when the Waitangi Tribunal released its report on stage 1 of its inquiry into Te Paparahi o te Raki (the great land of the north) Treaty claims. It summarised its findings as followed: ‘The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede sovereignty to the British Crown.’ ‘The report concerns the ‘meaning and effect’ of the Treaty in February 1840, when the first signings of te Tiriti took place in the Bay of Islands and the Hokianga. Stage 2 of the inquiry, which is under way, will consider events after February 1840.’ ‘Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Ma¯ori and Pa¯keha¯, it did not explain this to the rangatira.’ ‘Instead, Britain’s representative William Hobson and his agents explained the Treaty as granting Britain ‘the power to control British subjects and thereby to protect Ma¯ori’, while rangatira were told that they would retain their ‘tino rangatiratanga’, their independence and full chiefly authority.’ The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain’, the Tribunal concluded. ‘That is, they did not cede authority to make and enforce law over their people or their territories.’ ‘The rangatira did, however, agree ‘to share power and authority with Britain.’
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‘They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Ma¯ori interests’, the Tribunal said. ‘The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Ma¯ori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.’ ‘The Tribunal said that, having considered all of the evidence available to it, the conclusion that Ma¯ori did not cede sovereignty in February 1840 was inescapable.’ ‘The Tribunal said nothing about how and when the Crown acquired the sovereignty that it exercises today. However, it said, the Crown ‘did not acquire that sovereignty through an informed cession by the rangatira who signed te Tiriti at Waitangi, Waimate and Mangungu.’ ‘The question of whether the agreement that was reached in February 1840 was honoured in subsequent interactions between the Crown and Ma¯ori will be considered during stage 2 of the inquiry.’ Dated at Wellington this 14th day of October 2014.
Glossary of Ma¯ori terms: Aotearoa – Literal meaning, “Land of the Long White Cloud”; Original name of New Zealand Hapu¯ – extended family grouping (usually several hundred), also mean tribe Hı¯koi – march Iwi – analogous to the English “tribe”; comprised of several Hapu; Kı¯ngitanga – sovereign power and authority Kawanatanga – foundations of government Mana – Prestige, power, authority Marae – a meeting place of buildings and open space. The marae is a wa¯hi tapu or ‘sacred place’ Rangatira – hereditary and contemporary leaders Rangatiratanga – independence Tangata whenua – people of the land Tikanga – Customs, traditions and protocols that have been handed down through time from the tu¯puna (ancestors). A holistic system that has regulated social, economic, spiritual and environmental aspects of life to the present day Tu¯puna – ancestors Whakapapa – genealogy or the principle of descent Wha¯nau – loosely “family”; extended kinship grouping
Priyambudi Sulistiyanto and Sentot Setyasiswanto
Still Seeking Truth and Reconciliation for the 1965 Victims: Is it possible?
Introduction Scholars of transitional justice take a variety of positions on the various models adopted by new democratic governments to deal with past human rights abuses. Models include trials, amnesties and truth commissions (Kritz 1995; Rotberg 2000; Hayner 2001). Each of them has strengths and weaknesses. Trials are chosen to uphold a sense of justice and confront a culture of impunity. Trials may be used when a new democratic government is in a stronger political position than the previous authoritarian framework. The Nuremberg trials and the former Yugoslavian and Rwandan trials are a few examples of this model (Hesse 1999). The amnesty model is adopted by new democracies as a way of protecting political stability when the political cost of prosecuting the perpetrators could be so high that it could threaten the survival of the new democracy. It is a ‘forgive and forget’ kind of model. For example, Spain chose amnesty as the model to deal with the human rights violations that occurred during the 1970s which the amnesty model was applied (de Brito 2001). Lastly, truth commissions are the most recent strategy. They have been popular in recent years because they seek to encourage a reconciliation process through allowing perpetrators and victims to meet, to speak publicly, and to exchange accounts of past human rights abuses. It is ‘a third way’ model which wants to offer both justice and reconciliation. Countries such as Argentina, Chile, South Africa, Sierra Lione, and Timor Leste have established truth commissions as a way of addressing past human rights abuses (McAdams 1997; Kingston, 2006). Indonesia in the post-Soeharto period has so far failed both to deal with the past human rights violations and to encourage the reconciliation process (Arianto 2003; Zurbuchen 2005). In the past ten years a number of human rights organizations have worked with victims of human rights abuses to put pressure on the Indonesian government to bring the perpetrators to court and to offer some form of closure to the victims.1 They have used various strategies to get their views across, lobbying government representatives and political leaders, participating in legal drafting processes in parliament, educating the 1 These organizations are, for example, Elsam, Kontras, YLBHI, Imparsial, Solidaritas Nusa Bangsa, IKOHI, Parkoba 65, LPKP, and YPKP.
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public through media and public forums, and organizing street demonstrations. Sadly, a little had been achieved in terms of the government’s efforts to deliver justice by punishing the perpetrators and by rehabilitating and restoring the rights of the victims. Evidence of Indonesia’s disappointing progress in terms of dealing with past human rights abuses is seen in failing to prosecute perpetrators (especially senior military officers) from the East Timor and Tanjung Priok cases, the toothlessness of the Commission on Reconciliation and Friendship for East Timor (sponsored by the Indonesian and Timor Leste governments) and lastly in the decision by the Constitutional Court in December 2006 to annul the Law on Truth and Reconciliation Commission (no. 27/2004).2 Sadly President SusiloSadly President Susilo Bambang Yudhoyono, who was elected in 2004 with a stronger political mandate than any of his predecessors (B.J. Habibie, Abdurrahman Wahid and Megawati Sukarnoputeri), has not shown good leadership in delivering justice and reconciliation during his term of office. The questions are: what went wrong with the reconciliation process in Indonesia? Was it political and legally unpalatable? Can something still be done in terms of finding truth and reconciliation for the 1965 victims? Can their stories and voices be heard publicly in the absence of an official truth seeking mechanism? Can some form of closure still be found for them? The aim of this paper is to discuss the failure of state-sponsored truth and reconciliation initiatives and the consequences of this for the 1965 Victims quest for truth and reconciliation in Indonesia. It will examine closely the personal stories of the 1965 victims, as they have appeared in the public domain through a proliferation of publications and visual media sources in the post-Soeharto period. We want to describe the victims of 1965 in a broad sense that incorporates not only those who were imprisoned, tortured and humiliated and who suffer on-going discrimination but also the families/ relatives of those people, who have suffered as well. We believe it is the important that the voices and stories of all these victims are heard in the reconciliation process which continues to be neglected due to changing 2 On the assessments endorsed by non-government organizations, see, “Kilas Balik Kondisi HAM 2006, Hak Asasi Belum Menjadi Etikadan Peradaban Politik, Siaran Pers Kontras, Jakarta 12 Desember 2006. Available from: [22 March 2009]; “Penyelesaian Kejahatan HAM TidakTransparan”, SiaranPersKontras, ‘INFID danVisiAnakBangsa’. Avaibale from: [22 March 2009]; ‘Seruan Rakyat Indonesia di Hari HAM Sejagat Ke-58,” Siaran Pers Solidaritas Komanusiaan Untuk Korban Pelanggaran HAM’. Availbale from: , [22 March 2009]; “KKP, Panggung Manipulasi Fakta Atas Pelanggaran HAM Berat di Timor Timur,”. Availbale from: http://www.elsam.or.id/more.php?id=805_0_1_0_M31. [22 Maret 2009]; and also Galuh Wandita, “Kesempatan Dalam Kesempitan, Beberapa Catatan Awal Untuk Mengusik Impunitas yang Telah Terlembaga di Indonesia”, a paper presented at the Lokakarya Nasional 10 Tahun Reformasi: Quo Vadis PenegakkandanPemajuan HAM di Indonesia, Komnas HAM, Jakarta, 8–11 June 2008.
Still Seeking Truth and Reconciliation for the 1965 Victims: Is it possible? 71
political, legal and constitutional circumstances. In this paper we wish to argue that the power of personal stories to advance the cause of human rights cannot be underestimated. As Kay Schaffer and Sidonie Smith write, “stories unsettle private beliefs and public discourses about the national past, generating public debate, sympathy and outrage” (Schaffer 2004, p. 4). We strongly believe that the 1965 Victims are those worst affected by human rights abuses in Indonesia. They suffer up to the present day as the effects of the denial of their political and civil rights and thereby leading to their trauma and humiliation as Indonesian citizens. We suggest here that the 1965 Victims personal stories and voices do not just offer insights into their tragic personal journeys but they also contain wisdom and lessons for Indonesia today, especially for the younger generation, and those generations yet to come, who will lead Indonesia further into its journey with democracy. In this paper we seek to see the 1965 Victims as agents who can inspire and play their part in the reconciliation process through actively sharing their stories with a wider audience. This is in line with recent academic discussions on “victims” and “victim hood” and their contribution to the pursuit for justice and reconciliation in other contexts (Moser 2001; Doak 2008) But it is an issue that has not yet been addressed properly in Indonesia (Nadia 2007; Setiawan 2006). We believe that through victims sharing their stories, with a strong sense of their dignity as human beings, the public can appreciate and learn more about them and consequently about the past. In many ways, this could be seen as moving towards a process of an ‘unofficial’ truth telling mechanism in Indonesia; something that has been contemplated by human rights organizations working on this issue. In this case, the 1965 Victims themselves would be the leading forces in a reconciliation process from below. The more we listen to the 1965 Victims’ stories the more we Indonesians could come to know about our own past as individuals and as a nation. The accumulation of those personal stories would increase the awareness of the public about the plight of the 1965 Victims and gradually also counter the official version of the 1965 affair which has dominated the minds of the Indonesian people for many years. This paper will be divided into four sections. The first section examines the responses carried out by the parliament, government leaders and human rights organizations to the Constitutional Court’s verdict and discusses briefly the proposed new law on a Truth and Reconciliation Commission currently being prepared by the Ministry of Law and Human Rights. The second section examines the public advocacy carried out by human rights organizations in responding to the verdict with special reference to the role of Elsam (Institute for Policy and Advocacy) and Kontras (Commission for the Disappeared and Victims of Violence) and to the dynamics between human rights organizations and the 1965 victims as they work to keep the quest for truth and reconciliation alive in Indonesia. The third section examines personal stories of the 1965 Victims, suggesting that through the telling of these stories we can
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see the cause for hope in a reconciliation process from below in Indonesia. The fourth section makes concluding remarks and reflections on the importance of personal stories in the reconciliation process in Indonesia.
Legal and Constitutional Response On 6 December 2006, three months after receiving the judicial review initiated by human rights organizations on hehalf of the victims, the Indonesian Constitutional Court declared the Law on Truth and Reconciliation Commission (No. 27/2004) legally dead.3 The constitutional judges made the verdict based on two arguments, firstly, that the articles 9 (1), 27 and 44 were against the 1945 Constitution and the universal principles on human rights which were the central points debated in the judicial review. Secondly, without having the above articles in the Law, the judges viewed that it would create a legal uncertainty and eliminate the spirit of the Law and, as a result, they decided to get rid of it all together.4 However, in the last part of the verdict, the judges recommended that the Indonesian government take action to promote reconciliation through preparing another Law on Truth and Reconciliation Commission which would be compatible with the 1945 Constitution and the universal principles on human rights or promoting the reconciliation process through political initiatives aimed at rehabilitation and amnesty.5 What were the implications of the Constitutional Court’s verdict on the quest for reconciliation for the victims of the past human rights abuses? The immediate responses were made mainly on legal and constitutional grounds. Several human rights organizations and victims responded critically to the Constitutional Court’s verdict by questioning the constitutional and legal considerations, stating that the verdict given went beyond what was asked for in the judicial review.6 Elsam, in its briefing paper to respond the Constitutional Court’s verdict, argued that the judges were mistaken in their analysis and their understanding of the idea of establishing a truth commission.7Elsam believed that the verdict was against the principle of ultra petita which 3 The judicial review was initiated by Elsam, KontraS, Imparsial, LBH Jakarta, Solidaritas Nusa Bangsa, LPKP 65, LPR-KORB, and two persons, Raharja Waluya Jati and Tjasman Setyo Prawiro. 4 “Ketika Prinsip Kepastian Hukum Menghakimi Konstitusionalitas Penyelesaian Pelanggaran HAM Masa Lalu, Pandangankritisatasputusan MK danimplikasinyabagipenyelesaianpelanggaran HAM di masa lalu,” Briefing Paper ELSAM, 9 December 2006. 5 “Putusan Mahkamah Konstitusi”, No. 006/PUU-IV/2006. 6 On the legal commentaries about the verdict, see “MK Dinilai Langgar Ultra Petita, Kali KeduaLebihi yang Diminta,” Kompas, 9 December 2006. 7 Briefing Paper ELSAM: “Ketika Prinsip Kepastian Hukum Menghakimi Konstitusionalitas Penyelesaian Pelanggaran HAM Masa Lalu”, Jakarta: ELSAM, 9 December 2006, pp.8–17.
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suggests that the verdict was made far beyond the requests.8 Elsam argued that the Constitutional Court stepped beyond its mandate and did not have the legal and constitutional powers to give a set of recommendations to the Indonesian government on how to deal with past human rights abuses.9 In addition, Elsam also believed that the verdict not only made the efforts to deal with the 1965 case and other human rights cases even more difficult but it also created a legal vacuum which could threaten the prospects of peace in Aceh and Papua.10 This was because the process of dealing with, and revealing the truth about, the human rights crimes in these two provinces (which is stated in article 229 of the Law on Aceh Government (No. 11/2006) and article 46 of the Law on Special Autonomy for Papua (No. 21/2001) could not then be pursued as a consequence of the Constitutional Courts’ verdict.11 Even the Golkar Party (a powerful ruling party during the Suharto period) member of parliament (MP) Akil Mochtar who had been a member of the Special Committee in charge of the drafting of the Law on Truth and Reconciliation Commission felt that the verdict was excessive, and went beyond the original mandate received by the Constitutional Court and questioned its validity (Kompas, 9/12/2006). He urged the government to immediately issue a government regulation to replace the Law on Truth and Commission as a solution. Subsequently Akil Mochtar and fellow MP Gayus Lumbun, demanded that the government, parliament and High Court monitor the performance of the judges in the Constitutional Court who issued the disappointing verdict (Suara Pembaruan, 11/12/2006). Despite strong criticism from human rights organizations and members of parliament, the government did not do much. No immediate actions were taken towards drafting alternative legislation to deal with past human rights abuses. On the contrary, it seemed that the government was pleased with the verdict. From the beginning the SBY government was ambivalent about the idea of establishing a Truth and Reconciliation Commission.12 YusrilIhza Mahendra, then Minister of Secretary of State argued that public debate about 8 Ibid. 9 Ibid. 10 Article 229 in the Law on Aceh Local Government (No. 11 Tahun 2006) states that the establishment of the Truth and Reconciliation Commission in Aceh must be referred to the Law on Truth and Reconciliation Commission (No. 27/2004) at national level. 11 Article 45 in the Law on Special Autonomy for Papua (No. 21/2001) states that in order to advance, protect, and respect human rights in Papua Province, the government must establish the representatives of the National Commission on Human Rights, Human Rights court and the Truth and Reconciliation Commission in Papua Province which is based on the relevant regulations. 12 Adnan Buyung Nasution, senior lawyer said that the Truth and Reconciliation Commission bill was prematurely passed as it was secretly opposed by the government and its supporters, such as the Golkar Party, who were afraid of the legal consequences they could face if the body was established. Many members of the Golkar party and the Nadhlatul Ulama who might have been involved (in rights abuses in the past) are worried the body will reveal the truth.
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the verdict was necessary, but at the same time he pointed out that the verdict was final and legally justified and therefore everyone must accept it (Jakarta Post, 9/12/2006). He suggested that the process of dealing with past human rights abuses could still be pursued through a prosecution mechanism, by establishing an ad hoc human rights court. As a consequence of the verdict, Yusril said that the government would not forward to the parliament a list of candidates for commissioners in a Truth and Reconciliation Commission (Kompas, 19/12/2006).Yusril suggested that reconciliation could proceed ‘naturally’ because if sought through the establishment of a truth and reconciliation commission new conflicts would be created (Kompas, 19/12/ 2006). Two years past, after which the SBY government was still reluctant to fill this legal vacuum. Although there has been speculation that the Ministry of Justice and Human Rights is preparing a new draft of the truth and reconciliation commission law no draft has not been sent to Parliament.13 Also, although some members of Parliament criticized the Constitutional Court’s verdict, their criticism did not motivate the Parliament to ask the government about the progress of the drafting process of a new truth and reconciliation commission law.14 No serious efforts were made by members of Parliament to propose their own version of the law; a step which is possible constitutionally in Indonesia. The only step the Parliament has taken to date has been to establish a special committee on the “disappeared”. The committee is charged with investigating the need for a human rights court, but no decision has yet been made on this issue.15 The establishment of a truth telling mechanism still has not materialized although the parliament has the constitutional right to draft a new law on it if they wish to do so.16
NGOs’ Public Advocacy and Negotiating Reconciliation Agenda Feelings of pessimism and hopelessness were strong among human rights organizations and victims following the annulment of the Truth and Reconciliation law. The prospect of the victims no longer having a legal and 13 Interview with Indri Dyah Saptaningrum, Jakarta, 16 March 2009. 14 Looking at the meeting agenda of the Commission 3 who is in charge on human rights matters in Parliament between 2007 and 2008, there was no information which suggested the Parliament calling the government to prepare a new law on truth and reconciliation commission. See, “LaporanKomisi III”. A vailable from: . [01 June 2015]. 15 “Risalahpertemuan Komisi III DPR-RI dengan Makamah Konstitusi”. Available from: [01 July 2015]. 16 The parliament used this constitutional right recently in proposing a new law on limited dual citizenship and on victims and witness protection.
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constitutional base from which to participate in a truth telling mechanism at the national level was devastating, because it rendered almost impossible the likehood of victims and perpetrators meeting together in a state-sponsored reconciliation forum. Against this backdrop, efforts were made to promote ideas for improving Indonesian legislation, to bring it closer in line with the universal principles of human rights. Seminars and public forums held throughout 2008 to discuss the implications of the Constitutional Court’s verdict on the future of the truth commissions were planned for Aceh and Papua (Wandita 2008, p 6).17 One suggestion was to convince the Aceh government to establish a locally-based truth commission by issuing a local regulation or qanun.It was argued that the peace process in Aceh could proceed as long as a truth telling mechanism which could bring victims and the perpetrators together would be established in the future.18 Also, various in-depth studies were carried out by human rights organizations to examine the old and more recent legislation which either hinders the spirit of dealing with past human rights abuses or is against the universal principles on human rights.19 The results of those studies were used to prepare a series of judicial reviews submitted to the Constitutional Court and the High Court (MahkamahAgung). The studies sought to review the Criminal Law/Procedures Criminal Law, the Law on Pornography, the Electoral Law, the Law on Information Technology, the Law on Foreign Investment, and lastly the Government Regulation on compensation to victims of human rights abuses.20 Other regulations such as the Law on Human Rights (No.39/1999) and the Law on Human Rights Court (No. 26/2000) were also the subject of scrutiny because they were not in the line with the universal principles of human rights. In addition, human rights organizations and victims lobbied the Parliament to ratify the Law on the Witness and Victims Protection, the Law on Ombudsmen and also to ratify the Rome Statute in Indonesia. The human rights organizations and victims also stepped up their campaigns to educate the Indonesian public about a truth commission. They saw a window of opportunity in the recommendation of the Constitutional Court whereby they could continue to educate the public about the reconciliation process. They implemented it through organizing activities such as seminars, public forums and workshops and through lobbying members of parliament, government officials and also legal experts proposing
17 “Pembatalan UU KKR: Gagalkan Pula KKR Aceh & Papua,” VHR-Media, 19 December 2006. 18 “Masyarakat Sipil Serahkan R Qanun KKR Aceh ke DPRA,” SiaranPersKontras, 30 December 2008. 19 “UU Tak Ramah HAM: PansusPanggilJaksaAgungpadaHari HAM,” Kompas, 5 December 2008. 20 “Uji Materi PP PemberianKompensasi Korban Pelanggaran HAM: PP 44/2008 Kaburkan Hak Kompensasi Korban,” VHR-Media, 20 November 2008; and also, “Segera Diajukan, Uji Material UU Pornografi,” SinarHarapan, 31 October 2008.
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a new truth commission law.21 The victims of past abuses were drawn from across the human rights abuses spectrum: 1965, Aceh, Papua, Tanjung Priok, Lampung and also the Trisakti/Semanggi. They used public gatherings to share their stories with each other and they collectively urged the government to take immediate action.22 To widen the impact of their voices, they also approached the media and reminded national institutions such as Komnas Ham, Parliament and the Presidential Office to take their plight seriously.23 Elsam was a leading human rights organization in this public advocacy.Elsam had promoted the reconciliation agenda for the victims of past human rights abuses in Indonesia for ten years (1999–2009). Established by a group of human rights lawyers in Jakarta in 1993 (led by Abdul Hakim G. Nusantara who was previously the chairman of the Indonesian Legal Aid Foundation (Yayasan Lembaga Bantuan Hukum Indonesia), since its inception Elsam has focused primarily on educating the public about human rights issues. In 1999 Elsam began to actively lobby the government to establish a truth commission in Indonesia. Under the leadership of Ifdhal Kasim (2000–2006) Elsam engaged in high profile public advocacy for a truth commission. Ifdhal played a leading role in keeping this issue alive, writing extensively on the merits and demerits of a truth commission (published through in-house Elsam publications or in his regular columns in the daily newspaper Republika). Elsam has dedicated researchers writing on a range of topics on transitional justice in the Indonesian context. Elsam’s website (www.elsam.or.id) provides a special section on truth commissions which explains various aspects of transitional justice such as the definition of a truth commission, the working mechanism of a truth commission, examples of truth commissions established elsewhere, interviews with experts and public figures on truth commissions and a list of the past human rights abuses in Indonesia that could be handled by a truth commission. Elsam also launched a documentary film entitled Bunga&Tembok in Jakarta in 2004. It is an account of a gathering of the victims who suffered during the New Order period which was an 21 “Kebenarandan Rekonsiliasi Harus Berpusat,” Kompas, 20 June 2007. 22 “Agendakan Kembali Penuntasan Kasus Trisakti, Semanggi I dan Semanggi II,” Siaran PersKontras, 12 November 2007. Availbale from: . [29 March 2009]; and “Rekomendasi Pertemuan Jaringan Sipil Se-Aceh, JanganAmputasi HAM Rakyat Aceh,” Siaran Pers Jaringan Masyarakat Sipil Aceh, 7 November 2007. Available from: , Available from. [22 March 2009]. 23 “Kasus 1965 BelumSelesai, Komnas HAM WajibMerespon,” SiaranPersBersamaKontras, YLBHI, LPKORB 65, LPKP, dan YPKP, Jakarta 17 Maret 2007. Available from: [22 March 2009]; “Surat Terbuka untuk KOMNAS HAM tentang Mendesak Pembentukan Tim Ad Hoc untuk Kasus-kasus Penggalian Kuburan yang Diduga Korban Konflik di Aceh,” Siaran Pers Kontras Aceh, 26 December 2007; “Penyelesaian Pelanggaran Berat HAM di Aceh,” Siaran Pers Kontras Aceh, Federasi KontraS, SPKP HAM, K2HAU and KKP HAM, 26 December 2008. Available from: . [27 March 2009].
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authoritarian political era under President Suharto (1966–1998). This gathering was held in Jakarta on 13–15 May 2003. The film opens with a scene of a journey made by a group of victims to meet fellow victims who were living in Bali, Solo, Lampung and Jakarta. It then documents a series of conversations between the victims and it ends with moving scenes in which everyone in attendance shared their stories about their suffering and their hopes for the future. Kontras (Commission for Disappeared and Victims of Violence) is also another prominent human rights organization that has been defending the rights of the victims of past human rights abuses. It was established in 1998 by a coalition of non-government organizations and human rights activists based in Jakarta. It was led by a leading human rights campaigner, Munir, who died in 2004 on a flight from Indonesia to the Netherlands from arsenic poisoning at the hands of an intelligence officer working at the State Intelligence Agency (BIN). In the beginning, Kontras focused on advocating for the release of activists who were kidnapped by the military and intelligence officers in the months leading up to the fall of President Suharto in May 1998. Later, Kontras became involved in public advocacy on the importance of trials or prosecution for the perpetrators of the past abuses. The late Mr.Munir often led high profile delegations of victims to meet directly with government leaders, military leaders, and also members of parliament and lobbied the government to address seriously past human rights abuses. Kontras has also published books, journals and papers on the human rights situation in Indonesia (www.kontras.org), in a way similar to Elsam. What has been achieved by the public advocacy carried out by Elsam and Kontras especially for the 1965 Victims? We recognize that both organizations have faced constraints and limitations in influencing the SBY government seriously to take up the reconciliation process in Indonesia. We believe that while both Elsam and Kontras have been strong in terms of public advocacy and public education, they have failed to gather adequate political support from the major political parties and political leaders. In 2000–2001, the idea of a truth commission was supported by the then President Abdurrahman Wahid but not by the other political elites. There was a sense of optimism that Indonesia could follow the examples provided by countries such as Argentina, Chile and South Africa who adopted the truth telling mechanism in their respective reconciliation strategies. However, this situation took a turn for the worse during the Megawati presidency (2001–2004) when there was a lack of will from the political elites. Major political parties were not enthusiastic and did not support fully the establishment of a truth commission. A further issue was that the human rights organizations and victims were divided in their views about a truth commission. For example, Kontras, Imparsial and a few victims’ organizations were in favor of prosecution and were very critical of the capacity of a truth commission to deal with the past abuses. Meanwhile, Elsam and other victims’ organizations believed that a
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truth commission was a good option for Indonesia and that it should not be seen in opposition to human rights court, but rather as complementary to it. It is Elsam’s view that prosecution and truth commissions can work together in the pursuit for justice and reconciliation. Sadly, the views of both Elsam and Kontras and their respective supporters became irrelevant when the Constitutional Court’s verdict was issued in December 2006. What was the impact of the Constitutional Court’s verdict on the 1965 Victims? To a certain extent it was a disaster for them, for it resulted in the prospect of them being deprived of a mechanism through which they could come forward to tell their stories. What went wrong with the activities carried out by the human rights and victims’ organizations? In retrospect, there are several observations that can be advanced. Firstly, the human rights organizations’ responses to the verdict were focused too much on legal and constitutional aspects, and as a consequence, they put themselves in the leading position while the victims followed them from behind. Also most human rights organizations are based in Jakarta while most of the 1965 victims live in the regional areas such as Central Java, East Java, and Bali. Both sides have their own views and expectations about the reconciliation agenda, but in many instances, the public agenda was driven by the human rights organizations in Jakarta without consultation with the victims.24 Moreover the 1965 Victims have little knowledge and understanding of the complexity of legal and constitutional issues, which put them at a disadvantage when it came to arguing their views with those in government and other formal institutions. Second, by emphasizing legal/constitutional matters in public advocacy, the human rights organisations gave inadequate attention to the need to empower the 1965 Victims. The initiatives coming from the 1965 Victims in the regions were often not taken seriously by their counterparts in Jakarta. Among these initiatives was a move to incorporate more cultural and religious activities into the reconciliation process at the local level because victims viewed these kinds of activities as helpful in breaking down the silence and barriers that had existed for decades between the perpetrators and the victims. Third, like others who suffered human rights abuses, 1965 Victims were often preoccupied with their own personal and survival issues. Many families had beentorn apart, marriages had collapsed, social networks interrupted and many struggled for economic survival. Many 1965 Victims face ‘bread-and-butter’ issues on a daily basis and this makes it difficult for them to get involved totally with human rights organizations in public advocacy activities. This is a crucial 24 Sentot’s conversation with the 1965 victims’ advocate in Solo, 1 March 2009. This person suggested that the victims in the regions were not consulted when several human rights organizations in Jakarta were preparing the judicial review on the Law on Truth and Reconciliation Commission. According to this person the Law was already good and did not need to be reviewed in the Constitutional Court anymore. This point became moot after Indonesia ceased to operate without a Law on Truth and Reconciliation Commission.
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point because the reconciliation process will not meaningful for 1965 Victims unless their well-being and daily needs are secured or fulfilled. There is also the fact that many victims’ organizations have been established since the fall of Soeharto in 1998, with different agendas to promote, and sometimes they are in competition with one other. The diversity of these organizations is not necessarily helpful because they often hold different expectations about the reconciliation process. There have been arguments about priorities and even about which groups should be supported. For instance, the victims of the Tanjung Priok and Talangsari cases are reluctant to support the cause of the 1965 victims because they still suspect them of communist association. This certainly has made it very difficult to find common ground for a reconciliation process. The 1965 victims are clustered in various organizations. The Yayasan Peneliti Korban Pembunuhan 1965 (YPKP) was established in 1999 by, among others, the late Pramudya Ananta Toer, Hasan Raid, Koesalah Subagyo Toer, the late Sulami, Sumini Martono, Ribka Tjiptaning and Suharno. Its members are mainly former political prisoners from the events of 1965.The YPKP claims to have also 20 branches in 20 cities in Indonesia. The Lembaga Penelitian Korban Peristiwa 1965 (LPKP) was also established in 1999 and it has members in major cities in Indonesia. The LPKP is a splinter group from the YPKP. The Lembaga Perjuangan Rehabilitasi Korban Rezim Orde Baru (LPR KROB) was established in 2000 by survivors of the post-1965 mass killings. The newest group is the Lingkar Tutur Perempuan (LTP) which was established in 2005 by researchers and human rights workers in Java. It works intensively to collect the oral histories from and about the female victims of 1965. Meanwhile, there are other victims’ organizations promoting the cause of victims from other human rights abuse cases. The Paguyuban Korban Orde Baru (PAKORBA), established in 2000, was founded by prominent persons such as the late H. Moh. Sanusi, Setiadi Reksoprodjo, Soetomo Martopradoto, Yo Koerwet Kartaadiredja, Soedibjo, the late Simon Tiranda, Freddy Sutedi, John Lumengkawas, Widodo Hardjoprawito, Permadi, M.Pasaribu, Ari Wibisono, W. Napitupulu and Pribadyo. The PAKORBA has been active in campaigning for the government to address victims’ need for rehabilitation and compensation for the restoration of the civil rights of those who were suppressed, oppressed, and treated unjustly by the New Order regime. The Ikatan Orang Hilang (IKOHI) was established in 2002. Its members are victims and family members from the disappearances that occurred in the months leading to the resignation of Soeharto in May 1998. It has a close association with Kontras which at that time campaigned tirelessly for the release of those who were kidnapped and for the recovery of those who had dissappeared. There is also the Paguyuban Korban Mei which belong to the families of victims of the May 1998 riots, and the Paguyuban Korban Talangsari and Paguyuban Korban Tanjungpriok which are associated with the families of
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victims of the Talangsari killings case (1986) and the families of victims of the Tanjung Priok killings case (1984) respectively (Sulistiyanto, 2007; Sulistiyanto 2009). In reflecting on the explanations mentioned above we wish to suggest that the failure to establish a state-sponsored truth telling mechanism should not be seen as the end of the pursuit for truth and reconciliation in Indonesia. Much has been achieved by the human rights organizations and the victims’ organizations in terms of involvement in the legal and constitutional issues and of public advocacy on the reconciliation process. The achievements should be appreciated because everyone who has been a part of it can take lessons from it and can learn how to work with the limitations and the opportunities provided in post-Soeharto Indonesia. The important question is however, what else can be done in the absence of a truth commission? If we think legally and constitutionally, then we need to keep our faith in the willingness of the government to introduce new legislation for a truth commission. Assuming that a truth commission will eventually be established in the future, it will still take considerable time and effort to reach the point where the victims can have the chance to tell their stories and to hear the perpetrators’ versions of the past. As mentioned earlier, the Ministry of Law and Human Rights at that time prepared a new draft truth commission law the details of which was not clear then. According to Ifdhal Kasim, the chairman of the National Commission on Human Rights, in 2008 the government initiated public consultations in many places such as Aceh, Central Kalimantan, Central Sulawesi, Ambon and Papua, to gather input for the preparation of a new draft law on a truth commission.25 This proposed truth commission will focus mainly on revealing the causes of and the patterns of severe the human rights abuses that occurred in the past and on preparing a set of recommendations to rehabilitate the victims. It will also propose institutional changes to avoid the repetition of human rights abuses in the future.26 It is more like a historical clarification commission (like the one in Guatemala, for instance) and it is proposed that it be established through a presidential decree with nine commissioners who will run the commission only for a three-year period. The mandate for this Truth Commission thus differs from that of the one proposed in the Law on Truth and Reconciliation Commission (no. 27/2004) which was to be established through parliamentary approval and had broad scope in terms of legal and constitutional matters and ambitious mandates, including recommending amnesty or prosecution for the perpetrators. As the proposed new truth commission is less ‘powerful’ it is hoped that no one will obstruct or delay further the establishment of a truth-telling mechanism in Indonesia. However, 25 Priyambudi’s interview with Ifdhal Kasim, Jakarta, 30 November 2008. 26 See Ifdhal Kasim, “Rancangan Undang-Undangtentang Komisi Kebenarandan Rekonsiliasi, Sebuah Ringkasandari Naskah Akademik”, memo, 2008.
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it remains to be seen how long it will take for this new law to be drafted and then to be debated in the parliament. As this paper is being revised, up to the present the new law is still not yet enacted.
The Victims’ Personal Stories We have suggested above that we wish to present the 1965 victims as active agents who can inspire others through sharing their stories and whose active role in the reconciliation process in Indonesia is essential. We believe that in telling their personal stories, victims contribute to the development of an ‘unofficial’ truth telling mechanism in Indonesia, something that has been contemplated by human rights organizations working on this issue. The point we want to make here is that the 1965’s victims’ personal stories engage the consciousness of the public not only these individual accounts, but also other aspects of Indonesia’s recent past that have been traumatic and largely hidden away from public view. Public support is important for the reconciliation process and it will gradually also contribute to countering the official version of the events of 1965.27 As suggested by Hilmar Farid and Rikardo Simantara, the success of the process of revealing past human rights abuses depends on placing the victims at the center of the process.28 We suggest that in recent years the focus of attention in terms of Indonesia’s reconciliation agenda has moved slowly into a series of collaborative activities involving the 1965 Victims, human rights activists, and researchers. One of these activities has involved seeking out and compiling the stories of the women who are victims of 1965. Stories have been gathered in places such as Solo in Central Java, Argosari in Kutai Kartanegara, East Kalimantan and Gianyar, Bali. This collaborative activity has involved organizations such as the LTP and Syarikat (Masyarakat Santri Untuk Advokasi Rakyat) which has widespread networks in 18 cities in Java and Madura.29 The National Commission on Women (Komnas Perempuan) has also participated through the establishment of the Working Group on Past Violence (guguskerjakekerasan masa lalu) which has been charged with compiling evidence of violence against women during the 1965 case.30 The collaboration has also involved 27 Sentot’s interview with PapangHidayat, Depok, Jakarta, 17 March 2009. 28 Hilmar Farid and RikardoSimartana, ‘Demi Kebenaran, PemetaanUpaya-UpayaPencarian Keadilandalam Masa Transisi di Indonesia’, Jakarta: Elsamdan International Center for Transitional Justice, 2004. 29 On the activities of Syarikat, see, Priyambudi Sulistiyanto and RumeksoSetyadi, “Civil Society and Grassroots Reconciliation in Central Java” in Birgit Brauchler (ed), Reconciling Indonesia, Grassroots Agency for Peace, London and New York: Routlegde, 2009, pp. 192–212. 30 See KejahatanTerhadapKemanusiaanBerbasisJender: MendengarkanSuaraPerempuan Korban Peristiwa 1965, Jakarta: KomnasPerempuan, 2007, pp. 1–4.
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high school history teachers from places such as Jakarta, Yogyakarta, Bandung and Pasuruan, who have collectively formed the Teachers’ Council on History Lessons, which is revisiting the way in which Indonesian schools teach the history of 1965. The involvement of the younger generations and the descendents of the 1965 victims have also become visible. Basically, in recent years the process of learning about the past has made a fundamental shift away from Jakarta to the regions, where it involves an increasingly wide range of participants, including, most importantly, the 1965 victims themselves. It is in this context that we would like to briefly describe two examples of the 1965 Victims’ personal stories that have emerged in recent years. The first is a book titled Usaha untuk Tetap Mengenang: Kisah-kisah Anak-anak Korban Peristiwa ’65 (Keep Remembering: Stories of the Children of the 1965 Affairs’ Victims) published in 2003.31 The second is a documentary film titled Kok Disalahke? (Why was I blamed?) which appeared in 2006, produced jointly by the National Commission on Women and Syarikat. Usaha untuk Tetap Mengenang contains the stories of four children of the 1965 victims. They provide different insights into the lives of these children, who talk about their complicated lives infused with a mix of personal feelings, both positive and negative. They speak of inspiration, sadness, happiness, irony and tragedy. One of them is the story of Triwoko Satrio, who is the son of a 1965’s victim (Saleh 2003).Triwoko’s views and his social activism wereinspired strongly by his father’s political activities in the past. He idolized his father, and is proud of his father’s involvement in working for the ordinary people through his association with the Pemuda Rakyat in Banyuwangi, East Java. Like the other 1965 victims, his father lost his job as a public servant and was imprisoned without trial. After his release from prison he faced a life of economic difficulty (including the loss of his right to a public servant’s pension in old age), the loss of his civil rights, and pervasive social stigma. However, Triwoko was not immobilized by fear of the past, and the stigma that attached to him because of his association with his father. He became involved in organizing workers and peasants to fight for their rights in the Banyuwangi area during the Suharto period. He also worked with local non-government organizations advocating the rights of plantation workers in his locality. Triwoko states that he saw his father as a role model. He did not want to be overwhelmed by the tragedy experienced by his father, but instead used it as an inspiration for his social activism. He believed through working together with human rights organisations such as Elsam and Kontrasto educate the public about the past abuses experienced by his own family, he can contribute a bit for strengthening grassroots reconciliation initiatives at local level. Another story is that of two sisters, Svetlana Dayani and Irina Dayasih, who were raised in the New Order period moving from city to city, as they were 31 On the children of 1965, see Benedict Anderson, ‘Exist Soeharto, Obituary for a Mediocre Tyrant’, New Left Review, 50, March-April 2008, pp. 55–58.
Still Seeking Truth and Reconciliation for the 1965 Victims: Is it possible? 83
cared for by a succession of relatives (Saleh 2003, pp. 47–70). Their father was Nyoto, a leading figure in the Pikiran Rakyat newspaper, which was associated with the Indonesian Communist Party. While they were growing up, they never knew what had happened to their father. In fact this remains unclear to the present day. They were also separated from their mother, who was imprisoned in 1965 and released only in 1980. Without the support of their parents, they had to navigate through life in an unfriendly Indonesian society which looked down on the children of the 1965 victims, and feared association with them. Thus they were punished for events in which they had played no part. Against all odds, they gradually began to unravel the truth about their father and the events of 1965. They learned that their father was a lovely person who cared deeply for the well-being of his children as well as of other people. This knowledge was completely at odds with the government version of the events of 1965 that they studied at school, which portrayed those associated with the Indonesian Communist Party as evil people, without feeling. Their eyes were opened further after the fall of Soeharto in 1998, when the1965 victims, including their own mother, became keen to speak up and to share their stories in public and private meetings. Through these meetings they met other children of 1965, who had experienced lives similar to theirs. The documentary film Kok Disalahke? was made by four high school students from the State High School 8 in Yogyakarta – Longina Narastika, Argodinendra Primordian, Rencie Parmawaty and Bayu Kusumaputra. In making this film they were guided by Rumekso Setyadi and Imam Aziz from Syarikat, a non-government organization working to promote grassroots reconciliation in Yogyakarta. The film tells the story of Sumilah, a woman who was wrongly detained by the military and spent fourteen years in prisons in Indonesia, including the notorious Plantungan prison in Kendal, Central Java. At the age of 14 she was picked up by her village head, under suspicion of involvement in gerwani a women’s organization connected to the Indonesian Communist Party. In fact, it was a local school teacher, whose name was also Sumilah, that the village head should have captured.32 Sumilah now lives in a village near the Prambanan temple, near Yogyakarta, and has survived economically since her release in 1979/1980 by running a little food stall in the Prambanan market. Her life story also appears in an edited book titled Menembus Tirai Asap, Kesaksian Tahanan Politik 1965 (Sasongko 2003, pp. 195–216). In this documentary film, the life of Sumilah is portrayed in a chronological line, starting from when she was little, living peacefully in her village, to when she was teenager and joined a dancing group in her village, to when she was picked up by a village head and arrested and detained. It traces her movements between prisons, her release, marriage and subsequent life. A central theme in the film is the tragedy of her detention as a result of mistaken identity and the 32 This Sumilah was also eventually detained, and the two mowen met while in prison.
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consequent loss of her youth. The film raises question about personal humiliation, lost opportunity, equality and justice. Sumilah was not given fair trial, and has never been compensated for her wrongful detention. What do we have in these stories? In the collection of stories from the children of 1965 victims we have insights into the lives of just a few of the hundreds of thousands of children whose parents were killed or imprisoned during the events of 1965. The stories provide us with a window into a part of our history that was suppressed for decades during the New Order. The documentary film was made by teenagers with no direct connection to the events of 1965. These teenagers had been indoctrinated, like all their peers, in the official version of the events of 1965 through their history textbooks and the official film that is screened on 30 September every year in Indonesia. The involvement of the younger generation in the making of this documentary can be seen as an encouraging development. They compiled the stories about Sumilah, and about the events of 1965 more generally, and produced a film that documented their discoveries. The story is a reminder to future generations not to forget the sufferings and injustice experienced by the 1965 victims and therefore not to repeat the mistake again in the future.
Concluding Remarks This paper has examined the failure of state-sponsored truth and reconciliation initiatives in Indonesia and the consequences of this for the 1965 victims’ quest for truth and reconciliation. It has discussed the recent emergence of personal stories of victims of 1965, as they have proliferated in the public domain as publications and visual media in the post-Soeharto period. We have stated that we regard the victims of the events of 1965 as including those who directly experienced imprisonment, torture, humiliation and on-going discrimination as well as the families of these people. We have also suggested that the 1965 victims’ personal stories are very important because they do not just offer insights into the tragic personal experiences of the victims, but also convey important lessons for the younger generations and future generation of Indonesians. We have also suggested that in spite of the failure to establish a truth commission in Indonesia, an ‘unofficial’ truth telling mechanism is nonetheless developing through initiatives involving collaboration between non-government organizations, researchers, teachers, students and others, with the aim of disseminating the stories of the 1965 victims to the general public at the grassroots level. This is taking place through means such as public forums, research, workshops, publications, the production of documentary films, and cultural performances. In her book titled The Politics of Official Apologies, Melisa Nobles (2008) argues the importance of symbolic politics and mass mobilization in putting
Still Seeking Truth and Reconciliation for the 1965 Victims: Is it possible? 85
pressure on governments to make official apologies for past human rights abuses. This reminds us of the important step taken by former president Abdurrahman Wahid in 2000 when he openly asked for forgiveness for the involvement of the Nahdlatul Ulama (Banser and Ansor) both directly or indirectly in the mass killings that happened in 1965–1966. The spirit of reconciliation and of forgiveness embodied in his statement can still be used to advance the quest for truth and reconciliation for the 1965 victims. Symbolically and politically, Abdurrahman Wahid challenged all of us to do something about the circumstances of the 1965 victims and to acknowledge their place in Indonesia’s history, even though his apology was not welcomed by many of his constituents. While waiting for the government to take up the reconciliation agenda, a task at which it has failed to this point in time, those non-state actors who are committed to the reconciliation agenda should continue to take it into their own hands. We believe that grassroots reconciliation is an important way to advance reconciliation and forgiveness in Indonesia and that this can be done through engaging ordinary people in the many localities involved in the events of 1965.
References Abdullah, S et al 2003, Usaha untuk Tetap Mengenang, Kisah-kisah Anak-anak Korban Peristiwa 65, Insist Press Printing, Yogyakarta. Anderson, B 2008, ‘Exit Suharto, Obituary for a Mediocre Tyrant’, New Left Review, vol. 50, pp. 27–59. Arianto, S 2003, Hak Asasi Manusiadalam Transisi Politik di Indonesia, JurusanHukum Tata Negara, FakultasHukum, Universitas Indonesia, Jakarta. De Brito, A. B., Gonzalez-Enrique, C & Aguilar, P (eds) 2001, The Politics of Memory, Cambridge University Press, Cambridge. Daly, E & Sarkin, J 2007, Reconciliation in Divied Societies, Finding Common Ground, University Pennsylvania Press, Philadelpia. Doak, J 2008, Victims’s Rights, Human Rights and Criminal Justice, Reconceiving the Role of Third Parties, Oxford and Portland, Oregon. Farid, H & Simarmata, D 2004, ‘Demi Kebenaran, Pemetaan Upaya-Upaya Pencarian Keadilandalam Masa Transisi di Indonesia’, Elsamdan International Center for Transitional Justice, Jakarta. Elsam 2006, ‘Ketika Prinsip Kepastian Hukum Menghakimi Konstitusionalitas Penyelesain Pelanggaran HAM Masa Lalu’, Briefing Paper, 2 December 2006. Hayner, P 2001, Unspeakable Truths, Routledge, London & New York. Hesse, C. & Post, R (eds) 1999, Human Rights in Political Transitions Gettyburg to Bosnia, Zone Books, New York. Kasim, I 2008, ‘Rancangan Undang-Undangtentang Komisi Kebenarandan Rekonsiliasi, Sebuah Ringkasandari Naskah Akademik’, Memo, 2008.
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Kingston, J 2006, ‘Balancing Justice and Reconciliation in East Timor’, Critical Asian Studies, vol. 38, no. 3, pp. 271–302. Komnas Perempuan 2007, Kejahatanterhadap Kemanusiaan Berbasis Jender, Mendengarkan. Kritz, NJ (ed) 1995, Transitional Justice, USIP, Washington D.C. McAdams, AJ (ed) 1997, Transitional Justice and the Rule of Law in New Democracies, University of Notre Dame Press, Notre Dame & London. Moser, CON & Clark, FC (eds) 2001, Victims, Perpetrators or Actors? Gender, Armed Conflict and Political Violence, Zed Books, London & New York. Nadia, IF.2007, Suara Perempuan Korban Tragedi ’65, Penerbit Galangpress, Yogyakarta. Nobles, M 2008, The Politics of Officials Apologies, University Press, New York & Cambridge. Rotberg, RI & Thompson, D. (eds) 2000, Truth v. Justice: The Morality of Truth Commissions, Princeton University Press, Princeton & Oxford. Schaffer, K & Sidonie S 2004, Human Rights amd Narrated Lives: The Ethics of Recognition, Palgrave Macmillan, New York. Sasongko, HD Haryo & Melani Budianta (eds) 2003, MenembusTirai Asap, Kesaksian Tahanan Politik 1965, Amanah-Lontar, Jakarta. Setiawan, H 2006, Kidung Para Korban, Dari Tutur Sepuluh Narasumber Eks-Tapol, Penerbit Pustaka Pengajar, Yogyakarta. SuaraPerempuan Korban Peristiwa 1965, KomnasPerempuan, Jakarta. Sulistiyanto, P 2007, ‘Politics of Justice and Reconciliation in Post-Suharto Indonesia’, Journal of Contemporary Asia, vol. 37, no. 1, pp. 73–94. – & Rumekso S 2009, ‘Civil Society and Grassroots Reconciliation in Central Java’, in Reconciling Indonesia, Grassroots Agency for Peace, ed B Brauchler, Routledge, London & New York, pp. 192–212. Wandita, G 2008, ‘Kesempatan Dalam Kesempitan, Beberapa Catatan Awal Untuk Mengusik Impunitas yang Telah Terlembaga di Indonesia’, a paper presented at the Lokakarya Nasional 10 TahunReformasi: Quo Vadis Penegakkandan Pemajuan HAM di Indonesia, Komnas HAM, 8–11 June 2008, Jakarta. Zurbuchen, MS (ed) 2005, Beginning to Remember : The Past in the Indonesian Present, Singapore University Press & University of Washington Press, Singapore.
Bo-Hyug Suh1
Two Koreas’ Efforts of Reconciliation After 1990
Seeking Reconciliation in a Divided System The Korean War led to the establishment of both a Cold War system in East Asia and a divided system on the Korean Peninsula. From the beginning of the war in June 1950 until its end in July 1953, there were an estimated two million causalities, millions injured, and hundreds of thousands orphaned and widowed. In South Korea, the number of people who died and are missing is approximately 852.000 (approximately of them 574.000 are civilians) and those injured number 1.115.000 (approximately 230.000 civilians). Fatalities amounted to almost five percent of the South Korean population at that time. During the Korean War, the damage in North Korea was farmore significant than South Korea - as 1.200.000 losses out of 9.600.000 in total were North Koreans, which was caused by the indiscriminate bombing by the United States. The U.S.-led coalition had 15.583 causalities including 36.991 fallen soldiers and the Chinese military had 900.000 killed. As a result of the war and division of the Korean Peninsula, a significant amount of separated families emerged. In addition to, abductees to North Korea, defectors to North Korea, defectors to South Korea, prisoners of war (POW), North Korean political prisoners, and foreign diaspora. As a result of the war and the division of the Korean Peninsula, significant numberof family separations took place. In addition displacements also included abductees to North Korea, defectors to North Korea, defectors to South Korea, prisoners of war, North Korean political prisoners and aforeign diaspora. For eight years, after the liberation from Japanese colonial rule in 1945 until the cessation of hostilities from the Korean War, the number of separated families was estimated to be from 4.500.000 to 6.000.000. This is as much as 15 to 20 percent of the combined population of 30.000.000 North and South Koreans at that time. There were also 80.000 prisoners of war and their families who were not returned to North Korea and 19.000 prisoners of war who were
1 Prof. Suh works at the Institute for Peace and Unification Studies (IPUS) at Seoul National University, Seoul, Republic of Korea. This work was supported by the National Research Foundation of Korea Grant funded by the Korean Government. (NRF-2010–361-A00017).
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not returned to South Korea who are included in this broadly defined separated family category. Thirty years after the cease-fire of the Korean War, a trial reunion of the separated families was scheduled to take place in September 1985. Over 400 separated families met in private sectors in the 1990s. Over a period of ten years since the inter-Korea summit in June 2000, more than 25.000 separated families had reunions. However, this only amounts to less than 0.5 percent of the total number of separated families. The separated family issue has long been used as a political card in negotiations between North and South Korea. The sad reality is that within 20 years, most survivors of the separated families will be deceased. It has been 70 years since the division, and the Korean Peninsula has yet to break from its ideological and military stalemate. There is a close relationship between mutual understanding and the relief of tension when it comes to reconciliation between the North and South. As a result of the series of highlevel talks that began in the late 1980s, the North and South put into effect on February 19th, 1992, the Agreement on Reconciliation, Non-Aggression, and Exchanges and Cooperation between South and North Korea (Basic Agreement). In the first clause of the basic agreement, it indicates the meaning of reconciliation within the context of a divided peninsula. It states that the North and South are to mutually recognize two systems, prohibit slander, interference in domestic affairs, refrain from actions of destruction toward the other, work towards the stability of peace, and work on international cooperation. In clause § 5 of the agreement2 reference is made to the need to transform an existing armistice into a firm state of peace. Reconciliation on the Korean Peninsula entails placing a halt on the fighting, hating, and killing of own countrymen, practices based on ideological conflict that came from the outside as well as from within. It means reconciliation is a line of one nation and brotherhood. Simply put, reconciliation between the North and South has the characteristics of relief through the reclaiming the homogeneity of an ethnicity and peace. The Korean Peninsula is technically still in a state of war and division. Therefore, the efforts of reconciliation between North and South Korea must be claimed through peace and is very well interrelated with overcoming the division. The next section will look at North and South Korea path toward reconciliation through the instrumentality of the family reunions of those who were separated by the war. In this paper separated families will include families separated by war, persons abducted, and prisoners of war. The facts discussed in this paper are taken directly for public government documents, mainly the Unification White Paper of the Ministry of Unification, the White 2 Clause 5: South and North Korea shall together endeavor to transform the present state of armistice into a firm state of peace between the two sides and shall abide by the present Military Armistice Agreement until such a state of peace is realized.
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Paper on Human Rights in North Korea of the Korea Institute for National Unification (KINU), and the website of the Korea Hana Foundation (former the Foundation for North Korean Escapee). However, the analysis, evaluation, and other subjective views are the opinions of the author.
Reunion of Separated Families, the Abducted, and Prisoners of War Separated Families The simple fact of division itself has infringed the human rights of the Korean people. After the armistice it was not until 30 years later that the first reunion of separated families took place, in 1985. In reality, that is a very long time. Family reunions of separated families that are not affiliated with the government did not start until 1990. Since then, verification as to whether family members were dead or alive, communications by letter, and public family reunions continued. The encounter between separated families requires more attention and effort by the two governments but its prospects have always been subject the political relationship between the North and South. When the basic agreement was signed a midst an environment of dialogue, the road for the resolution of separated families appeared to be set. However, in reality the government level family reunions did not start until the 2000s (Table 1). The reason why the agreement was not implemented immediately was because of the long-standing mistrust between the South and North. When the Kim Dae Jung administration took office in 1998, the formerly hostile relationship with North Korea began to be ameliorated into one of reconciliation and cooperation. In June 2000, the first North and South Korea Leaders Summit were held. The North and South Joint Declaration presented by both leaders’ containsfive articles. Article Three mentions the situation of the separated families. It states that, “The South and North have agreed to promptly resolve humanitarian issues, such as exchange visits by separated family members and relatives on occasions such as August 15 National Liberation Day and the question of unresolved long-term political prisoners3 in South Korea” (South-North Joint Declaration June 15, 2000, p. 1). As a result of the summit the verification of whether family members were still living, letter communication exchange between separated families, and the reunion 3 Unconverted long-term political prisoners refer to the prisoners that have been in prison for a long period of time for their alleged pro-North spying activities. A portion of this group has revealed their intention to go back to North Korea. The repatriation of this group has been included in the agenda of the discussions between North and South Korea. On March 19, 1993, Mr. In–mo Lee was the first long-term prisoner to be repatriated to North Korea. After the June 15th Joint Declaration on September 2. 2000 there were 63 prisoners that were repatriated.
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of separated families began to make progress. At the time of writing (December 31, 2014), there have been 11.519 cases of verification of surviving family members, 12.146 cases of letter exchanges, and 26.106 people have reunited with family members. Some of these reunions have happened through video links. The reality is that most of the survivors of the separated families are rapidly ageing and dying. The South Korean government has verified that in 2014, of the 129.616 applicants 61.352 have died and 68.264 are still living. Over the 11 years from 2004–2014, 41.903 applicants of family reunion scheme have died; that amounts to approximately 3.800 people per year. Currently, over 82 percent of those surviving separated family members are over 70 years old. On the other hand, looking closely into the family reunions of the separated families the fluctuations can be seen. These fluctuations, affecting the family reunions, are very much conditioned by the situation between the two governments. Consequently there are restrictions to the humanitarian program that influenced by the circumstances of the general security on the Korean Peninsula and North and South Korean relations. When looking at
the time period when family reunions were the most active was from 2000 until 2007. Before and after that time it can be seen that the program withered significantly. This disparity coincides with the overall situation between the governments of the North and South. From the South Korean position there are direct correlations to the disparity in South Korea’s policy in relation to North Korea. Of course, the rhetoric of all past administrations has stated that North-South reconciliation and the resolution to the humanitarian problem remains a priority. After the leaders summit held in June 2000, humanitarian cooperation was greatly expanded and various programs for allowing relatives to meet were initiated. Thus from 2000 until 2007, there were 16 separated family reunions and 7 programs using video links to provide reunions between family members. Through this exchange process 48.338 people were verified to be alive and in 679 cases letter exchanges between families were completed. Thereafter, the government supported the attempts to verify whether family members were still living, family reunions, and communication exchanges for the public. On the public level, between the start of the family reunions from 1990 until 2007 there were 3.756 cases of family members verified to be alive or dead, 11.093 cases of communication exchange, and 1.638 cases of family reunions that took place in a third country. With the increase of government level reunions there were instances of public level separated family reunions that have decreased. In 2002 at the 4th Inter-Korean Red Cross Meeting, it was agreed that a separated families meeting place would be built at Mount Geumgang. The facility was started in December 2007 and completed in July of 2008. In October 2007 at the 6nd Inter-Korean Red Cross Meeting, taking the construction of the meeting facility as an opportunity the “continuous
Letter Exchange
221 135 104 96 164 377 481
1993
1994
1995
1996
1997
1998
1999
76
132
35
Cases People
1992
81
People
127
30
Cases
1991
157
People
35
65
Cases
637
469
772
473
571
584
948
462
193
44
Cases
200
109
61
18
17
11
12
19
11
6
18
2
Cases People
Reunion
Non-Government Level
Reunion in the Reunion through Verification of Letter North Video Life Communication
1990
1985
People
Reunion in the South
Year Cases People Cases People Cases
Type Verification of life
Government Level
Table 3: Separated Family Exchange (December 31, 2014 Present)
Two Koreas’ Efforts of Reconciliation After 1990
91
Verification of life
Letter Exchange
1196
2007
2176
2399
9121
8314
191
195
388
594
397
400
598
398
100
886
888
1741
2683
1811
1926
2691
1724
343
674
278
80
199
1872
553
1323
74
69
276
209
388
198
208
447
16
302
1069
2006
6957
8
899
202
2010
962
2005
5007
8
9
100
1720
40
Cases People
35
681
2004
7091
9
623
201
People
302
963
2003
1635
623
39
Cases
2009
261
2002
2670
39
People
50
744
2001
7543
Cases
15
61
228
413
449
843
776
961
935
579
984
Cases
7
23
36
55
54
95
188
283
208
170
152
18
51
97
167
105
261
470
677
616
493
392
Cases People
Reunion
Non-Government Level
Reunion in the Reunion through Verification of Letter North Video Life Communication
2008
792
2000
People
Reunion in the South
Government Level
Year Cases People Cases People Cases
Type
Table 3: (Continued)
92 Bo-Hyug Suh
Verification of life
Letter Exchange
679
679
331
2700
3668
55412
Total
7337
170
2014
2342
16256
813 557
3748
3866
6
9
316
88
18
15
10
5
Cases People
2013
People
6
Cases
2012
People 3
Cases
11467
11
22
16
21
Cases
1750
5
3
3
4
3402
10
5
6
14
Cases People
Reunion
Non-Government Level
Reunion in the Reunion through Verification of Letter North Video Life Communication
2011
People
Reunion in the South
Government Level
Year Cases People Cases People Cases
Type
Table 3: (Continued)
Two Koreas’ Efforts of Reconciliation After 1990
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reunion” was agreed. At the 9th Inter-Korean Red Cross Meeting held in November 2007, it was agreed that the reunion festivities would be regular. After Lee Myungbak administration took office in 2008, the North Korean policy of the government became one of placing pressure on North Korea. The Lee administration worked from the basic assumption that without a resolution to the North Korean nuclear issue there would be no progress on any other issues in regards to North Korea. Thereafter, with the sinking of the naval ship, Cheonanin 2010, sanctions against North Korea resulted in a halt to the efforts of reconciliation.4 From 2008 until May 2015, the atmosphere of reconciliation has diminished and is slowly being replaced with a mood of confrontation. Increasing conflict between the governments of North and South Korea, has led to negative impacts on the activities of exchange between separated families on the public level. During the Kim Dae Jung, Roh Moo Hyun, and Lee Myungbak administrations the cases of families that were able to verify whether their loved ones were dead or live were 3.508 cases, 5.887 cases, 714 cases, letter exchange were 4.275 cases, 3.450 cases, and 341 cases, for family reunions 5.881 cases, 16.280 cases and 1.960 cases respectively. What had beenan active reunion program from 2000 diminished sharply after 2007.We conclude that the sharp decline cannot be dissociated from the increasing tension between the two governments of North and South Korea. Reflecting on the two North-South Korea Leaders Summits held in 2000 and 2007, it can be seen that improvement in relations between the South and North brings mutual cooperation for reconciliation and peace. As an outcome of the October Inter-Korean Summit held in 2007, a peace declaration called the “Declaration for the Progress in North and South relations and Peace Prosperity” was released, mapping out a new framework for the improvement of relations between the two countries. The declaration is an eight-point agreement, reflecting the reconciliation content stated in 1992. Also, specifically in point seven, it expands and regularizes reunions of separated families, adding to the efforts for reconciliation cooperation, such as establishing cooperation to address natural disasters. However, with the “Anything but Roh” mind set of the Lee administration ignoring the North Korean policy established by his predecessors, relations with North Korea became strained and efforts for reconciliation came to a halt. With the success of the conservative party reclaiming the Blue House with the presidential win of Park Geun Hye in late 2012, there was a revitalization of the unification discourse. However, it appears that the Park government has taken a one-sided approach of mistrust. The Kim Dae Jung and Roh Moo Hyun government implemented the engagement policy towards North Korea to resolve in parallel issues of security and humanitarian issues, thereby seeking to improve relations with the North. As a result, North Korea cooperated in finding a resolution to reunite the separated families. North Korea agreed to expand the 4 Of course, in 2009, 2010, and 2013 a one time separated family reunion took place respectively.
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scope of their approach to tackling the issue with separated families. They also agreed to the installation of the meeting facility. But when a more conservative South Korean government took office, they pushed the security and humanitarian issues, and especially the latter, to a less prominent position and adopted a unilateral position on security, thereby bringing retrogressive results to the North-South reconciliation efforts. The separated family reunions became one time events and many of the separated family members have since died.
The Abducted and Prisoners of War Those who were abducted and taken to the North are classified as those who were abducted during the Korean War and after the war. Those abducted during the war are differentiated by the time of investigation and which department conducted the investigation. There were approximately one hundred thousand of people who were abducted and taken to the North during the war. Those who were abducted after the war amounts to 3.835 people and of those 3.319 have been returned. Among the returned, 3.310 were returned by North Korea and the remaining nine escaped. In December 2014 the government of South Korea estimated that there were still approximately 516 abductees in North Korea. Since the ceasefire, there have been endless conflicts on the West Sea between North and South Korea, in part because the ceasefire line5 was demarcated only on land. Many times, fishermen who make their living on the sea have mistakenly trespassed into North Korean waters. In the 1960s, there were incidents where such fishermen were kidnapped by the North and trained as spies. They then became representative victims of the anticommunism law in South Korea. When captured by the South Korean authorities, in the process of investigation, the fishermen and their families were tortured. Due to the scarlet letter it was difficult to go to school and to the workplace. There were incidents where even whole families were dispersed. A five-year investigation by the Truth and Reconciliation Committee (TRC), conducted by the Republic of Korea confirmed that 103 fishermen were kidnapped by North Korea for spying incidents. However, only 10 of those incidents were called for clarifying the truth. Despite the improvement in relations between the North and South after the early 2000s, North Korea has continually denied the existence of prisoners of 5 The Article 11 of An Agreement on Reconciliation, Non-aggression, Exchange and Cooperation between North and South Korea’ adopted in December 31th 1991 is as follows: ‘The boundary line and the zone between North and South Korea are defined as the Military Demarcation Line (MDL) and the zone where both have managed up to now as prescribed on the Agreement on the Military Armistice on July 27 1953’.
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war and those kidnapped. However, through continuous persuasion and the assistance of humanitarian aid by the South Korean government North Korea’s stance started to change. During the 4th Inter-Korean Red Cross meeting held in September 2002, the two sides agreed to discuss and resolve the status and address “those who went missing during war time.” During the 15th Inter-Korean Ministerial Meeting held in June 21–24, 2005, the two sides agreed to “consult humanitarian issues,” including the confirmation of the current status of those who went missing during war time. Thereafter, the North and South on multiple occasions verified these agreements. Along with the agreements, a request was made to confirm the whereabouts of four abducted persons, but nothing came of this request. Only one person, Kyungchan Lee, was able to meet his family, an aunt and a cousin of his uncle who had formed a new family in North Korea. During the 14th Family Reunion meeting in June 2006, eight families of abducted persons requested a meeting. North Korea confirmed the status of one living person, Bong-woo Lee, father of Jungok Yoo, but after two weeks said he was the wrong person, canceling the planned meeting. Thereafter, eight families of abducted persons received notification from the North that they were unable to confirm the status of their family members. During the 15th Family Reunion meeting in May 2007, four families of abducted persons requested confirmation of the status of their family members. North Korea confirmed one had died, but was unable to confirm the status of others. However, the South Korean family of the deceased was able to meet with the family members from the North. In 2010, the interKorean family reunions were resumed. During this meeting, South Korea asked the North Korean authorities to confirm the status of five family members abducted during the War, but North Korea said that they were unable to confirm their status. Subsequently, there has been no progress between South and North on the subject of whether the abducted South Koreans are still alive, and if so, the status of their repatriation. At the 7th Inter-Korean Red Cross talks held in February, 2006, the two sides officially agreed to consult and resolve this issue by including a resolution to confirm the current survival status of “those missing during and after the war” within the framework of family reunion meetings, thus allowing for a discussion of the abduction issue. In accordance with an agreement of the Red Cross Talks, a separated family reunion meeting was held during the Chuseok (Korean Thanks Giving Day) holidays in 2009 (September 26-October 1, 2009) at the Mount Geumgang Resort. On this occasion, South Korea had requested the confirmation of life or death of 12 Korean persons abducted after the War. Two of the abductees came to meet with their South Korean families. Most recently in February 20–25, 2014 five families of abductees participated at the Mount Geumgang family reunion. Towards the end of the Korean War, the United Nations (UN) forces and the Communist soldiers exchanged prisoners of war on three occasions. This took place from April 1953 until January 1954. At that time the UN forces estimated
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the missing South Korean soldiers to be 82.000; however prisoners of war returned by the North Korean forces were only 8.343. According to the Ministry of Defense of the Republic of Korea, with the agreement of the reunion of separated families in February 2013, it was verified that 20 prisoners of war were still alive. Through the separated families reunions until 2014 forty one prisoners of war were verified alive, and 17 of them were reunited with their families. From the return of Cho Chang Ho in 1994 until 2014 including those that defected to a third country, there were 80 prisoners of war that returned to Korea. Of those 80 there are approximately 430 family members. The Ministry of Defense currently estimates that there are about 500 prisoners of war in North Korea today. After the Inter-Korean summit meeting in June 2000, the Inter-Korean Red Cross Talks and Inter-Korean Ministerial meetings were held. At these meetings, the two sides agreed to consult and resolve the POW situation, together with the separated family issue. From the second to the eighteenth Red Cross reunion meetings of separated families, a total of 126 requests were made in regards to the POW status confirmation. North Korea confirmed 19 alive, 14 deceased, but was unable to confirm status of 93 POWs. During the 2th (Nov.30-Dec.2, 2000) and 18th (Oct.30-Nov.5, 2010) family reunion between North and South Koreans by the North-South Korea Red Cross, Seventeen former POWs were able to meet with their South Korean families. During the 2009 reunion of separated families on Chuseok, the status of 10 former POWs was confirmed, but only one, who was identified, was able to meet with his South Korean family. On a similar occasion in 2010, South Korea again requested information about status of the 10 former POWs, and North Korea responded by confirming that one had died.
Policies for Reconciliation Limitations to measures between the South and North When the 1992 Basic Agreement came into effect the North and South each adopted an appendix agreement to implement the three tasks of reconciliation, non-agression, and the exchange of cooperation. Therefore on September 17, 1992, the Appendix Agreement for the Observance and Implementation of North-South Reconciliation was adopted. In that agreement in Article 25 it stated that “in order to implement the agreement on North-South reconciliation, a Joint North-South Reconciliation Committee shall be established.” However the subsequent nuclear crisis meant that the committee was not created. Therefore a managing body for North-South reconciliation was never established. In order to help facilitate a resolution for the separated families and to
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address other humanitarian issues there were two Leaders summits, twenty Inter-Korean Ministerial Meetings, and ten Inter-Korean Red Cross meetings. The Roh Moohyun administration specifically made efforts to institutionalize progress with inter-Korean relations and took a long term approach to achieving reconciliation. When looking at article seven of the eight decided at the October 4th Inter-Korean Summit in 2007, the two Koreas agreed to achieve reconciliation through the expansion of reuniting separated familties, implement video message exchange project, construction of a meeting place at Mount Geumgang. The ground breaking meeting of the separated families was first taking place in the Mount Geumgang facility in August of 2005. Between 2005 till July 2008 a maximum of 1.000 people were able to have a reunion. (Table 2) Unfortunately, and indeed ironically, after the completion of the meeting place North-South Korea relations became strained and the facility was only intermittently used. Table 4: Mount Geumgang Separated Families Meeting Facility Item
Content
Location
Onjung-ri Jopo Maeul Station, Gosung-gun, Gangwon-do (Within special tourist area)
Organization – 12th Floor Meeting Facility, 3rd Floor Offices, Power Plan – Meeting Facility : Total 206 Rooms – Meeting Facility Offices: 3 Floors above ground, 2 Buildings
A resolution on the humanitarian issue would be a powerful token of reconciliation between the North and South. After a series of dialogue between the North and South from 2006–2007, it was agreed that the problem would be resolved within the framework of the separated families program, and that no effort would be spared in as certaining whether prisoners of war and the abductees were still alive. However, because of the unpredictable relationship beween North and South Korea there are still many families that have yet to be united. Some consideration has been given to the former East Germany’s method of “Freikauf”, which is cash support and support of commodities, and is believed to be far more persuasive in the active implementation of the separated families program. This method was considered during the Roh Moohyun administration and was often suggested thereafter. At the 9th InterKorean Red Cross Meeting in November 2007, the South Korean government made this suggestion but did not receive a positive response from the North.
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When the Lee Myungbak government took office a totally new approach was attempted in order to resolve the prisoner of war and abduction issues. South Korea is pro-active and North Korea is passive in regard to the separated families program and so it is vital that the South works to lead North Korea to change its position in order to take further steps along the path of reconcilation. The reason why reconciliation between the North and the South has not been achieved is not due to a lack of instituationalized measures. The structural reason why reconciliation is not being achieved is due to the problem of security and the attendant political issues, which have had adeleterious influence upon the relationship. Each government operates from a high level of mistrust of the other and each tends to use reconciliation as a tool for its own political gain. North Korea has demonstrated that its priorities and interest is inmilitary politics. South Korea has encouraged dialogue to resolve the humanitarian issues; however it lacks a robust strategy to bring about positive cooperation from North Korea. Although both the South and North Korean governments state that reconciliation and the resolution of the humanitarian issue is their priority ; it nevertheless remains truth that neither is immune from the criticism that they both are prioritizing political interests by sacrificing the path to reconciliation.
Institutionalization of Domestic Measures Despite the fact that the instituational measures for reconciliation between the North and South have proven to be rather ineffectual, the institutionalization within South Korea itself is fairly robust. For example, the government has provided financial support up to $2.000 USD to verify whether a family member is still alive. It has provided $5.000 USD toward the family reunions, and $500 USD for the communication exchanges. However, the increasing age of those involved as well as the increasing numbers who have died is being followed by the increrasing urgency of family reunion. In 2012 a video production project was commenced, together with an archive. In addition, the government commenced from 2014 a program to verify the relation of a family member even after the death of a separated family member through the implementation of a DNA. On March 26, 2010, South Korea enacted the “Act on Discovering the Truth of Abduction during the Korean War and Restoring Honor of Victims.” On December 13, 2010, the Committee on the Act on Discovering the Truth of Abduction during the Korean War and Restoring Honor of Victims was officially launched. In December 31, 2014, a total of 3.635 individuals have been identified as having been abducted by North Korea during the war.
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On April 27, 2007, the Post-War Abduction Victims Assistance Act6 was enacted. This was followed by the Post-War Abduction Victims Assistance Enforcement Decree, which was passed in the cabinet council on October 16, 2007 and was enacted into law in 2013 by the president on October 23rd. The act provides for the case for an abductee outside the bounds of North Korea, and who is to be returned to South Korea, who may be given a portion of their resettlement funds. Accordingly, when an abductee returns home, he/she will receive a government grant for re-settlement, and his or her family is also entitled to assistance and compensation from the government. In accordance with Article 6 of the Act, the Committee on the Compensation and Assistant for Victims Abducted to North Korea was formed on November 30, 2007 to review and determine the amount of the grant and the scope of assistance and compensation. According to the decision of the committee, from December 2014 until the present April 2015 a total of approximately 13 million dollars in compensation was granted to 416 people who are family to the victims of abduction. The returned abductees themselves have received approximately 18 million dollars in compensation. The South Korean government has set standards and detailed rules about the treatment and assistance for the former POWs who have returned, and on January 29, 1999, enacted the “The Act on the Treatment of the Republic of Korea Armed Forces Prisoners of War”. The government also enacted the “The Act on the Repatriation, Treatment of the Republic of Korea Armed Forces Prisoners of War” on March 24, 2006 in an effort to help resettle and assist returned POWs and their families. The Act and the Enforcement Degree of this Act provides that all returned POWs receive back pay, pensions, resettlement grants and housing assistance, based on their days served from the date they were taken prisoner, until the day they retired from active duty after returning to South Korea. The spouse or children of POWs who died in North Korea, where they had been detained may receive special grants in addition to the normal settlement assistance for North Korean escapees which they receive upon their entry into South Korea. The Ministry of Defense has revised the Act on the Repatriation, Treatment of the Republic of Korea Armed Forces Prisoners of War on December 31, 2008 and inserted a new section allowing for the “social adjustment education” of the returning POWs (Article 6–2). Since late 2008, the Ministry of Defense has conducted special reorientation programs for the returned POWs so they can adjust to their life in South Korea. They also receive professional education and psychiatric assistance offered by civilian organizations in order to gain the necessary skills and knowledge for a new life in South Korea. The Act was again revised on March 22, 2013 and upgraded to provide assistance and 6 Official title: the Act on the Compensation and Assistance for Victims Abducted to North Korea since the Conclusion of the Armistice Agreement (hereinafter referred to as the Post-War Abduction Victims Act).
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support for POWs and their families. It provides protection of personal security for the POWs and their families (Article 5–2), and also assistance in job-searches for the POW families, (Article 15–2), as well as free admission to old palaces (Article 15–3). The government has legislated so as to compensate the former POWs in the form of pensions and residential assistance will be provided through subsidized housing to guarantee the stable resettlement of prisoners of war whohave returned to South Korea.
Evaluation and Tasks As a result of war and division the Korean people have lived in conflict and tension for more than half a century. Reconciliation between the North and South was facilitated through a series of dialogues that started from the end of the Cold War. At that time a basic agreement was established as a first step toward reconciliation between North and South Korea. This involved a commitment to non-agression, and exchange cooperation. Thereafter, three appendix agreements were adopted but dialogue then faltered due to the North Korean nuclear crisis. The main reason for the fluctuation in the efforts in achieving reconciliation was the influence security issues had on Inter-Korean relations. Actual reconciliation between the North and South started in 2000 after the first Inter-Korean Summit and continued for 10 years thereafter. Taking the governmental level dialogues as a basis, reunions of separated families were actively implemented and the scope of the project was expanded to include abductees and POWs. The scale and method was also expanded. Following the Inter-Korean dialogue, South Korea initiated an engagement policy towards North Korea allowing for humanitarian aid. As a result, the denuclearization process of the Korean Peninsula and other security concerns could be dealt with through a different channel, allowing the possibility of considering the humanitarian issue and the security problems as separate, rather than as one issue. However after the Lee Myungbak administration strategy of linking security concerns with reconciliation issues, the North and South relationship polarized, thus retarding the efforts toward reconciliation. The nuclear armament by North Korea, the reactionary response in South Korea’s policy toward North Korea, and the sanctions against North Korea as a result of the Cheonan incident can be seen as some of the reasons why reconciliation between the two Koreas has faltered. It is necessary to improve the relationship through the efforts of reconciliation and political strategies that may better facilitate it. Reconciliation issues in the context of the Korean peninsula must reckon with the strong emotional responses from both sides as well as the mistrust between South and North Korea. Consequently it has been difficult to take a practical approach to reconciliation. For example, the efforts of exchange
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programs to resolve the humanitarian issues and the recovery of the homogenous ethnic group was at the brink of compromise and collapse because of the mutual slander from both governments and the resultant military tensions. The claim that both the North Korea and South Korea prioritized humanitarian resolution was easily jettisoned. The meeting facility built in Mount Geumgang for the continuous reunions of separated families was barely used after the construction was finished. Although with interKorean reconciliation it involves the residents of Koreas, its governments, and the international humanitarian organizations but the most influence is from the governments of the respective countries. When both countries reinstate dialogue, reconciliation must be a primary task and consideration. The extending of humanitarian aid should work in tandem in with cooperation between the two Koreas. Security issues should be kept separate from this and addressed and implemented independently. Only in this way may agreement be reached between North and South Korea as they journey along the path toward reconciliation.
References Korea Hana Foundation. Available from: . [1 June 2015]. Ministry of National Defense. 2014 Defense White Paper. Korean Version. Seoul. Ministry of Unification 2015, ‘Unification White Paper’, Korean Version. Seoul. The Korea Institute for National Unification. ‘White Paper on Human Rights in North Korea 2014’, Korean Version, Seoul. South-North Joint Declaration June 15, 2000, Peace Agreements Digital Collection, USIP. Available from: [1 August 2015].
Ann-Sophie Schoepfel
Dynamics of Justice in Indochina (1944–1946): France’s Commitment to the Rule of Law and the Punishment of Japanese War Crimes1
Introduction “France means to recover its sovereignty over Indochina” affirmed General de Gaulle at a press conference in Washington on news of Japan’s surrender in mid-August 1945 (De Gaulle 1970). Since March 9, 1945, Japanese dismantled the French colonial administration in Indochina created since the end of the 19th century. From March to August 1945, Japan encouraged Vietnam, Laos and Cambodia to declare their independence. Japanese soldiers terrorized the French population and isolated it in Indochina. From 1946 to 1950, France held domestic trials to judge Japanese war criminals at the French Permanent Military Tribunal in Saigon under the Allied Control power (Namba 2013; Trefalt 2014; Schoepfel-Aboukrat 2014). As an ally, France was admitted at the International Military Tribunal for the Far East in Tokyo to prosecute major Japanese war criminals (Esmein 1998; Beigbeder 2006). Investigation and trials helped strengthen the French rule of law in Southeast Asia. And it sent a strong signal that such crimes against France would not be tolerated in the new postwar ‘right respecting society’. However, France had to face the Indochinese struggle for decolonization. Moreover, its legal system was in disarray. In this context, could the ideal of the rule of law be called in this postwar society to ensure that the law itself could govern? Was the new government “settled and standing by Laws” and not by “Absolute Arbitrary Power” (Locke 1764)? While the Indochinese history during World War II (Namba 2012; Verney 2013; Jennings 2004) and the First Indochina War (Marr 1995; Turpin 2005) had been the object of scores of serious accounts, this is the first study about the French to end the culture of impunity in Indochina and to re-establish the French rule of law through the prosecution of war criminals. The chapter is very important for the comprehension of the emergence of ‘transitional justice’ after World War II, as it highlights the mechanisms of justice projected in a decolonization context (Kritz 1995; Hinton 2010). The chapter presents first the violence committed in Indochina since 1940. Second, it analyzes the 1 This paper presents the preliminary research results of a Ph.D. project on the prosecution of Japanese war crimes at the Saigon Military Court, conducted under the supervision of Professor Madeleine Herren and Dr. Kerstin von Lingen.
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impossibility of finding a way of agreement on the atrocities of World War II and a future project for Indochina. Finally, the paper shows the commitment to the rule of law in the prosecution of Japanese war criminals.
Violence Background: Indochina (1940–1945) French Indochina during World War II represented a unique chapter in colonial history (Jennings 2004). No sooner had France signed an armistice with Germany on June 22, 1940; than the French government was faced with an identical question more than eight thousand miles away with Japan. Indochina’s French rulers were threatened in their position of power. While allowing for the stationing and passage of Japanese troops, France kept its sovereignty over Indochina. Admiral Jean Decoux, Governor-General of French Indochina from July 1940 to March 1945, represented the collaborationist Vichy government in France as a satellite of the Axis (Huguier 2007), whereas the other parts of the French colonial empire served as Free France bases since the mid-1943 from which forces under General De Gaulle fought to liberate France (Jennings 2004). But, the situation that Admiral Decoux had to struggle with in Indochina was very different than the European theatre (Grandjean 2004; Namba 2013). France had to face the influence of Pan-Asianism, an ideology promoting the unity of Asian peoples against European imperialism.2 Japanese Asian discourse was popular in Indochina. It developed from debates on solidarity with Asian nations under pressure from the European colonies. Before and during World War II, Japan used this propaganda against the West to invade Manchuria in 1931 and China in 1937. In accordance with the spirit of racial equality, Japan prohibited in 1938 the expulsion of the Jews in Japan, Manchuria and China (Kerszencwejg & Itzkowitz 1996). Japan signed the Tripartite Pact with Germany and Italy on September 27, 1940 to “establish and maintain a new order of things” (Asada 2013). Because of the Japanese invasion of China and the Japanese occupation of French Indochina in 1940, the United States placed embargoes on Japan. Japan wanted to secure new sources of raw materials in Southeast Asia, in British Malaya and the Dutch East Indies (Indonesia). On December 7/8, 1941, Japan 2 This ideology was the main element of the Japanese Empire that existed since the Meiji Restoration on January 3, 1868 to justify Japanese invasions. Japan had a strong influence in Asia since its victory in the Russo-Japanese War from 1904 to 1905, a conflict for control of Korea and parts of Manchuria between the Russian Empire and the Japanese Empire. The Japanese victory was significant: it was indeed the first war in which an Asian country defeated a European power.
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invaded Thailand as part of the preparation for the invasion of British Malaya and attacked Pearl Harbor in the United States’ Territory of Hawaii (Gruhl 2010). By 1943, after the fall of the Dutch East Indies, the Philippines, British Burma, Shanghai, Singapore and Hong Kong, the last remaining and functioning colony on the continent east of India was Indochina. When the United States, Great Britain and the Soviet Union recognized De Gaulle’s new government in Paris on October 23, 1944, the Japanese Foreign Ministry presented a pessimistic assessment of the political situation in French Indochina and of the colonial government’s further collaboration with Japan (Haisen no Kiroku 1979). Japan feared that the demise of the Vichy government in France would mean the end of Decoux’s collaboration with the Japanese military in Indochina. The Japanese Foreign Ministry urged the use of force against Indochina to end French rule in accordance with the spirit of the Greater East Asia Declaration (Kratoska 2001). The Japanese coup d’¦tat on March 9, 1945 and its consequences (March – August 1945) On March 9, 1945, the Japanese gave an ultimatum to the French troops to disarm. At that time, the French garrison of Indochina was composed of 65 000 men. 48 500 were locally recruited under French officers (Rives & Deroo 1999); others were regular soldiers of the Colonial Army or of the French Foreign Legion. Those who refused to disarm were killed. In Saigon, Japanese officers invited French on March 9, 1945 to a banquet. After refusing to sign surrender documents, Japanese soldiers executed by decapitation General Emile Ren¦ Lemonnier and Resident Camille d’Auphalle (Shiraishi & Furuta 1992). Indochina was placed under Japanese supervision until there could be established a brief period when there was full Japanese control between March and August 1945. After having dismantled the French administration, Japan encouraged the declaration of independence. Bao Dai accepted to collaborate with Japan and became King of Vietnam (Shiraishi & Furuta 1992). Norodom Sihanouk officially became King of Cambodia; but since the Japanese perceived him as a Francophile, they ordered the nationalist leader Son Ngoc Thanh, as Prime Minister in Cambodia, to rule this country. In Laos, King Sisavang Ving refused to declare independence. In France, the French Far East Expeditionary Corps (Corps Exp¦ditionnaire FranÅais en ExtrÞme-Orient, CEFEO) was established in 1945 to fight against Japan. On June 7, 1945, General Jacques-Philippe Leclerc, also known as Philippe de Hautecloque, was nominated commander of the CEFEO. To fight against the Japanese, the French got support from Britain, but not from China and the US, because they were against the French colonial presence. Abandoned Far Indochina, the French population became the victims of
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Japanese soldiers from March to August 1945. The testimony of A. Gaudel (1947) about the Japanese crimes against the French population is here very interesting: “Hunger, thirst, vermin, brutalities, fever, dysentery, typhus, beriberi, the ignorance of all international law, that was the sad sharing of the military and civil prisoners. It is also important to describe the existence of the ‘camps of slow death’, those of Hoabinh, one of the most unhealthy regions in Tonkin, where 2 800 men were forced to live in the swamp, working sometimes with water up to their armpits, under a scorching sky and heavy tropical rains, covered with scabs, struggling with fever, forced to sleep in the stinking mud […] But that’s not all. There were also showdowns with those who joined the jungle, lived there hunted down as if they were animals and died, one day, alone in a quarry or on the roadsides […] There were civilians, women, children and old people […] who, insulted, lashed, brutally struck, lost everything they had, and tossed into trucks, were concentrated in small houses of certain city districts […] There were massacres, as those of Thakheh where, even after the armistice of August 15th, a large part of the civilian population were exterminated […] But the sad subject is not finished. It would be necessary to speak also about the tortures of the men and women placed in a cage, in Saigon, Phnom Penh, Hue or Hanoi, because they resisted the Japanese […] Forced to live squatted, crammed together, deprived of air, required to sit silent and still, and battered at the slightest movement.”
Another effect of the Japanese coup d’¦tat was the aggravation of the Vietnamese Famine that occurred in northern Vietnam from October 1944 to May 1945. During World War II, Vietnam had been forced into a wartime economy. The Allies had made frequent air strikes against roads and transportation facilities making transportation difficult. Between 400 000 and 2 000 000 people starved during this period (Namba 2012). Revolutions and Wars (August 1945 – December 1946) The Vietnamese Famine played a part in the coming war between France and the Vietminh, a communist common front led by Ho Chi Minh fighting for the independence of Vietnam. In March 1945, the Vietminh urged the population to refuse to pay their taxes. The revolt against the effects of the famine bolstered the Vietminh’s popularity (Rummel 1997). From March to August 1945, the situation became aggravated. In Northern Vietnam, Ho Chi Minh started guerilla warfare against the Japanese. When the Japanese surrendered, Japan officially handed control to Bao Dai in the North and to the United Party in the South. But on August 19, 1945, the Vietminh took power and the August revolution started. They forced Bao Dai
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to abdicate. On September 2, 1945, Ho Chi Minh declared the foundation of the new Democratic Republic of Vietnam as a reaction against the Japanese and French colonial power : “In the autumn of 1940, when the Japanese fascists, in order to fight the Allies, invaded Indochina and set up new bases of war, the French imperialists surrendered on bended knees and handed over our country to the invaders. Subsequently, under the joint French and Japanese yoke, our people were literally bled white. The consequences were dire in the extreme. From Qua ¨ ng-Tri. up to the North, two million of our countrymen died from starvation during the first months of this year… After the Japanese surrender, our people, as a whole, rose up and proclaimed their sovereignty and founded the Democratic Republic of Vietnam.” (Declaration of Independence, 1945)
The Allies did not support the Vietminh’s proclamation of independence. Indeed at the Potsdam conference, they had decided to divide Indochina in two at the 16th parallel (Schoepfel-Aboukrat 2014). Chiang Kai Shek received the Japanese surrender in the North, Louis Mountbatten in the South. They finally agreed that France could own French Indochina. But Indochina was in disarray. As a result of a vacuum of power, anarchy, rioting and murders and the collapse of the French administration, a new war started in 1945 in Saigon during the British occupation. To reassert control in Indochina, the British-Indian force, the Japanese prisoners and the French troops had to fight together against the Vietminh who launched attacks against key infra-structure, such as power plants, docks, air-fields, etc. In late 1945, the Vietminh began negotiations with the French. In early 1946, the French army of General de Gaulle returned to northern Vietnam. But relations between France and the Vietminh broke down. Between May and December 1946, Ho Chi Minh spent four months attempting to negotiate full independence and unity for Vietnam. After clashes with Vietnam, French forces bombarded Haiphong. On December 19, 1946, 30 000 Viet Minh soldiers initiated the National Resistance War. The First Indochina War of 1946–1954 had begun. The independence movement in Indochina became very strong in 1945 as a consequence of the Japanese and French colonial competition to maintain their sovereignty over Indochina. This triangular game between the French, the Indochinese and the Japanese led to violent conflicts.
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Identities in transition Visualizing War and Collaboration After the Japanese surrender, France had to demonstrate that she could protect Indochina. To do so, she had to highlight the change between the previous government of Decoux who failed to protect Indochina’ and the new French authority over Indochina. From July 1940 to March 1945, Jean Decoux, the Governor-General of French Indochina, swore allegiance to Petain’s regime. He led in Indochina the National Revolution.3 He sought to portray Petain as Confucius, as the best of the Western and Eastern canons (Jennings 2004). Decoux redefined France’s role in Indochina: France became the indispensable cement for the Indochinese edifice. An Indochinese Federal Council strengthened the relations between the Indochinese elite and the French authorities. Decoux wanted to demonstrate the genuineness of French Colonial politics against Roosevelt’s anticolonial politics. After the Japanese surrender, the highest levels of the Decoux government were investigated and tried. They were perceived in France as traitors and collaborators. They were tried according the ordinance issued in Algiers in August 1943, setting the basis for the judicial purge (Ordonnance du Comit¦ franÅais de Lib¦ration nationale, 1943). This procedure shocked the French population in Indochina. Some of them considered that Decoux had kept Indochina under control during the four years of Japanese occupation (Turpin 2005).
Confrontation of the conceptualization of different actors for the future of Indochina In 1945, France refused to concede the existence of a Vietnamese identity to realize its new colonial project. And across the French political spectrum, there was an agreement that French sovereignty over Indochina had to be reasserted, if necessary by force (Marr 1995). In January 1944, Free French politicians and high-ranking colonial officials met in Brazzaville to recommend political, social and economic reforms in the French Empire. The Brazzaville Conference was the primary motivator for the new French historical project in Indochina: 3 The National Revolution was the official ideological name of Petain’s program established in July 1940. This program was characterized by its anti-parliamentarism and rejection of the constitutional separation of powers, personality cult, promotion of traditional values and rejection of modernity.
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“We formally renounced any vestige of the colonial pact…We want to make a country, a French-made Asian state, which made prosperous by us, must feel at ease in a world where sovereignties will be reduced.” (MAE AI 45, French colonial commissioner, 1944)
Only a fortnight after the Japanese coup, the March 25, 1945 Declaration of the provisional government of Charles de Gaulle announced to the world its intention to restore the French colonial system in Indochina: “The Indochinese Federation will comprise, together with France and the other sections of the community, a French Union whose foreign interests will be represented by France. Indochina will have a federal government of its own, presided over by a governor-general who will be chosen from either the natives or the French national resident in Indochina.” (Isoart 1982)
This declaration contained all the germs of the future disagreements between the French and the different Vietnamese parties. Many Vietnamese did not believe any more in the credibility of the guarantees offered by the French. The mistrust among ordinary Vietnamese as well as the political elites was very important. As an answer to General de Gaulle, Bao Dai, sent him a special message: “I am addressing the people of France, the country of my youth. I am addressing also her leader and liberator, and I wish to speak as a friend rather than as a chief of state… I beg you to understand that the only way to safeguard French interests and France’s spiritual influence in Indochina is to recognize frankly the independence of Vietnam, and to give up any idea of re-establishing French sovereignty or a French administration under any form whatsoever. We could so easily reach an agreement and become friends, if you would cease to claim to become our masters again.” (Bao Dai 1980)
On August 11, 1945, the Vietminh sent a message to France in order to find a compromise: “We, the V.M.I., request the following points be made public by the French and incorporated in the future policy of French Indochina: – That there be universal suffrage to elect a parliament for the governing of this country ; – That the natural resources of the country be returned to the present owners, that France be granted economic concessions; – That all freedoms outlined by the United Nations will be granted to the Indochinese; […] – That the sale of opium be prohibited.” (CHSP, 1 SA dr 4)
The mistrust between the Free French and the Vietnamese led General de Gaulle to ignore these messages and to appoint Admiral Georges Thierry d’Argenlieu as High Commissioner for Indochina to restore French sovereignty over Indochina. Restoring French sovereignty over Indochina was not an easy task. Commissioners of the Republic were parachuted in Indochina in
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late August 1945. Pierre Messmer, a French commissioner, was captured by the Vietminh forty-five kilometers of Hanoi.4 Commissioner Jean C¦dile, after hitting the ground, found himself surrounded by Vietnamese farmers (Marr 1995). Their inauspicious arrival was not a harbinger of a successful mission. On September 2, 1945, the foundation of the new Democratic Republic of Vietnam aggravated the gap between the decolonization movement and France: “The Declaration of Human and Civil Rights proclaimed by the French Revolution in 1791 likewise propounds: ‘Every man is born equal and enjoys free and equal rights.’ These are undeniable truths. Yet, during and throughout the last eighty years, the French imperialists, abusing the principles of ‘freedom, equality and fraternity,’ have violated the integrity of our ancestral land and oppressed our countrymen. Their deeds run counter to the ideals of humanity and justice. […] For these reasons, we, the members of the Provisional Government of the Democratic Republic of Vietnam, solemnly declare to the world: “Vietnam has the right to be free and independent and, in fact, has become free and independent. The people of Vietnam decide to mobilize all their spiritual and material forces and to sacrifice their lives and property in order to safeguard their right of Liberty and Independence.” (Declaration of Independence 1945)
The failure of efforts at dialogue Only one French official, Jean Sainteny, head of the Gaullist intelligence mission in southern China took Ho Chi Minh and the Vietminh seriously (Sainteny 1967). Sainteny spent most of September 1945 in Hanoi, collecting information and trying to attend to the needs of French civilians. His assistant, Lieutenant FranÅois Missoffe, talked at length with Ho Chi Minh and declared that negotiations were possible. However de Gaulle first instructed Admiral d’Argenlieu not to make any promises to the Viet Minh, and above all not to “deal with our subjects” via a third party, whether British, Chinese or American (Devillers 1988). As the British forces arrived in Saigon in mid-September, General Douglas Gracey, the British commander, evicted the Vietnamese Southern Provisional Committee from the former Governor General’s palace (Devillers 1988). Gracey refused to meet the Vietnamese and proclaimed martial law. Besides armed confrontations, daily life was being made difficult for the British and French because of a Vietnamese general strike, food blockade, torching of 4 Messmer became Secretary General of the Comit¦ interminist¦riel de l’Indochine in late 1946, and Prime Minister of France (1972–74).
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warehouses and disruption of water and electricity supplies. The Southern Administrative Committee declared: “We are compelled to fight against the French return […] The French Imperialists are our enemies because they use force to violate Vietnam’s sovereignty.” (Nguyen Ky Nam 1964)
Admiral Lord Louis Mountbatten, head of South East Asia command, instructed General Gracey to contact the Vietnamese for urgent talks with the French (Neville 2007). But the Franco-Vietnamese talks of early October 1945 in Saigon never had much of a chance. Commissioner C¦dile had no authority to deviate from the 24 March Declaration until the arrival of High Commissioner d’Argenlieu on October 31. In Saigon, Admiral d’Argenlieu tried to give substance to the Indochina Federation specified in the 24 March 1945 Declaration. On November 1, 1945, he announced the establishment of Federal Government Council, with himself as President and General Leclerc as Vice-President. However, d’Argenlieu’s main practical achievement came in Cambodia. Chinese troops allowed Vietnamese and Laos’s anti-colonialists to organize north of the sixteenth parallel (Goscha 2004). In 1946, the French government sent Jean Sainteny to Vietnam in order to negotiate with Ho Chi Minh. They reached an agreement that would have kept Vietnam in the French Union. “The French government recognizes the Republic of Vietnam as a free state, having its own government, parliament, army and treasury, belonging to the Indo-Chinese Federation and to the French Union…The government of Vietnam declares itself ready to accept amicably the French army.” (Sainteny 1967)
A few days later, in Hanoi, the local population could read on displays the declaration of General Leclerc and Ho Chi Minh: “To the French, Chinese and Vietnamese Population […], The French Army comes back: – With the agreements of the United Nations; in the executions of conventions concluded between the French and Chinese Government […]; in Complete Agreement with the Government of the Vietnamese Republic. Chinese Residents […], French and Vietnamese, She is offering you the friendship of the New France.” (CHSP, 1 SA 4 dr2)
However, in the summer of 1946, representatives of France and the Vietminh met again in France, in Fontainebleau, to affiliate Vietnam under the French Union. Efforts at dialogue failed; the Vietnamese government wrote a draft constitution; and the French established the French Union of October 27, 1946 (Fourth Republic), the concretization of De Gaulle’s project (Tonnesson 2010). The French Union was a political entity established by the French Fourth Republic to change the old French colonial system, the French Empire and to abolish its “indigenous” status. According the historian Edward Miller, the
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Union was “supposed to transform old ties between the metropole and its colonies into a new and mutually beneficial ‘association’” (Miller 2013). After World War II, French colonial officials wished to reassert the French sovereignty over Indochina as part of a new republican union between Paris and Vietnam, Cambodia and Laos. However, most nationalists viewed this new association with suspicion. Despite efforts on the part of France and nationalists to engage in a constructive dialogue, France was not ready to permit Indochina to get the same status that India and Pakistan had gained within the British Commonwealth. This dialogue between France and nationalists brought to light French imperialism. Mistrust and disagreements between the Indochinese population and the French new government caused the outbreak of the Indochina war in December 1946.
Commitment to the rule of law Allied War Crimes Trials Policy in Southeast Asia The French pursuit of justice in Southeast Asia was entangled in the decolonization process. Indeed, its legitimacy as a victorious nation and as a colonial power was discussed first byte independence movements, as mentioned above (Marr 1995). Second, the anticolonial politics of US President Roosevelt during World War II retained significant influence throughout the United States and Asia. After World War II, the Allies were seeking to exact justice. Because of the high number of war crimes, massacres and atrocities committed, they had to imagine a new law system for criminals. Leaders of the German Third Reich and Japanese Empires were punished in international tribunals for crimes against peace and humanity ; this is called level A war crimes (Futamura 2007, Maga 2001, Totani 2009). War criminals were punished in national tribunals organized by the United Nations War Crimes Commission. Conventional war crimes are designated as level BC war crimes. In Southeast Asia, the BC trials judged more than 5700 Japanese criminals under the Allied Control power (Kushner 2013). The number of French cases (230) judged is very small compared to China (883), the United States (1453), the Netherlands (1038) and Great-Britain (978) (Hiroshi 1998). However, the Free French were very active in the Allied war crimes trial policy (Kochavi 1998). On June 12, 1941, General de Gaulle had met representatives of the United Kingdom, Canada, Australia, New Zealand, the Union of South Africa, and of the exiled governments of Belgium, Czechoslovakia, Greece, Luxembourg, Netherlands, Norway, Poland, and Yugoslavia to sign the Declaration of St James’ Palace, the first treaty to establish the United Nations and compose the Charter of the United Nations.
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France was also a member of the United Nations War Crimes Commission (UNWCC) for the Investigation of War Crimes established in London in 1942 to investigate allegations of war crimes committed by Nazi Germany and its allies in World War II (Kochavi 1998). In Asia, Chiang Kai Shek’s government had started to investigate Japanese war crimes in China in 1941. In 1944, his government set up with the UNWCC’s new Far Eastern and Pacific Commission a special sub commission in Chungking to gather further evidence (Crowe 2014). At the Far Eastern Sub Commission, from November 29, 1944 to April 4, 1947, France was represented by six different jurists: Achille Clarac, Jean Daridan, M. de Montousse, Jean Brethes, Eric Pelin, Michel Bertin (Far Eastern and Pacific Sub-Commission, 1944–1947). This regular change of the French staff sitting at the commission could not provide a meaningful participation as at the UNWCC commission in London. On June 20, 1945, the French delegation of the United Nations War Crimes Commission met in London with the Americans led by Supreme Court Justice Robert H. Jackson, together with the British and the Russians, to discuss the process of the International Military Tribunal. The aim at this conference was to “negotiate an agreement quickly and to prepare the documentary materials necessary for a trial” in order to judge German war criminals (Kochavi 1998). The French were very concerned with the legal foundations of the International Military Tribunal. They had a problem with the Americans and the British concerning accusations that were ex post facto or acts committed before they were adjudged to have been criminal acts. One such law was in count two of the charges, the crimes of waging “Aggressive War”, which argued the Axis aim of world domination and genocide as the purpose for waging war. Only after much debate this was placed into the charter. The other major problem area for the French was the concept of crime against peace of the American and British dicta. The French considered it a “legal anachronism unworthy of modern law” and “too vague” leading to confusion (Smith 1978). After much negotiation, conspiracy was placed in the charter without much prominence. The international delegation finally came together with the common goal of judging the war criminals and establishing international law “in the interests of all the United Nations” (Kudriavtes 1990). On August 8, 1945, the London Agreement was signed creating the International Military Tribunal to judge major German War Criminals. The accused at the International Military Tribunal were charged with three criminal counts. These counts ranged from conspiracy to crimes against humanity : “(1) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing.
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(2) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. (3) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.” (Agreement for the prosecution and punishment of the major war criminals of the European Axis 1945, art.6)
In December 1945, the Far Eastern Commission (FEC) was created to establish a policy of occupation for Japan and to coordinate the Allied policies in the Far East (Bassiouni 2008). General Douglas MacArthur as Supreme Commander for the Allied Powers (SCAP) influenced every aspect of justice. On January 19, 1946, General MacArthur, in his capacity as the SCAP for the Pacific Theater and on behalf of the FEC issued the Tokyo Charter to set down the laws and procedures by which the Tokyo Trials were to be conducted. Modeled on the Nuremberg Charter, the Tokyo Charter stipulated that crimes of the Japanese military could be tried. Three categories of crimes were defined: crimes against peace, war crimes, and crimes against humanity. The Nuremberg and Tokyo Charters were applicable only to major criminals, leaving other criminals to be tried by the Allies. However unlike the Nuremberg Charter, the Tokyo Charter was not a treaty-based creation. First, General MacArthur wanted to avoid any influence of the Soviet Union over these proceedings. Second, the U.S. was also concerned about Japan’s future. The Japanese emperor, Hirohito, was not prosecuted. This decision was based on a need to preserve the image of the Emperor as a means to ensure good political cooperation with Japanese and to obtain support of Japan. The French delegation at the Tokyo Trials The International Military Tribunal for the Far East (IMTFE) was convened on April 29, 1946 to try the leaders of the Empire of Japan. It lasted from 1946 to 1948. MacArthur appointed a panel of 12 judges drawn from Australia, Canada, China, France, India, the Netherlands, New Zealand, the Philippines, United Kingdom, the United States and from the Soviet Union. Unlike the Nuremberg Trial, there were no alternate judges. The President of the court was the Australian judge Sir William Webb, Chief Justice Supreme Court of Queensland. Twenty-eight defendants were charged, mostly military officers
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and government officials: 4 former ministers (Tojo, Hiranuma, Hirota, and Koiso), 3 foreign ministers (Matsuoka, Shigemitsu, and Togo), 4 war ministers (Araki, Hata, Itagaki, and Minami), 2 navy ministers (Nagano and Shimada), 6 former generals (Koihara, Kimura, Matsui, Muto, Sato and Umezu), 2 ambassadors (Oshima and Siratori), 3 economic and financial leaders (Hoshino, Haya, and Suzuki), 1 radical theorist (Okawa), 1 admiral (Oka) and 1 colonel (Hashimoto). While in Germany, the Nuremberg trial was widely debated, Japanese attitudes toward the Tokyo Trial were characterized in terms of passivity and apath. According Ian Buruma (2003), the ambivalence in the Japanese attitude towards the Tokyo Trial has to do with the nature of the trial itself. It is often argued that the Tokyo Trial was far more politicized or unfair than Nuremberg. The French position at the Tokyo Trial reveals its ambivalence. A judge, Henri Bernard, and a prosecutor, Robert Oneto, represented the French delegation. They were both isolated during the trial as their English was not fluent, despite the fact they were accompanied by a French teacher of English, Jacques GouÚlou (Esmein 1998). But their position is really important for an understanding of the French dynamics of justice in Asia. On one hand, the French prosecutor played an important role for the French at the Tokyo Trials. President Harry S. Truman appointed the chief prosecutor, Joseph B. Keenan of the United States. In his first indictment, French Indochina was on the list of Japanese wartime allies. The French prosecutor considered that such thoughts constituted a disgrace. He wanted to prove that France had been a victim of Japanese aggression “despite the absence of comprehensive documentation” (Esmein 1998). The French indictment was a weak file containing mainly press extracts from Indochina and French army reports concerning the entry of Japanese troops in Indochina in September 1940. It had considerably less significance than the American, Chinese, etc., indictment (Totani 2009). However, Robert Oneto managed to change the indictment with the offences 33: “Waging aggressive war against French Indochina after 22 September 1940” and to have France listed as one of the victims of Japanese aggression. When the French lead prosecutor, Robert Oneto, and his assistant, Roger Depo introduced their evidence about the relations between Japan and France from September 30, and October 7, 1946 and about war crimes committed in Indochina from January 15 and 17, 1947, they avoided speaking about the Japanese support to the independence movement in Indochina, the American anticolonial position: “If I stress these points, that are unquestionably contrary to the Hague Convention, I would give the defence and a certain part of public opinion in the Far East a pretext for extensive debates, which seem to be right now inappropriate.” (CAOM, INF 1364, [22 September 1946])
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The French prosecution had been entirely convincing to the other members of the Tribunal. The French ambassador in Tokyo, Zinovi Pechkoff, stated: “Oneto promoted a favourable impression… The French position has been here reinforced by the debates ‘over the last couple of days’.”(CAOM, INF 1364, [9 october 1946])
The French prosecution aimed at defending the French position in Asia during World War II and to avoid speaking about the French collaboration with Japan. Justice Henri Bernard was concerned with the principles of a fair trial. Henri Bernard (1899–1986) was a colonial magistrate who sided with the Free French in August 1940 when the French authorities in the Congo joined De Gaulle’s fight. A Military Tribunal convened under the Vichy Regime sentenced him in abstentia to death (DCAJM, Judgment, 12. 09. 1941). In 1944 he became a judicial representative for De Gaulle’s government in Beirut. In 1946, he was appointed as a judge at the IMTFE. Since the beginning of the Tokyo Trial, he sent many memorandums to MacArthur and other judges as he suspected that the procedure at the Tokyo Trials was unfair. In January 1947, he sent a memorandum to Sir William Webb to express his disapproval at the way the Trial was conducted: “The annexed draft of the Judgment has been written, notice being taken of the opinions expressed in my memorandum of January 4, 1947 […] In the drafting, I supposed that the majority would not share my opinion on the non-criminality in itself no violation of treaties but that it would agree upon the transactional solution which would constitute the refusal to discuss the question expressed by my draft. If that majority would prefer to express its own point of view, I would furnish a declaration stating my dissenting opinion.” (BDIC 1947)
Henri Bernard wanted to inform the president of the trial of his strong disagreement with the course of the Trial before the final position of the Tribunal was decided (Ho Fui Sang). When the final judgment was published, Henri Bernard decided to make his disapproval known in his Dissenting Opinion on November 12, 1948. Justice Bernard considered the decision to ignore the standards of fair trial would not be forgiven. Justice Bernard regretted that the prosecution was conducted in personal und not in rem. The failure to indict Emperor Hirohito illustrated the selective approach of the Tribunal (Bernard 1948). According to Bernard, the Emperor was the principal perpetrator and there were no impartial pre-trial investigations. The accused were deprived of the necessary elements to prepare their defense. Bernard disagreed with the conduct of deliberations among the judges as the majority of the judges had already defined the final judgment before discussing the general position together. Bernard also disapproved of the use of new international law concepts at the Tokyo Trial such as conspiracy, crimes against peace, etc. (Bernard 1948). Unlike the Nuremberg Trial, all the defendants were found guilty. Two of the
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28 defendants died during the trial, and one had a mental breakdown on the first day of trial. Seven were sentenced to death, 16 to life imprisonment, and 2 to lesser terms. In 1948, the French ambassador Pechkoff sent a note to MacArthur where he wrote: “Like Justice Bernard, I cannot subscribe to the verdict of the majority of the judges and to the sentences that have been pronounced.” (NARA, IMTFE 1948)
At the Far Eastern Commission, the French delegate advised first “a compassionate approach, both for the sake of the protagonists and for the sake of mankind” (Sellars 2013). Second, as Bernard, he argued against the application of the crimes against peace at the Tokyo Trials. At the Tokyo Trials, the French commitment to the rule of law was influenced by the French colonial project in Indochina. While the French judge cared deeply about the principles of impartiality and fair trial, the French prosecutor aimed at proving that the French were victims of the Japanese since 1940.
Definition of war crimes in the struggle for decolonization Until the arrival of the Allies to accept the Japanese surrender, the Japanese were still guarding the disarmed French soldiers in their barracks and the French civilians were concentrated in restricted areas. In October 1945, the Japanese began their repatriation. Despite the French expectations for justice in 1945 to punish Japanese war crimes, only 228 Japanese defendants were tried for war crimes by the French military tribunal in Saigon for war crimes from 1946 to 1950. This was a military court similar to the British military tribunal in Luneburg in Germany where men and women of the SS as well as prisoner functionaries who had worked at various concentration camps, notably Auschwitz and Bergen-Belsen were tried. Due to the nature of the courts in Saigon and Luneburg, ”crimes against humanity” and ”crimes against peace”, which featured in the later trials at Nuremberg, were not among the charges. The only charges that could be brought were war crimes and crimes against citizens of the Allied countries. Japanese suspects who could not be tried according the French Military were subsequently released and returned to Japan (Piccigallo 1979). The sanction of war crimes in France was governed by the ordinance of 28 August 1944: “Persons liable to prosecution included: “enemy nationals or agents of other than French nationality who are serving the enemy administration … and those who are guilty of crimes or offences committed since the beginning of the hostilities; either in
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France or territories under the French authority, or against a French national or a person under the French protection… or against the property of any natural persons enumerated above, and against any French corporate bodies’.” (Ordinance of 28 August 1944, art.1)
Thus, the following were regarded as offences: “Illegal recruitment of armed forces”, “criminal association” – for example, organizations “engaged in systematic terrorism”, “poisoning”, “premeditated murder” and killing as a form of reprisal, “illegal employment of prisoners of wars (POWs) on “war work”, “pillage”, “abuse of authority” and “offenses against wounded, sick or dead soldiers”. (Ordinance of 28 August 1944, art.2)
War crimes were prosecuted in a Permanent Military Tribunal consisting of five military judges, the majority of them selected “among officers, noncommissioned officers and other ranks belonged, to the French Forces of the Interior or a Resistance Group” (Ordinance of 28 August 1944, art. 5). The president of the tribunal was a civil magistrate (Military Code of Justice, art. 14). The French High Commissioner, Torel, a legal expert in Indochina since the 1920s was aware of the local perception of French justice after 1945. He knew the popularity in Indochina of Ho Chi Minh’s, book, The Trial of the French Colonization, published in 1925. In Chapter 8 on justice, Ho Chi Minh described the French justice in these terms: “Justice is represented by a good lady with a scale in one hand and a sword in the other. As the distance between Indochina and France is big, so big, that when she arrives in Indochina, the scale loses its balance and its trays are melted into opium pipes or official liquor bottles; the lady only had a sword to strike. She strikes the innocent, especially the innocent.” (Ho Chi Minh 1925)
Torel understood the impact the punishment of Japanese war criminals could have on the local population: it could reinforce French legal legitimacy over Indochina (Trefalt 2014). The prosecution of Japanese war crimes was a means to recover prestige in the domestic context. But how could a war crime be defined? The difficulty resided in determining the start of a state of war between France and Japan. Did the war between France and Japan start in 1940 or in 1945 ? When the colonial administration of French Indochina passed to the Vichy French government, it ceded control of Hanoi and Saigon in 1940 to Japan. In 1941, Japan extended its control over the whole of French Indochina. On 29 July 1941, Vichy and Japan signed the Protocol Concerning Joint Defence and Joint Military Cooperation. This agreement gave the Japanese eight airfields ; allowing them to have more troops present in return for French autonomy. Until March 1945, France and Japan collaborated together (Namba 2013). On March 9, 1945, the Japanese
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revoked the French administrative control and imprisoned the Vichy French and took direct control of Vietnam until the Allied Forces defeated them in August. According to Albert Torel, the Japanese engaged in military operations against French troops from March 1945. The High Commissioner’s Legal Office in Indochina finally accepted his suggestion. War crimes to be tried in Saigon were restricted to the period between the March 9, 1945 and the August 15, 1945. Japanese war crimes in Indochina were then defined as crimes that took place between March 9, 1945 and the end of the war, committed by Japanese soldiers themselves, which avoided raising the kind of problems that the prosecution of French and local collaborators would have entailed. There is thus a striking contrast between the French case for the prosecution case at the Tokyo Trials, which insisted that Japan had invaded Indochina in 1940, and the military tribunal in Saigon, which in effect dated the beginning of the war with Japan to March 9, 1945. The Kempetai adjutant, Kyota Katsunami, was one of the first Japanese war criminals punished at the Permanent Military Tribunal in Saigon (DCAJM, Judgment, October 1946). Held in prison since July 1946, he was charged with “sequestration and torture”. He was accused of having arrested illegally five French citizens and a Vietnamese doctor and of having tortured them in March and April 1945. Kyota was condemned to ten years of forced labor. There is a particular feature at the French Permanent Military Trial in Saigon. Indeed, most of the victims were French in contrary to the other BC-trials conducted in Southeast Asia where violence against native people was indicted (Hayashi 1998). The historian Chizuru Namba (2013) explained that Japanese committed crimes against the Vietminh members who were against the French colonial presence in Indochina. However, the Vietnamese did not want to recognize the French legal authority in Saigon to prosecute Japanese war criminals. The judgment of Japanese Colonel Shizume and three Japanese captains in January 1950 was very well known (DCAJM, French Permanent Military Tribunal in Saigon, The Case of the Langson Massacre, Judgment, 25. 01. 1950). They were tried for massacring 300 French prisoners at Langson between the March, 9 and 11, 1945. Evidence showed that Shizume ordered the prisoners to be taken in groups of twenty into a small courtyard where they were shot and bayoneted. Capitain Kayakawa was accused of having ordered Japanese soldiers to kill General Lemonnier, after his refusal to surrender. The four Japanese officers were sentenced to death. Of the overall total of Japanese war criminals judged at the Permanent Military Court at Saigon, the death penalty was the most frequently imposed sanction (29,8 %), as Table 1 shows the number of convictions by sentence. These sentences were more severe than the “Trial of Josef Kramer and 44 others” at Luneburg where the court sentenced 11 of the defendants to death, 18 to prison sentences, 1 to life in prison, and 14 defendants were acquitted
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Table 1: Number of convictions given by sentence (Source: DCAJM) Death
68
29,8 %
Hard labor for life
26
11,4 %
> 15 years of hard labor
17
7,5 %
10–15 years of hard labor
28
12,3 %
5–10 years of hard labor
17
7,5 %
< 5 years’ imprisonment
40
17,5 %
Acquitted
26
11,4 %
6
2,6 %
Others Total
228
100 %
(Knoch 2011). In France, the verdicts of the Luneburg Court were criticised as too mild (Knoch 2011). The French disclosure of Japanese war crimes in Indochina served to confirm the French rule of law and to insist that the French were also victims of the Japanese violence.
Conclusion This chapter shows that the Japanese and French colonial competition over Indochina reinforced the struggle of decolonization. During World War II, Vichy France and Japan collaborated in Indochina from 1940 to 1945. But on March 9, 1945, Japan launched a coup d’¦tat and dismantled the French colonial administration. The Japanese Pan-asianism ideology influenced the decolonization discourse in Indochina. The Japanese helped the Vietnamese Emperor Bao Dai, the Cambodian King to gain independence while they were fighting against the influence of France and of the Vietminh, the communist party led by Ho Chi Minh. This triangular game between France, Japan and the Vietminh led to violent conflict in Vietnam after 1945 and also had an impact in the prosecution of war crimes committed during World War II in Indochina. After the Japanese surrender in mid-August 1945, Ho Chi Minh declared on September 2, 1945 the foundation of the New Democratic Republic of Vietnam as a reaction against the French and Japanese colonial occupation/s. The Provisional Government of the French Republic wished to end the culture of impunity in Indochina after the Japanese coup d’¦tat on March 9, 1945 and to re-establish the French rule of law to promote reconciliation through the prosecution of war criminals. The new French government did not pay
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attention to the importance of the independence movement and wanted to reestablish its colonial empire without talking to the Indochinese independence movement. In this context, it was very important for France to prosecute Japanese war criminals. It proved that France emerged out of World War II as an ally on the side of the Free World. The impact of decolonization in the making of law was very strong. At the Tokyo Trial, the French prosecutor Robert Oneto proved that Japan forced France to collaborate in Indochina. Judge Henri Bernard and Ambassador Zinovi Pechkoff, caring deeply about the principles of impartiality and a fair trial, discussed the legal foundation of the Tokyo Trial. In Saigon, 230 Japanese defendants were tried in Indochina according a new legislation created in 1944 to prosecute war criminals. Japanese defendants were judged only for war crimes committed against the French population. War crimes committed against the Indochinese population were ignored. This proves that the French war crimes trials policy in Southeast Asia aimed at showing first that the French had been victims during World War II from Japan, and second that the new France emerging from World War II embodied a new republican power that could protect Indochina. However the issue of the Vietnam War proved in 1954 that these French aims failed.
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Totani, Y 2009, The Tokyo War Crimes Trials: The Pursuit of Justice in the Wake of World War II, Harvard East Asian Monographs, Cambridge, MA. Tonnesson, S 2010, Vietnam 1946. How the War Began, University California Press, Berkeley/Los Angeles/Londres. Trefalt, B 2014, ‘Japanese War Crimes in Indochina and the French Pursuit of Justice: Local and International Constraints’, Journal of Contemporary History, vol. 49, no. 4, pp. 727–742. Turpin, F 2005, De Gaulle, les Gaullistes et l’Indochine, Les Indes Savantes, Paris. Verney, S 2012, L’Indochine sous Vichy. Entre R¦volution nationale, collaboration et identit¦s nationales 1940–1945, Riveneuve ¦ditions, Paris.
Legal sources Agreement for the prosecution and punishment of the major war criminals of the European Axis, and Charter of the International Military Tribunal. 8 August 1945. Frenc Military Code of Justice, London. Ordonnance du 6 d¦cembre 1943 portant modification de l’ordonnance du 18 aot 1943 instituant une commission d’¦puration auprÀs du comit¦ franÅais de la lib¦ration nationale (Rectificatif au JORF n8 43 du 9 d¦cembre 1943) (ArrÞt¦ de promulgation n8 535 SG du 27 juillet 1944) Ordonnance du aot 1944 relative la r¦pression des crimes de guerre, 28. 08. 1944, Journal Officiel (Algiers), 30. 08. 1944, p.780. United Nations War Crimes Commission, ‘French Law Concerning Trials of War Criminals by Military Tribunals and by Military Government Courts in the French Zone of Germany’. Available from: . [11 February 2015].
Archive sources BibliothÀque de documentation internationale contemporaraine (BDIC), Fonds du Juge Henri Bernard: Le procÀs de Tokyo, 1946–1949. Centre d’histoire de Sciences Po (CHSP), Fonds Sainteny, 1 SA dr4. CHSP, Fonds Sainteny, 1 SA 4 dr2. Centre des Archives d’Outre-Mer (CAOM), Indo, HCI, Bote 24, HautCommissariat de Saigon Letourneau, 4 d¦cembre 1953. CAOM, INF 1364, Robert Oneto, 22 september 1946. CAOM, INF 1364, Zinovi Peshkoff, 9 october 1946. D¦pút Central des Archives de la Justice Militaire (DCAJM), Judgment of Henri Bernard, 12. 09. 1941. DCAJM, French Permanent Military Tribunal in Saigon, Judgment of Kyota Katsunami, October 1946. DCAJM, French Permanent Military Tribunal in Saigon, The Case of the Langson Massacre, Judgment, 25. 01. 1950.
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MinistÀre des Affaires EtrangÀres (MAE), AI 45, Note du commissionnaire franÅais, 1944. National Archives (NA), RG 469, Entry 415, Box 18, Gullion an Acheson, 19 September 1951. National Archives and Records Administration (NARA), IMTFE, Zinovi Peshkoff, 1948.
Historical testimony : Bao Dai 1980, Dragon d’Annam, Paris. De Gaulle, C 1970, Discours et messages. Pendant la Guerre (juin 1940-janvier 1946), Plon, Paris. Ho Chi Minh (Nguyen Ai Quoc) 1925, Le procÀs de la colonisation franÅaise, Librairie du travail, Paris. Gaudel, A 1947, L’Indochine Francaise en Face du Japon, Susse, Paris. Nguyen, KN 1964, Hoi Ky, 1945–1954, Dan Chu Moi. Sainteny, J 1967, Histoire d’une paix manqu¦e (Indochine 1945–1947), Fayard, Paris.
Historical document: Vietnamese Declaration of Independence, 1945. Japanese Supreme War Council 1979, Haisen no Kiroku, Tokyo Hara shobo.
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Justice and Truth-Seeking for Survivors of Gender-based Violence under the Khmer Rouge
Introduction On April 17, 1975, the Communist Party of Kampuchea, commonly referred to as the Khmer Rouge, overthrew the capital of Cambodia, Phnom Penh, and established a new regime called “Democratic Kampuchea” (DK). In the pursuit of a utopian, agrarian society, the Khmer Rouge forced people from the cities into the countryside and into agriculture cooperatives. In order to restart Cambodian society over again as “Year Zero,” they killed off anyone who they considered to be enemies of the new regime, which included but are not limited to people with educational, religious, governmental, military, urban, and/or upper class affiliations. Coupled with horrific working conditions that resulted in diseases, starvation, and being worked to death, it is estimated that 1.7–2 million people died — a quarter of Cambodia’s population at the time (Kiernan 2002). In order to create a new society, the Khmer Rouge set out to destroy many aspect of traditional family life; families were separated and sent to different labor camps or cooperatives that were categorized by sex and age, and new families were created through a systematic policy of forced marriages (Nakagawa 2008; Ye 2011). The act of forced marriages was a tactic used by the Khmer Rouge to break family traditions by attempting to guarantee loyalty to the regime instead of to the family. Local officials carried out the act through mass marriage ceremonies targeting those not married and over a certain age, ranging from 15–35 years old.1 The practice affected all social classes and was used to: “…ensure the emergence of the next generation of workers in a union that would naturally provide less family loyalty, and as a corollary decreased opposition to State practices which could be considered a threat to family members, couples were arbitrarily married without choice or consent and pressured to consummate their marriage” (Kiernan 2002).
In what was believed to be “the first quantitative evidence on marriage under the Khmer Rouge,” Heuveline and Poch (2006) found that 23.9 % of women 1 See more information at: . [15 August 2014].
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married during the Khmer Rouge reign, between 1975 and 1979, were forced to marry someone without their consent or that of their families. It was estimated that the phenomenon of forced marriages affected an estimated 400,000 Cambodians, both men and women.2 The 1991 Paris Peace Agreements, which through the United Nations Transitional Authority in Cambodia (UNTAC) provided for one of the largest peacekeeping missions in the history of the United Nations (UN), did not mention bringing to justice those responsible for these crimes. In 1997, the then two Cambodian Co-Prime Ministers wrote to the UN Secretary-General requesting assistance to the Royal Government of Cambodia for the creation of a tribunal in order to conduct a trial of former Khmer Rouge leaders on the grounds that the country did not have the resources or expertise to do so.3 After several years of protracted negotiations, in 2003, both parties were able to conclude on an agreement to establish the Extraordinary Chambers in the Courts of Cambodia (ECCC), often referred to as the Khmer Rouge Tribunal. The ECCC is a mixed hybrid court of national and international composition, applying both international and Cambodian national law. Five individuals have initially been indicted before the court and tried in two cases before the ECCC, referred to as Case 001 and Case 002. However, following the dismissal of Ieng Thirith due to her inability to stand trial, and the natural death of her husband, Ieng Sary due to old age, there are only two defendants remaining in Case 002—Nuon Chea and Khieu Samphan.4 Vulnerable groups find it often difficult to have their voices heard in transitional justice processes. In particular, victims of gender-based and sexual violence have long been overlooked and affected survivor populations have often been marginalized in justice and reconciliation processes around the world. Accountability for crimes of sexual and gender-based violence has only recently begun to gain recognition in the international judicial arena. Broadly speaking, gender-based violence is a harm inflicted upon a person based upon assumptions of societal constructions of gender. Gender-based violence is an umbrella term used to describe any harmful acts that causes physical, sexual, psychological, emotional, or economic violence to men or women. This chapter examines the case of survivors of sexual and gender-based crimes, with a specific focus on forced marriage under the DK regime during 1975–1979, and their quest for justice and truth. Although forced marriages 2 Co–Lawyers for Civil Parties, ‘Second Request for Investigative Actions Concerning Forced Marriages and Forced Sexual Relations,’ ECCC/OCIJ Document D188, redacted version, 15 July 2009. 3 See The Secretary-General, Report on the Situation of Human Rights in Cambodia, 20, U.N. Doc. A/52/489 (1997) (delivered to the General Assembly). 4 In the ECCC’s first trial in Case 001, Kaing Guek Eav, alias ‘Duch’, the former head of the S-21 security center in Phnom Penh, was convicted and eventually sentenced – after appeals decisions – to life imprisonment.
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were not the only sexual and gender-based crimes to occur during the Khmer Rouge era (Natale 2011), they represented one of their most extensive and strategically planned initiatives to transform Cambodian society in accordance with their ideals. In examining the truth and justice process for survivors of these and other sexual and gender-based crimes in Cambodia, this chapter will look both at judicial and non-judicial approaches and their contributions to elements of truth-seeking and justice in the transitional justice process. First, this chapter will analyze the bumpy road in seeking accountability for forced marriage at the ECCC. Second, it will also examine various non-judicial complementary initiatives by civil society and survivors around the Tribunal. The chapter concludes with a comparative discussion of judicial and nonjudicial approaches to justice and truth-seeking, and the need for a more comprehensive approach to address the multilayered legacy of these crimes.
Judicial Approaches: Justice and Truth-Seeking through the Khmer Rouge Tribunal One novel feature of the ECCC is the right bestowed to victims of the Khmer Rouge to participate in the court’s proceedings. Survivors can submit complaints to the Co-Prosecutors, who take their interests into consideration when deciding to open an investigation or pursue a prosecution. Additionally, survivors may participate in the proceedings as civil parties. As civil parties, they are included as parties to the proceedings and are allowed to seek collective and moral reparations (McGonigle 2009; Thomas 2009). In Case 002, almost 4,000 civil parties are partaking in the trial as a collective group. In total, around 780 civil parties were initially declared admissible in Case 002 as civil parties of the Khmer Rouge’s regulation of marriage policy (Cambodian Defenders Project 2013) – the second largest civil party group in that case. However, crimes of sexual and gender-based violence, such as forced marriage, have been only partly addressed at these trials thus far. This section of the chapter details the long road that lawyers, civil parties, and victims have endured in order to get these crimes prosecuted and tried at the ECCC. The road to justice for victims of forced marriages has not been easy to navigate. The participation of survivors in the proceedings, however, has made a significant difference in the way these crimes have been perceived by court officials and the Cambodian public. Civil parties and their lawyers were the first to bring such evidence to the attention of the court.5 In addition, numerous local NGOs conducted outreach and assisted interested survivors to 5 See for instance press release by the Co–Lawyers of Civil Parties Ny Chandy and Silke Studzinsky ‘Four Victims of Forced Marriage under the Khmer Rouge Regime File their Complaint to the ECCC’, [14 October 2008].
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complete and submit the Tribunal’s complex participation form (Sperfeldt 2013). On March 13, 2009, the Co–Investigating Judges submitted a Forwarding Order to the Office of the Co-Prosecutors (OCP) on the basis that new facts emerged in the civil party applications referring to forced marriages and forced sexual relations. On April 30 in 2009, the OCP requested that the Co–Investigating Judges investigate allegations of forced marriage influenced by a push from civil parties and their lawyers. Likewise, the lawyers for the civil parties submitted a request to the Co–Investigating Judges for a judicial investigation into forced marriages during the Khmer Rouge era due to the high number of civil party applications that claimed that they were victims of this crime. In their request, the lawyers argued that forced marriage is a “multi-layered crime” that can potentially involve rape, sexual slavery, forced pregnancy, and forced domestic labor, separately or cumulatively, and that the court has a duty to investigate the crime.6 As a result of a series of cumulative collective actions made by the Civil Party Lawyers, Lead Co–Lawyers, OCP, and Co–Investigating Judges, the crime of forced marriages has been included as part of the indictments as a crime against humanity in Case 002. Furthermore, the Closing Order of Case 002 not only includes charges of forced marriage (referred in the Closing Order as “Regulation of Marriage”), but also rape within forced marriage.7 Civil parties considered it a great success to have forced marriage charged in Case 002, and to have the crime represented as one of the Khmer Rouge’s systematic and nationwide policies (Studzinsky 2014). Throughout the lengthy investigation process, the ECCC has been criticized by victims, lawyers, and NGOs for failing to take sexual and gender-based crimes seriously, in particular when considering the large number of civil parties alleging harm from this specific crime. The ECCC did not open investigation into the matter until the end of the investigation process. Civil party lawyer Silke Studzinsky (2012) argued, “the strategy of the ECCC’s investigating bodies has excluded consideration of sexual and gender-based crimes”. The ECCC was also criticized for the lack of specialized and gendertrained investigators and interpreters. As a result, civil party lawyers and NGOs raised questions about how the investigation process was handled and how comprehensive the investigations in the alleged crimes were. At the time of writing, the crimes of forced marriages still remain to be tried by the ECCC. The trial of Case 002 has been severed into a number of smaller sub-trials. In order to have a more representative sample of sexual and genderbased abuse survivors, the Civil Party Lead Co-Lawyers requested the 6 ‘Civil Parties Co Lawyers’ Request for Investigative Actions Concerning Forced Marriages and Forced Sexual Relations,’ ECCC/OCIJ Doc. D188, redacted version [15 July 2009]. Cumulative Charges, 15, p. 8. Available from: . [15 August 2014]. 7 Co–Investigating Judges, ‘Closing Order’, Document D427, [15 September 2010], Case File No. 002/19–09–2007-ECCC-OCIJ, paras. 842–861.
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geographic expansion of the rape and forced marriage indictments to include such crimes committed nationwide. In 2014, the Trial Chamber granted the Civil Party Lead Co-Lawyers’ request and included forced marriages committed nationwide in the second part of Case 002 (formally known as Case 002/02).8 However, there was fear that the case of forced marriages may never be heard because of the aging defendants and speed of the trial. Trial hearings in Case 002/02 began at the end of 2014, and the crimes of forced marriages may not be heard before 2016. Many victims of forced marriages feel that the ECCC represents their last opportunity to seek justice for the harm they suffered. Due to the many shortcomings of the national judiciary as well as limits to temporal jurisdiction, victims find it impossible to seek legal recourse through Cambodia’s domestic court. Therefore, Studzinsky (2014) concluded, victims and survivors of these crimes welcome the indictment of the crime as a promising step that may contribute to combat the culture of impunity that existed during the Khmer Rouge and now in Cambodia. In terms of truth telling, the indictment alone is already an acknowledgement of alleged crimes committed by the defendants, which contributes to ending the silence surrounding sexual and gender-based violence. Currently, due to the nature of Cambodian traditional culture, there is shame associated with sexual and gender-based crimes (Nakagawa 2007). Thus, victims are often stigmatized if they speak out about their experiences. Perpetrators of sexual and gender-based violence were rarely held accountable during the Khmer Rouge era, thereby sustaining a culture of impunity. However, the indictment of forced marriages recognizes the past wrongdoings and seeks to gain justice for victims of the crime. The indictment and related public outreach by the court and NGOs also contributes to a fostering environment of open dialogue that can allow victims of forced marriages to speak more openly about their experiences, thereby painting a more complete historical account of the crimes committed under the Khmer Rouge regime. Without a full representation, the court is at risk of failing to accurately portray the extent of the Khmer Rouge’s criminal policies. In addition to judicial recognition of past crimes, victim participation in judicial proceedings has reinforced demands for reparations. Alongside the permanent International Criminal Court in The Hague, the ECCC is now one of the few international(-ised) criminal courts with an explicit reparations mandate (Sperfeldt 2012b). In doing so, these institutions combine retributive justice with restorative justice elements. However, the Court’s rules limit the scope of reparations in that civil parties are only allowed to seek ”collective and moral reparations” – presumably as opposed to individual or material 8 Trial Chamber, ‘Decision on Additional Severance of Case 002 and Scope of Case 002/02’, Document E 301/9/1, [4 April 2014], para. 33. Available from: . [19 August 2014].
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reparation. Largely because of these and other limitations, no substantial reparations were afforded to victims participating in the first trial.9 It was only in 2010 that the Judges of the ECCC amended the Internal Rules with a broader perspective to allow for more flexibility in designing and implementing moral and collective reparations in relation to Case 002 and beyond. There are two important implications in this change. Firstly, the Internal Rules now provide that the ECCC’s Victims Support Section (VSS) shall endeavour to identify and design projects, which would give effect to the reparations awards sought by civil parties. Secondly, the VSS is entrusted with the development and implementation of non-judicial measures, which benefit not only civil parties but the broader interests of victims generally.10 In both cases, the VSS will need to collaborate closely with governmental and non-governmental organisations. As to judicial reparations, victims of sexual and gender-based violence and their lawyers have put forward a number of reparations requests, including projects relating to mental health support, instituting self-help groups or oral history and documentation of past crimes. In Case 002/01, the VSS has secured funding from various donors, which allowed the Trial Chamber to recognize 11 reparations project in its first judgment in that case.11 Although these symbolic reparation measures may not qualify as an adequate redress for survivors’ multiple harms, they nonetheless represent an important form of symbolic acknowledgement. Moreover, the VSS, Co-Lead Lawyers, Civil Party Lawyers in consultation with their civil parties have begun discussions on potential reparation requests for civil parties of Case 002/02, in which forced marriages will be addressed. Though not every survivor of forced marriage is able to participate in the Tribunal’s proceedings, the admitted civil parties symbolically represent the many other survivors who were unable to apply or join the proceedings. In this way, victim participation can give voice to those most affected by mass atrocities, recognize their suffering, and – through collective reparations – provide an albeit limited form of symbolic redress for marginalized victim groups.
9 The Trial Chamber granted only two reparations requests in Case 001: to include in its judgment the names of civil parties and their relatives who died at S-21, and to compile statements of apology by the convicted person. 10 See ECCC Internal Rules (Rev 8), [3 August 2011], Rule 12 bis (2) and (3); and Rule 23 quinquies. 11 Trial Chamber, ‘Judgment Case 002/1’, Document E313, [7 August 2014]. See also ‘Wide Ranging Support Secured for the Reparations for Victims of the Khmer Rouge’, [21 April 2014]. Available from: . [9 June 2014].
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Non-Judicial Approaches to Truth-seeking & Justice The above account of the struggle of victims of gender-based violence to bring forward their claims for justice through judicial avenues, such as a hybrid criminal tribunal, has shown the importance, but also the significant limitations of such approaches. The specific focus and constraints of a criminal justice process dealing with mass atrocities will always allow only for partial accountability and truth-seeking. Although testifying in a court or speaking to a stranger when filling out a civil party application can be relieving, it can also be difficult at the same time given the culture’s silence and uneasiness with sexual matters. In other words, “to identify yourself as a survivor of sexual violence, particularly rape, in Cambodia is to risk being further traumatised through blame, stigma and discrimination, as well as bringing shame to yourself and your family.”12 Complementary, and oftentimes more victim-sensitive, non-judicial approaches are recognized to play a pivotal role in achieving a more comprehensive process towards truth and justice. This section of the chapter details the variety of non-judicial initiatives in Cambodia through which victims of forced marriage and other gender-based violence have pursued truth and justice. The use of a non-judicial approach may involve a variety of actors, but one that truly stands out in the case of Cambodia is the non-governmental organization (NGO) and civil society sector. Firstly, NGOs and other civil society actors have played an important role in assisting victims of the Khmer Rouge since the beginning of the tribunal (Strasser et al 2011). As mentioned earlier, the tribunal depended heavily on NGOs with the victim application process, as the Tribunal’s VSS was underfunded and understaffed during its early years. Thus, NGOs were crucial in working with civil party lawyers in getting the ECCC to investigate the crime of forced marriage and include it as part of the indictment (Sperfeldt 2012a). Secondly, NGOs have the capability to go beyond a Tribunal’s judicial process. Long before the establishment of the ECCC and alongside the tribunal’s operation, Cambodian NGOs have implemented restorative projects for survivors with no direct link to the judicial process. These include memorialisation initiatives, documentation, education, and psycho-social support, but also victim-perpetrator dialogues, self-help groups, and oral history. These innovative programs led by Cambodian NGOs bear many interesting lessons in developing future restorative projects for survivors of the Khmer Rouge. They also have the potential to be linked in various ways with the amended collective reparations mandate of the ECCC and the VSS’ corresponding project development mandate (Sperfeldt 2012b). For instance, the VSS has been in cooperation with 12 Cited from Impact of GBV. Available from: . [15 August 2014].
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the Cambodian Defenders Project (CDP) and Transcultural Psychosocial Organization (TPO) in implementing a three-year non-judicial project called “Women in Transitional Justice,” which is funded by the UN Trust Fund to End Violence Against Women.13 The project was created to increase the involvement of women in the transitional justice process. It includes outreach programs, truth-telling forums, direct psychosocial services, and institutional capacity building on gender sensitivity. One of the most interesting non-judicial mechanisms in this respect has been a series of so-called “Women’s Hearings” that have been initiated by the local NGOCDP. Recognizing that many crimes and survivors would never be heard by the Tribunal, the primary purpose of this forum was to give survivors the opportunity to give public testimonies before a panel. The style of the hearings were largely inspired by truth commissions that have previously addressed sexual and gender based violence during conflict, specifically, the Commission for Reception, Truth and Reconciliation in Timor-Leste, and other civil society projects, such as the Courts of Women (Ye 2014). The first truth-telling forum to concentrate exclusively on females’ experiences during the Khmer Rouge was called True Voices of Women under the Khmer Rouge Regime and held on December 7–9, 2011 in Phnom Penh, Cambodia. They are open to the public and include apart from survivors of crimes a number of guest speakers, such as UN officials, national and international human rights activists, lawyers, and scholars. CDP hosted a total of three such Women’s Hearings thus far. While the first hearing in 2011 was primarily on sexual violence during the Khmer Rouge era, the 2012 hearing broadened the theme and focused on sexual and gender-based violence in conflict settings in which the public heard testimonies from women from three different nations in the Asia-Pacific region. The 2013 hearing was on creating and enhancing intergenerational dialogue between survivors of the Khmer Rouge and the younger generation (Ye 2014). The experience with non-judicial measures, such as Women’s Hearings can serve as a “model for reparations projects awarded by the ECCC or taken up by the Government in the context of a wider reparations program” (Ye 2014). Women’s Hearings document victims’ testimony regarding their needs and desires that could enlighten the creation and advancement of such measures. In addition, the recordings of these Women’s Hearings are documented in reports, journals, and films, such as the 2012 documentary called Red Wedding. Other initiatives from civil society organizations include published research reports and articles revealing the extent of sexual and gender based crimes committed by the Khmer Rouge.14 Some of these reports include
13 More information about this project can be found here:. [15 August 2014]. 14 Such reports include: Duong S 2011, The Mystery of Sexual Violence under the Khmer Rouge Regime, Phnom Penh, Cambodian Defenders Project; Braaf, R 2014, Sexual Violence against
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testimonies by male and female survivors and witnesses. As such, they can also function as truth-telling documents that help to record the stories, experiences, and history of forced marriages under the Khmer Rouge for future generations. In future, it will also be important to include gender-based violence against men into these or similar initiatives. The inclusion of both male and female is crucial to the truth seeking and justice process precisely for the reason that forced marriage victimized both parties involved in the practice. The focus on mainly females may endanger the justice and truthtelling process because it can create a dichotomy between men and women. A comprehensive and inclusive gender perspective in both judicial and nonjudicial approaches is needed for the case of forced marriage to attain a more complete account of truth.
Judicial and Non-Judicial Approaches: Mutually Exclusive or a Compatible Pair? Justice can come in many forms. While scholars often debate about the utilities of using either judicial or non-judicial mechanisms in the transitional justice literature, experience shows that these two approaches can work in tandem with one another, as in the case of Cambodia to some extent. Although the focus of governmental and international action was clearly on retributive justice, embodied in form of the Tribunal, non-judicial approaches have contributed to more comprehensive truth-seeking efforts. Considering that mass atrocities produce multi-faceted and multi-layered harms among a diverse composition of survivor groups, it is unlikely that any single approach can provide the necessary comprehensive response (Nickson & Braithwaite 2014). Whether through a judicial or non-judicial avenue, the struggle to seek for forced marriage to be recognized as one of the crimes committed by the Khmer Rouge has many implications for Cambodian society. First, it counters false notions regarding sexual violence during the Khmer Rouge era. For instance, it was widely believed that rape did not occur or that the former Khmer Rouge leaders were not responsible for sexual abuse because they had statutes in place that would punish both the victim and perpetrator. As a result, this belief has made it more difficult for survivors of forced marriage to confront their past much less talk about it, especially in a society where stigmatization of victims of sexual abuse already occurs. The silence fosters disbelief, which may further push survivors to remain silent out of fear of Ethnic Minorities during the Khmer Rouge Regime, Phnom Penh, Cambodian Defenders Project.
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stigmatization, shame, or a sense of powerless, which further can result in a culture of impunity and secrecy. Thus, in a country that is silent about issues of sexual violence, the indictment of forced marriage has produced a signaling effect for Cambodian society – with both backward and forward-looking benefits. Second, the indictment of forced marriage at the ECCC represents an important symbolic step and thereby holds many benefits for Cambodian society. The recognition of forced marriage as a crime helps remove any individualistic guilt that the victim may feel, especially in view of the Khmer Rouge’s systematic policy. Thus, the indictment of forced marriage already serves as an official acknowledgment of sexual and gender crimes committed by the Khmer Rouge. If the crime were tried in court and recognized in a verdict, it may serve even more as an official expression of recognition. Although non-judicial projects cannot achieve the kind of formal sense of justice a court can, they can make a significant contribution to the truth and justice process by addressing suffering and including survivor groups that are beyond a court’s limitations. In addition, the benefit of non-judicial measures is their flexibility to continue the work towards truth and justice. While the ECCC’s mandate will end one day, projects of non-judicial character may continue through the works of NGOs, civil society, and local communities, or possibly even the government, without any expiration date. In the case of the ECCC, moving towards a broader collaborative effort among various stakeholders at and around the Tribunal was a long and gradual process. Although initially there was little attention paid to forced marriages and other genderbased crimes, eventually court and non-court actors aligned in their intention to seek accountability for the crime of forced marriages. Likewise, the VSS has gradually improved its collaboration with local NGOs in designing and implementing reparation projects. However, these efforts do not make up for the various limitations of hybrid tribunals and judicial approaches more generally. The example of the Women Hearings in Cambodia has demonstrated that non-judicial mechanisms can complement the mandate and work of a Tribunal by concentrating on victims’ perspectives and needs. For some, participation in public or communitybased forums can have similar effects as testifying in court. Additionally, for those who do not participate as civil parties at the Tribunal, these forums provide an avenue of some type of participation in the truth-telling and justice process. In sharing their stories, victims are acknowledged by a body of individuals from the local community, broader public, international society, and academic group. Such forums are less formal, more sensitive to survivors’ needs, and provide a sense of community that a court cannot offer. At the same time, the forums portray a more comprehensive and inclusive picture of the wrongdoings committed by the Khmer Rouge, including the frequency and scope of sexual and gender based crimes. By doing so, they contribute to the creation of a more complete historical recording of sexual and gender based crimes committed during the Khmer Rouge time period. Where judicial
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mechanisms do not allow survivors to break the silence on a marginalized issue, non-judicial measures can allow for that opportunity. Furthermore, these kinds of forums can adopt a more forward-looking and transformative agenda than traditional judicial approaches, which is critical to breaking the cycle of silence surrounding sexual and gender-based violence and to contributing to the prevention of future sexual and gender based violence. For example, intergenerational dialogue is crucial in Cambodia (Ye 2013). Up until recently, sexual and gender based crimes have been a hidden party of Cambodian history and these forums are part of the truth-telling and justice process to uncover such history. Despite the work and presence of the ECCC and NGOs, the post-Khmer Rouge generation in Cambodia held very little knowledge about the time period. This limited knowledge is a result of the fact that the official education system did not include the Khmer Rouge history into its curriculum until recently. Without a complete history of the time period, the Cambodian society is at risk of failing to learn from its history and committing the same wrongdoings once more. The example of forced marriage under the Khmer Rouge regime illustrates how injustice is transmitted between generations and how reconciliation processes transcend from the personal to the societal level. Forced marriage, in particular, is a crime unlike any other crime as it creates a link between the past, the present, and future, thereby affecting the reconciliation process (Ye 2011). When such injustice and trauma are not addressed, the effects may be transferred onto the next generation. The case of Cambodia demonstrates how difficult it can be to raise the voices of marginalized victims, such as victims of forced marriages and other gender-based violence, and to include their experiences into a comprehensive process of dealing with the past. Active participation of affected populations has been crucial to enable a more inclusive process. In this endeavour, many small and localized initiatives can therefore be equally important to more grandiose undertakings such as the establishment of an internationalized criminal tribunal. In Cambodia, the eventual combination of judicial and non-judicial approaches that emerged from the various debates and contestations has broken the silence about gender-based violence and widened the space for future public discourse. It is within this space that survivors and future generations can take the first steps on a long path towards truth and justice, even if they are only partially met at the beginning.
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References Boyle, D 2006, ‘The Rights of Victims: Participation, Representation, Protection, Reparation’ in Journal of International Criminal Justice, vol. 4, pp. 307–313. Braaf, R2014, ‘Sexual Violence against Ethnic Minorities during the Khmer Rouge Regime’ in Cambodian Defenders Project, Phnom Penh, Cambodian Defenders Project. Cambodian Defenders Project, 2012, ‘Report on the Proceedings of the 2011 Women’s Hearing on Sexual Violence under the Khmer Rouge Regime’, eds A Barclay & B Ye, pp. 1–22. De Langis, T 2014, ‘A Missed Opportunity, A Last Hope? Prosecuting Sexual Crimes Under the Khmer Rouge Regime’ in Cambodia Law and Policy Journal, vol. 2, pp. 39–44. Duong, S 2011, ‘The Mystery of Sexual Violence under the Khmer Rouge Regime’ in Cambodian Defenders Project, Phnom Penh. Heuveline, P & Poch, B 2006, ‘Do marriages forget their past? Marital stability in post-Khmer Rouge Cambodia’in Demography, vol. 43, no. 1, pp. 99–125. Jain, N 2008, ‘Forced Marriage as a Crime against Humanity Problems of Definition and Prosecution’ in Journal of International Criminal Justice, vol. 6, no. 5, pp. 1013–1032. Kiernan, B 2002 [1996], The Pol Pot Regime: Race, power and genocide in Cambodia under the Khmer Rouge, 1975–1979, Yale University Press. McGonigle, B 2009, ‘Two for the Price of One: Attempts by the Extraordinary Chambers in the Courts of Cambodia to Combine Retributive and Restorative Justice Principles’ in Leiden Journal of International Law, vol. 22, pp. 127–149. Nakagawa, K 2007, Gender-based violence during the Khmer Rouge regime. Stories of survivors from Democratic Kampuchea (1975–1979), Phnom Penh. Natale, K 2011, “I could feel my soul flying away from my body”. A study on genderbased violence during Democratic Kampuchea in Battambang and Svay Rieng provinces in Cambodian Defenders Project, Phnom Penh. Nickson, R & Braithwaite, J 2014, ‘Deeper, broader, longer transitional justice’ in European Journal of Criminology, vol. 11, no. 4, pp. 445–463. Sperfeldt, C 2012a, ‘Cambodian civil society and the Khmer Rouge Tribunal’ in International Journal of Transitional Justice, vol. 6, pp. 149–160. – 2012b, ‘Collective reparations at the Extraordinary Chambers in the Courts of Cambodia’ in International Criminal Law Review, vol. 12, pp. 457–489. – 2013a, ‘The role of Cambodian civil society in the victim participation scheme of the Extraordinary Chambers in the Courts of Cambodia’ in Victims of International Crimes: An Interdisciplinary Discourse, eds T Bonacker & C Safferling, T.M.C. Asser Press. Strasser, J, Poluda, J, Balthazard, M, Om, C, Yim, S, Im, S, Eng, K.-T. & Sperfeldt, C 2011, ‘Engaging Communities – Easing the Pain: Outreach and Psychosocial Interventions in the Context of the Khmer Rouge Tribunal’ in We
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Need the Truth. Enforced Disappearances in Asia, eds K. Lauritsch and F. Kernjak, Guatemala: ECAP, pp. 146–159. Studzinsky, S 2012, ‘Neglected crimes: The challenge of raising sexual and genderbased crime before the Extraordinary Chambers in the Courts of Cambodia’ in Gender in Transitional Justice, eds S Buckley-Zistel & R Stanley, Basingstoke: Palgrave Macmillan, pp. 100–113. – 2014, Comments in Response to the Inclusion of Sexual Crimes in Case 002/02, Available from: . [28 April 2014]. Thomas, S & Chy, T 2009, ‘Including Survivors in the Tribunal Process’ in The Khmer Rouge Accountability Process, eds J Ciorciari & A Heindel, Documentation Center of Cambodia, Phnom Penh, pp. 214–293. Ye, B 2011, ‘Forced Marriages as Mirrors of Cambodian Conflict Transformation’ in Peace Review, vol. 23, no. 4, pp. 469–475. – 2013, ‘Women’s Hearing with the young generation on gender-based violence during the Khmer Rouge regime,’ in Cambodian Defenders Project, ed R Braff. – 2014, ‘Transitional Justice Through the Cambodian Women’s Hearings’, in Cambodia Law and Policy Journal, vol. 2, pp. 23–38.
Jude Lal Fernando
Is Sri Lanka in a Post-Conflict or Post-War Situation? The Way Forward: Regime Change or Transformation of the State?
Introduction States are not formed in a historical vacuum. There are socioeconomic, cultural, ideological and political as well as geopolitical factors that form foundations of a state. Political conflicts arise within the contexts of sociopolitical change that is mediated by state formation and the international actors involved in such formation. These changes have diverse effects on collective consciousness or imagination and sociopolitical conditions of different social classes, ethnic and religious groups and their relationship with one another. Attempts made by different groups to maintain or renegotiate the power relations within a particular state system (and international state system) constitute the conflict dynamics of a given situation. The level of polarization between two (or more) groups within a state is often determined by the character of the state and its responses to attempts made by these groups to maintain or reconfigure existing power relations with each other and with the state. The military victory of the Sri Lankan state over the Tamil attempts at reconfiguring the Sri Lankan state has reinforced the Sinhaladominated state. The large-scale massacres of Tamils in the last phase of the war have deepened existing polarization between Sinhalese and Tamils. This article is meant to discuss and reiterate two interrelated key points with regard to the Sri Lankan conflict. The first is that Sri Lanka is not in a post-conflict situation after the state’s military victory over the Liberation Tigers of Tamil Eelam (LTTE) in 2009. It is in a post-war situation or as I have argued elsewhere it is in a stage of ‘war by other means’ (Fernando 2013). In other words, the conflict dynamics have moved from one phase to another, namely from a high intensity war to a military takeover of one party by another. The new phase is an ongoing consolidation of the military takeover by many other means. In this phase, the Sinhala nationalist mindset has reached an unprecedented level of triumphalism while Tamil nationalist consciousness has been subjected to a collective trauma caused by large-scale massacres and militarization. The Sinhala polity has been made politically strong as never before whilst its Tamil counterpart has faced just the opposite. Many commentators who express their concerns, through statements similar to the following, about the ongoing violations of human rights against the Tamils: ‘the government has won the war and now the government should be
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benevolent and should win the hearts and minds of the Tamils’, ‘the government has won the war and now it should win peace’ (Harder Lines 2013). From a realistic political perspective, on the one hand, the Sinhala polity is not under any moral, legal, political or international pressure to negotiate with their vanquished. On the other hand, after the military defeat of the LTTE the Tamil polity is weak to renegotiate its power relations with the state. Therefore, the conflict continues with a new phase of militarization and Sinhalacisation of the Tamil speaking north and east of the island. The second point is related to the first. As long as the existing character of state and its political/ geopolitical and ideological foundations continue to be strengthened change of governments would not lead Sri Lanka to a post-conflict phase. The political transition that took place with the regime change in January 2015 was led by the same political/geopolitical and ideological forces and actors who led the war against the LTTE and upheld the existing character of the state. The asymmetrical power relationship between Tamils and Sinhalese has been reinforced even after the 2015 regime change despite the fact that the Tamils led by the Tamil National Alliance (TNA) voted for a regime change. The Sinhala presidential candidate who won the elections never promised any political solution to the Tamils contrary to the political dynamics of many other past elections before the military victory. As some of the TNA leaders publicly stated they voted for a regime change not because they ‘liked’ the new regime, but because they disliked the regime that led the war. The political aspirations of Sinhalese and Tamils continue to be radically opposed to one another. The transitions that took place after the military victory in 2009 and the regime change in early 2015 should not be interpreted as a process of postconflict democratization that is building a civic state, but as a reinforcement of exclusionary democracy that is consolidating the Sinhala Buddhist unitary state where the Sinhala ultra-nationalists are at the centre of power. In this sense, the previous and the current regimes have an inseparable connection with the exclusionary and discriminatory character of the state. In this sense regime change does not imply a way forward where the state’s relationship with the Tamils is reconfigured. In my analysis, I neither want to make a strict separation nor an intrinsic link between the government and state. There has been at least one regime change in 2001 that brought about political space for the transformation of the state. The conditions of the early 2015 regime are totally different from that of the 2001 regime change. The main question, therefore, is under what conditions regimes are changed; do the conditions exacerbate the conflict dynamics or do these address the casual factors of the conflict. Examination of these conditions will navigate us towards pathways to conflict resolution and peace building. In reiterating the above two interrelated points I will discuss how the existing character of the Sri Lankan state was created leading to a conflict between two opposing ethno-nationalist claims. In this, it will be shown how
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the unitary state structure and its ideological force or collective consciousness; the Sinhala nationalist mindset, developed and how Tamil nationalist consciousness and movement evolved as an attempt to reconfigure the asymmetrical power relationship with the state. In understanding the historical formation of states and the associated national consciousness it is important to identify conceptually and theoretically how such processes unfold. For Max Weber, belief in an ethnic identity does not necessarily form a group with a collective identity. Such belief “facilitates” group formation and gains force within the political field as it “inspires the belief in a common ethnicity” no matter “how artificially” this political community is organised (Weber 1996). The process of facilitation and inspiration engages with new interpretations in answer to “who we are and what we are?” determined by the power dynamics of the political community within a particular social context and leads to imagined horizontal communities called nations. Benedict Anderson’s notion of “imagined community” helps us to capture the collective consciousness of national groups.1 These are sometimes believed to possess a perennial past. Clifford Geertz uses the term “givens” to refer to nationalist beliefs, not to uphold a conception of primordial or perennial essence, but to analyse the collective belief in such an essence by those who live in a particular community (Geertz 2000). I would highlight the role of state formation as the main political level where the nationalist identities are formed. The theoretical debate on the phenomenon of nationalism has mostly revolved around the antiquity or novelty of ethnic ties that inform nationalist sentiments. Scholars who argue for the antiquity of ethnic ties directly or indirectly justify a notion of ‘authenticity’ that the nationalist theoreticians and historians uphold.2 For classical Marxist historians ethnic ties that inform nationalist beliefs are ideological constructs that are part of a false consciousness (Hobsbawm 1990). However, that which is constructed does not necessarily become false or unreal. Instead of focussing on the bi-polarity based on authenticity/real or novelty/unreal and false what needs to be examined is the process and the conditions within which nationalist imaginations gain force in the formation of states and how one type of nationalism becomes oppressive and another oppressed. As Craig Calhoun points out, the persuasive force of nationalism is not its antiquity, but “its immediacy and givenness” within a particular 1 Benedict Anderson points out how through “print capitalism” nations are imagined as horizontal communities among the people who are not known to one another. Anderson, B 1991, Imagined Communities: Reflections on the Origin and Spread of Nationalism, Verso, London / New York, pp. 42–43. 2 For an argument for perennial existence of British nationalism see Adrian, H 1997, The Construction of Nationhood: Ethnicity, Religion and Nationalism, Cambridge University Press, Cambridge. See for a similar argument about Sinhala Buddhist nationalism K.N.O. Dharmadasa 1997, ‘The Sinhala Buddhist Identity and the Nayakkar Dynasty in the Politics of the Kandyan Kingdom 1739–1815’ in Sri Lanka: Collective Identities Revisited, Vol.I, ed M Roberts, Marga Institute, Colombo, pp. 79–104.
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historical context of radical social and political change. “It is thus not the antiquity of Eritrean nationalism that mattered in mobilising people against Ethiopian rule, for example, but the felt reality of Eritreanness” (Calhoun 1997). What makes a belief believable is the public acts of its interpretation determined by the power dynamics of the historical context; “immediacy, givenness”, and “felt reality” arise within these power dynamics. Furthermore in my analysis of the conditions that underpin the Sri Lankan ethno-nationalist conflict, I will not adopt a simplistic single state lens. I will make an attempt to scrutinize how the internal and external political dynamics interacted with one another in determining the particular character of the Sinhala-dominated state formation in exacerbating the conflict dynamics generated by this character, in facilitating a short-lived negotiated political process and finally in consolidating the state with a military victory. The framing of the conflict by international actors and the types of resolutions put forward by them reflect their values, policies, ideologies and interests. Most often these have contributed to make the conflict intractable, but some other times supported (at least with the support of some of the actors) a negotiated settlement. In conclusion, the article will reiterate the need to understand varying local and geopolitical dynamics in order to create favourable conditions for less polarization and conflict resolution.
Roots of Polarisation Often the Sri Lankan conflict is depicted as arising from the failure of the postcolonial nation building process. However, the process and the conditions that led to the polarisation between the Sinhalese and the Tamils, particularly surrounding the unitary state structure and Sinhala Buddhist ideology, have their roots in British colonial practice. The Sinhalese and Tamils have lived in the island for many centuries with a distinct culture and territory long before western colonial conquests of the island by the Portuguese (1505–1658) the Dutch (1658–1796) and the British (1815–1948). Sinhalese have been predominant in the south and in the centre of the island, and the Tamils in the north, northwest and northeast. The type of political system had been dynastic rule based on caste. Because of its close proximity to south India the island was seen as part of the Indian sub-continent and the ruling castes emerged either from the island or from south India. Successions to the throne were determined by family lineage and caste as well as warfare among different dynasties throughout the Indian sub-continent. As shown by S .J. Tambiah, with the rise of states in the region, what developed was ‘galactic politics’ where there were autonomous and overlapping territories. None of these had a permanent centre or a periphery. He shows how each constituent entity within a given region becomes eligible to be as pre-eminent as any other by expansion
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where centre and periphery is in constant change.3 Here, centre-periphery relations are represented more by a ‘concentric-circle system’ than by a centralised system.4 According to H.L. Seneviratne, in the galactic system of politics, the relationship between the king and the people of vast areas of south Asia had more of a symbolic meaning than a deeply structural political relationship and it should not be seen as a bureaucratic system of a centralised state. The polity did not encompass the entire territory as a whole. Referring to the island of Lanka, he writes. “There was nowhere in pre-colonial Sri Lanka the kind of orderly and smooth handing down of administrative and bureaucratic authority the history textbooks declare and history teachers transmit to trusting students…” (Seneviratne 2002). Politically what does this mean? Whilst the Sinhala and Tamil kingdoms maintained their distinct and autonomous regions there were overlapping territories, shared sovereignty and dual allegiances as there were no clear boundaries among the kingdoms. This was evident at the time of the Portuguese and Dutch conquests of the island. In the eyes of an outsider, it was an island which was called by one name, or a part of the Indian sub-continent, but for the insider it was a set of kingdoms; one Tamil and two Sinhalese. Jaffna kingdom in the north had been mainly Saivite and Tamil and two other Sinhala kingdoms in the south had been mainly Buddhist and Sinhala. When the Portuguese landed in the island of Lanka they first came into contact with the kingdoms of Kotte (Sinhala) and Jaffna (Tamil) which covered most of the maritime provinces of the island. The Kingdom of Kotte was founded in 1415 and, due to dynastic conflicts; another kingdom was formed as Kandy in the central hills in the last quarter of the fifteenth century. There were small kingdoms along the coast, but they were vassalages which came under one of the kingdoms. There were also chieftains who had dual allegiances to both the kings of Jaffna and Kotte and no kingdom had power to overcome the other during this period. This shows that at the time of the Portuguese encounter, Lanka had not been a politically centralised and culturally homogenous entity ; there was no unitary political structure. What was the character of religious and ethnic factors in dynastic politics? The dynasties also had allegiances to one or several religious sects in Buddhism, Hinduism and Jainism. The sectarian divisions did not necessarily lead to warfare, but dynastic patronage of one sect over and against another generated religious implications, particularly during dynastic warfare. Dynastic warfare was also associated with the politics of plundering Buddhist monasteries as well as Hindu and Jain shrines which conditioned writing of 3 Galactic polity – a system where a central planet is surrounded by other satellites which areautonomous to a certain degree, but within the sphere of influence of the centre – metaphoricallyrefers to a political system of cluster of centre-based, but overlapping semi-autonomous orautonomous societies. Tambiah, SJ 1976, World Conqueror & World Renouncer: A Study of Buddhism and Polity in Thailand against a Historical Background, Cambridge University Press, Cambridge, pp. 102–131. 4 Ibid., p. 112.
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religious texts by Buddhist and Jain monks and Hindu priests. These texts also reflected religious allegiances of the dynasties who became victorious or defeated. One such text was the Mahavamsa (Great Chronicle) written in Pali by a Buddhist monk who belonged to one of the sectarian monasteries in the north-central part of the island whose main aim was to protect Buddhism from non-Buddhist invasions. However, according to the same chronicle there was no essential link between one particular language group and a religion. As there were both Tamil and Sinhala speaking Buddhists there were also Hindus who belong to different language groups. Invasions that originated from south India were not always Tamil. Nor were they always emerging from one particular Hindu sect. The victims were not essentially Sinhala Buddhists as Buddhism had spread across language groups. Pali was the lingua franca of Buddhist monks who also belonged to several other language groups (including Tamil and Sinhala). The same can be said of invasions that emerged from the south of the island which was predominantly Sinhala and Buddhist. What does this mean culturally? R.A.L.H. Gunawardene writes ethnic identities have been fluid and malleable and there was no persistent durable essential link between religion and language constituting a fixed Sinhala Buddhist ethnie and Tamil Hindu ethnie. There were overlapping identities and histories as there were overlapping territories and sovereignties (Gunawardana 1990). As there was no unitary political structure there was no overarching homogenous cultural and religious identity. There have been political movements led by some dynasties to bring the island under one rule. Out of 2500 years of recorded history – which has been written in vamsic literature through a Theravada Buddhist sectarian perspective – the island has been a set of kingdoms throughout most part of this period. At different periods of 2500 years of history, for about 250 years, there have been kings who claimed authority over other smaller kingdoms in the island. Memory of this short period has become a justification for a perennial existence of a Sinhala Buddhist unitary state for 2500 years. The construction of the highly centralised state structure and formation of a homogeneous Sinhala Buddhist national ideology took place during the British colonial period which radically changed the symmetrical relationship that existed between the Sinhalese and the Tamils leading to polarisation between the two communities. Why did the British do it? How did it happen? How did it impact the relationship between the Sinhalaese and the Tamils? The reasons behind the change of the political and cultural character of the island by the British have to be understood within their interest in building the British Empire in India in competition with other European powers. The island of Lanka, with its close proximity to the mainland of India, is situated in between the Homuz Strait – the entry point to the Mediterranean and the West – and Malacca Strait – the entry point to the Far East (Houtart 1974). It has one of the world’s biggest natural harbours in the east, Trincomalle. As modes of
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production changed in Britain (from trading power to a manufacturing and selling power) the mainland of India became the economic wealth for the British (The Jewel in the Crown) which provided material resources for the Industrial Revolution. This not only led to a massive exploitation of Indians but also to starvation and deaths of millions of them.5 In ruling India and in controlling the movements in the Indian Ocean the island of Lanka became a great strategic asset for all the European powers, but this importance grew during the British colonial period within the context of the Industrial Revolution and exploitation. For this reason there was a need to treat the island as a separate entity from India and maintain it without native political turbulences, but there was an obstacle. The pre-colonial reality of overlapping territories and identities between Sinhalese and the Tamils, and particularly Tamils’ geographical proximity and linguistic affinity with south India would not make the island totally a separate entity. It was in the British attempt to treat the island as a strategic location in which both the unitary political structure and the Sinhala Buddhist racial ideology were forged. How did it happen? Politically, in 1833 the British amalgamated diverse regions of the island and transformed the island into one single overarching political structure controlled from Colombo in the predominantly Sinhala south which became the capital city. Major roads were constructed connecting these regions and the harbours to facilitate political and military control. Economically, particularly, after the two native uprisings, first one led by the aristocrats in 1818 and the second one by the peasants in 1848, the British gradually followed a policy of preservation of these groups through recognising their land ownership. In the initial phase of the British plantation in the predominantly Sinhala central hills there was no economic need for the Sinhala peasants to work as labourers. The peasants were kept within the confines of the feudal relations emanating from traditional land tenure’ (Shanmugaratnam 1980). Thousands of Tamil labourers who were totally made landless by the colonial exploitation were brought from south India to work in the plantations reflecting a clear difference between the treatments of Tamils and Sinhalese by the British. The conditions of Tamil labourers reflected a “new form of slavery” (Jayawardena 2003). Scores of them died on their way to the central hills due to illness (Kanapathypillai 2011). Culturally, a new knowledge formation of collective identities took place within this strategic, political and economic structure which redefined Sinhala and Tamil identities and relationship. This new knowledge was a result of the “discovery” of Mahavamsa in 1838 by the colonial officers and its translation and interpretation by them within a single state lens and racial theory. Pradeep 5 For a detailed account of these mass atrocities see Davis, M 2001, Late Victorian Holocausts: El Nino Famines and the Making of the Third World. Verso, London. He points out how at least 6 million Indians died. Two million of them were from south India most of whom were Tamils.
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Jeganathan, in a well-researched paper, points out three levels of interpretation of the text which he calls ‘violent transformations’, from “oral to textual”, “from text to positivist history” and “from claim to acceptance” (Jeganathan 1995). As a result the reign of the epic “Sinhala” king Dutugemunu, in the text who defeated the “Tamil” king Elara and its achievements of “uniting” the island were interpreted as a “glorious past” of a great civilisation based in Anuradhapura which was also called Rajarata (the country of kings). This period was romantically compared with the Roman and Greek civilisations by some colonial officers. A single state was imagined in which Anuradhapura was considered as the seat of a unitary rule. Anuradhapura was the bordering region of the northern (Tamil) and southern (Sinhala) kingdoms which is today called north central province and for centuries it had been abandoned and was full of thick forests when the British came to the island. In the same process of interpretation carried out by the Royal Asiatic Society – a colonial body of clergymen, officers and English educated local elite – Marisa Agnell points out how the Tamils were depicted as belonging to an inferior Dravidian civilisation who were “invaders” while the Sinhalese were likened to a superior Aryan civilisation on the basis of racial theory (Agnell 1998). Spatially, the above construal gained tangible force when, in the clearing of jungle to build roads, the ruins of Anuradhapura, the city-cum-battleground between the “Sinhala” king Dutugemunu and “Tamil invader” Elara of ˙ ˙ the Mahavamsa, was “discovered” by the colonial officers. Ironically, it was ˙ south Indian labourers of Tamil origin who were employed in clearing the city and building the roads. Later the city was regenerated with its ancient Buddhist shrines by the colonial government itself. A choice of the ‘pasts’ was made and the knowledge about the past was filtered by the lenses of the present. The ground was created to depict the British as sponsors of Sinhala Buddhist civilisation and the Sinhalese as the “true heirs” of the island belonging to a superior race like the British, while the Tamils were “invaders” who “built nothing in Ceylon, but had destroyed what others had built” (Agnell 1998, p. 59). In other words, it was the British Empire which was conquering the island, but within which the need for another conquest by the Sinhala Buddhists was being set in motion against the Tamils. This was the modern origin of the Sinhala Buddhist nationalist ideology of “re-conquest” and “Tamil invasion” which imagined a ‘glorious past’. In this Sinhala collective imagination the entire land is seen as “blessed” as it is believed that the Buddha himself appointed the Sinhala inhabitants of the island as custodians of his teaching. Therefore, the relationship between ethnicity (Sinhala), religion (Buddhism), territory (the whole of island) and the state (unitary political structure) are seen as inseparable from one another : The ideological marker of Sinhala Buddhist nationalism has two features, unitary political structure and cultural homogenisation (Sinhalacisation and Buddhicisation) which are believed to be perennial. What is the cumulative effect of the above strategic, political, economic, cultural and spatial transforma-
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tions that were undertaken by the colonial government? What were the political dynamics that generated antagonistic nationalist sentiments between Sinhalese and Tamils?
The impact of the ideology of “re-conquest” The incipient Sinhala Buddhist nationalism grew at the end of the nineteenth century and the beginning of the twentieth century within the social relations created by the colonial period where the myth of superiority became a material reality through day to day practice, circumstances and practical commitments. As mentioned above, the land ownership of the local elite was kept intact by the British. When the need arose to expand plantations these elite as well as the mercantile classes who had acquired wealth through the colonial economy were invited by the British government to join the plantation sector. This provided the material basis for the Sinhala superiority complex over and against other ethnic groups in the island. In the second phase of expansion of the plantations by the end of the nineteenth century, a considerable number of Sinhala peasants also lost land and within the above ideology of “Tamil invasion”, the Tamil labourers in the plantation sector were perceived not only as occupying the land of the Sinhalese despite the fact that the labourers did not have any right to land. They were also portrayed by the emerging Sinhala Buddhist nationalist leadership as those who defile the pure form of Buddhism among the Sinhalese with corrupt Hindu practices. As the trading expanded the influx of Muslim traders as well as south Indian traders to Colombo was perceived within the same ideology. The public acts of interpretations of these social and economic relations were first undertaken in the form of preaching and writing by English and vernacular educated Anagarika Dharmapala, who belonged to a Sinhala trading family. Muslim traders and their businesses were attacked in 1915 by Sinhala nationalist groups in which Anagarika Dharmpala was implicated and then in the 1930s there was another attack against the Indian-origin workers and traders in Colombo. The following reveals Dharmapala’s allegiance to the British and his disdain of the other ethnic groups in the island: “The pagan beliefs of monotheism and diabolic polytheism were unknown to the people…’ (Guruge 1991, p. 482) “What the German is to the Britisher that the Muhammedan is to the Sinhalese. He is an alien to the Sinhalese by religion, race and language. He traces his origin to Arabia, whilst the Sinhalese traces his origin to India and to Aryan sources…To the Sinhalese without Buddhism death is preferable. The British officials may shoot, hang, quarter, imprison or do anything to the Sinhalese but there will always be bad blood between the Moors and the Sinhalese…”. (Guruge 1991, p. 451) “True that I criticise in my articles the officials; but my loyalty to the
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British Throne is as solid as a rock and I have invariably expressed sentiments of loyalty to the King…”. (Guruge, 1991 p. 46)
It was this type of perspectival (racial) knowledge which assumed an inseparable link between Sinhala ethnicity and Buddhism (Buddhism as a racial characteristic of being Sinhalese) that was propagated through the press, fiction, theatre and preaching and began to form the collective consciousness of the emerging merchant classes at the end of the nineteenth century. As the formal education system improved, the vernacular literate (who knew some of the narratives of the Mahavamsa orally but were not aware of a written document) started viewing the existing myths through a single state and racial lens. Nira Wickramasinghe notes: “The Mahavamsa as a written text was valued by nationalists more than folktales and oral culture and the revivalist leaders, in their search for ethnically and energising themes from the community’s historical tradition, found a most satisfying solution in giving credence to Aryan origins…” (Wickramasinghe 1995, p. 89).
Understandably, in general terms, in Sinhala Buddhist anti-colonial rhetoric there was also an anti-Western and anti-Christian bent. However, its content did not oppose the colonially constructed state structure and economy which were kept intact while vilifying non-Sinhala groups as illegitimate competitors. How did the single state lens and the racial ideology at their initial stage have a direct impact on the Tamils? How did the Tamils respond to it initially and how did the British rule and rising Sinhala polity react to the Tamil response at this stage? Even though it appears that Tamils, both in the north and east (who were called Ceylonese Tamils) and in the plantations in the central hills (who were called Indian origin Tamils) were not physically attacked at this stage (unlike the Muslims in 1915) it was clear how the conditions for asymmetrical power relations between the two major ethnic groups had already been laid. At this stage the Sinhala Buddhist ideology was hostile to the Tamils in general and the Tamils in the plantation sector were the most exploited. It was Tamil labourers who generated the bulk of foreign exchange that was reinvested in building roads, schools, hospitals, irrigation systems as well as restoration of Buddhist archaeological sites by the colonial government, but these labourer shad neither the right to land nor a just wage. The Tamils in the plantation sector whose conditions were different from the Tamils in the north and east rallied around left political parties and trade unions on the ideological basis of class struggle. As a response to growing exclusivist nationalism the political leadership of the Tamils in north and east pioneered an inclusive form of nationalism called Ceylonese nationalism which was also supported by some sections of the Sinhala political elite. Together they formed Ceylon National Congress (CNC) in 1919 which did not last long. The colonial government, which had already introduced a legislative
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council with the local elite participation, decided to enlarge it with territorial representation making the Sinhalese to think in terms of numerical majority. The Sinhala leadership in CNC did not want to allocate a seat for the Tamils who had migrated to the western Province, which had been promised on the basis of Ceylonese nationalism. The Tamil leadership withdrew from CNC and formed a pressure group of their own. It is within this context that the “immediacy and givenness”, and “felt reality” of Tamil nationalism began first as an ideology of an oppressed national minority and later of a separate nation. Satchi Ponnambalam comments: “The Tamils took a new-self image as a national minority, vocal and articulate, on the lines of Scots and the Welsh (but not the Irish) in British politics. They did, in fact, compare themselves to the Scots in their political struggles and bargains with the Sinhalese.” (Ponnambalam 1983, pp. 40–50)
As the Indian independent movement advanced demanding home rule, a radical form of political activism was adopted by the Tamils under the leadership of Jaffna Youth Congress (JYC). Whilst the Sinhala political elite were content with constitutional reforms introduced by the British government the Tamil youth in Jaffna demanded total independence (swaraj) for the whole of the island, reflecting clearly the difference between the political aspirations of the Sinhalese and the Tamils. In an attempt to contain the influence of the Indian freedom movement in the island the British introduced further reforms that eventually empowered the Sinhala majority. Under the recommendations of the Donoughmore Commission universal franchise was granted to form a state council under the colonial government in 1931. The JYC while appreciating universal franchise boycotted the elections demanding swaraj (total independence or home rule for the whole island), thus providing the conditions for many acts of civil disobedience that were going on in India against the British rule. The first state council became a fully British-Sinhala entity where English became a compulsory requirement to be elected to the council. The English educated Sinhala representatives who came from the native elite and upper middle classes were condemned by the emerging Sinhala Buddhist middle class intelligentsia for their “Westernness”. As a way of asserting their legitimacy the Sinhala native elite promoted the ideology of “re-conquest” and “glorious past”. The Sinhala ministers of the state council carried out a campaign in the 1940s, to restore the city of Anuradhapura and build a new town. Within the existing town area 75% of inhabitants were Tamils and Muslims (Wickramasinghe 1995, pp. 122–123). Some politicians also made speeches glorifying the greatness of Rajarata (referring to the ˙ ancient kingdom of Anuradhapura) and its Sinhala Buddhist heritage. The first prime minister of independent Lanka — formerly one of the key ministers of the state council under the Colonial Government — claimed ancestral relations to the ancient families of Rajarata (Wickramasinghe 1995, p. 124). After independence in 1948 a new town was built separating it from the
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newly restored “sacred city”. All the residents who were mainly Tamils and Muslims were removed from the “sacred city”, and the area became exclusively Sinhala Buddhist. On another level even though land of the Sinhala peasants was conquered for expansion of plantations by the British and the native elite, the ideology of “re-conquest” of the north and east supplied “solutions” to landlessness. Emerging Sinhala Buddhist nationalism did not become mere rhetoric, the landless peasants too were materially absorbed into the imagined past of a pristine Sinhala Buddhist heritage through new Sinhala settlements in the Tamil eastern province. The Sinhala settlements in this region clearly reflected the importance of consolidating the unitary political structure for the British. Such settlements were built as far back as the 1920s which then had to be abandoned due to malaria and harsh conditions in the region. However, the process of Sinhala settlements was accelerated with the formation of state councils in 1931 and 1936 in an attempt to consolidate the power of the Sinhala polity and its constituency. Through these the Sinhala political elite – who had acquired their wealth through colonial plantations, trade, liquor production and renting, graphite mining, as well as English-education – secured their economic interests as well as their voter base. They were planters whose acquisition of land in the predominantly Sinhala south had deprived many Sinhala peasants of their land as the population increased and it is these peasants who were given land in the Tamil areas implementing the ideology of “re-conquest”. According to a speech given in 1939 by D. S. Senanayake, considered to be the “father of the nation”, and who would become the first Prime Minister after Independence: “We are one blood and one nation. We are a chosen people. The Buddha said that his religion would last 5500 years. That means that we, as the custodians of that religion, shall last long.”6 In what way did the polarization between the two communities grow during the postcolonial phase?
The Post-Colonial Nation Building / Deepening Polarization The island was granted Independence a few months after India became independent. The Sinhala leadership did not ask for Independence. Instead they asked for a dominion status under the Crown. However, after India became independent there was no further need for the British to maintain the island as a strategic location. The Sinhala political leadership saw postcolonial nation building as a process of accomplishing incomplete “reconquest”. This process was a furtherance of structural and cultural violence 6 Quoted in Hoole, R 2001, Sri Lanka: The Arrogance of Power: Myths, Decadence and Murder, University Teachers for Human Rights (Jaffna), Colombo, p. 5.
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which was accompanied by direct violence unleashed by the Sinhala nationalist groups against the Tamils in the 1950s. There were a large number of discriminatory measures adopted by the successive Sinhala governments against the Tamils; disenfranchisement, land grab and colonization, exclusivist language policy, discrimination in education and employment, pogroms, unilateral withdrawal from negotiated agreements, prohibition of parliamentary representation, repressive laws, and militarization and massacres. All these were rationalized and justified by the ideology of “re-conquest” with the support of the Sinhala majority. This process contributed to increase polarization between the two communities and to the strengthening of the asymmetrical relationship between the Sinhala and the Tamil political leaderships. Immediately after receiving Independence in 1948 the government engaged in a two way approach that increased the oppression of Tamils. It was the colonial constitution of 1946 based on the Soulbury Commission that was adopted at the time of Independence (which was in effect until 1972). This had not defined citizenship as a deliberate and important omission. The government led by the United National Party (UNP) passed the Ceylon Citizenship Act (1948) and the Indian Pakistan Citizenship Act (1949) depriving a large number of Tamils in the plantation sector of their citizenship and voting rights. The leftist leanings among these Tamils and the inspiration they gained from the Indian freedom struggle were seen as a threat to newly received Independence. One left leader who opposed the above measures stated that the Prime Minister “suffers from two diseases; one is Indophopia – the other is Anglomania” (Jayawardena 1983, p. 55). Consequently, out of 78, 000 Tamils of Indian origin who were living on the island in 1948, only 5,000 were considered as qualified to be citizens. The voting power of the Tamils dropped from 33 % in 1948 to 20 % after the disenfranchisement. The Indian Pakistan Citizen Act, further stripped the Indian Tamils of their franchise. Seven out of 95 Members of Parliament (MP) elected at the 1947 general election were from this community. But as a result of the newly enacted Citizenship Acts, none of the 95 MPs elected at the 1952 general elections were Indian Tamils. The second approach was against the Tamils in the north and east. As a measure of continuing British policy of strengthening the unitary political structure through Sinhala settlements, in 1949, the government started three major irrigation schemes – Allai, Kanthalai and Padaviya – settling Sinhala peasants in Tamil villages. These and many other subsequent settlements targeted the district of Trincomalee which links the north with the east and the districts of Batticaloa and Amparai in the east. These settlements dismantled the contiguity of traditional Tamil territory and changed its demography. The intensity and the magnitude of thesettlements in the east can be measured through the figures related to population growth. From 1947 to 1981, the growth of the Sinhala population in the island as a whole remained at 238 % while the Sinhala population growth in the east was 883 %. During the
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same period, the Sinhala population in Trincomalee grew by 549 % while in Amparai, it grew by 1250 % (Special Correspondent 2006). The calculated plan to destroy and contain the Tamils collective capability to influence the balance within the legislature through disenfranchisement were aligned with the state orchestrated colonization schemes aimed at changing the long established demographic pattern in the north and east. Both approaches seriously curtailed the ability of the Tamils to voice their collective grievances through their votes and weakened their power in the parliament to bargain against discriminatory policies of the successive Sinhala-dominated governments. In 1956, the UNP was ousted from power in the general elections by the SLFP, riding on the wave of Sinhala Buddhist nationalism with strong antiTamil overtones. Sinhala was declared the only official language of the state with the enactment of the Official Language Act. This was a result of a campaign led by the Sinhala petty-bourgeois classes: “This class included the rural and urban small proprietors and traders and those who were key opinion – makers among the Sinhala intelligentsia – monks, writers, novelists, poets, journalists – as well as other articulate sections – and such as school teachers, students and minor employees in the government and private sector.” (Jayawardena 1983, p. 70)
These classes had developed a self-consciousness based on the ideology of “reconquest” and felt subordinated under the Christianized English-educated middles classes and the elite in the society. The year 1956 also marked the celebration of the 2500th anniversary of the Buddha’s birth, enlightenment and passing away which increased the Sinhala Buddhist religious fervor. In fact, both Sinhala and Tamil should have been declared the official languages in order to overcome Christianized English domination, one of the remnants of colonial practice. According to the Sinhala Only Act the government servants were required to know Sinhala or learn it within a stipulated time. The policy was a severe blow not only to the flourishing of Tamil language but also to the economic foundations of the Tamil people as civil service had become one of the main sources of income for the Tamils in the north and east. In 1956, Tamils held 30 % of the jobs in the administrative services. By 1975, that had fallen to 5 %. 40 % in the General Clerical Service dropped under 6 % by 1981.7 7 Often in the Sinhala nationalist rhetoric Tamil presence in civil service is perceived as evidence of British favoring the Tamils through education, and state and public sector employment. Jaffna peninsula was the most populated Tamil area. Compared to Sinhala south most parts had limitations on agriculture due to tropical conditions. There was also a very meager growth of modern commercial activity. As result a high value was placed in obtaining state and public sector employment through education. American missionary societies with the intention of spreading Christianity had built schools in the region. The British had built a considerable number of schools in predominantly Sinhala areas and there was also an English educated Sinhala middle and upper class. The Tamils were not numerically higher than the Sinhalese in civil service, but they were higher as a percentage proportionately to the Sinhala population of the island.
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The Tamils responded with a form of linguistic nationalism where they demanded a federal system of state so that they could maintain administration of north and east. Their Gandhian-type non-violent protests in Colombo were brutally attacked by Sinhala racist gangs marking the beginning of a series of anti-Tamil pogroms. In 1956, dozens of Tamils were killed. According to official estimates 87 were injured. 43 shops were looted. Most of these were led by Sinhala settlers in the east. However, the Prime Minister S.W.R.D. Bandaranayake and the Tamil leader of the Federal Party S.J.V. Chelvanayagam entered into a pact that allowed usage of Tamil in the north and east. With mounting Sinhala opposition in 1958, at least 150 Tamils were killed after which one Sinhala parliamentarian stated: “The Tamils will destroy us eventually. Before that happens, I ask that the Tamils be settled once for all.”8 The government unilaterally withdrew from the pact due to pressure from the Sinhala Buddhist nationalist groups marking another crucial moment of polarization between the two communities. By the end of the 60s due to free education (as one of the features of the welfare state that undertook free services such as healthcare, food programs, irrigation scheme, promotion of Sinhala Buddhism, etc.) there was a large number of Sinhala secondary and university level students whose future had become bleak due to unemployment. The education and the economic system were colonial and could not accommodate these educated youth who aspired for social and economic stability. In 1971, there was a Sinhala youth uprising led by Marxist-oriented Janatha Vimukthi Peramuna (JVP-People’s Liberation Front) where at least 10,000 men and women (mostly youth) were massacred by the United Front government’s (led by the SLFP) police and security forces. Even though the JVP had legitimate grievances they adopted a form of National Socialism upholding the ideology of “re-conquest” and a ‘glorious past’.9 In an attempt to win over the Sinhala constituency which had been traumatized by the massacres the government adopted two measures both of which furthered discrimination against the Tamils. The first was the introduction of a policy of Standardisation (1971) and District Quota System (1972) to the education system. After the ‘Sinhala Only Act’ deprived most of the Tamils of their employment in civil service, university education, particularly in the medical and engineering fields, continued to remain one of very limited means available for the Tamils to secure a job. The above two policies meant that Tamil students appearing at their examinations needed to score higher marks in the aggregate than their Sinhalese counterparts to be eligible for the medical, science and engineering courses at the country’s 8 Quoted in Hoole, R 2001, Sri Lanka: The Arrogance of Power: Myths, Decadence and Murder, University Teachers for Human Rights (Jaffna), Colombo, p. 471. 9 For an analysis of Sinhala Buddhist ideology of the JVP see Samaranayaka, G 1987, ‘The Changing Attitude Towards the Tamil Problem within the Janatha Vimukthi Peramuna (JVP)’ in Facets of Ethnicity in Sri Lanka, ed Ch Abeysekera and N Gunasinghe, Social Scientists Association, Colombo, pp. 272–297.
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universities. This resulted in the systematic elimination of Tamil students from university education and thereby from employment. According to statistics, in 1969, a year before the policy of Standardisation came into play, 50 % of students studying medicine, and 40.8 % of students studying engineering were Tamil. In 1975, these numbers dropped to 20 % and 13.2 % respectively. Another crucial discriminatory measure was the adoption of a new constitution (1972), which officially declared the country as a republic and a unitary state while granting Buddhism primacy of place in the island. Even though the material and ideological basis of a Sinhala Buddhist state had already been built during the colonial period, and reinforced in the initial phase of post-colonial nation building, both the unitary political structure and its exclusivist ideology gained a constitutional status in the 1972 constitution (called the Republican Constitution). The Tamil students who protested nonviolently against the abovementioned measures were arrested, indefinitely detained and tortured by the government’s security apparatus. This was also accompanied by a police attack on the International Conference of Tamil Research which was held in Jaffna in 1974 where 9 cultural activists were killed. This period marked a turning point in Tamil politics with two developments: namely, a demand for a separate state and a politico-militant program to achieve it, which led eventually to the formation of the Tamil de facto state by mid 1990s. These two developments radically changed the Tamils’ power relationship with the Sinhala-dominated state and also contributed to the deepening polarization between the two communities.
From Tamil Demand for Inclusion to the Formation of the de facto state The historical process of renegotiating the Tamils power relationship with the Sinhalese and the Sri Lankan state has taken different turns since the colonial times. It is a process that started with a demand for an inclusive civic state in the 1920s and culminated with a formation of a separate de facto state in the 1990s. These turns have been determined by various socio-political and military conditions of the time. In the 1920s having been inspired by the Indian Independence Movement and its demand for swaraj the Tamil polity led by the Jaffna Youth League (JYL) called for the same for the whole of the island calling for a principled unity between Sinhalese and Tamils. The JYL called on their Sinhala counterparts in the Colombo Youth League to form an anti-colonial alliance against the British rule. This was a move to build one united nation under one state. This did not succeed as a majority within the Sinhala political leadership and a minority within a Tamil leadership distanced themselves from such radical demands and accepted reforms
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under the British rule rather than total independence. As the discriminatory measures against the Tamils developed in the post-colonial nation building phase as mentioned above the Tamil demand for a federal solution for the north and east on an administrative and linguistic level was an attempt made by them to be an inclusive part of the state. With the failure of this process there evolved the demand for separation. All the Tamil political parties joined together in passing a new resolution in 1976 demanding an independent state for the north and east based on self-determination, homeland and nationhood (Vadukkottai Resolution). The ongoing process and growing conditions of discrimination, oppression and repression had moved Tamil politics progressively from a political imagination of a national minority (1920s–1930s) to a linguistic nation (1950s) and finally to a “felt reality” of a nation state of Tamil Eelam (since 1970s). The ideology of the Vadukkottai Resolution was based on a secular understanding of a nation as opposed to the religiously defined national identity of the Sri Lankan state.10 In this sense the polarization between the two communities could be defined as a conflict between a secular ethno-nationalism and a religiously defined ethnonationalism. The demand for an independent state was put forward to the Tamil constituency in 1977 elections which was overwhelmingly approved by the voters. The Tamil United Liberation Front (TULF) obtained majority of seats in the north and east. This development was characterized by the emergence of Tamil armed resistance to the Sri Lankan state. This was led by youth politics which aimed at carrying a military-political program to implement the above resolution. This program gained momentum in the face of many repressive measures adopted by the UNP-led government which came into power in 1977. In the 17 year rule (1977–1994) of the UNP a range of measures were adopted which not only increased oppression and repression of Tamils in particular, but also the many voices of dissent within the Sinhala society in general against neo-liberal economic reforms in the Sinhala south. This happened in number of ways. The government introduced a new constitution in 1978 with an executive presidency with a high degree of power over armed forces, judiciary and legislature. The first executive President J. R. Jayawardene (1978–1988) declared himself as “the inheritor to the Sinhala monarchy” and commissioned group writers to continue writing Mahavamsa Nutana Yugaya (new era of Mahavamsa) (Kemper 1990). The government carried out large scale Sinhala settlements in the east in the name of development through irrigation systems proclaiming to return to a “glorious past” and built bufferzones, as in the Gaza and the West Bank, arming Sinhala settlers consistent 10 For a study of differences between two forms of nationalism see Schalk P 2007, ‘Operationalizing Buddhism for Political Ends in a Martial Context in Lanka: The Case of Simhalatva’ in Religion and Violence in South Asia; Theory and Practice, eds J R Hinnells & R King, Routledge, London, pp. 139–153.
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with Israeli advice (Gunaratne 1989). Repressive laws such as Emergency Regulations (ER) were passed which gave widespread powers to the security forces in cases that were aimed at, or committed with the objective of “threatening or endangering the sovereignty or territorial integrity” of the state. The Prevention of Terrorism Act, 1979 (PTA) provided the security forces with extraordinary powers in terms of searches, arrests and executive detention without warrant. This Act was similar in so many ways to the British Act against Irish militancy in the 70s–80 s and the repressive laws of the apartheid regime in South Africa. These laws resulted in large number of disappearances, extra judicial killings and torture as well as curtailing the freedom of expression first in the Tamil areas and later in the Sinhala South. The President also sacked over 100,000 employees, mostly Sinhalese, who engaged in a general strike in 1981. After 1977 the scale and intensity of anti-Tamil pogroms reached very high levels. Within a period of 7 years there were three major pogroms (1977, 1981, and 1983). In 1981, Sinhala ultra-nationalist groups led by two government ministers set fire to the largest library in south Asia which had housed a rare collection of books of 97,000 volumes. The library was revered as the principal cultural symbol of Tamil collective life. During the same timeframe, a group of Tamil political prisoners were murdered by Sinhala prisoners, with the support of the prison guards in the major Colombo prison. In July 1983 in a reaction to the killing of 13 Sri Lankan soldiers by the Tamil militants, at least 3000 Tamils were killed by Sinhala nationalist groups displacing around 200,000 within a matter of a week with the direct and indirect support of government ministers, police and security forces. The President stated: “I am not worried about the opinion of the Jaffna people… now we cannot think of them, not about their lives or their opinion… the more you put pressure in the north, the happier the Sinhala people will be here… Really if I starve the Tamils out, the Sinhala people will be happy.” (Jayawardene 1983). On August 8, 1983, just a few days after the anti-Tamil pogrom the Sri Lankan parliament enacted the 6th amendment to the constitution which criminalized any support for the establishment of a separate state in the island. An oath of allegiance to the unitary state was demanded. Consequently, all 13 members of parliament representing TULF lost their seats depriving the Tamils of any electoral avenue by which to voice their demands. In an attempt to counter Tamil militancy, militarization of north and east was increased to high numbers without precedent with large scale recruitment of soldiers and deployment of many battalions on a permanent basis through acquisition of large tracts of land that belonged to thousands of Tamil civilians. This is a process that had started after the colonial period and increased from 1956 when army units were named after Sinhala Buddhist nationalist names that evoked a memory of a “glorious and triumphalist past” (Gemuni Watch, Sinha regiment, Rajarata Rifles, etc.) (Committee for Rational Development 1984). This process intensified after 1977 with the support of US, UK, Israeli and
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Pakistani governments. Within the context of the Cold War geopolitical dynamics the government’s pro-Washington policies troubled the proMoscow Indian government. This marked the second round of the internationalization of the conflict after the British created the unitary political structure for geopolitical reasons in the early nineteenth century. In the aftermath of the 1983 pogrom large groups of Tamil youth joined militant groups. India which considered Tamil national movement as a counterbalancing power against pro-Washington Sri Lankan government did not oppose the training activities of Tamil militant groups in south India where there were over 200,000 Tamil refugees who had fled the island. This was one crucial moment where the internal and external political dynamics interacted with one another and contributed to the internationalization of the conflict. After 1983 the conflict developed into a high intensity war between the government and the LTTE. Explaining the aim of the war the Minister for National Security, (1982–1988), who commanded military operations in the Tamil region, revealed the intent of eliminating one of the foundations of the Tamil collective identity : “The only way to root out terrorism was to remove the concept of ‘traditional homelands (of the Tamils)’” (Vssubramaniam 2010). In this period, the Sri Lankan military, air force and navy engaged in liquidating Tamil villages through scorched earth policies. This included large aerial bombardments by supersonic jets and Israeli-made Kafir jets. In the last few years of Cold War politics India under Rajiv Gandhi changed its initial geopolitical position and entered into a pact (Indo-Lanka Peace Accord) with the Sri Lankan government in 1987 in a move to contain the Tamil national movement and protect the Sri Lankan unitary state. The Indian security forces occupied the Tamil regions as a “peace keeping force”. This period also marked the second insurrection of the Sinhala youth led by the JVP who were affected by growing social and economic inequalities caused by neo-liberal restructuring. The JVP opposed the Indo-Lanka Peace Accord on the basis of the Ideology of an ‘Indian/Tamil invasion’ whilst the LTTE opposed the accord on the basis of the principle of self-determination. The Sri Lankan security forces engaged in repressing the Sinhala uprising which killed nearly 60,000 while the Indian forces conducted large scale military operations against the LTTE. After the withdrawal of the Indian security forces and change of government in early 1990s there was a brief ceasefire with the promise of a political solution made by the President Kumaranatunga who later led another phase of war named “war for peace”. While putting forward a package of devolution of power (which never materialized) she also proposed to formalize the position of the Buddhist monks in governance through a High Sangha Council (NESOHR 2009). In terms of the human cost of the conflict, in addition to the above mentioned 6 pogroms between 1956–1983 the North East Secretariat on Human Rights (NESOHR) has provided a detailed account of massacres of Tamils during different phases of war. In between 1984–2000 there have been
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at least 108 group massacres directly carried out by Sri Lankan security forces.11 These were accompanied by severe economic embargoes on essential items such as food, medicine, fuel which led to large scale starvation, malnutrition and deaths in the north and east. The counter-violence of the LTTE reflected changing patterns as the war intensified. From individual political assassinations and targeting Sinhala civilians in Sinhala settlements and Colombo the LTTE moved mainly towards large scale military targets as they developed conventional military capabilities after the mid-1990s. These capabilities helped them build a de facto state with a well-organized civil administration.12 This made the objective of Tamil nationalism, a state of Tamil Eelam, a materially “felt reality”. Sinhala Buddhist nationalist parties and groups such as JVP and Sihala Urumaya (which later became Jathika Hela Urumaya – JHU) perceived the counter violence of the LTTE and the Tamil de factostate as a “felt reality” of an invasion of the sovereign Sri Lankan state. In the latter half of the 1990s both the Sri Lankan government and the LTTE appeared to be unwilling to give up fighting and their ideologies were diametrically opposed to one another. During this period there was high intensity warfare with a massive human cost. However, nationalist ideologies alone are not sufficient to continue waging a war. The “felt reality” of national consciousness needs to be accompanied by sustainable socio-political relations (vertically and horizontally) within a given national group.
End to Polarization through Parity of Esteem By 2001 the government of President Kumaranatunge entered into a crisis due to unsustainable war expenditure as well as continuous military advancements of the LTTE leading to a breakdown of the socio-political cohesion within the Sinhala society and polity.13 The “felt reality” of national consciousness amongst the Tamils (both through vertical and horizontal socio-political relationships) had become strong as a result of the Tamil de facto state and the 11 For a detailed analysis of Sinhala politics of this period see Veluppillai, A 2006, ‘Sinhala Fears of Tamil Demands’ in Buddhism, Violence and Conflict in Modern Sri Lanka, ed M Deegalle, Routledge, London, pp. 93–113. 12 See for an in depeth analysis of the LTTE-led state structure in the north and east Stokke, Ch 2006, ‘Building the Tamil Eelam State: Emerging State Institutions and Forms of Governance in LTTE-controlled Areas in Sri Lanka’ in Third World Quarterly, Vol. 27, No. 6, pp. 1021–1040. 13 For a detailed analysis of this crisis see Bastian S 2007, The Politics of Foreign Aid in Sri Lanka: Promoting markets and supporting peace, International Centre for Ethnic Studies, Colombo, chapter 5. For the Sri Lankan government to put the country on ‘war footing’ defense budget needed to be increased from Rs. 48 billion (1999) to Rs. 80 billion (2000) which was unbearable as the country’s foreign exchange reserves had dwindled since mid 2000. See Kelegama, S, ‘Sri Lanka Economy in Turbulent Times: Budget 2001 and IMF Package’ in Economic and Political Weekly, Vol. 36, No. 28, July 14–20, 2001, 2665.
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military achievements of the LTTE, but weaker amongst the Sinhalese as result of economic crises as well as military setbacks. Furthermore, not only the Tamil society, but also the Sinhala society was weary of war, but the impact of this weariness on each of the societies varied. For the Tamils this weariness was felt with a new sense of confidence in achieving their political goal of Tamil Eelam whereas for the Sinhalese it was felt as a difficulty in further maintaining the unitary state structure. In this sense, the conditions that underpinned the “felt reality” of Sinhala nationalist identity associated with the unitary state structure were less conducive for a military takeover of the Tamil region. These conditions weakened the material basis of the unitary state, which contributed to a symmetrical power relationship between the Sinhala and Tamil polity and there arose a social space to reduce polarization between the two communities. These were the conditions that led to form of negative peace. The President’s government was defeated in 2001 by United National Front (led by the UNP), which promised a negotiated political settlement to the conflict rejecting a militaristic solution. In this sense, the conditions that led to a regime change carried a greater potential for a political settlement by transforming the state. For the first time in the history of the conflict a permanent ceasefire agreement and a peace process came into effect in 2002, facilitated by the Royal Norwegian government on the basis of a balance of power between the two parties. The painful stalemate of the Sinhala polity emerged as a result of the economic decadence and the political and military setbacks which gave rise to two major pragmatic positions: a military victory over the LTTE is not possible and a negotiated settlement should be considered; and the economy cannot be revived while continuing the war. Similarly for the LTTE the devastation caused by the drawn-out war and continuous economic embargos imposed by the Sri Lankan state had generated a severe humanitarian crisis which could not be resolved without international assistance. Moreover, the LTTE also needed international recognition to achieve its political goal of a Tamil state. However, the violent strategies it adopted in consolidating external security for the Tamils were considered to be human rights violations by the International community, mainly by those countries that adopted a security-based realist approach to international relations. Both parties felt strongly that there was a need for a peace process that, from both an economic and political perspective, would garner international recognition and support. The 2002 peace process also marked another moment of internationalization in the conflict. Most of the EU countries adopted an equidistant approach to both parties with the aim of peace building through economic development and democratization whilst the US, UK and Indian governments recognized the existing Sri Lankan unitary state, advancing state-centered securitization and thereby negatively contributing to the peace process. However, the latter approach could not destroy the peace process at the outset as there was a powerful peace mandate given to the two parties by their respective
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communities. Furthermore during the six rounds of talks between the two parties there were not only interim joint structures which were formed to implement programs of rehabilitation, resettlement and demilitarization, but also there was a large sum of international aid that had been promised for these endeavours. This means there were conditions not only for negative peace, but also for positive peace. Joint structures between the two parties could have relativized the absolute power of the unitary state and promoted shared sovereignty while contributing to the reduction of polarization between the two communities. This was a historic moment where a regime change was associated with the prospects of transformation of the state whereby Sinhalese and Tamils could have been treated as distinct nationalities who live predominantly in distinct territories, perhaps with different levels of sovereignty including some level of shared sovereignty. These features were inherent in the interim joint structures, in a way peacefully supporting a society and a polity that were in transition. The socio-political and geopolitical conditions of the period, particularly under the leadership of the European Union, which was promoting a non-militaristic approach to conflict resolution, were conducive for such a transition and an eventual negotiated settlement, which could have brought about positive peace. However, the model of parity of esteem as the basis for a negotiated settlement could not be sustained internationally due to the advancement of the unilateralist military options by the UK and US-led governments in the cases of Afghanistan and Iraq which had a direct impact on south Asia which is the border of west Asia. The island’s strategic importance for both trade and warfare grew (as during the British colonial period and the Cold War) as ‘the Indian Ocean and its adjacent waters’ has become a ‘central theatre of global conflict and competition this century’. The US Marine Corps Vision and Strategy 2025 gave a high value to the Indian Ocean in the emerging power dynamics between the US and China, China and India, and India and the US (Kaplan 2009). Sri Lanka is located near to at least four major shipping lanes that connect the resource-filled Persian Gulf, Arabian Sea, Indian Ocean, South China Sea and the Western Pacific Ocean between East and West. In a joint article written by a high profile US military officer and senior instructor at the Sri Lanka Military Academy, the island is named as ‘the most ideal location to fulfil a plethora of tasks in furthering not only the security interests of the US, but those of Sri Lanka and India’ (Anderson 1991). In this external setting, the exclusion of the LTTE from crucial negotiations on development aid by the USA (in 2003) and banning of the organization by the EU under the UK and US pressure (in 2006) had a decisively negative impact on the peace process. As the island’s geo-strategic value is dependent on the unitary character of its state which guarantees political/military stability of the country the prospects of transformation of the state faded away as the Sinhala nationalist ideology of ‘re-conquest’ gained a new life within this new international context. The US State Department’s officials not only made
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continuous statements in support of the constituent elements of the existing Sri Lankan state structure, but also supported the government through different means to maintain the same. The report issued by the People’s Tribunal on Sri Lanka states as follows: ‘Active US complicity… arises not only from its sustained efforts to increase the power an effectiveness of the Sri Lankan military… but perhaps even more significantly from its role in blocking and even reversing political and diplomatic initiatives to implement the peace process…’. (Permanent Peoples’ Tribunal 2014)
Victor’s Peace and Deepening of Polarization The symbiotic power relationship between the two parties was altered mainly by the UK/US governments’ actions bolstering Sinhala Buddhist nationalist groups who opposed the peace process. On the basis of opposing any transformation of the state a wide coalition of JVP, JHU and SLFP headed by the newly chosen presidential candidate Mahinda Rajapakske was established to form a new government and adopt a military solution with the full support (economic, diplomatic and military) of major international actors ranging from China to the US. These actors have been competing with each other to secure the unitary state structure in gaining control of the Indian Ocean region. The election victory of the coalition in 2005 was imagined as the arrival of Second Mahinda (the first one was the monk who brought Buddhism to the island before the Common Era) as well as a return of the epic “Sinhala” king Dutugemunu. Following the 2002 recommendations of the US Navy, the Sri Lankan government launched military operations against the de facto Tamil state from the eastern province in 2006 and reclaimed the areas surrounding the strategic Trincomalee harbour (Moorcraft 2012). In 2008, the government formally withdrew from the ceasefire agreement. As the next phase of military operations unfolded towards the North, the population of around 500,000 people moved further into the Tamil de facto state, reflecting the intrinsic correlation between security of the Tamils and their demand for selfdetermination. Such a security cannot be guaranteed without at least exercising relative power, which the LTTE exercised. The Sri Lankan government sought to impose absolute power and sovereignty over the Tamil people within the framework of the global security discourse. In the last phase of the war, the de facto state that had covered around 15,000 square kilometers was reduced to 1.5 square kilometers with a population of around 300,000. The UN decided to leave the region at the request of the Sri Lankan government, in a way reversing the international community’s positive engagement in the 2002 peace process. The military victory over the LTTE which totally destroyed the Tamil de facto state in 2009 with an unprecedented mass massacre was named “second
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independence” by the government. The objective of the war was clear : “In any country the administrative powers should lie in the hands of the majority. We cannot prevent it. The majority should have the power in their hands. This country will be ruled by the Sinhalese who represent the 74 % of the population”.14 Amidst scores of deaths the “inevitable achievement” of military victory was appreciated by UN Security Council, the White House and the European Union on the same day, May 13, 2009. In the aftermath of the military victory the Sri Lankan President addressing the Parliament referred to ancient, medieval and modern invasions that were successfully overcome by great Sinhala warrior-kings of the island. “We are a country with a long history where we have seen the reign of 182 kings who ruled with pride and honour that extends more than 2,500 years. This is a country where kings such as Dutugemunu, Valagamba, Dhatusena and Vijayabahu defeated enemy invasions and ensured our freedom” (Rajapaksa, n.d.). ˙
The President was awarded the highest honour by the chief sangha (the Buddhist clergy) of the two main Malvatta and Asgiriya Buddhist Chapters for defeating the LTTE and “uniting” the island under one rule. The title of honour was visvakirti sri trisinhaladhisvara, which means “universally renowned overlord of the blessed three Sinhala regions”; representing him as one in the line of ancient epic kings who are believed to have united the island against “foreign” invasions. With the military victory, the ideologically perceived inseparable link among ethnicity (Sinhala), religion (Buddhism), territory (the whole of island) and the state (unitary political structure) was reinforced. In this sense the military victory signifies a political imagination of a “legitimate re-conquest” of the north and east of the island which the Tamil national movement led by the LTTE claims as their “homeland”. The Tamil national movement is perceived as “an invasion” of the island’s territorial integrity (unitary state structure all throughout the island) and sovereignty (Sinhala Buddhist rule). From this perspective what has been achieved is a return to a glorious past, rather than to a newly constructed present and a future. Whilst the celebrations of “re-conquest” was held in every city and village in predominantly Sinhala south, there were at least 300,000 Tamils who were detained in large number of concentration camps by the Sri Lankan military. Such a large number of Tamils and many more had voluntarily decided to live in the de facto state of the LTTE which was totally destroyed along with its leadership by the Sri Lankan security forces. As it was later revealed by the The Report of the Secretary-General’s Internal Review Panel on United Nations Action in Sri Lanka, at least 70,000 Tamil civilians were killed in the final phase of the war, lasting just four months (January through May of 14 Statement made by Lt. General Sarath Fonseka, Commander of the SL Armed Forces, Daily News, Colombo, 19 July 2008.
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2009).15 Giving testimony at the Sri Lankan government appointed, Lessons Learnt and Reconciliation Commission (LLRC) on January 11, 2011, the Bishop of Manner revealed that there are still 1,46,679 Tamils unaccounted for, a figure he arrived at by analysing official data issued by the government.16 The “reconquest” by the Sinhala rule, therefore, was a “conquest” for the Tamils marked by an unbearable massacres and destruction. This situation clearly reflects an increased level of polarisation between the Sinhalese and Tamils in the island and in the Diaspora. The “felt reality” of national consciousness generated two radically different meanings to each national group. Large groups of Tamils from the southern Indian State of Tamil Nadu also joined with the Sri Lankan Tamil Diaspora in protesting against the massacre of Tamils and the destruction of the Tamil de facto state. The Tamils considered the de facto state led by the LTTE as a realisation of their collective political aspirations for self-determination as a nation, even though it had not been formally recognised by the UN. The internationally supported 2002 ceasefire agreement and the peace process between the LTTE and the Sri Lankan government had recognised the line of control between the Tamil de facto state and the areas under Sri Lankan government. This generated space for a peace based on parity of esteem between the two parties that would have overcome the polarisation between Sinhalese and Tamils, but as the military victory completely destroyed the Tamil de facto state the Sinhalese were led to a triumphalistic mood whilst the Tamils were led to a collective sense of subjugation and humiliation. Whilst the Sinhala political and religious leadership and a majority in the Sinhala society perceived military victory as an end to the “foreign” invasion, the international community and media depicted it as an end to a bloody inter-ethnic war and ‘terrorism’. In the aftermath of the war the Sri Lankan government undertook large scale programs of structural changes in the Tamil region through militarization, Sinhala settlement and building of Buddhist shrines as means of destroying the foundations of the Tamils’ relationship to the north and east and thereby consolidating the power of the unitary state. The northern province of the island has become the most militarized region in south Asia in terms of force density ; 200 soldiers per 1000 civilians. This exceeds the ratio in Chechnya, Kashmir and Iraq (Anonyomus 2012). A business-military complex has evolved where the security forces engage in both civil administration and economic activity (Rajasingham-Senanayake, n.d.). Reconstruction has been ideologised on the basis of Sinhala Buddhist identity through Sinhala settlements, building of Buddhist shrines, renaming roads 15 For different figures of number of deaths see United Nations, The Report of the SecretaryGeneral’s Internal Review Panel on United Nations Action in Sri Lanka, Available from: http:// www.un.org/News/dh/infocus/Sri_Lanka/The_Internal_Review_Panel_report_on_Sri_Lanka.pdf. [April 2014]. 16 Ibid.
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and regions, etc. (Minority Rights Group International 2011). Jonathan Goodhand comments: ‘The rapid integration of the north and east is seen as a means of consolidating the unitary state and preventing the re-emergence of Tamil militancy’ (Goodhand 2012, p. 133). In this way, the unitary character of the state structure and its attendant exclusivist national ideology have been reinforced whilst the collective political rights of the Tamils have been suppressed. This suppression takes place not only through a process of large scale restructuring of the north and east whereby Sinhala Buddhist dominance is imposed, but also through the total denial of collective memory of massacres of Tamils. Such a process could be called a ‘war-by-other-means’ and according to the panel of judges the of the People’s Tribunal which treats the large scale massacres of the last phase of the war as the climax of a genocidal process. The post-war period is treated as a ‘continuity expressed in ongoing acts of genocide’ which are accomplished by many structural changes as mentioned above as well as measures of forced sterilisation imposed on some sections of the Tamils (Permanent Peoples’ Tribunal 2014). In this sense, the conflict continues with different forms of structural, cultural and direct violence against the Tamils in the north and east. A victor’s peace is neither a negative peace nor a positive peace. It was under the above conditions of a victor’s peace that the presidential election in January 2015 was held. It was evident that the Sinhala polity was divided during the election campaign. This division was totally different from the one that existed during the 2001 elections which was a battle between the pro-peace vs. pro-war lobbies both locally and internationally. The main split within the Sinhala polity in January 2015 elections (which was united during the war) was based on the ownership of the military victory. Does it belong to the president and his family who led the war or to the rest of the Sinhala polity, security forces and the Sinhala populace who endorsed, fought and supported the war? The military victory had given president Rajapaksa unprecedented popularity among the Sinhala populace to the extent of being treated as a ‘great king’. The logic behind this popularity was that one who protects the unitary state wields unchallenged power. As the Rajapaksa regime moved towards authoritarianism, nepotism and high level corruption there arose a division within the Sinhala polity by the end of 2014, not with regard to the unitary state structure and ongoing militarization of the north and east, but with regard to issues of governance. The common coalition of the opposition made sure it always held president Rajapaksa in high esteem when referring to the military victory. The opposition, which won the presidential election, promised good governance under a unitary state. Both main presidential candidates maintained the Sinhala triumphalistic nationalist rhetoric associated with the military power of the state. It is in this sense that the regime change in January 2015 does not carry any potential for transformation of the existing state structure, which is the root cause of the conflict. What was the role of the international actors in the post-war phase and in the regime change?
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The way that the conflict is framed by a majority of post-war reports reflects an unconditional recognition of the Sri Lankan state with its existing territorial integrity and sovereignty ; the unitary character of the state. In the face of growing international outcries of many civil society groups (both Tamil and non-Tamil) against the large scale massacres of the last phase of the war and the on-going process of violence against the Tamils, in March 2011 the UN issued an expert panel report on the massacres in Sri Lanka which referred to war crimes committed by both parties. In December 2011 the Sri Lankan government issued its Lessons Learnt and Reconciliation Commission report (LLRC) without any acknowledgment of such crimes committed by the Sri Lankan security forces. The report justified the government’s war for the sake of the sovereignty of the country and accused the LTTE of violating the international humanitarian law. In the sessions of the United Nations Human Rights Council in 2012, 2013 and 2014, the US led passing resolutions on Sri Lanka on the basis of the LLRC report and requested the Sri Lankan government to carry its own investigations regarding alleged wartime violations of human rights. These United Nations Human Rights Council (UNHRC) resolutions have not recognized the core issues of the conflict; the unitary character of the state and the Tamils collective political rights. These resolutions contain neither any historical perspective regarding the conflict nor any reference to the 2002 peace process. The 2014 resolution does not mention the word Tamil even once, but reaffirms its ‘commitment to the sovereignty, independence, and unity and territorial integrity of Sri Lanka’, the constituent elements of the unitary state structure (UNHRC 2014). In the face of the growing international (mainly from western countries) pressure the Rajapaksa regime increased its dependence on China and welcomed large scale construction schemes making China the biggest donor of the island. China also opposed the US sponsored UNHRC resolutions on Sri Lanka. The growing Chinese influence on the island raised serious geostrategic concerns for India and the US who have been engaged in encircling China’s String of Pearls by securitising the Indian Ocean (Pearson 2015). Whilst the western countries led by the US continued to exert pressure on the Rajapaksa regime on issues of human rights (not the collective political rights of the Tamils) the common coalition of the Sinhala opposition parties accused the regime of lack of transparency in Chinese investments. With the regime change in January 2015 the publicising of the UN report on human rights violations in Sri Lanka was postponed at the request of the Sri Lankan and the US governments. The main division between China and the US/India is not concerning the unitary character of the Sri Lankan state or the collective political rights of the Tamils. The same could be said about the division within the Sinhala polity. In fact, the apparent divisions amongst these parties conceal the deep seated root causes of the Sri Lankan conflict and generate false polarisations. In the absence of realistic political power the Tamil polity seems to rely on the US-sponsored UNHRC resolutions in the belief that these
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would help deliver justice. However, it could also be seen how critical voices against this belief has emerged. These voices reflect an understanding of the geo-political manipulations associated with the Sri Lankan conflict. In a dramatic move, the Northern Provincial Council (NPC) led by the Tamil National Alliance passed a resolution naming the history of mass atrocities committed against the Tamils by the successive Sri Lankan regimes as a process of genocide and calling the international community to conduct an investigation through the International Criminal Court. What is the way forward towards a just peace in Sri Lanka?
Conclusion The root cause of the Sri Lankan conflict lies in the unitary state structure and its associated Sinhala Buddhist ideology. The conditions of this particular state formation were formed during the British colonial period and have been reinforced with a massive human cost that has destroyed the Tamil de facto state signifying the geo-strategic importance of the island as a single state structure. The military victory has imposed a victor’s peace rather than a negative peace that was achieved in 2002 ceasefire agreement between the two parties and the prospects of positive peace achieved through the subsequent peace process. The victor’s peace has reinforced the unitary state structure and Sinhala Buddhist nationalist ideology all throughout the island with an unprecedented level of power exercised by the Sinhala polity, its society and security forces over the Tamils in the north and east. The continuous international recognition given to the Sri Lankan state, as a sovereign state, whilst demanding the Sri Lankan government to probe into human rights violations during the last phase of the war is a contradiction in itself. The sovereignty of the state has been highly contested by the Tamils due to its unitary character that has been legitimizing discrimination, oppression, suppression and eventually the annihilation of the Tamil national leadership of the de facto state and thousands of people who lived in it. In this sense human rights violations are part of the existing state system. Moreover, these violations are not individual violations of human rights in general, but a specific violation of the collective social, political and cultural rights of the Tamils through massive military force. The more the existing state structure is supported by the international community the more the need for militarization of the Tamil region increases. The more the militarization is maintained and increased the more human rights in general and the collective political rights of the Tamils in particular are denied and suppressed. The same militarization has an impact on the overall democracy of the entire island affecting the Sinhalese too. The ripple effects of unchallenged political and military power were felt by the Sinhalese
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under the increasing authoritarianism of the Rajapaksa regime. However, within the “felt reality” of triumphalistic Sinhala nationalism democracy means two radically different socio-political constructs for the Sinhalese and the Tamils. Could good governance be secured while maintaining the unitary state structure and the dominant Sinhala nationalist ideology? In other words, could democracy for the Sinhalese be guaranteed without democracy for the Tamils? Could democracy for the Tamils be a reality without a substantial transformation of the existing state structure? Democracy is not an abstract term. It needs to be understood in concrete historical terms associated with conditions that underpin the formation of a state. The character of a particular state and the associated nationalist ideology determines boundaries of democracy. Without a substantial transformation of the unitary state structure democracy in Sri Lanka is bound to be an exclusionary form of democracy, which will contribute to a deepening of polarization between the two main communities. This is why a mere regime like the one in January 2015 would not lead to a process of conflict resolution. On an ethical level, the absolute value given to the existing state structure is associated with a sense of superiority over the other. This sense has dehumanized both the communities, but on two levels. On the one hand, the Tamils have been subjected to a process of socio-political and cultural subjugation whilst their right to a collective memory of the loss of lives has been denied. On the other hand, the collective massacres that the Sinhala society had to suffer in 1971 and in 1987–1987 under its own regimes and the state have been forgotten in the name of a pristine ancient Sinhala Buddhist past associated with the ideology of ‘re-conquest’ and its supremacist politics. Violence of the LTTE is remembered as a tool to solidify the supremacist politics whilst the collective right to memory of loss of lives among the Tamils has been denied as part of dehumanization process. As it has been demonstrated the Sinhala supremacist politics, which is inherently associated with the unitary state structure in the island, is part of a wide geopolitical configuration, which involves major global actors and their economic and military interests. A regime change was made in January 2015, but the processes of dehumanization and geopliticisation continue. The Sri Lanka that was created by the British as well as after the military victory over the LTTE does not represent a return to any original condition. It was, rather, a new creation — a very concrete manifestation of contemporary interactions of colonial and post-colonial conditions and their local and global politics. Even though these conditions and processes have contributed to further oppression and massacres of Tamils leading to an asymmetrical relationship between the two main communities in the island we have also observed how within the same process there have been moments and opportunities to establish equality, interdependence and respect for diversity. In this sense the degrees of polarization have varied from time to time. The more the unitary state structure is consolidated there is more polarization.
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The less the unitary state structure is upheld there is less polarization. The best example for the latter case is the 2002 peace process and the best example for the former case is the military victory in 2009 and the regime change in January 2015. Understanding the conditions and processes that underpin the historical dynamics of state formation and its collective consciousness can show us a pathway to conflict resolution.
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Maung Maung Yin
Myanmar in Transition: Problems and Prospect The Strategic Location of Myanmar1
Myanmar, formally known as Burma, is geographically situated in the region of Southeast Asia, surrounded by China in the northeast and India in the northwest, Laos in the East and Bangladesh in the west, and has a long border with Thailand in the east and southeast. We have a long, beautiful and resource-rich coastal region along the Bay of Bengal and Andaman Sea in the west and southwest, which is the gateway to the Indian Ocean. Myanmar has high mountains in the north and west with various natural resources, a plain and dry zone in the middle full of Bamar cultural heritage2, Shan plateau in the east with all its natural and cultural beauties, the fertile delta region in the south known as the rice bowl of Myanmar, and mountains along the Tenintharye Peninsula, where we have a long border with Thailand, that proves especially good for planting rubber trees and palm trees that produce palm oil. The sea in the south and southwest is full of natural resources and attracted much international interest. Complementing its geography and natural features, one of the unique characteristics of Myanmar is that the country is comprised of 135 ethnic groups with their own languages and/or dialects, speaking 35 main languages. However Burmese is the common language and Bamar is the major group comprising 68 % of the whole population. There are Shan, Kachin, Kayin, Kayah, Mon, Rakhine, Chin, Wa, and others mostly living on the highlands though some are on the plains having their own cultures and traditions which are also diverse and very interesting. Buddhism is the predominant religion, which claims 89.4 % of adherents and the remainder of the religious affiliations are to Christianity, Islam, Hinduism and Animism. The richness of pluralism and diversity is, in fact, the richness of Myanmar.
1 This paper is based on a lecture given at the International Summer School “Societies in Transition. East Asia and Australia between Conflict and Reconciliation”, July 1, 2013 at the FriedrichSchiller-University Jena. 2 The Burmese are the ethnic majority in the country and two out of every three people are Bamar. They are concentrated round the rice growing areas of the Irrawaddy Basin but can be found throughout the nation.
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A Brief History of Myanmar : From colonial times until the present After several centuries of living under a Buddhist monarchy (1044–1886), Myanmar, then known as Burma, found itself under British colonial rule for more than one and a half centuries(1886–until 1942). It was then liberated by the Japanese from the British and ruled by the Japanese during the Second World War. At the cessation of the War it was once again liberated by the British from the Japanese rule and became a British colony again until Independence was achieved on January 4, 1948 through the efforts and under the leadership of General Aung San against the British rulers. The country then enjoyed parliamentary democracy for ten years (1948–58), after which, because of certain political turmoil, the military was invited to rule the country for two years as an interim government (1958–60). During the course of the next two years, parliamentary democracy was restored. On March 2, 1962 there was a military coup led by General Ne Win and from that time until 2010, Myanmar has endured successive military regimes who have ruled with an iron fist as human rights and human dignity were denied, and freedom nullified. Notorious and brutal crack downs on the various opposition groups and specific individuals, arbitrary arrests and extrajudicial sentences, antiintellectualism and brain drainage are some of the consequences that followed. This in turn has led to the decline of quality education, a sense of fear in daily life, the loss of civil society, lack of expertise and skilled workers, serious corruption issues and increase of poverty. All of these served to make the country classified as one of the least developed by the United Nations. During these years, moreover, civil wars and ethnic conflicts flared up, and a sustainable peace could not be brokered although many cease-fire agreements were agreed. Unfortunately, the agreements rarely held and each side would blame the other for the failed results. It is appropriate here to quote the words of Mana Tun, a research Fellow of the Peace Studies Center in MIT, who observed in his research paper, “In such long history of war-making culture or of war-making political atmosphere, the people of Myanmar have been informed consciously and unconsciously about war-making things and ideologies like hatred, killings, revenge or retaliation and violence in various forms.” However, in 2010 there arrived a long awaited democracy, and although it was a military-guided democracy, and was brokered in accordance with the principles of a controversial constitution, yet the main opposition party, National League for Democracy refused to take part in the elections as they believed that the constitution was seriously flawed. As a result, the party was disbanded and their movements were strictly restricted although the party’s most prominent leader was released from house arrest. A government was formed and the ex-military general, who was ranked third in the former military regime, U Thein Sein, became the president. Other military generals
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were appointed in leadership roles to take the responsibility as ministers in various portfolios of the new government.
Peace Building in the dawn of democracy in Myanmar Prospects In spite of the miseries, sufferings, pain and sorrows of all these years, most of Myanmar’s people are not altogether pessimistic. Many of them hoped for a better future, some of them tried to work practically toward the democracy they envisioned, a few were deeply committed to achieving democracy and made efforts through non-violent means toward that goal. All these aspirations had come to fruition in the latter part of 2010. The first thing that made people very excited, hopeful and optimistic was the extension of an invitation to the opposition leader, Daw Aung San Su Kyi, a Nobel Laureate, by the president, U Thein Sein, and her acceptance of the invitation. She went to Nay Pyi Daw, a newly built capital city of Myanmar and met with the president in his presidential palace for about twenty minutes for the very first time in many years. The details of their meeting were not made public, but as they came out of the meeting both the president and his invited guest, standing in front of the portrait of late General Aung San, an architect of the country’s independence and the father of Daw Aung San Suu Kyi, said that they were pleased to meet each other and that the meeting had been positive. This was an example of non-violent, active resistance, that brought these two people together to the table to create a constructive conversation. This had an immense impact on the people as they saw how the fruits of the dialogue worked as foes gradually became less antagonistic. A second example that remains vivid concerns the stopping of the mega dam project in Kachin state. This mega dam project was a joint endeavour between Myanmar and China. It needs to be borne in mind that China was the main partner and supporter of Myanmar during the military reign. The dam was constructed on the site at the very beginning of the Irrawaddy River. The great Irrawaddy River was formed as the result of the convergences of two streams, Maekha and Malikha. The Irrawaddy flows through the middle of Myanmar from the northern, Tibetan highlands towards the Bay of Bengal in the south. It is the most loved river in Myanmar and is a life line for the livelihood of those people who live alongside it. Work on the project commenced without the consent of the people; particularly those who were living in the vicinity. As soon as the dam project began, voices were raised against it because of the severe deforestation that it would bring in its wake. This would have resulted in indescribable devastation of the natural environment, and an irreversible destruction of rare and invaluable species
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of flora and fauna as well as exotic and near-extinct animals. Gratitude is owed to those conservationists, environmentalists, nature lovers and peace builders as they took risks and raised their voices against the mega dam project. When the parliament sessions began, the matter was permitted to be discussed openly and we owe an acknowledgement to the legislators, especially from the Kachin state where the project was located, who were among the vigorous object or against this project and stood firm together in the parliament. Serious and open criticisms were made verbally and through the media against those who persisted in claiming that the project should continue at any cost. They argued that any possible downside of this project was carefully “calculated” and that preventative measures had been taken to factor in any possible hazards that might occur as a result of the construction of the dam. Eventually the minister of Ministry of Industry I, U Soe Thein, said the words of dharma, a kind of rhetoric, which had not been heard during the time the country, had labored under authoritarian regimes. He said that the rulers of the country were impermanent, the power they wielded was also impermanent; instead permanency was located in the people and the River Irrawaddy, and therefore the government had an obligation to listen to the voice of the people and their genuine desires. After this statement, a three-day seminar was convened with the participation of scholars, intelligentsia, environmentalists and people with ecological concerns. This diverse group set out to have a serious discussion about the Irrawaddy. After a few days, during the parliamentary session, a letter from U Thein Sein, the President of the Republic of the Union of Myanmar, was sent to the parliament in which it was announced that construction on the mega dam project would be halted, at least during the incumbency of the present government, i. e. until 2015. This announcement was hailed nationally and internationally as the victory of the people of Myanmar over against inappropriate national policies and signed agreements of the former regime. And it was followed by the gradual release of prominent political prisoners, amendments of the constitution to make way for the opposition, the National League for Democracy (NLD), to be able to participate in the upcoming by-election. Many foreign dignitaries and head of the states made official visits to Myanmar. Hilary Clinton, Secretary of State of the United States and David Cameron, the Prime Minister of the United Kingdom, were among them. Cease-fire agreements were signed with all armed ethnic minorities, but one: the Kachin Independence Organization (KIO). Substantial help and aid for the livelihood of those armed groups who had signed cease-fire agreements and the people in those regions were warmly extended and received. Further developments have been discussed and there is the hope that more concrete and positive resolutions maybe gradually implemented in the not-too-distant future. The issue of Internally Displaced Peoples was seriously discussed and the assistance of expertise and financial aid was negotiated and promised by the government and NGOs. The Human Rights Commission for Myanmar was
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formed by the President himself. Sanctions that had been imposed upon Myanmar were now mostly lifted, and as a result, financial institutions such as the World Bank, the International Monetary Fund and the Asia Development Bank also made crucial visits to Myanmar to discuss financial matters in order to help the development of the country. There was a free and fair by-election in which the opposition party, the NLD, won a landslide victory again, but in this case the result was acknowledged. Freedom of the press was highlighted. The overhaul of requisite laws, rules and regulations stimulated interest and investment in the country from a range of multi-national corporations. Laws Amending the Political Parties Registration Law, Laws Relating to Peaceful Gathering and Peaceful Procession, the Labor Organization Law, the Labor Dispute Settlement Bill, Ward or Village Tract Administration Bill, Bills on Microfinance, Bills of Foreign Investment were approved. These are some of the highlights of the so-called Myanmar Spring. There remain things to be addressed after 58 years of misrule, which has caused the devastation and deterioration of the country ; crippling its society and impeding its people in all aspects of life. The Myanmar citizens must have patience in the move toward democracy and there is much hard work to be done in the on-going peace building and nation building processes. Problems In order to restore the good, courage and wisdom are essential for lasting peace and justice. Commitment, patience and zeal are required in order to ensure that human rights and human dignity is upheld. Peoples of Myanmar have been subject to various powers in the past until very recently. Now the time has come, in fact the Kairos, when peoples of Myanmar should no longer act or react like subjects, but as citizens. In Myanmar, because of the past incidents, ethnic minorities generally tend to identify Buddhism, Bamar and the Military as being one and the same. The majority of Bamars happen to be Buddhists and the majority of military personnel are Bamars and Buddhists. When ethnic minorities suffer atrocities caused by the military, their hatred and fear of the military is often combined with the assumption that military, the Bamars and the Buddhists are all responsible for the violations of human rights. There have always been tensions between the ethnic minorities in the country and the military government, which is seen as being Bamar and Buddhist. Recently, however, there was the so-called “Saffron Revolution” in 2007 when Buddhist monks organized a peaceful demonstration against the regime on behalf of the people. That marked the turning point. Since then the former suspicion that the military, the Bamars and the Buddhists are the one and the same has been toned down. A positive outcome of the reforms has been that it has proven possible to be
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able to sign cease-fire agreements with all, but one of the armed ethnic groups namely the KIO. Nevertheless, even one is too many. It is necessary that the armed conflicts inside the country that has persisted for 60 years must come to an end. Yet it is not an easy task, since making war is more familiar to the people of Myanmar than building peace. Recent unrest in Rakhine state in the western part of Myanmar indicates that there is still substantial tension between and among the ethnic groups. Achieving national reconciliation and lasting peace is not impossible in Myanmar, but the government and the peoples of Myanmar do need to make a concerted effort in order to make all peoples in Myanmar feel safe and feel themselves to be part of a whole. The sense that people have equal rights and equal opportunities would help to build a genuine and lasting peace in Myanmar. A further problem concerns the issue of gender. Myanmar is a predominantly male dominated society, both culturally and traditionally. Women are perceived as subordinate. When the country was ruled by the military for nearly six decades, the military culture, as in many other places in the world, endorsed the dominance of the male. Chauvinism, Masochism, and patriarchy are common and prevalent in Myanmar. This encourages a sentiment of dislike against women aspiring to leadership positions in the political and social life in Myanmar. Gender discrimination is seen as nothing unusual, nothing strange. It is given; it is the way it is. The majority of women in the country tend to maintain the status quo since they have been taught that the subordination of women is the natural order of things. This idea has been inculcated in them through stories, proverbs and anecdotes, etc. Feminist ideology, the teaching of feminism, feminist ethics, eco-feminism etc., is still non-existent in the schools and universities curricula. The issue of gender equality in Myanmar needs to be addressed urgently. Of course this is not a problem that is unique to Myanmar, but it is too often forgotten that gender is often used as a weapon by ruling elites against those with less power. Last but not least is the need to develop a sense of civil society. When the military took power in 1962, the sense of civil society in Myanmar was destroyed. A sense of self-reliance gradually eroded and people began to rely on the government for their every need. And from the mirror-like perspective they then blamed the rulers for every shortcoming. There is no doubt that the government was accountable for the deterioration in the standard of general livelihood, for the human rights violations, the intimidation, the decline of quality education, an increase of poverty and the loss of freedom of movement, freedom of speech, freedom to choose and the freedom of the press. People became used to staying quiet, maintaining the status quo. They came to live into the notion of “survival of the fittest” and they exercised it. Critical thinking was discouraged, positive criticism restricted, the culture of negotiation nullified, and the consequent loss of trust between the peoples and the military government became endemic. Recently all this has changed. The development of a sense of civil society has
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been stimulated. Labor organizations and local NGOs are also being encouraged. The farmers who lost their land to private entrepreneurs are now told that they can file a complaint openly. Transparency and the sense of a more open society are now flourishing through the media and other campaigns and rallies on a scale we have never seen before. The people have been urged to voice their desires as well as their resentments, and the civilian government has begun to listen to their voices and is trying to fulfill their wishes in accord with the existing laws, rules and regulations. The present government has acknowledged the systemic flaws in government, the existence of endemic corruption, persistent poverty, increasing unemployment, a notorious poor health care system, and a failed educational system in both primary and secondary education. These problems had existed for decades but were denied and ignored. However, many people need to make be aware of the winds of change, and then the people themselves need to change accordingly. People have become used to being pessimistic still doubt the changes that are taking place at present. This is understandable because purported change in the past often turned out to be fraudulent. But at this time in history, people must tend to be positive, or at least to be cautiously hopeful. The opposition leader Aung San Suu Kyi rightly warned about reckless optimism and encouraged instead a healthy skepticism. However, in my opinion, people may need to be cautiously hopeful because if suspicions linger on the prospect of change the country may become stuck and will lose its energy and enthusiasm to move forward. Therefore we urge the international communities, our friends far and near to come and help us, support us and our present government as we struggle together for democracy. We would ask the international community to consider very carefully before imposing sanctions that would certainly hinder the process of democratization and poverty reduction. Come and see Myanmar, help us with investments in different aspects of life, hence creating jobs and other opportunities. Come not with greed, not without ethics, but as friends and partners, come with accountability and responsibility so that both parties would benefit and our people may learn new things in terms of expertise, various kinds of technology, new skills, and gain adequate knowledge and advanced education to make our country prosper. We are in need of such friends. We require assistance from our Association of Southeast Asian Nations (ASEAN) neighbors and beyond. It is obvious that we are no longer in the dark, in chaos, as before. People are no longer in the state of hopelessness as in the past. Myanmar is no longer a country behind an iron curtain and forgotten, as it unfortunately has been from time to time by the international community. Myanmar has come into the spotlight on the world’s stage. Now we are hopeful people and filled with hope for the future. But caution! Hope could also be an escape in a way it would sustain the status quo. Hope will never be encouraging, beneficial and potential for realization of our dreams unless it embodies the reality and works with it. We have seen the
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glimpses of light at the end of the tunnel, and therefore, people from all walks of life, adherents of all religions, peoples of all ethnic groups, every citizen of Myanmar must come together with the spirit of unity in diversity and should work fervently and unreservedly towards the goal that we long for, a fully democratic Myanmar where peace and justice prevail. Participation and involvement of the people should be an integral part of us as we continue to march with hope and heart, energy and enthusiasm, dignity and decorum, conviction and commitment in building peace and making a new nation, Republic of the Union of Myanmar, for the citizens to dwell in peace and prosperity. This was the hopeful, indeed the optimistic note on which my talk had originally concluded and at that time it encompassed the situation as it had unfolded through to the beginning of 2013. However the interval between my original essay and the book’s publication provided opportunity and perhaps also the necessity to give a further outline of events until 2015. These follow in the concluding section below. The concerns and worries began from the middle of the year 2013, when the calls for the change of some very controversial articles of the already controversial Constitution of Myanmar were not heeded. A call for serious and confidential conversation between four top leaders, (Daw Aung San Suu Kyi, opposition leader and widely considered as People’s leader, U Thien Sein, the president, Thura Shwe Mann, the Chairperson of Amyotha Hluttaw (National Assembly) and Min Aung Hlaing, Chief of Staff) in order to broker an agreement and path forward for the betterment of Myanmar’s future, especially for national reconciliation, was first ignored, and then apparently denied. President U Thein Sein gained the unprecedented support from the people when he announced a stop to the mega dam project in Kachin state. This project, constructed and operated by the Chinese company from China had been agreed to by the previous military government, when U Thein Sein himself was then Prime Minister. However, in the mid-term of his presidency, when the violent crack-down took place at the peaceful demonstration of LetpadaungTaung Copper Project in the middle part of Myanmar – the project that had been deemed as sheer exploitation by China – President Thein Sein who was considered responsible and accountable for this crack-down. Following these events there have been attempts, mainly by the military to expropriate land and this has led to peaceful protests which are, nonetheless enduring, and are still taking place in many divisions and states of Myanmar. Many of these problems have not yet been solved as many claims of land possession have been denied, ignored and sometimes dealt with violence. Although a few decisions were made by authorities to return the land to the owners, it seems that this rarely happened – a fact which generated complaints from the landowners. At the same time there arose an issue of laborers working in industrial zones in the suburbs of Yangon for extremely low wages, long working hours, less fringe benefits, and unfavorable working conditions. Demonstrations against these conditions were dealt with violently. While
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some workers were able to enter into negotiation with the authorities it would seem that only a few of them received satisfactory outcomes. When President Thein Sein declared in his inaugural speech that he would make efforts toward “Good governance and Clean government” during his presidency, he received much applause from the people of Myanmar. Yet after two and a half years, corruption increased, bribery got worse, the media was restricted, judges and the judicial system was heavily criticized for unjust sentences. Judicial sentences meted out in accordance with the authorities’ orders became so prevalent that the people grew unsatisfied and agitated. The rhetoric of the ministers did not, in the main, live up to their dealings with the people, and this led the populace to conclude that their behavior was no different from the successive military regimes of the past, when, of course, the ministers, were then the military generals. The fact that most of the promises given by President Thein Sein and his government were broken or never really intended served to discredit him and his government. People gradually lost their trust in the president and his government. Another serious crisis were the violent clashes between the Bengali Moslem community (widely known as “Rohinga”, the term the Myanmar government refused to use, according to the government, for certain historical reasons saying that there is no known race in Myanmar by the name of Rohinga) and Rakhine Buddhists who had lived together in Rakhine state. Unfortunately the clashes spread to a few cities, such as Meiktila, Lashio and Mandalay, but were nevertheless contained by the government, which then set about restoring stability. However, hate speeches, unfounded accusations, and rumors made by some prominent figures, including nationalist Buddhist monks were made widespread. For many it appears strange that the government and National Council of Buddhist Monks, fully sponsored by the government, do not give any comment, criticism or reprimand to such kind of episodes unless, of course, the government is the object of their criticism. The Myanmar Peace Center (MPC) was formed by the government with an intention to first, work for a cease-fire agreement between the government military and the ethnic armed forces which have been at war for more than half-a-century. Thereafter the charter of the MPC is to continue to work for lasting peace and national reconciliation. The MPC was led by one of the President’s Office ministers, U Aung Min, who was appointed by the president himself. And for that reason, MPC is not considered to be an independent organization which is competent to work on the so-called national peace process. The membership of the MPC is comprised of government ministers and officials, intellectuals and some public figures: those who were blacklisted when they worked for the democracy in Myanmar from outside the countries, representatives of ethnic armed forces, and also representatives of government armed forces and some local and international NGOs. Millions of Dollars and Euros funded by the international governmental agencies have been received for the work of the MPC so that some positive developments can be made
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toward peace and reconciliation. However, the process became more fraught and complicated when tentative cease-fire agreements were broken, small and sometimes larger scale wars recurred between the government and ethnic armed forces, some planned meetings were cancelled and/or some ethnic armed groups decided not to participate, at least for the time being. The initiatives of the peace process appeared to get bogged down and hopes, even for signing a cease-fire agreement, faded away let alone hope for a lasting peace and national reconciliation. However, as of March 1, 2015, there is information claiming that the Union Peace Working Committee (UPWC), that represented the present government and the National Cease-fire Coordinating Team (NCCT), which represents the armed ethnic groups that have been fighting against the government for more than half-a-century, have finally come to agree to a nationwide cease-fire agreement (NCA) draft. The signing ceremony of this draft was held at Myanmar Peace Center in Yangon, on March 1, attended by the president, Thein Sein himself. Nevertheless many still have reservations and are waiting and watching to see whether it is just a facesaving exercise by the Government. There are still further steps to be taken in the process as the UPWC have to submit this draft to the government and the NCCT has also to submit to the conference at which almost all the ethnic armed groups personnel would be present. Only then if both parties come to agree with this draft, could the real national cease-fire agreement be signed and would then take effect. We still have to wait and see that this agreement is genuine and lasting. If it is indeed genuine and lasting, then it would be beneficial for the whole country.
Martin Leiner
Thinking differently about Identity and Harmony – The Potential of Asian thinking for Reconciliation Is reconciliation a topic for East Asia? When visiting Japan in March 2015, German chancellor Angela Merkel, in respectful language, tried to recommend Germany’s foreign policy of reconciliation. According to the German newspaper Süddeutsche Zeitung, she said, “Despite its responsibility for beginning World War II and for the Holocaust, Germany has been accepted again into the community of nations, because it has faced its past. The confrontation with the past is one ‘presupposition in order to be able to create reconciliation’. Moreover, Germany was lucky that it had neighbors who were willing to give them a hand to reconcile” (Roßmann 2015).1 The newspaper also relates that the Japanese public TV channel NHK broadcast only the sentence that Germany was lucky to have neighboring countries who accepted them and extended to them the hand of reconciliation. Japanese Prime Minister Shinzo Abe did not react to Merkel’s speech, and neither was the place of her talk, the symbolic Asahi Shimbun, mentioned in the NHK broadcast.2 A typical question concerning the Japanese Prime Minister is that people ask whether the concept of reconciliation fits the East Asian context, or whether it has to do with the “nationalistic” attitude of the current government, which is insensitive toward reconciliation. Prima vista, there are several signs that the government is the primary reason: The Japanese Emperor is much more open expressing regret for Japan’s atrocities during World War Second (WW II), as he has shown on different occasions, such as his New Year’s address on January 1, 2015. Between 2009 and 2012 when the Democratic Party of Japan (DPJ) nominated the Prime Minister, especially 1 The German text says ‘Deutschland sei trotz seiner Verantwortung für den Ausbruch des Zweiten Weltkrieges und für den Holocaust wieder in die Völkergemeinschaft aufgenommen worden, weil es sich seiner Verantwortung gestellt habe, sagt Merkel. Die Aufarbeitung der Vergangenheit sei ‘Teil der Voraussetzung, Versöhnung schaffen zu können’. Deutschland habe aber auch das Glück gehabt, dass seine Nachbarn die Hand zur Versöhnung gereicht hätten.’ For the official and complete version of the speech, cf. the homepage of the German government, available from: . [8. June 2015]. 2 The Asahi Shimbun is the only major liberal newspaper in Japan. They have been attacked by Japanese authorities, because of mistakes in reports concerning the so-called comfort women in WW II. The authorities wanted to deny the fact of forced sexual slavery of Korean and Chinese Women, organized by the Japanese Army in WW II.
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under Yukio Hatoyama (2009/10) there was another approach to politics with neighboring countries called “yuai gaiko” (“policy of brotherhood”). This policy aimed at an EU-like association with Korea and China. The policy of brotherhood aimed to include better relationships and a different way of dealing with the past. Even if this is true, it still leaves open the question of, whether the concept of “reconciliation” is a more or less a foreign idea for East Asia, or if at least something similar and functionally equivalent is rooted in the traditional East Asian culture. In this essay, I would like to show how in traditional East Asian conceptions of the world almost every element of reconciliation, as it is understood by people in the Western ‘Jewish-Christian’ cultural context, is represented in its own specific way. This implies that the concept of reconciliation can be translated into traditional East Asian cultures. There is a word for it, which is written “ ” and pronounced in Chinese, “ ” in ” in Japanese. There is an entire repertoire of Korean, and “ ideas which translate every element of the Western concept of reconciliation. Both terminologies are not in all cases closely related to common Asian languages, but there could be an evolution in this direction if so desired. As such translations are always selective and creative acts, the translation of reconciliation into traditional Asian thought leads to a similar though not identical but fresh concept of reconciliation. To show this, I will sometimes write the East Asian concept of reconciliation in a slightly different way as “Reconciliation”. A further challenge consists in the application to the current context. No East Asian culture today is just a traditional culture. Chinese, Korean and Japanese culture is deeply influenced by Western thought. Informal European colonialism in China, followed by the rule of specific transformations of Marxist and Leninist ideology in China (“Maoism”) and North Korea (“chuch’e”), the presence of U.S. soldiers in South Korea and Japan, European and American technology, architecture and economy, Christian missions and dynamic local Christian churches, influences of German law and American university system in Japan, movies, TV series and publicity produced in the U.S. and many other encounters with Western culture have led to a intensively transcultural reality in all East Asian countries. This leads to a complex situation, where for important parts of society, especially in South Korea, the Christian understanding of reconciliation is much more familiar than its equivalent in traditional East Asian thought. The possibility of developing “Reconciliation” as a set of East Asian translations of reconciliation together with the Western Christian concept of reconciliation provides many avenues to understand and to enhance the reestablishment of human relationships. When reconciliation as an overarching political aim is established, East Asian thinking will prove not to be poorer, but richer and more advanced in its possibilities to overcome enmity than Western thought.
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I start with a short description of reconciliation in Western Christian thinking. Then I try to clarify what I understand by traditional East Asian culture and how it is related to the multiple cultural realities in East Asia today. The third section is central for my argument. Here I want to show how “reconciliation” can be translated into the traditional East Asian mind-set. In the fourth section, I will give a recent example. I will sketch the hybrid and multiple culture of Japan and show how it demonstrates the lack of reconciliation of Japan with its neighbors China and Korea. The final section inverts the direction. I will ask what East Asian versions of reconciliation, or at least elements of them, could contribute to reconciliation within other contexts.
Reconciliation as a “Western” Approach Reconciliation in the broad sense of the word means: The restoration of relationships between individuals, groups and states after violence, war, genocide, civil war, gross human rights violations like segregation (Apartheid) and enslavement (forced labor), or similar activities.3 Reconciliation as a policy requires a long term strategy with many practices on multiple levels. Such practices are: (1.) Political and legal provisions, like treaties of cooperation and clarifications about disputed questions like territory or other contested issues, (2.) the creation of a common security architecture with disarmament and crisis management, (3.) apologies and symbolic acts to show friendship and to honor the victims by politicians representing the country, (4.) Reparations and other attempts at restoration, (5.) cooperation in regard to economic, legal, ecological and international issues, including mutual help in cases of disaster, (6.) co-operation in civil society, such as city-twinning, youth and student exchange programs, (7.) confrontation with history through the opening of archives and the work of historians, the preservation of a past narrative through museums and memorials, but also (8.) the confrontation with individual history through the right of victims to know, rituals of purification, encounters between victims and perpetrators, truth and reconciliation commissions, (9.) the integration of both groups in common political structures, (10.) intentional strategies designed to humanize the image of the other, to overcome negative stereotypes, to build historical dialogue and common schoolbook commissions, to change the image of the other in the media and in art, to change education towards more understanding of the other group, (11.) to change the discourse of religious leaders concerning the other group, especially if the difference between the groups is 3 For example, which cases in East Asia could be treated by reconciliation cf. Ganesan, N & Kim, SC (eds), 2013, State Violence in East Asia, University Press of Kentucky, Lexington.
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also a difference between religions (12.) individual medical, psychological (trauma-therapies) and social help for the victims, (13.) specific practices for intergenerational issues related to reconciliation (survivor-witness-programs, formation also beyond schools). All of these practices are rooted in a worldview and in a concept of the reconciliation process which can be encapsulated by the following elements and basic convictions: (1.)
An orientation towards the past: The past must be dealt with, if reconciliation is to take place. (2.) The importance of truth: The truth must be known and acknowledged by all, including the perpetrators. (3.) The importance of conserving the past: The past must be remembered by building museums, memorials, by books written by historians, by archives and by the conservation of the sites of suffering. (4.) The importance of guilt: The individual perpetrator has done wrong through his free will. He is responsible and must confess his guilt. (5.) The importance of words of apology and forgiveness. Forgiveness demands the verbal expression of guilt and an apology from the perpetrator’s side. (6.) The importance of empathy : It is vital for the public and also for perpetrators and victims to show empathy and compassion with the victims. (7.) The importance of emotions: Healing can happen through an expression of emotion. (8.) Identity over time: The personal identity of the perpetrator and victim endure and remain stable over time. (9.) The acceptance of the perpetrator into the moral community is possible through an accepted apology or/and through punishment including reparations. (10.) The importance of a vision of a common future: Reconciliation is motivated by the vision of a better future for both partners, when the shadows of the past are overcome and replaced by a new friendly and peaceful relationship. This leads to a new cooperation and provides security for both partners (“never again”). (11.) For religious people, human reconciliation is related to reconciliation with God. In Christianity, the reconciliation of the world with God (2 Cor 5:19) is the presupposition of inter-human reconciliation, in Judaism inter-human reconciliation is a precondition for the reconciliation with God on the “Great day of reconciliation (Yom Kippur)” and in the eschatological future. In the third section, I will show how these eleven points differ from the general understanding of reconciliation. But I commence the next section with some observations concerning East Asian culture.
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Traditional and Contemporary Culture in East Asia Traditional East Asian culture in the sense we take it in this article is mainly the culture of China, Korea and Japan.4 Analogously to the way in which the Chinese signs for words are foundational for the scripts of Korean (as “Hanja“) and Japanese (as “Kanji”) texts, the classical Chinese culture has also had a foundational and transversal role for traditional East Asian culture. As far as religions and philosophy have shaped East Asian culture, Confucianism and Buddhism have profoundly marked it. Often Chinese Confucianism and Buddhism found followers and translators into Korean and, directly or through Korean mediation, into Japanese contexts. To give just one example: The different schools of Japanese Buddhism are mostly influenced by originally Chinese forms - the Hosso-school comes from Chinese Yogachara school, the Sanron-school from Madhyamika, Kegon from Huayan, the Tendai-school from Tiantai, Jodo-shu corresponds to the Chinese Buddhism of the pure land, and Zen-Buddhism with its different schools comes from the Chinese chan. Some of these schools are rooted in the Indian beginnings of Buddhism, therefore a certain opening to the cultures of countries like India and Southeast Asian Buddhist countries Sri Lanka, Vietnam or Myanmar should be integrated in all reflections on East Asian cultures. Confucianism deeply influenced the customs, the ethos and the structure of all East Asian countries. The coherence in many elements of Chinese heritage however does not mean identity. Buddhism and Confucianism in Korea or Japan are different from Chinese and differ from group to group, and from century to century (Pollack 1986)5. In addition, all East Asian cultures are influenced by local traditions. Korean culture is marked by shamanistic traditions and Japanese by Shintoism. Therefore, we can only speak about an East Asian culture by simplification. We can find common world views, ideas, customs that are more or less typical and common for traditional East Asian culture, but we cannot pretend to describe in such a short article the entire picture. A realistic goal cannot be to grasp the complex and entire reality, but only to find 4 Through the Chinese, Korean and Japanese diaspora (Singapore, Indonesia, and U.S.) and through cultural influences on countries e. g. Vietnam and Mongolia the East Asian culture is broader than the three nations China (PR and Taiwan), Korea (North and South) and Japan. On the other hand, Chinese regions inhabited by national minorities are not, or only to some extent, part of the Chinese culture, which is especially true for Tibet, where Han-Chinese culture is only imported. 5 David Pollack has forged the concept of “fracture of meaning“ as description of the Japanese way of receiving Chinese culture. Pollack, D 1986, The Fracture of Meaning – Japan’s Synthesis of China from the Eighth trough the Eighteenth Centuries, Princeton University Press, Princeton; Studying the reception of Chinese culture in Japan, Pollack overcomes the stereotype of Japanese culture as imitation of other cultures. The dominant pattern is not imitation, but expropriation and transformation.
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ways of thinking in the context of reconciliation, allowing us to understand the diversity of the East Asian way of “reconciliation”. As already mentioned, the situation in contemporary China, Korea and Japan is still much more complex. These countries are no longer dominated by the traditional culture alone and live a hybrid culture of traditional and modern elements. Moreover, the modern elements are not just a copy of the Western modern culture but rather an East Asian phenomenon including processes of reception as well as processes of innovation, processes of conflict, juxtaposition and syncretistic combinations of the traditional and the modern culture. With the Korean philosopher Byun-Chul Han, we can call this phenomenon a pluralistic combination of different forms of “hyperculture” (Han 2005).
Reconciliation in the Framework of East Asian Thinking (1.) Orientation towards the past: The past must be dealt with, if reconciliation shall take place. In Western conceptions, reconciliation often starts with the telling of the victim’s narratives. The idea is that those stories have to be told, listened to and acknowledged by both the perpetrators as well as by the society. There is even a certain obligation to conserve stories from the victims. Prima vista, the East Asian tradition seems to be the opposite of such an approach. According to a Buddhist conception of reality, it is good not to be attached to the past, instead one should seek to let go of it. In a more Confucian way of behaving, it is considered impolite to confront others with stories from the victims. However, East Asian cultures are also aware that the past is not so easy to overcome. The dead must be brought to rest, and the disquiet of their enduring anger caused by injustices must be calmed. This does not necessarily imply that the stories need to be recounted, but it does imply a certain preoccupation with the past. To give only one example: The popular traditional Japanese tale “The Ghost of Sakura” tells the story of poor farmers who had to pay their lease to a rich owner of the country named Kotsuk¦ no Suk¦. As the farmers could not pay, a man called Sogoro protested by throwing a petition into the litter of the taikun of the entire region, Earl Ij¦mitsu. By doing that, the owner saw himself forced to free the farmers from the hardest payments. Kotsuk¦ no Suk¦, however, decided to take Sogoro to trial on account of the shame Sogoro had caused him. He killed not only Sogoro but also his wife and his children, which was seen as extremely cruel. After their deaths the ghost of Sogoro and his family haunted the castle of Kotsuk¦ no Suk¦, his wife died and many accidents happened. Only when the owner built a shrine for Sogoro, and started to pray regularly for him, did
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the ghost cease to appear and once again good luck returned to Kotsuk¦ no Suk¦.6 From this narration and similar stories,7 we can conclude that an acknowledgement of past wrongdoings is part of East Asian cultures, as it is of Western cultures. The dead could be angry, and therefore they must be calmed by giving them due reverence. There are, however, important differences from Western cultures. In distinction from Western ways of dealing with the past, it is not the actual or future generations but the dead themselves who are the focus of attention in traditional East Asian culture. This raises the question of whether there is also a need to tell the stories. The famous film “Rashomon” directed by Akira Kurosawa (1950) could help to illustrate the answer. In this film several different narratives are recounted of the same incident. The incident is the rape of a noble lady by a brigand, the fight of the husband to preserve her honor and the death of the husband. At the end, even the ghost of the killed husband is convoked to tell his narrative. According to my interpretation of the film, the telling of all those stories is meaningful. It is compared to the rain that always falls in the scenes which interrupt the narratives. Only when all the rain has fallen, can the sun come out. This is what will happen at the end of the film. What counts is not the truth or the penetration into what really happened but the direct effect of telling the stories and becoming freer with each successive telling of the story. Not action and knowledge, but change through time and expression is the main idea, at least according to some descriptions of East Asian thought. FranÅois Jullien describes the Chinese wise man as someone who has no ambition but to transform, as nature (‘hua’) does. Also in strategy wise people transform the power relationship in a way that ensures it will calmly shift to a stable situation where the strategist is more powerful. No fight, or at least only a short fight, is needed to win (Jullien 2000). This description which fits well with some interpretations of China’s foreign policy in the 20th and 21st centuries also fits the calm transformations that make reconciliation possible. Time goes by, many stories are told, something changes and the resentment is over. This leads to a double result: In traditional East Asian cultures there is a possible space for narratives, but it also seems that the storytelling is clearly not such a necessary condition for creating better relationships as it is in Western cultures. The past is worked through in a different and sometimes more silent way. The Korean movie “Spring, Summer, Fall, Winter … and Spring” (Kim Kiduk 2003) shows the silent change of an apprentice in a Buddhist monastery who has killed his wife. The daily practice, the reading of sutras, changes men 6 For an English version of the story cf. Mitford, AB 1871, Tales of Old Japan, Mac Millan, London. 7 To quote just one other example from the South western part of East Asian culture, in Myanmar 37 great spirits, called nats are objects of religious veneration. Almost all of them were victims of unjust rulers and are remembered in rituals.
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who have become perpetrators.8 William Dalrymple’s book Nine Lives, tells us about a Tibetan Buddhist monk who had decided to enter the armed fight against the Chinese army and had killed several people. He thought to overcome the bad influence of what he had done by using most of his time reading sutras (Dalrymple 2009, Chap. 6).
(2.) The Importance of truth: The Truth must be known and acknowledged by all, including the perpetrators. In a famous interview about the movie “Rashomon”, Akira Kurosawa explains that people think his film would be about the relativity of interpretations, but it is about the relativity of reality. Reality is the product of the encounter between the person who narrates and “what happened”. The different narratives in the movie are all somehow real and true, and they are all (perhaps even more so) unreal and false. When in 1950 Kurosawa presented the movie to the public, some drew links with the Second World War. Was it not a way to excuse Japanese people, to say that there are different realities? There is indeed a certain tendency to relativism, but East Asian culture also knows the importance of a clear vision of reality and acknowledges the social respect for truthfulness. Confucian philosophy is familiar with long debates on how insight into reality and the right action are necessarily linked. Seeking to make things clear is directly linked to reconciliation: The Chinese characters for reconciliation as well as the Japanese Kanji Wakai: , are comprised by the sign of harmony (which itself is composed by the sign meaning “eating cereal together”) and the resolve to make clear. In the relationship to the past, there are also spiritual exercises to reach more clarity and truth about what really happened. One interesting innovative exercise for reconciliation is the retreats developed by Ishin Yoshimoto (1916–1988) in Japan. As a Japanese word, “Naikan”, means to look inside. The method was discovered in the context of Japanese Buddhism, namely in Shinran’s Jodo Shinshu, and Zen Buddhism-like retreats, called “misirabe”. One main idea of Naikan is that most people do not have a realistic view of reality, because they too often ask one-sided questions. Most people ask very often questions like: What did others inflict on me? What did I not get? Which injustices did I have to go through? Naikan says that these questions should not take a high priority, but instead, three other questions should be asked: 1. What did I receive from others? 2. What did I give to them? 3. Which difficulties did I create for others? One possibility for a Naikan retreat is to go through all the important persons in one’s life: mother, father, grandfather, 8 For a more detailed interpretation oft he film Yang, T-Z 2011, ‘Frühling, Sommer, Herbst, Winter … und Frühling’, in Himmel und Hölle. Religionen im asiatischen Film, eds B Rensing & B Schmitz, Tectum, Marburg, pp. 119–134.
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grandmother, uncle, aunt, brother, sister, children, teachers, colleagues, friends, etc. Afterwards, take time in silent meditation to come back to the different periods of one’s life and see clearly what the answers are to these questions. During the retreat one speaks to nobody except for the spiritual guide. Naikan teachers claim that such a retreat is changes one’s vision of life. Some European authors speak explicitly about reconciliation and thankfulness as the goals of Naikan (Bölter 2004, p. 110). In Japan as well as in European countries Naikan is used as a strategy or discipline for prisoners in order to help them to overcome their often un-reconciled vision of their past. The healing element is broader and deeper awareness. A deeper examination of the question of truth suggests that in traditional East Asian cultures truth is less a public expression of true words and more a silent broadening of awareness, a more complete consciousness that also influences the attitude towards the conservation of the past. (3.) The importance of conserving the past: The past must be remembered by building museums, memorials, by books written by historians, by archives and by the conservation of sites of suffering. Although there are some ideas of remembering, for example by conserving relics of the Buddha where stupas represent an imperative to remember him, the traditional East Asian culture knows of no ethical imperative to conserve memories in museums or in history books. The place where past atrocities are remembered is in religious contexts such as in shrines. One example of such a shrine is the deeply controversial Yasukuni-shrine (Yasukuni Jinja) in Tokyo. The shrine belongs to Shintoism and is deeply influenced by the 20th century’s development of national Shinto. It is devoted to the memory of all people who died in wars for the Japanese Emperor since the Meji restauration (1868). The Yasukuni shrine also remembers the samurai who fought for the Emperor in the 19th century and soldiers who died in the Japanese-Russian war in 1905. As in the older European tradition of cemeteries of the World Wars, the persons are not separated. Therefore also non Shintoists like Japanese Christians, soldiers from Taiwan and Korea are also remembered in that shrine. Also there is no difference between common soldiers and respected generals on one side and generals condemned as class A and B War criminals in the Tokyo trial. All together are considered as heroes who died for the Emperor. In Shinto religion they are described as kami, as heroic, God-like spirits, who have to be honored in order not to provoke their anger. In a more Western way, the shrine includes an exhibition of all the war history of Japan since the Meji restauration. It is presented pedagogically and mainly represents the facts through photographs and other objects. The English version tells the story from a Japanese perspective, but not in an extreme nationalistic or militaristic way. Consequently in traditional East Asian culture, memory is a religious task,
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not a challenge for education or museum culture. Today such places can integrate museums and education into this religious matrix. (4.) The Importance of guilt: The individual perpetrator has done wrong through his own free will. He is responsible and must confess his guilt. The sharpest and still most influential criticism of the idea that the concept of guilt could play an important role in East Asia is Ruth Benedict’s famous book “The Chrysanthenum and the Sword. Pattern of Japanese Culture” first published in 1946 (Benedict 1946). The book became famous because of its thesis that Japanese culture is one of honor and shame rather than a culture of guilt. Japanese people care about how others see them, and rather less about internalized rules of right or wrong (Vogel 2006). The idea of an honor and shame culture has been transferred, with some success, to other cultures, especially around the Mediterranean Sea and to East Asia in general. However, does it really fit Japanese culture? The conditions under which Benedict’s book was written are probably not as problematic as its methodological stance. The book was written in the middle of the Second World War, on the request of the U.S. Office of War Information.9 The war made it impossible for Benedict to go to Japan and to observe in field studies the reality of Japanese culture. What she did instead was conduct in-depth interviews with Japanese immigrants in the U.S. Her perspective in those interviews and her interpretations were determined by her guiding assumption, which presupposed that a difference was to be found between the two cultures (Benedict 1947, pp. 19–26). Ezra Vogel writes in the preface that “the few western social scientists, which in the fifties and sixties conducted field studies in Japan, concluded that Benedict’s claims were sometimes overstated. The Japanese appeared too stiff, too much determined by duty and social rank, too much devoted to an ideology, too much concerned with their reputation […] Those of us who encountered real Japanese people, during the field studies, found them to be much more spontaneous, joyful, and relaxed. It seemed to us that Benedict, in her effort to find patterns, schematized the already quite rigid ideas and images of her interviewees even more” (Vogel 1996, p. 150).10
9 One negative aspect of the writing of the book in the context of the war is that the behavior of Japanese soldiers in the war is not deeply interpreted. For example, the idea that to be a POW would be shameful was introduced by the militaristic Japanese government during WW II. During WW I, the Japanese Army took many German soldiers as POWs and treated them very well and respectfully. 10 Ezra Vogel, Vorwort, 9. In a similar way, Ian Buruma critizises Benedict’s description: It is “a very mechanical view of human behavior, which not untypical for a social anthropologist. It is not entirely wrong, yet it offers at best a limited statement. There are simply too many exceptions, such as many Japanese like Mori [i. e., a teacher Buruma described previously], whose
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Reading Benedict’s book carefully, we find that she did observe feelings of guilt in Japanese people, which in the popularization of her thesis have been overlooked. For example, she writes: “The Japanese are both, and strongly so: aggressive and peace loving, warriors and poetical, rude and polite, stubborn and adaptable; they are submissive, but do not like to be ordered around, they are loyal and sneaky, brave and scared, conservative and receptive to anything new. They are very concerned how other persons judge their behavior, while they are plagued by guilt, if their misconduct remains undetected” (Benedict 1946, p. 12). (5.) The Importance of words of apology and forgiveness. Forgiveness demands the verbal expression of guilt and an apology from the perpetrator’s side. In 2005, during the Asia-Africa summit, Japanese Prime Minister Junichiro Koizumi expressed his “deep remorse” for the atrocities Japan had committed in East Asian countries. “In the past, Japan, through its colonial rule and aggression, caused tremendous damage and suffering to the people of many countries, particularly to those of Asian nations. Japan squarely faces these facts of history in a spirit of humility. And with feelings of deep remorse and heartfelt apology always engraved in mind, Japan has resolutely maintained, consistently since the end of WW II, never turning into a military power but an economic power, its principle of resolving all matters by peaceful means, without recourse to use of force. Japan once again states its resolve to contribute to the peace and prosperity of the world in the future as well, prizing the relationship of trust it enjoys with the nations of the world.”11 Koizumi was one of many Japanese Prime ministers to apologize for WW II. The difference was that he made the declaration during an international conference and that he did not attend the Yaskuni-shrine for the shrine’s celebration day. Thus his apology was deemed to be more acceptable by neighboring countries than the apologies of others. Nevertheless, Koreans or Chinese people still say that they consider all declarations of previous Japanese Prime Ministers, which merely paid lip service. It seems that apologies as such require more than simply words in order to be accepted. The verbal expression is not worthless, but it has to meet specific cultural expectations in order to be accepted in an East Asian culture. For example, in East Asian cultures, as well as in many other cultures, to travel to the place of the victim and to express efforts to make public the ‘sins’ of their country are intended unmistakably as gestures of atonement.” (Vogel 2006, p. 150). 11 Quoted from the Homepage of Ministry of Foreign Affairs of Japan on ‘Speech by H.E: Mr. Junichiro Koizumi, Prime Minister of Japan’ from April 22, 2005. Available from: [8 June 2015].
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regrets is considered to be much more valuable than to stay at home for an apology. (6.) The Importance of empathy : It is important for the public and also for perpetrators and victims to show empathy and compassion with the victims. In the Buddhist tradition, compassion is the fundamental attitude towards others. The entire Bodhisattva idea can only be understood through the compassion of the Bodhisattva, which drives him to renounce his individual salvation in nirvana, in order to help the suffering beings on earth. In Buddhist psychology, universal compassion is often underlined. Compassion is sometimes blocked because people are not aware of the blindness of perpetrators. Jack Kornfield tells a story : Imagine you cross the street fully packed with food, a person runs into you, you, he and the goods fall to the ground. You want to blame him and say “Are you blind?”, and then you realize: He really is blind. In this moment, compassion and the question, “Can I help you?” immediately replace feelings of anger. For Buddhists, this is the general situation with perpetrators who are blind by their misconception of reality.12 The Vietnamese Buddhist teacher Thich Nhat Hanh describes the history of the life of Shakyamuni under the title: “The Path of Compassion” (Hanh 2012). (7.) The Importance of emotions: Healing can happen through an expression of emotions. Confucian and Buddhist cultures seem to Westerners as very controlling when it comes to human emotions. Koreans are sometimes even described as very emotional people whose emotionalism is under the control of the Confucian system. But this is of course only one side of the coin. The other side is that East Asian cultures have their occasions to express emotions in a very intense way. In Japan, China and Korea several festivals are very emotional occasions. The dominant religions Buddhism and Confucianism are counterbalanced by strong popular traditions which are much more emotional. In virtually all East Asian countries there are popular religions with “shamanic” rituals that are very close to the concept of reconciliation through expressed emotions. Female Shamans (mudang ) in South Korea, for example, can become mediums to express untold stories and unaccepted emotions when they are possessed by the spirits in a Kut/gut ( )-ritual (Kim 1998). Tibetan Buddhism conserved elements of the older shamanism and Bon/ Bön religion. They became part of typically Tibetan schools of Buddhism. In 12 For the story cf. Kornfield, J 2008, The Wise Heart. A Guide to the Universal Teachings of Buddhist Psychology, Bantam Books, New York.
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the 11th century in Tibetan Buddhism, the yogini Machig Labdrön developed Chöd ( )-rituals aimed at identifying and incorporating the demons and feeding them. In contemporary Buddhist psychology, the chöd-ritual is understood as a way to deal with emotions of fear, attachment, guilt, shame, hatred, etc., to incorporate them and to give them caring attention. In their imagination, the participants of the ritual give themselves and their entire energy to the demons. The paradoxical idea is that when one feed one’s demons and gives them energy in the way the ritual demands, they are transformed, setting one free and becoming servants (Allione 2008).
(8.) Identity over time: The personal identity of the perpetrator and the victim endure and remain stable over time. One presupposition for reconciliation in the Western model is that victims and perpetrators are identical even decades after the atrocities. Because the perpetrator is the same now as he was then, it makes sense to punish him even when he is an old man who committed the crimes in his earlier years. Consider, for example, the crimes of the Khmer rouge in Cambodia, who from April 1975 to December 1978 committed acts of genocide. The trials against the main perpetrators started only in March 2010, more than 30 years later. Accused were Khieu Samphan (former head of State, 80 years old), Nuon Chea (second to Pol Pot, 79 years old) and Ieng Sary (former minister of foreign affairs, 87 years old) and his wife. In Cambodia many people asked what would be the sense of such a trial. It was more the Western influence than Cambodian civil society which insisted on retributive justice. Even survivors of the killing fields like Sorpong Peou, professor of politics in Winnipeg University, considers retributive justice through the processes as ambiguous, they “have minimal, if not harmful, effects” (Peou 2013). Unlike European cultures, East Asian thought, specifically Buddhist thinking, is much more open to deconstructing identity. Satipatthanameditation is one exercise for de-identifying with all characteristics a person has. In some way the impermanent character (related to the Dukkha-concept which often is translated as suffering) of the world and of identity is an East Asian equivalent for forgiveness, because it overcomes enmity between victims and perpetrators: The perpetrator is no longer the same person as before, therefore I can resume normal relationships with him. Not to let grievances go (not to “forgive”) would mean to remain attached to the past, to the guilt and to the resentments which are haunting the victims. Not to forgive is therefore incompatible with Buddhism. Buddhist psychotherapy in Western countries often integrates forgiveness into its concepts. Jack Kornfield in his book “A Lamp in the Darkness” writes an entire chapter about the practice of forgiveness (Kornfield 2011, Hanh 2010). He starts with a
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“quote” of the Buddha: “He has beaten me, he has stolen me, he has hurt me. Give up such thoughts. Live in Love”. It may seem strange, but in traditional East Asian thought, the most established equivalent for forgiveness is that the victim lets go all thoughts of resentment. (9.) The acceptance of the perpetrator into the moral community is possible through an accepted apology or/and through punishment including reparations. East Asian thought is stronger than the Western tradition in seeing the benefits for victims if they can forgive, if they can let go of grievances and resentment. The role of the perpetrator is less clearly defined. He can be accepted in the community after a certain time, even without punishment or apology, because the victim is exercising his right to let go of the resentment. (10.) The importance of a vision of a common future: Reconciliation is motivated by the vision of a better future for both partners when the shadows of the past are overcome and replaced by a new friendly and peaceful relationship. That leads to a new cooperation and provides security for both conflict partners (“never again”). In East Asian cultures the vision of the future is often described in terms of harmony. After conflict it is natural that harmony is reestablished. The Chinese word h¦ (”harmony, peace”) is the result of the normal process of overcoming conflicts, which can be seen in analogy with the seasons of the year. Winter is leaving and spring is coming – conflict is leaving, harmony is coming. (11.) For religious people, human reconciliation is related to reconciliation with God. In Christianity, the reconciliation of the world with God (2 Cor 5:19) is the presupposition of inter-human reconciliation, in Judaism inter-human reconciliation is a precondition for the reconciliation with God on the “Great day of reconciliation (Yom Kippur)” and in the eschatological future. For East Asian cultures, as well as for Western cultures, “reconciliation” is conceived in a religious framework. For East Asian people as well as for Europeans, reconciliation is not just a technique to apply ; it has transcendent aspects, it exceeds human capacities, and demands the help of heaven. The achievable or technical parts of reconciliation are not negated, but they are set within a religious framework, and all religions contribute. In the Confucian
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religion, for example, harmony and peace mean the reestablishment of the divine order. This order is linked to heaven and should be respected in every way. It also includes hierarchies, which are reestablished or changed. Rituals in shamanistic, Buddhist or Daoist perspective are, of course, also religious. All this serves to show that in traditional East Asian cultures a different, but nevertheless similar concept of overcoming deep difficulties in relationships is present. “Reconciliation” in a traditional East Asian approach is not a monochrome concept, but a repertoire of possibilities to heal broken relationships, which can be put into practice according to the situation. The effect of these reflections is to demonstrate that the question of why reconciliation between Japan and its neighboring countries failed cannot be answered by blaming traditional East Asian culture. In fact, it seems that the problem is quite different.
Reconciliation in Japan today Adopting a perspective of traditional East Asian culture, we can see that the efforts of Japanese politicians as well as the reactions of their Korean and Chinese counterparts show that the road to reconciliation was not correctly travelled. The only exception to this was the Japanese period when they adopted the policy of brotherhood (yuai gaiko). A proper apology for the guilt of the Japanese army and its colonial rule would have required more than a few sentences in the New Year’s address. It would have necessitated travelling to Korea, China and other concerned countries and apologizing there. At the very least, an action like the one of Toyota’s CEO Akio Toyoda in February 2010, who travelled to Washington DC to apologize for security problems in Toyota cars, would be required, and probably much more than that. Compensation would be necessary, in order to come to terms with the past. It seems that Japanese politicians have not really grasped the goal to overcome enmity with Korea and China, and the benefits the country could gain from such a process, given the fact that East Asia increasingly becomes a dynamic region. On the other hand, neither did the Korean and Chinese politicians react to the New Year’s apologies from Japanese Prime Ministers in a way which would suggest that they really desire reconciliation with Japan. If they really would aim at reconciliation, some positive reaction on their part would be necessary ; for example, an official and respectful invitation to talks about how to overcome the attachment to the past in East Asian societies would be a minimally appropriate answer to the small first step of Japanese politicians. Nothing of the kind has happened. Instead there are only the critical comments that apologies are not enough and in any case are only lip service. This leads to the question: Why did not politicians in all the three countries espouse “reconciliation” as a goal? The alleged lack of the concept of
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reconciliation in traditional East Asian cultures cannot be the answer. On the contrary, for Japan, the orientation towards the Western example seems to be the most important factor. At least since the Meji revolution (1868), Japanese politics has had a strong tendency to follow British, German and mainly American examples. By the end of the 19th century, like Germany, Japan felt itself to be a “retarded nation” which had not yet taken its place in the world. Like the other great nations, it needed colonies and national strength. Nationalism and militarism seemed to Japanese leaders to be essential to escape the statute to be considered as a country which could become itself a colony of a western force, but which could exist on an equal level with them. Japan was the only East Asian country that succeeded in playing the role of a colonial power. It was by brutal political murders that militarists took over power in Japan in the 1920s and 30s. Buddhist religion came under pressure and mainly acquiesced to the legitimizing of war.13 Shinto religion was transformed into a nationalistic Shinto with the God and emperor at its head. After 1945 that entire nationalistic approach was not completely overcome. The example of the U.S. proved particularly dysfunctional for attempts to reconcile with Japan’s neighboring countries. It is true that sometimes presidents of the U.S. gave apologies for the policy of their country, as Clinton did for Rwanda, but the general policy of U.S. was clearly directed towards the idea of not apologizing for any atrocity or wrong behavior. For Japanese people Hiroshima and Nagasaki are stark examples of the fact that a strong nation, like the U.S., does not apologize. In the atomic park in Hiroshima British citizens have built a small monument expressing their apology for the victims who died in the bombing, but there is nothing similar from either U.S. citizens or from their government. Other strong and powerful nations give the same unfortunate and unhelpful example to the Japanese. The Soviet Union did not apologize for its actions, the British and French governments did so, but only extremely rarely, and even the German government still avoids acknowledging the genocide against the Herero and Nama people in their former colony South-West-Africa. If the strong nations, and especially the U.S., changed their behavior, it would be very likely that Japanese politics would more actively espouse a reconciliation policy. Another important factor in Japanese policy towards Korea and China is the Japanese population. Nationalism and the vision of Japan as the first and strongest nation in East Asia is still strong among Japanese people, who suffer from the fact that economically China and in some sectors South Korea have surpassed Japan. They increasingly feel offended by the confrontation with Japanese guilt. To visit the Yasukuni-shrine has never been just to honor the spirits of the soldiers killed, but it also signifies for Japanese as well as for 13 One important example of Buddhist resistance against the war was Josei Toda, the founder of the Soka Gakkai. Cf. Galtung J & Ikeda, D 1995, Choose Peace, Pluto Press, London.
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Koreans and Chinese, a revival of the idea of a Japanese claim for superiority in East Asia. From a perspective of reconciliation, an attempt to come to terms with Japanese imperialism and atrocities during the wars would ask for another kind of memory ; One that gives honor not only to the Japanese dead but to all the dead, including to those who fought against Japan. Such a memory should also include a firm resolve of “never again” and the vision of a future in which such killing will never be repeated. If all Japanese school books had clearly changed towards the acknowledgement of the guilt, the background would be available to overcome the politicians’ play with nationalist history policies. A nationalism oriented towards the past is almost always bad politics made by politicians who cannot resolve the problems of the present. While there are strong liberal and critical forces in the Japanese public sphere, there still is a dominating willingness to accept politicians toying with nationalist history.14 If this does not change, there will always be politicians like Shinzo Abe who profit from this “cheap” tool to turn away the attention of the population from the unsolved problems of the present. In China and in South Korea, similarly, political leaders often use nationalistic and anti-Japanese feelings to undergird their policies. It seems that this is the reason why so far not many people have insisted on entering into a reconciliation process with Japan. It is true that Chinese and Korean people can feel deeply humiliated by the way Japanese colonialism considered both countries with their long and very rich history as underdeveloped and barbaric. Nevertheless, those times are over and should not be revived. For Asian thought, it is a quite normal development that China becomes the strongest nation in East Asia again; Korea and Japan are somehow equal, whereby Japan as an island is more independent from Chinese influence. But if nationalism and expansionist ideologies from China, but also from Japan and Korea, become important factors, this natural process will become a danger for peace in the world. Without reconciliation such a danger is very real.
East Asia’s Potential for Reconciliation in other Contexts Another effect of investigating our question is that “reconciliation” as a repertoire of East Asian approaches to overcome hostilities has a potential to 14 To what extent the Japanese public sphere is unwilling to reconcile was shown in 2002, when reconciliation with North Korea was attempted. North Korean leader Kim Jong-Il confessed the kidnapping of a Japanese citizen by the North Korean government. Instead of welcoming that finally the truth had been confessed and to ask what would follow for reconciliation, the reaction of the public sphere in Japan was so negative that the entire normalization between the two countries became impossible, cf. Frank, R 2015, Nordkorea. Innenansichten eines totalen Staates, DVA, Munich, p. 79.
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inspire reconciliation in other contexts. We can underline – only briefly – at least five aspects: 1. The Buddhist idea to let go of the past go and not to be attached to anything can be helpful for victims and perpetrators in other contexts to see more clearly the liberation that reconciliation implies. For victims, East Asian culture makes it clearer than it is usually portrayed in Western culture just how great the benefits of forgiveness are. There is even a certain complementarity of the religions. Western religions developed many helpful rituals and thoughts for perpetrators, like the sacrament of confession. Eastern religions developed more helpful practices and modes of thought for victims. 2. Asian thought values more highly the silent developments, such as meditation or the idea that time heals all the wounds. It helps Western thought about reconciliation to pay more attention to the right moment or the opportunity when the time is ripe to reconcile. 3. Asian thought is more directed towards the creation of conditions for a change and not so much towards intentional activities. Asian thought could help reconciliation theory to include the changes of the context and to overcome an orientation to measurable interventions. Even without doing anything, things can change. 4. Asian thought can teach us that identity is not as important as Western people believe. Identity is always multiple and can change. This opens possibilities for understanding. 5. Asian thought introduces with the concept of harmony a new and fruitful addition to Western concepts of peace. Harmony has more aesthetic connotations and overcomes the sometimes “idealistic and even boring” (Wenders & Zournazi 2013, p. 1) associations of peace. To conclude, we have to think also about a phenomenon that is not a part of traditional East Asian culture but a creative product of the encounter of Buddhism and Western Jewish-Christian culture: Engaged Buddhism. It played an important political role for example through the peace walks (“dammayietra”) in Cambodia organized by Maha Ghosansnada (Weingardt 2007, pp. 115–136). In Sri Lanka, engaged Buddhist Sarvodaya Shramadana also advocates peace, non-violence and development (Weingardt 2007, p. 126). If out of Buddhism grows social engagement, such as in Engaged Buddhism, principles like those of Thich Nhat Hanh play a role. Principle # 8 (see below) explicitly asks for reconciliation: 1 Do not be idolatrous about or bound to any doctrine, theory, or ideology, even Buddhist ones. Buddhist systems of thought are guiding means; they are not absolute truth. 2 Do not think the knowledge you presently possess is changeless, absolute truth. Avoid being narrow minded and bound to present views. Learn and practice
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nonattachment from views in order to be open to receive others’ viewpoints. Truth is found in life and not merely in conceptual knowledge. Be ready to learn throughout your entire life and to observe reality in yourself and in the world at all times. 3 Do not force others, including children, by any means whatsoever, to adopt your views, whether by authority, threat, money, propaganda, or even education. However, through compassionate dialogue, help others renounce fanaticism and narrowmindedness. 4 Do not avoid suffering or close your eyes before suffering. Do not lose awareness of the existence of suffering in the life of the world. Find ways to be with those who are suffering, including personal contact, visits, images and sounds. By such means, awaken yourself and others to the reality of suffering in the world. 5 Do not accumulate wealth while millions are hungry. Do not take as the aim of your life fame, profit, wealth, or sensual pleasure. Live simply and share time, energy, and material resources with those who are in need. 6 Do not maintain anger or hatred. Learn to penetrate and transform them when they are still seeds in your consciousness. As soon as they arise, turn your attention to your breath in order to see and understand the nature of your hatred. 7 Do not lose yourself in dispersion and in your surroundings. Practice mindful breathing to come back to what is happening in the present moment. Be in touch with what is wondrous, refreshing, and healing both inside and around you. Plant seeds of joy, peace, and understanding in yourself in order to facilitate the work of transformation in the depths of your consciousness. 8 Do not utter words that can create discord and cause the community to break. Make every effort to reconcile and resolve all conflicts, however small. 9 Do not say untruthful things for the sake of personal interest or to impress people. Do not utter words that cause division and hatred. Do not spread news that you do not know to be certain. Do not criticize or condemn things of which you are not sure. Always speak truthfully and constructively. Have the courage to speak out about situations of injustice, even when doing so may threaten your own safety. 10 Do not use the Buddhist community for personal gain or profit, or transform your community into a political party. A religious community, however, should take a clear stand against oppression and injustice and should strive to change the situation without engaging in partisan conflicts. 11 Do not live with a vocation that is harmful to humans and nature. Do not invest in companies that deprive others of their chance to live. Select a vocation that helps realise your ideal of compassion. 12 Do not kill. Do not let others kill. Find whatever means possible to protect life and prevent war.
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13 Possess nothing that should belong to others. Respect the property of others, but prevent others from profiting from human suffering or the suffering of other species on Earth. 14 Do not mistreat your body. Learn to handle it with respect. Do not look on your body as only an instrument. Preserve vital energies (sexual, breath, spirit) for the realisation of the Way. (For brothers and sisters who are not monks and nuns:) Sexual expression should not take place without love and commitment. In sexual relations, be aware of future suffering that may be caused. To preserve the happiness of others, respect the rights and commitments of others. Be fully aware of the responsibility of bringing new lives into the world. Meditate on the world into which you are bringing new beings.15
References Allione, T 2008, Feeding your Demons. Ancient wisdom for resolving inner conflicts, Little, Brown & Co., New York. Benedict, R 1947, Patterns of Culture, 3rd ed. Penguin Books, London. Benedict, R 1946, The Chrysanthenum and the Sword. Pattern of Japanese Culture, Houghton Mifflin Company, Boston. Bçlter, D 2004, Drei Fragen, die die Welt verändern. Die Naikan-Methode im Kontext von Spiritualität und Psychotherapie, Kamphausen, Bielefeld. Dalrymple, W 2009, Nine Lives. In Search of the Sacred in Modern India, Bloomsbury, London. Frank, R 2015, Nordkorea. Innenansichten eines totalen Staates, DVA, Munich. Galtung, J & Ikeda, D 1995, Choose Peace, Pluto Press, London. Ganesan, N & Kim, Sch (eds) 2013, State Violence in East Asia, University Press of Kentucky, Lexington. Han, B Ch 2005, Hyperkulturalität. Kultur und Globalisierung, Merve-Verl., Berlin. Hanh, TN 2010, Reconciliation. Healing of the Inner Child, Parallax Press, Berkeley/ CA. Hanh, TH 2012, The Path of Compassion, Stories from the Buddha’s Life, Parallax Press, Berkeley/CA. Jullien, F 2009, Les Transformations Silencieuses, Êditions Grasset & Fasquelle, Chantiers I. Paris. Kim, C T-K, 1998, Korean Shamanism - Muism, Jimoondang Publishing Company, Seoul. Kornfield, J 2008, The Wise Heart. A Guide to the Universal Teachings of Buddhist Psychology, Bantam Books, New York. Kornfield, J 2014, A Lamp in the Darkness. Illuminating the Path through Difficult Times, Sounds True, Boulder. 15 Quoted from The fourteen Precepts of Engaged Buddhism. Available from: [8 June 2015].
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Ministry of Foreign Affairs of Japan 2005, Speech by H.E ‘Mr. Junichiro Koizumi, Prime Minister of Japan’ from April 22, 2005. Available from: [8 June 2015]. Mitford, AB 1871, Tales of Old Japan, Mac Millan, London. Peou, S 2013, ‘Mass Atrocities in Cambodia’ in State violence in East Asia, eds N Ganesan & SCh Kim, University Press of Kentucky, Lexington, pp. 129–158. Pollack, D 1986, The Fracture of Meaning – Japan’s Synthesis of China from the Eighth trough the Eighteenth Centuries, Princeton University Press, Princeton. Rossmann, R 2015, ‘Merkel versucht es mit höflicher Kritik’, Süddeutsche Zeitung vom 9. 3. 2015. Available from: . [12 March 2015]. Or the homepage of the German government: . [8 June 2015]. The fourteen Precepts of Engaged Buddhism. Available from: < http://viewonbud dhism.org/resources/14_precepts.html>. [8 June 2015]. Vogel, E 2006, ‘Vorwort in Chrysantheme und Schwert’, in Formen japanischer Kultur, ed. R Benedict, (German trans. of Benedict 1949), Suhrkamp, Frankfurt a. M., pp. 7–10. Vogel, E 1996, ‘Vorwort in Erbschaft der Schuld’, in Erbschaft der Schuld, ed I Burma, Rowohlt-Taschenbuch Verlag, Reinbeck bei Hamburg, p. 150. Weingardt, MA 2007, Religion. Macht. Frieden. Das Friedenspotential von Religionen in politischen Gewaltkonflikten, Kohlhammer, Stuttgart. Wenders, W & Zournazi, M 2013, Inventing Peace. A Dialogue on perception, Tauris & Co., London/New York. Yang, T-Z 2011, ‘Frühling, Sommer, Herbst, Winter … und Frühling’, in Himmel und Hölle. Religionen im asiatischen Film, eds B Rensing & B Schmitz, Tectum, Marburg, pp. 119–134.
Annette Weinke
Reconciling through International (Criminal) Law? The Nuremberg Trials and their Impact on Concepts and Practices of Reconciliation in Postwar Germany
Introduction For international law scholars 2013/14 was a year with special historical reverberations. Exactly 150 years ago businessman Jean-Henri Dunant, lawyer Gustave Moynier and three other Swiss dignitaries set the foundations for what later became the International Committee of the Red Cross (ICRC). Its establishment and the adoption a year later of the “Geneva Convention on the Amelioration of the Condition of the Wounded in Armies in the Field” are considered founding moments of international humanitarian law and of a broad humanitarian movement based on religious and secular philanthropy (Forsythe 2005). Since that time the system of international humanitarian law has undergone a number of profound transformations. In the mid-19th century it was envisaged as a matter of relations among sovereign states. In its minimalist form, it would alleviate the humanitarian costs of wars. In its maximalist form, it would render wars between civilized states altogether obsolete. Yet it was the idealist and even elitist endeavour of a small caste of enlightened international lawyers who wanted to distance themselves from the “petty” nationalisms of the lower classes. They hoped to promote their nascent profession, advance the sovereignty rights of their individual countries, and create a world order based on “civilization” and European predominance. Today, this same project has become an enterprise of both state and non-state actors. It has metamorphosed into a globalized body of law invoked by countless NGOs worldwide. Most of these organizations do not seek to consolidate state power, but to control and contain it. During the Second World War, many factors contributed to a multifaceted and irreversible change in the character of international humanitarian law. First, a broad alliance of state representatives, international legal scholars and members of the Roosevelt administration conceived the creation of a multinational court for the Nazi elite –– later to be known as the International Military Tribunal at Nuremberg (IMT). Although the meaning of the IMT is still under dispute in the historiography of the war crimes tribunals, some historians interpret its founding in August 1945 and the drafting of the Universal Declaration of Human Rights (UDHR) three years later as cornerstones of a new human rights regime to complement the traditional ius in bello. In contrast to the old humanitarian law from the 19th century, which
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formalized relations between states and therefore did not challenge the sovereignty principle of the so-called Westphalian order, this new body of law theoretically could pose a fundamental challenge to it. In the words of the American political scientist Bronwyn Leebaw (Leebaw 2007), the human rights regime implemented after 1945 was “premised on the idea that outsiders must judge the way that states treat their own citizens.” It drew on the idea that law had to protect individuals from abuse at the hands of states on an international plane. Another legal innovation of “Nuremberg” was in the use of law as an instrument of what legal scholar Lawrence Douglas (Douglas 2001) has called “didactic legality” and “historical pedagogy.” According to traditional doctrines of criminal law, the purpose of punishment is either deterrence or atonement. With the emergence of a new human rights law in Nuremberg, the spectrum of purposes widened as the sheer magnitude of Nazi criminality inspired legal theorists to develop viable alternatives to deterrence and atonement (Drumbl 2008). Following the Nuremberg precedent, international trials of state-sponsored criminality and mass atrocity acquired the additional purpose of naming the perpetrators and victims and reconstructing and disseminating the factual record of violent acts. Some proponents of the new subdiscipline of transitional justice consider the educational and didactic functions to be the main purpose of international criminal proceedings (Osiel 1997). Have national and international courts been able to address the violence of the past adequately? When they attempt to “write history”, what kind of historical narratives do they tend to produce? How has this juridical “truth telling” affected reconciliation processes between states, groups and individuals? These questions have been discussed vividly in historiography and legal philosophy. In her seminal treatment of the Eichmann trial, first published in book form in 1965 under the title Eichmann in Jerusalem: A Report on the Banality of Evil, the German-Jewish philosopher Hannah Arendt claimed that when a court tries to pass judgment not only on the guilt or the innocence of an individual, but on competing historical interpretations, this undermines the principles of fair procedure and due process (Arendt 1963). While Arendt based her objections on a liberal and minimalist conception of criminal law –– a conception, that according to some commentators, promotes a standpoint of “the law and nothing but the law” –– recent developments in the realm of international criminal jurisdiction have triggered a broad interdisciplinary debate about “Nuremberg” and the supposed historical functions of international criminal tribunals and international human rights courts. The “new style” generation of international criminal courts emerged during the 1990s in institutions like The International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and International Criminal Court (ICC) (Alter 2014). As their jurisdiction these courts have adopted categories from the hybrid “Nurem-
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berg” human rights law such as crimes against humanity, genocide, and organizational guilt for state-sponsored mass violence. They have also been forced to delve deep into the historical context of individual crimes, in part due to the specific requirements of the new body of law. “Crimes against humanity”, for example, criminalizes only “widespread and systematic” persecutions. “Genocide” requires proof of special intent on the part of the state administration. The fact is that the international tribunals routinely produce historical narratives about countries or regions that most of the responsible jurists only know from textbooks, media reports or popular literature. This bears some similarities to the situation after 1945, when American, Soviet, British and French representatives had to pass judgment on Nazi criminality, but there are some important differences. In 1945, rejection of the IMT’s historical understandings of Nazi criminality came mainly from ultra-nationalist, militarist and right-wing circles in West Germany, the United States and Great Britain (Weinke 2014). Today, the most scathing criticism against this form of juridical “truth telling” is formulated in the academic and intellectual realms. This is not the place to elaborate all of the theoretical and methodological premises of these critical stances on law and history, but I shall touch upon two of the most prominent positions. A first group of commentators tend to be scholars of critical legal studies, legal realism, or literary criticism. They see the new generation of international tribunals as a recurrence of familiar trends in the liberal-democratic thinking that has been the dominant model in Western Europe and the United States for most of the Cold War era. Their main argument against the proclaimed “right to (historical) truth” is that the legal approach addresses historical and social conflicts selectively, with a tendency to decontextualize and depoliticize. Some legal scholars speak of “epistemic confusion” as an inherent feature of (criminal) law (Teubner & Zumbansen 2000). This results mainly from the procedural and semantic approaches typical of the law, with their illusion of irrefutable “facts” and objective historical “truths”, while in reality facts are constructed so as to present the coherent story-line on which every legal case depends (Douzinas 2007). Against this theoretical backdrop critical legal scholars see the selfdesignated mission of juridical “truth telling” as a romantic self-deceit of international lawyers, international NGO-activists, and other members of the liberal transitional justice-community. Partly in reaction, some scholars of transitional justice who initially upheld the credo of “law, memory and reconciliation” have strongly relativized the historical functions of international criminal tribunals. Although these courts generally take considerable and ambitious efforts to raise public consciousness through outreach programs, the practical results are meager. American anthropologist and legal scholar Richard Ashby Wilson, for instance, concluded that differences between legal and scientific ways of knowing are so tremendous that courts are overloaded when one ascribes to them historiographical functions ––
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especially when they deal with complex historical incidents like wars and civil wars, mass deportations or genocidal acts. Wilson insists therefore that international courts “are simply not designed […] to fulfill other important tasks such as conflict-resolution, reconciliation, and deterrence” (Wilson 2011, p. 17). In contrast to the pragmatic stance of the “law and society” literature, poststructualist scholars have formulated a more fundamental critique. In his essay “On Forgiveness”, French-Algerian philosopher Jacques Derrida picks up the threads connecting the act of forgiveness with its personal and religious character to collective discourses and practices of “apology” and “repentance” on the political and secular levels. Derrida focuses on recent phenomena like what he calls the “Sorry Movement” towards African-Americans in the United States, the utterances of Japanese prime ministers towards Korea and China, and the decision of the Australian government to acknowledge historical injustices committed against the Aborigines. While Derrida has more to say about so-called “truth commissions” than international criminal courts, he sees the global imperative for judicial accountability and historical responsibility as little more than the flip side of the universal idiom of “reconciliation”. The elevation of traditional “Western” (meaning Christian) ideas of sin and redemption on a global plane (a process Derrida calls “globalatinization”) and the adoption of reconciliation as a dominant mode of politics when looking to the future together serve to imply that even unforgivable memories of atrocity can one day become objects of forgiveness and, as a final consequence, objects of forgetting. “Forgiveness”, he writes, “signifies, no doubt, a universal urgency of memory ; it is necessary to turn toward the pasts; and it is necessary to take this act of memory, of self-accusation, of ‘repentance’, of appearance at the same time beyond the juridical instance, or that of the Nation-State.” (Derrida p. 120). To take his argument seriously, one need not agree with Derrida’s assumption that international criminal courts and truth commissions are created because of ongoing Western hegemony or a Western stance which seeks to dominate the rest of the world by implementing a homogenizing “culture of reconciliation” –– in which Derrida sees a disguised “culture of forgetting”. In my view, two aspects he raises are crucial for our understanding of the historical role of international tribunals and the cultural repercussions of international human rights law. First, he asks poignantly whether a project which clearly pursues liberal, emancipatory and progressive objectives can nevertheless have effects that are illiberal, authoritarian or even oppressive. Second, he points to a dilemma basically all international courts and truth commissions must face: With crimes against humanity and other forms of mass atrocity, the promotion of reconciliation usually happens in political and social contexts where even “conciliation” is more or less impossible, never mind “reconciliation”. One may safely assume this was the case in 1944 and 1945, when revelations
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about Nazi crimes caused worldwide moral indignation and a tidal wave of resentment against the German people who had defined themselves as a racially pure and superior “Volk”. With respect to the situation after the collapse of the “Third Reich” the French philosopher and human rights activist Michel Feher therefore claims that “reconciliation” had a very different meaning as understood at that time. In his essay “Terms of Reconciliation” Feher writes: “The obvious model for the political approach to reconciliation enveloped in the purist position [by which he means that of international NGO’s – A.W.] is the de-Nazification of Germany at the end of World War II. In 1945, everyone would agree, the issue was not to reconcile the Nazis with their enemies and victims but to make reconciliation with Germany incumbent on its rejection of Nazism. Though rapidly trumped by the Cold War, the political purpose of the Nuremberg trials was precisely to found a new ‘international community’ on such a rejection. Indeed, on trial at Nuremberg were neither the German people nor merely a collection of war criminals […] first and foremost, the defendant was the Nazi regime itself” (Feher 2009, pp. 330). Feher’s argument leads to two related historical problems that need to be considered against the backdrop of recent debates on transitional justice and its focus on reconciliation. As outlined above, the conceptions of reconciliation in transitional justice are closely linked to those of historical truth, and vice versa. Reconciliation policy can only be sincere when it also seeks to render truthful accounts of the past, identifying perpetrators and victims while historical truth-telling enables members of society to regain trust and reconcile with each other. On the basis of this assumption, my first question is what kind of reconciliation the (Western) Allies possibly had in mind when they conducted war crimes tribunals against selected German defendants, and how approaches of reconciliation and truth-telling reverberated in the Nuremberg trials. Second, I will discuss an issue that has, by contrast, barely come up in transitional justice debates until now. While some scholars see the implementation of the IMT and other trials as an important precondition for West Germany’s subsequent reintegration in the international community of states, they have more or less assumed and failed to examine the actual impacts on the domestic and international socio-political levels. Our question therefore should be how the IMT project was really received by the German public. In what kind of echo chamber did the trials unfold their explicit and implicit, moral and historical messages? What were the reactions among perpetrators, bystanders and victims? How did “truth telling” through the prism of international criminal law affect relations between these groups? How did this contribute to any form of rapprochement or mutual understanding on the international and domestic levels?
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Law, not vengeance: Ideological and theoretical underpinnings of the Nuremberg war crimes program In his seminal 1961 work on Political Justice the German-American jurist and former OSS analyst Otto Kirchheimer called the IMT the 20th century’s most prominent case of “successor justice”. According to him, “successor justice” is a special variant of using legal procedure for political ends. It is characterized both by “retrospective and prospective intentions”. In the case of the Allied trials at Nuremberg, the intent to lay bare the “roots of iniquity of the previous regime’s conduct” was more or less inseparable from the desire to make Germany’s punishment “the cornerstone of the new order” (Kirchheimer, cited in Betts 2005, p. 5). Thanks to liberal legalism’s surprising return to the international scene, many recent studies have sought to retrace the twisted road to “Nuremberg”. Already during the war, the idea took shape of holding German political, military and economic elites accountable for state-sponsored crimes that were considered “barbaric” and “uncivilized” by the standards of international humanitarian law at the time of their commission. While some Whiggish accounts describe the unfolding of rights as an almost natural process, it must be remembered that the concept developed only gradually, that it was connected to divergent political goals, and that it was disputed until the very end. Starting in 1941 the Western powers made a few public pronouncements declaring their commitment to rebuilding a “new moral world order” after military victory over the “Third Reich”. They also began to enshrine the language of human rights on an international level. The visionary project of an international tribunal for the captured Nazi leadership became a focal point for a group of international law advocates, among them a goodly number of Jewish emigr¦s from Nazi Germany and Nazi occupied countries (Weinke 2006; Lewis 2014). Most historical accounts of Nuremberg depict the IMT and the Allied war crimes program as the products of “old style” power politics and traditional diplomatic machinations. But the contribution of what we today call civil society must not be underestimated in its influences at least on how Nuremberg was conceptualized. Interventions in discussions of “German atrocities” from the legal community and from victims’ organizations clearly indicated the existence of a veritable transnational civil society. Since its emerging in the late 19th century it challenged and then actually began to change the underpinnings of the international political system. The endeavour to create an international tribunal for the political leadership of a state was also a revolutionary approach. Put differently, the project to indict Nazi criminality in an international court would mean a clear departure from the evolutionary stance of traditional liberal legalism. Against this backdrop, many of the legal
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discussion papers on German war crimes and other atrocities during the war depicted the so-called “German problem” as a “special path” to modernity. This “special path” was characterized as an aberration from the typical Western way to “civilization” and demanded that the international community make a concerted effort to pass both moral and judicial judgment on the Nazi leadership, while at the same time getting the majority of Germans back on the liberal track (Mettreaux 2008). In a similar vein, proponents of a “hard peace” in the United States drew their arguments from the newly flourishing scientific discipline of behaviourism. Under the umbrella of the American Joint Committee on Postwar Planning, cultural anthropologists, psychiatrists, psychologists and experts in education, economics and political science convened in 1944 at Columbia University to discuss the “German problem”, mostly in medical terms. They equated the impact of Nazi ideology on the German people with a smallpox epidemic. What was striking in this “psycho-cultural approach”, as American sociologist Jeffrey K. Olick called it, was the explicit and unanimous commitment among its advocates to distance themselves from the Versailles Treaty and from Allied politics toward Germany after 1918. The United States’ retreat from the European continent and failure to assume responsibility for Woodrow Wilson’s new world order was identified as a major cause of subsequent developments. It was considered a sign of American self-criticism when psychiatrist Richard M. Brickner, author of the popular book Is Germany Incurable?, pleaded for the implementation of an inclusive therapeutic approach directed at the German population as a whole. “Victory for our side”, Brickner explained to his fellow psychiatrists, “carries huge responsibilities and an awkwardly large number of options. Having won, we can return to the principles used in 1919 treaties; or, in a vengeful or precautionary mood exterminate the Germans; or make a scientific effort to check Germany’s paranoid trends. The first might be called the Versailles method, the second the Cato-and-Carthage method, the third the behavioural method” (Olick 2005, p. 59). Together with Talcott Parsons’s “culture and personality” approach (also debated during the Joint Committee meetings) the behavioural method became something like the theoretical blueprint for the re-education program conducted by the American Office of Military Government for Germany (OMGUS) in the Western occupation zones. These applied science models were an important influence on planning and practice and favoured resocialization over retribution. As Olick writes, many social sciences scholars involved in the preparation of the de-Nazification program and the war crimes tribunals saw a unique opportunity of “transforming an entire society guided by state-of-the-art social scientific theory” (Olick 2005, p. 58). From the perspective of American “re-education” experts of 1945, the punitive “Versailles method” of 1919 looked like a failure. Even more importantly, it looked irrational and therefore “unscientific”. This, of course, raises the
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question whether the same therapeutic approach, operating with the constructs of “national character” and categories of cultural essentialism, can be blamed for the far less subtle American policy towards the Japanese people. Here it should suffice to mention that the American anthropologist Ruth Benedict, who worked for the US Office of War Information, juxtaposed a so-called Western “guilt culture” to an Eastern “shame culture”. This later became the central thesis of her seminal book, The Chrysanthemum and the Sword. She also belonged to the group of American social scientists who in 1944 and 1945 developed the theoretical underpinnings for the Nuremberg and Tokyo trials. An outstanding role in shaping the Nuremberg trials was played by German emigr¦s working for the OSS in Washington, including renowned scholars from the Frankfurt School like Franz Neumann, Herbert Marcuse, and the aforementioned Otto Kirchheimer. Their specific contribution to the Nuremberg war crimes program was what I would call the “law-and-historiography” approach. As trained Marxist thinkers they were initially hostile to the idea of giving Nazi elites a liberal “show trial”. As the end of the war approached, however, they realized that the international political debate on what to do with postwar Germany had narrowed to a choice between summary executions and political trials. They decided to support the latter. The OSS scholars saw themselves as confronting the crude popular tropes advanced by the likes of Lord Robert Vansittart and Winston Churchill, both of whom construed a German national character characterized by inherited traits like cruelty, envy and self-pity. The OSS scholars were eager instead to come up with rational explanations for Nazi aggression and criminality. Most influential for the later American de-Nazification policy was Neumann’s work Behemoth with its structuralist interpretation of German history. In this he developed his famous “four pillars” theory, attributing a considerable share of guilt to the administrative, military and industrialist elites, while at the same time exonerating Germany’s large working class. After the war this became the blueprint for the “institutionalist approach” as practiced by American prosecutors in the so-called successor trials (Priemel & Stiller 2013). To summarize, members of a transnational civil society entered into a broad discourse about Nazi criminality years before the Nuremberg trials finally took shape. What proved crucial in this debate, in which church clerisies were conspicuously absent, was that it largely followed the inherent logic of liberal legalism, international humanitarian law, and the nascent human rights law. It assumed the existence of something like “global moral consciousness” and of an international community of morally concerned citizens who felt challenged by the extreme racism and aggressiveness of the Nazi regime. This analytical path to addressing the “German problem” engendered a specific way of seeking for possible solutions. Members of this epistemic community insisted that this way be “rational” and “scientific”. They intended to provide a majority of Germans with a perspective for social transformation and
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successful reintegration into the international community of “civilized” states. The scientific approach should not be equated with the idea of a “soft peace”, however. Its prevalence did not only marginalize the competing call for collective retribution like extralegal punishments and mass deportations. In nuce it also paved the way for a critical self-reflexion among educated Germans. By no means is the above intended to evoke the misleading impression that reactions toward Germans were guided entirely by high-minded legal idealism. Shortly after Nazi Germany’s defeat, opinion polls in the United States, Britain and France found overwhelming majorities in favour of summary executions (Betts 2005, p. 15). Influential members of the Roosevelt administration like the moderate Secretary of the Treasury Henry Morgenthau Jr. called for a dismantling of Germany’s heavy industry and – in Churchill’s famous formulation – for the “pastoralization” of the country (Olick 2005, p. 84). The historiographic debate on “Nuremberg” encompasses speculation on whether other members of the administration saw Morgenthau’s plan as a “Jewish” vengefulness against Germany. More relevant in my eyes is that prominent advocates of an international trial legitimized it with the topos of a “spiritual bond of the West” ––a bond building on “Christian” values like peace and reconciliation. Influential European Conservatives like the British Tory politician David Maxwell Fyfe, who served as deputy chief prosecutor at the IMT, mused publicly on the spiritual functions of the Nuremberg trial. One of the later fathers of the European Human Rights Convention, Fyfe saw the IMT both as the starting point for a “sounder and saner Europe” and as an offer to Germans to come “back into the European stream of thought and development” (Duranti 2012, p. 126). Already by the late 1940s the IMT was framed through a narrative that was simultaneously both inclusive and exclusive. To West German elites it was presented as the ticket to an imagined European-transatlantic “club”, where human rights and a Judeo-Christian spirit of reconciliation reigned. At the same time, this kind of rhetoric was used to label the Soviet Union as a sphere of collective revenge and infringement on individual freedoms.
From exculpation to reconciliation – the West German grammar of guilt and complicity In 1949, shortly after the last of the American follow-up trials at Nuremberg, the German ¦migr¦ jurist Franz Neumann published an article summarizing his view of the trial program’s legacy. Neumann was convinced that its didactic purposes and historical lessons had been lost on the majority of Germans. He assigned the main responsibility for the overall negative response not to the
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Western powers, but to the traditional German elites who kept their nationalist and cultural bias against the “West”. Those “powerful groups”, Neumann claimed, “tend to use the trials as political instruments either to attack the West or to offer themselves as Allies against the East, or to attack all victorious powers. […] It is conceivable (and even likely) that the trials will play a role similar to the famous ‘War Guilt Lie’ after 1918” (Neumann 1949, p. 145). This was not hyperbole. Neumann’s assessment of German sentiments at the time was more or less realistic. While opinion polls in Germany during the IMT reflected a fairly positive reception to the trial, four years later American survey-takers were confronted with the perplexing result that many more Germans now saw the IMT as an “unfair” proceeding. Historians who have examined the formation of a West German “collective guilt” syndrome have argued that the fixation on a presumed Allied allegation of “collective guilt” was partly a reaction to the over-ambitious re-education program in the American zone (Frei 2002). However, it was surely no coincidence that protests against the trials turned vociferous just at the moment when the American prosecutorial office in the Western zones (the OCCWC) issued indictments against 200 avatars of Germany’s military, legal, medical and diplomatic elites. This became the rallying point for a conservative West German opposition to Western occupation politics. Further encouragement came from voices in the United States and Great Britain who wished to discredit the war crimes trials as a “New Deal” experiment in social engineering, or even as “Jewish” vengefulness. The German critics were led by legal scholars –– among them a couple of former IMT defense attorneys –– and church officials who organized as the so-called “Heidelberg circle” –– named after the academics around the renowned German sociologist Max Weber, who had led the campaign against the Versailles “guilt clause” in 1919 (Weinke 2015). With a self-image as the only unblemished institutions in Germany, the Catholic and Protestant churches were central in the public campaign for amnesty. In their forceful critique of “Nuremberg”, church leaders conflated lamentations over a supposed general trend to secularization with condemnations of the trials as “cultural Bolshevism” and “instruments of revenge”. According to Olick the churches’ discourse on “Nuremberg” established a “grammar of exculpation” that shaped how West Germans saw the Allied occupation and how they remembered the war and the Holocaust (Olick 2005, p. 212). As it can be shown in various contexts, the Christian notion of “reconciliation” was strategically exploited to assist the political mobilization. As used by churchmen like Bishop Theophil Wurm or the Tübingen theologian Helmut Thielecke, “reconciliation” evoked a metaphysical tale of German suffering and connected it to highly specific political goals. The highest priority on the churches’ agenda was to end Allied de-Nazification and re-education politics. According to Wurm and others, forced “measures of expiation” were simply counterproductive to a spiritual renewal of the
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German people (Olick 2005, p. 221). In 1946, Wurm went as far as to equate deNazification with the Jewish catastrophe: “To squeeze the German people together in an even more crowded space and to reduce its possibilities for life as much as possible cannot, in fundamental terms, be evaluated any differently than the extermination plans of Hitler against the Jewish race” (Olick 2005, p. 222). The fact that the Federal Republic’s political establishment from right to left almost unanimously rejected the Nuremberg trials and persuaded the Western Allies to unwind the project prematurely has led some historians to the general conclusion that “Nuremberg”, meaning the American de-Nazification and reeducation program based on liberal legalism and applied social sciences, actually blocked West German critical self-introspection. In a refreshingly provocative new look at the postwar history of human rights, American historian Samuel Moyn states bluntly : “The main response[s] to Nuremberg in postwar Germany… were anger and boredom. In spite of trying, recent historians have not been able to discover any reasons to believe that Germans, even German lawyers, were re-educated by it… As for the so called ‘successor’ trials… they may have made things worse by stimulating revanchism” (Moyn 2014, p. 484). Moyn and some other younger scholars tend to throw out the baby with the bathwater, and to me his argument shows how a legitimate attempt to deconstruct the transitional justice community’s meta-narratives runs the danger of creating new meta-narratives, this time mostly pessimistic. I would argue that the postwar German history of “Nuremberg” and international law is much more complex and multifaceted. In the long run, the West German discourse on “Nuremberg” did not trigger just cultural opposition, but also appropriaton and re-invention. Within the broad expanse of West German Vergangenheitsbewältigung (overcoming the past) we can observe both approaches at work, nearly everywhere. The project of German-Israeli Wiedergutmachung (making good or restoration) was in fact both a West German reaction on the Holocaust as represented at Nuremberg, and an attempt to overcome the limitations of “justice” and “truth telling” via court proceedings (Gardner Feldman 2012, Gardner Feldman 1999). The vivid discussion among West German jurists about whether the Nuremberg principles should be integrated into national penal law can be interpreted as a fundamental critique against Allied intrusion in sovereign national rights and indigenous legal culture. But it can be also interpreted as an attempt to engage in international human rights discourses so as to harmonize them with national legal traditions. In the same vein, one could claim the resumption of national war crimes prosecutions in the late 1950s was motivated by the insight that “Nuremberg” had only scratched the surface of the actual crimes –– as was true particularly of the Holocaust in Eastern Europe. Thus from the insiders’ perspective the Auschwitz trial and other big Holocaust trials of the 1960s and 1970s served to correct the biases and
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limitations of “Nuremberg”, even while observers abroad saw these as proof that West Germans finally had learned their lessons. Interestingly enough, this constructive perspective on West German Holocaust trials especially took hold in Communist Poland. By the early 1960s, the Polish nomenklatura had become relatively disillusioned by the self-apologetic tendencies of East German “antifascism” and were positively surprised by the West German trials, which they actively supported. The West Germans themselves at some point started to interpret their national war crimes program as a step to mutual understanding and reconciliation with the Polish and Israeli peoples, simply because this was how Poland and Israel saw it. When we tackle the issue of selftransformation from within and transformation from without, we are always dealing with complicated entanglements and transfer processes (Weinke 2002). So while it is certainly true that over several decades the “Nuremberg” discourse of the West German elites was almost entirely sceptical, the dialectical repercussions of the Allied hybrid law on juridical and historical approaches also cannot be overlooked. Franz Neumann, who became a guest professor at the Free University in West Berlin, died relatively young in 1954 as the result of a car accident. Therefore we can only speculate how he would have assessed the eventual course of the West German Vergangenheitsbewältigung in light of his earlier views. Contrary to his earlier pessimism, however, we can say that “Nuremberg” did not become a second “Leipzig”. Despite the resentments, the trials did not become the focal point for another “war guilt lie”. Despite the obvious limitations of early West German Holocaust memory, proponents of denial always remained a sectarian minority in the Federal Republic. Subsequent generations of human rights activists, church members, journalists and intellectuals revived the idea of “Nuremberg” in promoting historical self-reflexion and reconciliation with the former victims of the Nazi terror (Weinke 2008). Should we therefore speak of postwar (West) Germany as an “international relations morality tale”, as British-American historian Paul Betts has recently argued? At this point my answer is yes and no. At the beginning of the 21st century the Federal Republic has certainly begun to embrace the “Nuremberg” legacy and international human rights, with substantial official support for the ICC at The Hague and global “anti-impunity” campaigns. But the selfcongratulatory tone on human rights issues among the political and academic elites of the “Berlin Republic” has its disturbing side. West Germans often appear to believe they are not just the global champions of “mastering the past” but even think of it as their patented invention. As I have tried to outline here, possibly nothing could be further from the truth.
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References Alter K 2014, New Terrain of International Law: Courts, Politics, Rights, Princeton University Press, Princeton. Arendt, H 1963, Eichmann in Jerusalem: A Report on the Banality of Evil, The Viking Press, New York NJ. Betts, P 2005, ‘Germany, International Justice and the Twentieth Century’, History & Memory, vol. 17, no. 1/2, pp. 45–86. Douglas, L 2001, The Memory of Judgment: Making Law and History in the Trials of the Holocaust, Yale University Press, New Haven MT. Douzinas C 2012, ‘History Trials: Can Law Decide History?’, The Annual Review of Law and Social Science, vol. 8, pp. 273–289. Drabinsky, JE 2013, ‘Reconciliation and Founding Wounds’, Humanity, vol. 4, no. 1, pp. 117–132. Drumbl, MA 2008, ‘A hard look at a soft theory of international criminal law’, in The Theory and Practice of International Criminal Law. Essays in honor of M. Cherif Bassiouni, eds LN Sadat & MP Scharf, Martinus Nijhoff Publishers, Leiden. Duranti, M 2012, ‘A Blessed Act of Oblivion’. Human Rights, European Unity and Postwar Reconciliation’, in Reconciliation, Civil Society, and the Politics of Memory, eds B Schwelling & M Duranti, Transcript Verlag, Bielefeld, pp. 115–141. Feher, M 2009, ‘Terms of Reconciliation’, in Human Rights in Political Transitions: Gettysburg to Bosnia, eds C Hesse & R Post, Zone Books, New York NY. Forsythe, D 2005, The Humanitarians: The International Committee of the Red Cross, Cambridge University Press, Cambridge UK. Frei, N 2002, Adenauer’s Germany and the Nazi Past: the Politics of Amnesty and Integration, Columbia University Press, New York NY. Gardner-Feldman, L 1999, ‘The principle and practice of ‘reconciliation’ in German foreign policy : relations with France, Israel, Poland and the Czech Republic’, International Affairs, vol. 75, no. 2, pp. 333–356. Gardner-Feldman, L 2012, Germany’s Foreign Policy of Reconciliation: From Emnity to Amity, Rowman & Littlefied, Lanham MD. Leebaw, B 2007, ‘The Politics of Impartial Activism: Humanitarianism and Human Rights’, Perspectives on Politics, vol. 5, no. 2, pp. 223–238. Lewis, M 2014, The Birth of the New Justice. The Internationalization of Crime & Punishment, 1919–1950, Oxford University Press, Oxford & New York NJ. Mettraux, G (ed.) 2008, Perspectives on the Nuremberg Trial, Oxford University Press, Oxford & New York NJ. Moyn, S 2014, ‘Judith Shklar versus the International Criminal Court’, Humanity, vol. 4, no. 2, pp. 473–500. Neumann, F 1949, ‘The War Crimes Trials’, World Politics, vol. 2, no. 1, pp. 135–147. Olick, JF 2005, In the House of the Hangman. The Agonies of German Defeat, 1943–1949, University of Chicago Press, Chicago Il & London.
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Osiel, MJ 1997, Mass Atrocity, Collective Memory, and the Law, Transaction Publishers, New Brunswick NJ. Priemel, KC & Stiller, A (eds) 2013, Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography, Berghahn Books, New York. Teubner G & Zumbansen P 2000,‘Rechtsentfremdungen: Zum gesellschaftlichen Mehrwert des zwölften Kamels’, Zeitschrift für Rechtssoziologie, vol. 21, no. 1, pp. 189–215. Weinke, A 2002, Die Verfolgung von NS-Tätern im geteilten Deutschland. Vergangenheitsbewältigungen 1949–1969 oder : Eine deutsch-deutsche Beziehungsgeschichte im Kalten Krieg, Schöningh, Paderborn et. al. Weinke, A 2006, Die Nürnberger Prozesse, C.H. Beck, Munich. Weinke, A 2008, Eine Gesellschaft ermittelt gegen sich selbst. Die Geschichte der Zentralen Stelle Ludwigsburg 1958–2008, Wissenschaftliche Buchgesellschaft, Darmstadt 2008 (2nd ed: 2009). Weinke, A 2014, ‘The ‘Mastering of the Past’ in West Germanys in Dealing with Wars and Dictatorships. Legal Concepts and Categories in Action, eds L Israel & G Mouralis, T.M.C. Asser Press, The Hague, pp. 103–121. Weinke, A 2015 (forthcoming), Gewalt, Geschichte, Gerechtigkeit. Transnationale Debatten über deutsche staatliche Gewalt im 20. Jahrhundert. Wilson, RA 2011, Writing History in International Criminal Trials, Cambridge University Press, Cambridge.
Liu Liangjian1
Thinking through Kang Youwei’s Doctrine of datong (Great Unity) and World Political Order in a Glocal Age Introduction A world political order has been a lasting theme in the tradition of Chinese philosophy, including Confucianism and Daoism. Zhuangzi (399BC–295BC) was a philosopher with a skill of philosophizing through the telling of stories. Here is his tale of the war on the horns of a snail. The lord of the state of Wei agreed on a treaty with the marquis of the state of Qi. When the marquis of Qi violated it, the lord of Wei was enraged and was planning to send a man to assassinate him, which evoked a debate concerning the necessity of war among the ministers of Wei. Then a wise man named Dai Jinren was brought to the lord (ed. Guo 1995, pp. 891–893): Dai Jinren said, “There is a creature called a snail – do you know of it?” The lord said, “Yes.” “On the left horn of the snail there is a state which is called Provocation, and on the right a state which is called Brutality. These two states are continuously at war over territory. The dead are piled on the ground by tens of thousands. They pursue one another for fifteen days before they retreat.” “What empty talk!” “Allow me to explain it to you. When you think of space – east, west, north, south, up and down – can you set a limit to it?” “It is limitless.” “When the mind returns from the idea of the limitless expanse to states with boundaries, does it not seem that they are almost nothing in comparison with the limitless?” “It does.” 1 Liu Liangjian is Associate Professor, Department of Philosophy/ Institute of Modern Chinese Thought and Culture, East China Normal University, Shanghai, 200241. E-mail: [email protected].
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“Among all those states there is Wei; in Wei there is the city of Liang; in the city of Liang there is a lord. Is there a difference between you and the ruler of the state of Brutality?” “There is no difference.” When Dai Jinren had left, the lord was perturbed and seemed to be lost.
Had he lived 2000 years later, Zhuangzi would have taken two nation-states rather than two feudal states as the antagonists of his story. Two states are involved in disputes over territory or other interests. They claim sovereignty and the right to safeguard their territorial integrity, if necessary, by military force. War leads to thousands of deaths and means that millions are deprived of a wholesome life. Under certain conditions, two states may agree to an alliance. However, such an alliance is volatile and not reliable. An international treaty will be easily violated if the balance of power or relation of interests between nation-states is altered. The aggravation of one state against another readily results in war – while in a monarchical state the anger of the ruler is the anger of the state, the emotion of a modern state has to be mobilized through patriotism or some historical collective memory. There are nation-states, there are international relationships, and consequently, there is war. To avoid the disaster of a bitter war is to get rid of the evil of the nation-state itself. What Zhuangzi suggests is a shift of perspectives: From a higher and more detached perspective, i. e. “the idea of the limitless expanse,” the perspective of the nation-state, the validity of which is normally respected as absolute, becomes trivial and even funny (“almost nothing”). At the very beginning of his great “sketch,” namely, “Towards Perpetual Peace: A Philosophical Sketch”, Kant indicates, from the viewpoint of pragmatic politicians or the common people, perpetual peace is merely the ‘sweet dream’ of philosophers (Kant 2006 a, p. 67). But, does the perspective of “the limitless” which Zhuangzi pleads us to entertain seem to be even more impractical such that we could reasonably believe it to be nothing but another of philosophy’s romantic dreams? Nevertheless, in Chinese thought there has been a long tradition of dreaming just such a dream from ancient to modern times. Since the 19th century, China has been involved in a movement of national self-rescue, taking “a modern ‘nation-state’ as its aim.”(Liang 1993, p. 239) A non-nation-state has to change itself into a nation-state in order to survive modern times (Liu 2015, pp. 199–219). However, even in such a critical situation where “China would suffer from elimination and extinction once it is weaker than other states” in “an age of competition among nation-states,” (Kang 1981, p. 301) Chinese thinkers have still made earnest efforts to project a world order.2 A good example is Kang Youwei (1858–1927), whose doctrine 2 Prof. Gao Ruiquan argues that modern Chinese thinkers, such as Kang Youwei, Tan Shitong, Sun Zhongshan, Liang Shuming and Mao Zedong, have never forgotten the future of the world in deliberating China’s road of national liberation. (Gao 1999, p. 255)
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of datong (great unity)3 provides a detailed plan with rich imagination. It would be of great interest to develop a dialogue between Kang Youwei, Zhao Tingyang (1961–), Kant, Habermas and Thomas Pogge concerning the issue of a world political order.
“The Evil of the Nation-state” and the Pursuit of a World State As for the structure of Kang Youwei’s Datong shu (Book of Great Unity), we can easily find the impact of the Buddhist doctrine of “the four noble truths” that is, the truth of suffering (duhkha), the truth of the arising of suffering (samudaya), the truth of the cessation of suffering (nirodha), and the truth of the path to the cessation of suffering (marga). It begins with a description of sufferings in the world and ends with the attainment of ultimate happiness after a diagnosis of the causes of sufferings and an investigation into the ways of avoiding sufferings. In contrast to the purely religious efforts of Sakyamuni,4 Kang Youwei’s prescription for human beings involves the dimension of the political institution. For him, the nation-state has its natural ground and historical necessity. “It is unavoidable for human beings to compete in groups and to seek self-protection by right. Hence, there are tribal and national differences, there are laws concerning ruler and minister and political issues, and there is joy in the preservation of family and property” (Kang 1998, p. 52). “As a primary form in which human beings group together” (Kang 1998, p. 119), the nation-state is inevitable. However, there is the terrible “evil of the nation-state”: “With the formation of a state comes the duty for the nation-state. Consequently, everyone merely concerns the interest of his or her own country and is willing to attack another country until it is conquered” (Kang 1998, p. 105). Resulting from the fact that duty is limited to one’s own nation-state, international war is unavoidable: As the supreme human group, the state is subordinate to no laws but those of God. With its own self-interest, a state cannot be influenced by any public law or vain speech of duty. Reason fails to prevent power from driving a strong state to invade a weak one. (Kang 1998, p. 120)
How can we change this condition of mutual struggle without law? Kang says, While people are forced to take advantage of the state to protect themselves in the age of chaos, in the age of peace the state is most harmful in evoking conflicts and killing. 3 There has been various tentative ways to translate datong, including “great unity,” “grand union,” “cosmopolitan society,” “great commonwealth,” “great communion,” “grand harmony.” (Hsiao 1975, Chapter 4). 4 French Sinologist Paul Deiville discusses in detail the metaphor of the diagnosis and treatment of a physician in the “four noble truths.”(Deiville 1973, pp. 261–269)
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However, from ancient times to modern times, people have always advocated the trinity of “All-under-Heaven (tianxia), the state and the family,” as if the state were necessary for human beings. This is quite wrong (Kang 1998, p. 120).
Although Kang commits the mistake of “anachronism”, to borrow a term from Quentin Skinner, when he confuses the feudal-state in the Confucian trinity of “All-under-Heaven (tianxia), the state and the family” with the modern nation-state, the implied suggestion is quite radical: the nation-state is merely a temporary and historical institution, hence we have no choice but to abolish the nation-state in order to end international war. According to Kang, Human beings come together from a state of isolation, and division is replaced by integration on the Earth – this is the natural way for Heaven and humans…How spectacular it would be if the Earth were to integrate into one state! Wouldn’t the earth, as a small globe with the diameter of 13500 kilometers, be looked down upon as a particle of dust, which is trivial but arrogant, when the integration of the stars is realized? (Kang 1998, p. 104).
For our small globe, the ideal world order according to Kang is a world state: there is no division into nation-states and the whole world becomes a great unity. Generally speaking, a relation consists of the relation itself and its bearers, and the relation will change if its bearers change, or the relation itself changes while the properties of its bearers remain the same.5 Kang’s approach is to transform “international relations” by changing the properties of the bearers of international relations, that is, nation-states. However, altering the properties of the bearers of international relations forces the identity of nation-states as nation-states to dissolve, and subsequently, “the international relation” itself transforms into the relationship between the local governments of a world state. As far as the nation-state is concerned, it transforms from two perspectives: on the one hand, it transforms from a sovereign unit into a local government with limited power ; on the other hand, it transfers its rights and functions as a state to the world state.6 The nation-state survives to some extent in its “dissolution” into the dual structure of a world state and its local governments.7 As for the world state, it “is the denial of the nation-state on the 5 Jin Yuelin (1895–1984) argues: “If a relation changes, it will not necessarily cause the properties of its bearers to change; on the contrary, the change of the bearers of a relation will inevitably cause the relation to change.” (Jin 1983, p. 102). 6 Habermas asks, “‘Overcoming’ the Nation-State: Abolition or Transformation?” (Habermas 1998a, pp. 124–127) This paper prefers “transformation” to “abolition.” 7 According to Kang Youwei, there might be two levels of local government, that is, regional government and independent local administrative bureaus. The whole world, Kang suggests, could be divided into a hundred regions, each of which he calls a “du.” Although he sometimes clearly rejects the project of a world state, Habermas, inspired by the practices of the European Union, believes in “the formation of regional regimes, which would for the first time provide the world organization with an effective infrastructure” (Habermas 1998a, p. 186).
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one hand, and an expanded state excluding nothing on the other” (Wang 2004, p. 777). The exclusion of nothing makes a world state distinct from a nationstate, which essentially excludes other nation-states. We can agree with Wang Hui when he says: “In the Book of Great Unity, Kang Youwei doesn’t discuss a political institution based on the nation-state or empire. On the contrary, he discusses the issue of ‘a world administration’ from the perspective of the globe as a whole. In essence, Kang attempts to reconstruct a global political institution on the basis of a denial of the nation-state system” (Wang 2004, p. 746). However, what is of similar importance in Kang’s thought is that the perspective of the whole world functions as the intellectual ground upon which the nation-state system can be denied. Zhao Tingyang echoes Kang Youwei to some degree in his doctrine of the tianxia system, which, in spite of merely being an introduction, has been the subject of many reviews and debates in Chinese and English academic circles.8 The international condition without law is characterized by Zhao as “a nonworld:” Today a world in the political sense with institutions, administration and order has not come into being; meanwhile a world in the geographical or physical sense becomes a wasteland for which nobody is responsible, a public source for arbitrary plunder and a battlefield. This is the most difficult political problem: a world without order as a whole, a world without political significance can be nothing but a world dominated by violence (Zhao 2011, p. 12).
On the contrary, a world with political order is tianxia, which literally means “all-under-Heaven.” Zhao states, The key Chinese term ‘all-under-heaven’ is a dense concept meaning ‘world’. It has three meanings: (1) the Earth or all lands under the sky ; (2) a common choice made by all peoples in the world, or a universal agreement in the ‘hearts’ of all peoples; (3) a political system for the world with a global institution to ensure universal order (Zhao 2009, p. 9).
Although Zhao claims that tianxia is “the full concept of the world” (Zhao 2011, p. 18) or “a dense concept,” it lacks concrete definition when it means “a political system for the world.” In this sense, tianxia is still an abstract and empty concept. However, similar to Kang Youwei’s idea of a world state, it does call for “the world as a political unit” to overcome the limited perspective of the nation-state (Zhao 2011, p. 53). 8 See Zhao 2011. Some reviews of Zhao by Sundeep Waslekar, Banyan, William A. Callahan, Francesco Sisci, Tong Shijun and other scholars are included as appendixes. Also see Zhe, J n.d., Tianxia, retour en force d’un concept oubli¦: Portrait des nouveaux penseurs confucianistes [Revival of a Concept Forgotten: Portrait of New Confucianist Thinkers]. Available from: . [2 July 2015].
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A World State: a Discarded Choice? We cannot ignore Kant’s doctrine of perpetual peace when discussing a world political order. Similarly to Kang Youwei, Kant starts from the sufferings arising from the international lawless condition (statu injusto), just as Habermas remarks, “Kant defines the goal of the sought-for ‘lawful condition’ among peoples negatively, as the abolition of war ; the ‘heinous waging of war’ must come to an end” (Habermas 1998a, p. 166). But in distinction from Kang Youwei, Kant explains the international lawless condition with the theory of the state of nature, which Hobbes, John Locke and other modern Western thinkers had developed. The second section of “Toward Perpetual Peace,” which “contains the definitive articles of perpetual peace among states” begins with the following words: “The state of nature (status naturalis) is not a state of peace among human beings who live next to one another but a state of war, that is, if not always an outbreak of hostilities, then at least the constant threat of such hostilities. Hence the state of peace must be established” (Kant 2006a, pp. 72–73). In the state of nature, a person (or a people) “harms me through this very state of existing next to me, although not actively, nonetheless through the lawlessness of his state, by means of which he represents a constant threat to me” (Kant 2006a, p. 73, footnote). In Kant, while the truth of the arising of suffering is the state of nature, the truth of the cessation of suffering is perpetual peace, the truth of the path to the cessation of suffering goes as follows: As concerns the relations among states, according to reason there can be no other way for them to emerge from the lawless condition, which contains only war, than for them to relinquish, just as do individual human beings, their wild (lawless) freedom, to accustom themselves to public binding laws, and to thereby form a state of peoples (civitas gentium), which, continually expanding, would ultimate comprise all of the peoples of the world. But since they do not, according to their conception of international right, want the positive idea of a world republic at all (thus rejecting in hypothesi9 what is right in thesi), only the negative surrogate of a lasting and continually expanding federation that prevents war can curb the inclination to hostility ad defiance of the law, though there is the constant threat of its breaking loose again (Kant 2006a, p. 81).
While Rousseau suggests that the state of nature ends when individuals enter into a contract, Kant believes that a contract made by nation-states will bring 9 According to Herders Conversations-Lexikon, “in hypothesi” means “angenommen, vorausgesetzt.” However, it is interpreted as “in Anwendung auf vorliegenden Fall” (the application in the present situation) in Pierer’s Universal-Lexikon (Herders Conversations-Lexikon 1859, Band 8, S. 914). Thomas Pogge translates “in hypothesi” with the term “in practice” while translating “in thesi” with “in theory.” (Pogge 2007, p. 315).
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the lawless situation to an end.10 However, there would be two kinds of contract since Kant supposes two different projects: the positive idea of a world republic and its negative surrogate, i. e., a federation of nation-states. Kant’s “world republic” is obviously more concrete than Kang Youwei’s “world state”: the term “republic” itself directly indicates the form of government (forma regiminis) of a world state; in addition, as a universal state of humankind, a world republic has cosmopolitan law (ius cosmopoliticum). In essence, a world republic demands nation-states to transfer their sovereignty, especially “their monopoly over the means of violence” (Habermas 1998, p. 170). International disputes cannot be solved by military force but by a supreme law which nation-states must observe. Under this condition, nationstates don’t remain as nation-states, and supreme law doesn’t function as international law (ius gentium) but as a cosmopolitan law governing the relations between citizens, including individuals and states, and “a universal state of humankind” (Kant 2006a, p. 105, footnote). However, why does Kant believe that a world republic (or a state of peoples) is impractical although it is right in theory? Firstly, in reality, no nation-state is willing to “relinquish their wild (lawless) freedom,” to give up their right to safeguard their national interests, if necessary by means of war, and “to accustom themselves to public binding laws.” Secondly, in a paper written before “Toward Perpetual Peace,” Kant expresses another one of his worries about “a cosmopolitan constitution” or “a cosmopolitan commonwealth”; “Or, if such a state of universal peace (as has likely happened several times with overly large states) is itself even more dangerous in that it brings about the most horrible despotism”(Kant 2006b, p. 63). Therefore, Kant ultimately discards a world republic in the favor of “a legal condition of a federation according to a commonly agreed upon international right” (Kant 2006b, p. 63). The second definitive article of perpetual peace claims that international right shall be based on the federalism of free states (Kant 2006b, p. 78). Kant stresses that the federalism of free states is “a federation of peoples,” which would not necessarily be “a state of peoples;” (Kant 2006b, p. 78) it “aims not at the state’s acquisition of some sort of power, but rather at its securing and maintaining the freedom of a state for itself and also the freedom of other confederated states without these states thereby being required, as are human beings in the state of nature, to subject themselves to public laws and coercion under such laws” (Kant 2006b, p. 80). A free state is a state of republic. Kant believes that a republic naturally tends to love perpetual peace: in a republic, the citizens, whose agreement is required to decide whether or not war ought to be waged, are against war if they consider the hardships of war upon themselves (Kant 2006b, p. 75). Hence the federation of free states is a
10 This reminds us of the crucial analogy between individual person and individual state in Plato’s Republic.
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pacific federation, which ends all wars forever, rather than a peace treaty, which seeks to end merely one war. Kant seems to be too optimistic about his federation of free states. As for the assumption that a republic is innately peace-loving, Habermas argues that Kant fails to recognize the mobilizing power of the idea of “nation,” which will evoke a sacred passion in its citizens to fight and die for the people and their motherland (Habermas 1998a, p. 172). Without the relinquishment of sovereignty, without a binding and enforceable law (international law is by no means such an enforceable law), a nation-state, even a free one, is innately and essentially ready for war. As mentioned above, Kang Youwei advocates for an age of great unity and for no division into national states. He then supposes three types of institution to unite nation-states: the alliance of equal nation-states; a grand government responsible for major issues while nation-states independently administrate internal affairs; a public government with no nation-states but provinces (Kang 1998, p. 121). Influenced by the Confucian doctrine of “the three ages” as well as the modern Western theory of historical progress (Kang 1973, p. 724), Kang arranged these three types of institution into three evolutionary stages from the nation-state to a world state: ranging respectively from the lowest to the highest, they comprise the “age of chaos”, “the age of small peace,” and “the age of great unity.” According to this scheme, Kant’s federation of free states roughly corresponds to “the age of small peace.” In such an age, nation-states are in alliance with each other, “Each nation-state has its own sovereignty and there is no central government. Nation-states are merely bounded by treaties which they made” (Kang 1998, p. 122). However, “since each nation-state has its own sovereignty and self-interest, such an alliance, without enforcement capacity, is variable and far from reliable. A war ended today will start again tomorrow” (Kang 1998, p. 122). Without the support of some enforceable power, a treaty, an alliance or international law will easily degenerate into empty words, which is too fragile to remain available after attack of interest and/or power. Kant’s peaceful federation is the illusion of fragile treaties, even though he does believe in the distinction between “a pacific federation (foedus pacificum)” and “a peace treaty (pactum pacis)” (Kant 2006a, p. 80). In effect, Kant himself has recognized this when he frankly admits that “an enduring general peace by means of the so-called balance of powers in Europe is, like Swift’s house, which was built so perfectly by a master builder according to all the laws of equilibrium that it immediately collapsed when a sparrow landed on it, a mere fantasy” (Kant 2006b, p. 65). To overcome this dilemma, “there is no other expedient possible than an international right that is founded on public laws that are backed with a power to which every state must subject itself (in accordance with the analogy of civil or constitutional right among individual persons);” in other words, each state will voluntarily subject itself to the authority of “a general state of peoples” and obey its coercive laws (Kant 2006b, p. 65). Here it is safe to say that Kant
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has no fantasy of “an enduring general peace by means of the so called federation of free states.” A federation of free states, or a world republic? Habermas, a successor of Kant, claims that we cannot rely on “a world state” calling for a shift of perspectives from international relations to world internal affairs, he advocates for a “world internal politics without a world government” (Weltinnenpolitk ohne Weltregierung) (Habermas 1998b). However, in the essay “Kant’s Idea of Perpetual Peace”, Habermas seems to agree with a world republic: Kant’s concept of a permanent federation of nations that nonetheless respects the sovereignty of states is, as we have seen, inconsistent. Cosmopolitan law must be institutionalized in such a way that it is binding on the individual governments. The community of peoples must be able to ensure that its members act at least in conformity with the law through the threat of sanctions. Only in this way will the unstable system of states that assert their sovereignty through mutual threats be transformed into a federation with common institutions which assume state functions, that is, which legally regulate the relations between its members and monitor their compliance with these rules. The external character of international relations between states that form environments for each other is thereby transformed into a domestic relationship between the members of a common organization based on a legal code or a constitution (Habermas 1998a, p. 179).
As mentioned above, Kant’s cosmopolitan law governs the relations of citizens, including individuals and states, and a world. Every individual and state is bound by cosmopolitan law, which serves as a constitution and protects cosmopolitan rights. Therefore, on the one hand, a state should be sanctioned if it violates the cosmopolitan rights of an individual;11 on the other hand, a state should also be sanctioned if it violates the cosmopolitan rights of another state. Habermas emphasizes, “Cosmopolitan law must be institutionalized in such a way that it is binding on the individual governments.”This kind of binding force is not a ‘soft’ one as the UN Declaration of Human Rights or other international treaties would have. Rather, it is a “hard” binding force “through the threat of sanctions.” Correspondingly, a world institution that “assumesstate functions” can be properly called “a world state”– of course, Habermas is willing to call it a “federation.” 11 Here we can easily deduce the idea of “human rights above sovereignty,” which is fundamental in Habermas. Starting from human rights, Thomas Pogge develops his theory of global justice and criticizes Rawls’ doctrine of the law of peoples for ignoring global justice. (Pogge 2010). However, negatively speaking, in Kant’s words, “human rights above sovereignty” is right in theory but it doesn’t hold in practice: if a world state has not come into being and a legitimate executor is consequently absent, it will become a mere excuse for new interventionism and hegemonism. Furthermore, from the understanding of Confucian “humanity”(ren), the concept of “human rights” is dubitable in its implications of an individualism characterized by “limiting oneself in body-gestalt.”
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Both Kang Youwei and Zhao Tingyang emphasize the necessity of hard binding force. According to the proposal of Kang Youwei, a world state, consisting of a parliament and government, is capable of governing “nationstates” by means of public military force and public laws (Kang 1998, p. 122). Zhao Tingyang holds that institutional support is essential to the validity of a contract, and a valid world institution needs “the support of a system of power which is subject to no nation-state but the world” (Zhao 2011, p. 66). A federation of free states, or a world republic? If we prefer the latter, it would behoove us to ease Kant’s worry about a world republic. First, a world republic will inevitably bring about “the most horrible despotism” as Habermas has pointed out, on this issue Kant is bounded by his historical experience. “The constitutional state which had only recently emerged from the American and French revolutions was still the exception rather than the rule” (Habermas 1998a, p. 170). Similarly, Thomas Pogge, when expressing his disagreement with John Rawls, mentions that “we have learned from the federalist systems of the United States and the European Union that - Kant’s contrary view notwithstanding - a genuine division of powers, even in the vertical dimension, is workable and no obstacle to stability and justice” (Pogge 2007, p. 315). With the new historical experience that Kant lacks, we become more confident in establishing a national institution capable of avoiding despotism. If human beings can build a democratic, rather than a despotic nation-state, by means of a federalist or other system, then we may reasonably believe that human beings can build a democratic, rather than despotic world state. For human beings, a world state is probably an aim that hasn’t been realized but can be realized.12
Glocality and the Principle of Justice Based on the Perspective of a Nature-human Community Habermas holds that “the contemporary world situation can be understood at best as a transitional stage between international and cosmopolitan law” (Habermas 1998a, p. 183). Nowadays, both the global dimension and the local one (i. e. the dimension of nation-state) have entered our horizon of perception. Transforming from a nation-state order to a post-nation-state order, the current world is characterized by glocality. After examining Kang Youwei’s doctrine of great unity (datong) and engaging a tentative dialogue with Western discourses on world political order, including that of Kant and Habermas, we might raise a question: Can glocality, which suggests a glocal principle with its perspective and corresponding institution in a glocal age, be 12 According to Jin Yuelin, the ultimate target “can be realized but will not be realized forever,” and the world comes to an end when the ultimate target is achieved. (Jin 2005, p. 163).
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a constructive concept in imagining a possible desirable world order in such a transitional period? Glocality, as a dense and thick concept, could mean: (1) a glocal perspective overcoming a national perspective: national-cosmopolitan citizens and responsible nation states,13 the priority of world flourishing, and nationalism or patriotism as provincialism; (2) a glocal institution as a onemany system:14 creating one and the necessity, desirability and possibility of a real world government as the center of a world organism on the one hand and a natural omnicentralism embracing many on the other hand; (3) liberal justice and/or Confucian renyi as primary glocal principle(s) for the world order: a comparative study of the alternatives of primary principles so as to disclose some metaphysical assumptions of “justice” as a local idea: taking a rational right-claiming individual identified primarily in a physical body as its arche or Archimedean point. In effect, Kang Youwei considers that it is ren (humanity) that makes a world state possible. If this observation is true, then quite a few problems must be deliberated over from a glocal rather than a simply local perspective. In other words, a thinker must take his or her position as a citizen of a nation-state and simultaneously as a citizen of the whole world. As far as the future political order of human beings is concerned justice is a valuable pursuit common to us all. However, what does justice mean? In the following, the author would like to suggest that in this glocal age, a version of justice based on the perspective of a nature-human community would benefit us considerably. It would also emphasize the universality of innate moral affections, especially humanity (ren) after putting into the presuppositions of the atomic rational individual currently underpinning the concept of justice. In effect, zhengyi understands the human being, including the essence, responsibility and ideal existence of human beings, in the context of a nature-human community. Thus a nation of zhengyi shall assist individuals and groups of different categories in “each doing justice to the natural command, while maintaining the grand harmony” in a nature-human community. It is undeniable that justice is a fundamental value in modern society. Negatively speaking, this means that justice may have become an incontrovertible modern superstition, myth, or ideology. To borrow the words of 13 In the current island disputes between China and Japan, China, who tries to identify herself as a responsible power and well conveyed her hope for a harmonious “global village” in the theme song of the 2008 Beijing Olympics, seems to be forced to limit herself and localize herself as a nation-state and act according to the conventional logic of a nation-state. 14 The arrangement of a world political order shall deal well with the one-many relationhip on a variety of levels, including the relationship between the world government as one and local governments as many, the relationship between a universal political principle as one and the diversity of religious and metaphysical standpoints as many, which Huang Yong discusses in his book (Huang 2011, p. ###). The omnicentralism advocated by Brook Ziporyn in his study of Tiantai Buddhism is significant for us to understand the relationship between the center and the margin, which also constitutes a dimension of one-many relations (Ziporyn 2000).
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Zhang Taiyan, although “justice” is essentially an “illusory name”, it has been accepted as reality ; it has penetrated deeply into custom simply by virtue of political and educational practice, but instead of stopping at custom, it penetrated deeper into public psychology and mentality by dint of it, such that “even persons capable of vigorous will and extraordinary performance seldom dare to go beyond the boundary drawn by it” (Zhang 2014, p. 470). It is precisely because of this situation that serious reflection must keep vigilance against the habitual resounding of “justice” as an “illusory name”, and examine “justice” from a detached and critical perspective. As a valued goal of national administration, justice essentially seeks the fair and reasonable distribution of material wealth, political rights, etc., among individuals. It demands an appropriate institutional arrangement in a nationstate so as to protect the equal economic and political rights of individuals. In this sense, justice revolves around rights and emphasizes the principles of autonomy, equality and rationality.15 Rights are always right – this phonetic and semantic connection, along with the connection between “justice” and “right” as both nouns and adjectives, were by no means forged accidentally. The concept of rights assumes that everyone is equal by birth. Prior to the statement that everyone is equal by birth there is the universally accepted belief in it, which justification ultimately arises from God: everyone is created equal since everyone is created by God. God is transcendent to all creatures; God as the absolute is omnipresent and omnipotent. Such a God is ultimately presupposed not only in Newton’s system of absolute space-time but also in the modern concept of justice. Furthermore, the make-up of the individual person in the theory of justice is not accidentally similar to that of an individual object in Newtonian physics. Just as every object holds its determined position independently from other objects, so does every individual person hold his or her determined rights independently from other individuals. By virtue of his or her rights, an individual is absolutely free and autonomous and any other individual, institutional or governmental interference should not occur or else does so unjustly. In terms of the Chinese tradition, although justice directly involves the dao of humans, its justification however must make appeal to a special dao of Heaven. Now however, it seems as if the modern victory of reason has gradually rendered the appeal to God redundant. In other words, as God fades away, the justification of justice turns to universal reason. However, universal reason is essentially nothing but this crafty God speaking in the disguise of what he champions; the apparent victory of reason in its struggle against God is ultimately the surreptitious victory of this transcendent God who speaks under the cover of rational and reasonable argument. 15 Yang Guorong has expounded the two principles as the premise of the realization of social justice, that is, the principle of self-autonomy and that of equality based on human nature, and the limitation of a concept of justice centering on rights (Yang 2009).
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So roughly speaking, the common understanding of justice stresses rights and the principles of individual autonomy, equality and rationality. In modern Chinese language, “justice” is normally translated as “zhengyi”. However, influenced by traditional Chinese thought on the one hand and the life world in modern China on the other, “zhengyi” does contain some dimensions different from “justice”, which will help us critically reflect on “justice” and think of a new space of possibility created by “zhengyi”. Human beings are indeed the aim of “zhengyi”, but not human beings as understood through the lens of “justice”. The Chinese concept of “the affective mind” (xin) consists of two dimensions, heart and mind. However, human nature as it is understood in terms of the concept of justice emphasizes the role of the human mind but ignores that of the heart. Let us consider Mencius on the other hand and develop a contrast. Mencius speaks of the “Four Sprouts”: the affective mind of empathy and commiseration [ce yin zhi xin]; the affective mind of shame and disgust [xiu wu zhi xin]; the affective mind of respect and reverence [ci ran zhi xin]; the affective mind of right and wrong [shi fei zhi xin]. These, according to the interpretation of Chan Wing-cheuk, a contemporary scholar, constitute “pure feelings”. Chan argues that in modernity pure feelings are overshadowed by rationality : “From Mencius’ standpoint, what is wrong with modernity is the forgetfulness of the subject of pure feelings. For modernity only sees the essence of subjectivity in rationality. As is shown in John Rawls’ theory of justice, the subject in the ‘original position’ is merely capable of making rational choice. On the other hand, in granting a primacy to communicative rationality, Habermas founds an ethics only upon the normative presuppositions of a rational discourse. For the discourse of ethics, subjects are primarily rational speakers. But Habermas seems to ignore that the argumentative approach is only one form of justification. Indeed, moral feeling can play an analogical role to perception in the non-discursive form of justification. “What is overlooked by both modernity and post-modernity is the possibility of pure feeling and its priority to the division between reason and sensibility. They accordingly fail to recognize the subject of pure feelings. At this juncture, Mencius’ concept of human nature as pure feeling might provide an alternative in overcoming the problem of modernity” (Chan Wing-cheuk 2014, p. 175). For Wang Fuzhi, the great Confucian philosopher of the 17th century, Mencius’ “Four Sprouts” illustrates “the affective mindset of dao” (dao xin), which Wang sometimes calls the conscience, or more literally, the affective mindset of the innate good (liangxin), which is precisely the affective mindset of what is humane and righteous (ren yi zhi xin). Closely connected to the natural human tendency, which according to Wang is always in the process of daily renewal and re-growth, the affective mindset of dao consists of the mind and the heart. In other words, the affective mindset of dao is capable not only of feeling but also of thinking. So, while the feelings of daoxin, or “pure feelings” as Chan Wing-cheuk suggests calling them, constitute the innate
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moral sentiments of human beings, the thinking of daoxin, which is essentially an embodied and reflective knowing of the natural human tendency, constitutes moral rationality (Liu 2007). Considered from Wang Fuzhi’s view, Chan Wing-cheuk’s interpretation of the “Four Sprouts” as pure feelings remains inadequate. However, it is insightful to point out the ignorance of pure feelings in the understanding of humans that prevails in modern times. As mentioned, the concept of justice shares this modern understanding of human beings. The Confucian tradition specifically emphasizes the universality of what is humane (ren) or the affective mind of empathy and commiseration (ce yin zhi xin), and stresses that the humane human being (ren ren, or ren zhe) is not only a being of pure reason but also one of pure feeling. Moreover, this understanding of the universality of what is human puts into question the understanding of the atomic individual in the concept of justice. Existing under the heavens and above the earth, the human being always co-exists with other human beings, and this co-existence always entails the interrelating (ji) of humans, and to secure this interrelating we need to carefully maintain “the differentiating boundary of the interrelation” (fenji), the assimilating boundary of the interrelation (xiangji), and the interlinking boundary of the interrelation (jiaoji). However, at first glance, human beings seem to exist primarily as bodies independent of one another, and “I” am primarily a distinctive individual differentiated from other bodies. However, in this way, the facet of my sharing a mutually assimilating boundary with the other is concealed or forgotten. But, universal humanity or the affective mindset of empathy and commiseration sheds light on this actual feeling of being mutually bound to one another in interrelation. Mencius provides us with an excellent illustration of this, “When one suddenly sees a child about to fall into a well, there is no one who wouldn’t be struck by a feeling of alarm and distress, and this is so neither in order to gain friendship with the child’s parents, nor to seek the praise of their neighbors and friends, nor because they dislike the reputation [of lack of humanity if they did not rescue the child]” (Chan Wing-Tsit 1963, p. 65). Suddenly seeing a child about to fall into a well, my affective mindset is suffering from mixed emotions including anxiety, panic, shock and sadness all at the same moment. Then what is the nature of such an affective mindset? It is not a state of utilitarian calculation since at this “occasion of accidental encounter, when action triggers bypass deliberation”, what time do I have to calculate? “No utilitarian consideration has arisen yet” (Wangi 1996, p. 941). It is also not a state of following some universal moral law, because at this moment of “accidental encounter, when action triggers bypass deliberation”, it seems that I have not deductively concluded from a universal moral law how I should perform. “This mindset is affective without consciousness” and it is effectuated prior to rationality. Moreover, it is not even a state of human sympathy, since at this moment of “accidental encounter, when action triggers
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bypass deliberation”, the affection touching and shaking me seems to go beyond Hume’s sympathy, which presupposes differentiating myself from others.16 Then what is the nature of such an affective mindset on the earth? Such an affective mindset of empathy and commiseration originates from the vital pathway of a sense of life. It is the affective mindset of “bu ren ren”, which, according to Wang Fuzhi, means that we cannot “bear to cut off our ties with other humans and leave them alone” since “just in saying ‘humans’, a mood of mutual pains and itches is perceived, the root of which is the singular force (yiqi)” (Wang Fuzhi 1996, p. 940). When seeing other humans in a dangerous situation, a sense and feeling of the same force branching through us emerges spontaneously. “Other humans” affect me not at the level of “other” but at the level of “human”. Other humans reveal themselves to me as human while I am revealed to myself as human. In suddenly seeing a child about to fall into a well, the fact of xiangji, that is, the fact of being mutually bounded to the same force that branches through us and assimilates us is fully demonstrated. It is this affective mindset of “bu ren ren” that constitutes ren as humanity. “Humanity is the non-indifference of the human heart, which opens up after sensing [humanity] in something” (Wang Fuzhi 1996, p. 948). “Open” here implies a state where the inter-human boundary is unblocked. Opposed to this is “inhumanity”, or numb indifference. It is only by virtue of having this humanity that humans may organize into a “community” of communicating forces and minds. In this sense, it wouldn’t hurt for us to call the human being’s pure feelings or a priori moral law the capacity of communicating feeling. Furthermore, the concept of zhengyi, whose ultimate telos is human beings, does not restrict its understanding of human beings solely to the horizon of the interrelating of humans. The essence of human beings is neither confined to rights nor to the interrelating of humans. Emerging in the boundary between (ji) heaven and earth, humans shall take upon themselves as their own responsibility the task of nourishing not only the growth of the self and the growth of other human beings but the growth of other kinds of beings as well. This is what the affective mindset of dao (daoxin) comes to know about the nature and essence of human beings in its reflection. To understand humans without discarding nature (tian ) – this way of understanding the nature of humans may not be devalued as the production of an incomplete and imperfect breakthrough in the axial age (Voegelin 1956, p. 35). In the grand transformation of the cosmos, perhaps no other issue stirs our souls like the boundary of interrelation common to Nature and humans. Born as the boundary between heaven and earth human beings are endowed with the highest degree of intelligence to be found in the cosmos due to possessing the capacity of transcending nature, but at the same time, we do always, whether subtly or vividly, feel the impulse to return to the matrix of Heaven and Earth 16 Max Scheler has discussed in detail the four types of “fellow feeling” (Scheler 2008).
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constituting Nature. Being existential constitutes the dao of humans but it echoes the call issuing from the dao of Nature. Ultimately, zhengyi is the pursuit of the cultivation of nature by means of nourishing the natural tendency in the Nature-human community : in the Nature-human community, everyone, by virtue of his or her own natural capacities (including rational and emotional or affective capacities) participates in the process of “each doing justice to the natural command, while maintaining the grand harmony”, an expression borrowed from The Book of Changes. The horizon of a Nature-human community opened up by this concept of zhengyi transcends the perspective of the nation-state. A modern Chinese person is used to the concept of country in the sense of a nation-state. This is quite understandable since a country in the sense of a nation-state has been the existential realm (shengcun yijing) which modern China hastily picked up in its encounter with the overly aggressive invasion of Western culture. At that time, it was necessary for China to carry out an emergency mission of selfrescue by establishing a nation-state. However, self-rescue as a nation-state shall by no means be the ultimate telos; rather, China shall go beyond the horizon of the nation-state and move further. Once the survival of the Chinese people as a whole ceases to be a pressing issue, the time will come to deliberate over China’s self-understanding, and more generally, to judge whether the concept of a modern nation-state which originated from the West is in accord with the concept of zhengyi. In summary, as distinct from justice, the concept of zhengyi from the perspective of the Nature-human community stresses the importance of the universality of innate moral affections and humanity (ren) in particular, which puts into question the pre-understood notion of the human being found in the concept of “justice”, namely, that a human being is a rational atomic individual; by contrast, this concept of zhengyi understands human beings, as well as their responsibilities and ideal existential realm in the context of a Nature-human community. A country, if it is in accord with zhengyi, shall assist individuals and groups to “each do justice to the natural command, while maintaining the grand harmony” in the boundary between heaven and earth.
References Chan, W-C 2014, ‘Philosophical Thought of Mencius’, in Dao Companion to Classical Confucian Philosophy, ed V Shen, Springer Netherland, Berlin. Chan, W-T (ed. and trans.) 1973, A Source Book in Chinese Philosophy, Princeton University Press, Princeton. Dei¦ville, P 1973, Le boddhisme et la guerre, dans Choix d’¦tudes Bouddhiqes (1929–1970), E. J. Brill, Leiden.
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Gao, R 1999, Zhongguo xiandai sixiang chuantong (China’s Modern Intellectual Tradition), Dongfan Chuban Zhongxin, Shanghai. Guo, Q (ed.) 1995, Zhuangzi Jishi (Collected Commentaries on Zhuangzi), Zhonghua shuju, Beijing. Habermas, J 1998a, ‘Kant’s Idea of Perpetual Peace: At Two Hundred Years ‘Historical Remove’, in The Inclusion of the Other: Studies in Political Theory, eds C Cronin & P de Greiff, MIT Press, Cambridge. Habermas, J 1998b, Die Postnationale Konstellation: politisches Essay, Suhrkamp, Frankfurt am Main. Herders Conversations-Lexikon 1859, Herder, Freiburg. Hsiao, K-C 1975, A Modern China and a New World: K’ang Yu-wei, Reformer and Utopian, 1858–1927, University of Washington Press, Washington. Huang, Y 2011, Quanqiuhua shidai de zhengzhi (Politics in an Age of Globlization), National Taiwan University Press, Taibei. (Theory of Knowledge), Shangwu Yinshuguan, Beijing. Jin, Y 1983, Zhishi lun Jin, Y 2005, Lun dao (On Dao), Zhongguo Renmin Daxue Chubanshe, Beijing. Kang, Y 1981, Kang Youwei zhenglunxuan (Collected Works of Kang Youwei’s Political Remarks), vol. 1, Zhonghua Shuju, Beijing. Kang, Y 1998, Kangyouwei datonglun erzhong, Datong shu (Book of Great Unity, Two Versions of Kang Youwei’s Doctrine of Great Unity), Sanlian Shudian, Beijing. Kant, I 2006a, ‘Towards Perpetual Peace: A Philosophical Sketch’, in Toward Perpetual Peace and Other Writings on Politics, Peace, and History, ed P Kleingeld, trans. DL Colclasure, New Haven and Yale University Press, London. Kant, I 2006b, ‘On the Common Saying: This May Be True in Theory, but It Does Not Hold in Practice’, in Toward Perpetual Peace and Other Writings on Politics, Peace, and History, ed P Kleingeld, trans. DL Colclasure, New Haven and Yale University Press, London. Liang, S 1993, ‘The Last Enlightenment of the Movement of National Self-rescue in China’, in Liang Shuming xuanji (Selected Works of Liang Shuming), eds K Huang & W Xin, Qunyan Press, Beijing. Liu, L 2007, Tian ren ji: Dui Wang Chuanshan de xingshangxue chanming (Nature, Humans and Interrelating: A Metaphysical Exposition of Wang Fuzhi), Shanghai renmin chubanshe, Shanghai. Liu, L 2015, Han yuyan zhexue fafan (Introduction to Linguistic Philosophy Based on the Experience of Chinese Language), Gaodeng jiaoyu chubanshe, Beijing. Ji, Z n.d., Tianxia, retour en force d’un concept oubli¦: Portrait des nouveaux penseurs confucianistes (Revival of a Concept Forgotten: Portrait of New Confucianist Thinkers). Available from: [29 May 2015]. Pogge, T 2007, ‘Cosmopolitanism’, in A Companion to Contemporary Political Philosophy, eds. G Robert, P Philip & P Thomas (eds), Blackwell, Oxford. Pogge, T 2010, Kangde, luoersi yu quanqiu zhengyi (Kant, Rawls and Global Justice), trans. Liu, Xin & Xu, Xiangdong, Shanghai Yiwen Chubanshe, Shanghai. Scheler, M 2008, The Nature of Sympathy, trans. P Heath, Transaction Publishers.
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Voegelin, E 1956, Order and History, Louisiana State University Press, Baton Rouge. Wang, F 1996, ‘Du sishu daquan shuo (Discussions after Reading the Great Collection of Commentaries on the Four Books)’, in Complete Works of Chuanshan, ed F Wang, vol. 6, Yuelu shushe, Changsha. Wang, H 2004, Xiandai zhongguo sixiang de xingqi (The Rising of the Idea of Modern China), Part 1, Book 2, Sanlian Shudian, Beijing. Yang, G 2009, ‘Understanding Justice: The Historical Connotations of Justice and Going beyond Justice’, in Shengming, zhishi yu wenming: Shanghaishi shehui kexuejie diqijie xueshu nianhui wenji (Life, Knowledge and Civilization: Proceedings of the 7th Annual Academic Conference of the Circle of Social Sciences in Shanghai), Shanghai renmin chubanshe, Shanghai. Zhang, T 2014, Taiyan wenlu chubian (The First Collected Essays of Zhang Taiyan), Shanghai renmin chubanshe, Shanghai. Zhao, T 2009, ‘A Political World Philosophy in terms of All-under-heaven (Tian-xia)’, Diogenes, vol. 221, pp. 5–18. Zhao, T 2011, Tianxia tixi:shijie zhidu zhexue daolun (The Tianxia System: An Introduction to the Philosophy of World Institution), Zhongguo Renmin Chubanshe, Beijing. Ziporyn, B 2000, Evil and/or/as the Good: Omnicentrism, Intersubjectivity and Value Paradox in Tiantai Buddhist Thought, Harvard University Press, Cambridge.
Leo D. Lefebure
Dharma and Reconciliation: Thich Nhat Hanh, Nikkyo Niwano, and the Quest for Peace
Introduction Across the centuries, Buddhists in societies involved in violent conflicts have had to decide what it means to follow the Dharma (the teaching) of Shakyamuni Buddha in such circumstances. Popular images in the Western media often present Buddhists on the model of His Holiness the XIVth Dalai Lama, as examples of long-suffering patience and non-violence even in the face of brutal oppression. The nonviolent teachings of the Dalai Lama and the Vietnamese leader Thich Nhat Hanh have led some Westerners to believe that the entire Buddhist tradition has been peace-loving and tranquil, even in the face of oppression and war. It is true that a central precept of Shakyamuni Buddha forbids the killing of any sentient being and in many challenging contexts Buddhists have sought to live in accord with this precept. While Buddhists have often been leaders in seeking reconciliation, their involvement in conflicts has not always been peaceful. The history of Buddhism bears ample witness to violent actions by Buddhists and justifications of violence in the name of Buddhist thought and practice (Jerryson 2011; Tambiah 1992; Tikhonov & Brekke 2012; Victoria 1997; Yu 2005). Traditional Buddhist monarchs viewed defensive wars as justified by the need to defend their people; when needed, rationalizations were found within the Buddhist tradition for invasions of other nations. Despite the precept against violence, Buddhists have repeatedly engaged in warfare, and monks have on occasion served as active combatants, sometimes distinguishing themselves by their valor. In sharp contrast to the popular image, Buddhist scholar Christopher Ives argues that “historically, Buddhists’ desire for institutional security has taken precedence over total rejection of violence” (Ives 2002, p. 151). During the twentieth century, Buddhists in Vietnam and Japan endured especially violent times as their nations were torn apart by war. During and after these conflicts, Buddhists in each of these nations faced the impossibly difficult challenge of reconciliation. This essay will focus on two leaders who founded Buddhist movements amid extremely trying circumstances and who sought reconciliation with all: Thich Nhat Hanh, who founded the Tiep Hien Order of Buddhism, and Nikkyo Niwano, who founded the lay movement Rissho Kosei-kai (part of this essay relating to Niwano and Rissho Kosei-kai
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appeared in Lefebure 2014). Both leaders and their movements were pioneers in seeking reconciliation in difficult settings. But first we will note some principles of Mahayana Buddhism.
Mahayana Buddhism and the Hölderlin Principle Some researchers in reconciliation and peace studies have invoked the principle expressed by the German poet Friedrich Hölderlin (1770—1843) at the conclusion of his novel Hyperion: “Reconciliation is in the middle of dispute and all things separated find each other again” (Hölderlin, cited in Flämig & Leiner 2012, p. 16). Susan Flämig & Martin Leiner appropriate this principle and apply it to their Christian efforts at reconciliation: “In a Christian context, we integrate a Christian self-understanding into our research with a claim that the great reconciliation already has been achieved. This inspires our own practice of reconciliation” (2012, p. 17). They ground their confidence that reconciliation is already present in the teaching of the New Testament that in Jesus Christ, God has in a real sense already accomplished reconciliation in the Kingdom of God. They cite the words of John Riches: “Kingdom is not established only where other rulers have been overthrown; rather God’s power erupts in the midst of oppression, forgiving and healing, and wherever that power is, there is cause for rejoicing” (Riches, cited in Flämig & Leiner 2012, p. 16). Flämig and Leiner spell out the consequences for their approach to reconciliation: “[W]e pay attention to the elements speaking for and perhaps even leading towards reconciliation in a conflict” (2012, p. 17). As we will see, both Thich Nhat Hanh and Nikkyo Niwano shared aspects of this perspective. Both believed that there is a principle of reconciliation already present in the midst of strife, and both sought elements leading to peace even in the midst of conflict. But in comparing their views, it is vital to keep in mind the profound differences between Mahayana Buddhist and Christian perspectives on ultimate reality and reconciliation, especially with regard to the Christian doctrine of creation. In contrast to Christian faith in God who creates the universe, Mahayana Buddhists do not believe in a God who creates and reconciles. In Mahayana Buddhist perspectives, everything arises from everything else in the relation called dependent co-origination without there being any transcendent source of the universe. Thus there is nothing in Mahayana Buddhism that corresponds exactly to Christian understandings of reconciliation, where the ultimate source of reconciliation is the divine Creator of the world. Nonetheless, even though Mahayana Buddhism differs fundamentally from Christian thought, it proposes a perspective that merits comparison with the Hölderlin principle. Mahayana Buddhism paradoxically identifies samsara
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and nirvana: samsara, this transient world of suffering, delusion, selfishness and cruelty, is already nirvana, the ultimate, the inconceivable, the end of suffering. In a paradoxical logic of negation, the Heart Sutra teaches that there is no suffering and no illusion. This is true because the Buddha-nature or True Mind or True Self is our true identity ; and this is perfectly one with all beings, free from illusion and ignorance. This is present from the beginning; through Buddhist practice we realize it in the twofold sense of becoming conscious of it and making it real and effective in our lives. It is like the blue sky behind the clouds. The blue sky is always there, but we cannot always see it because of obstructions. For Mahayana Buddhists, ultimate reality, nirvana, is not other than this present, passing moment. The transcendent is not other than the phenomenal. In accord with this perspective, the Zen tradition teaches that the search for one’s true Self is a paradoxical search for a Self, which we do not know but which is not separate from ourselves. The Chinese master Huang-Po (d. 850 C.E.) explained our true Mind: This Mind is the Source, the Buddha absolutely pure in its nature, and is present in every one of us. When you have within yourself a deep insight into this you immediately realize that all that you need is there in perfection, and in abundance, and nothing is at all wanting in you. [W]hen you come to have a realization in one thought, it is no other than this that you are from the first the Buddha himself and no other. The realization has not added anything to you over this truth. Therefore, it is told by the Tathagata [Shakyamuni Buddha] that he had nothing attained when he had enlightenment. (Huang-po, “Treatise on the Essentials of the Transmission of Mind”, cited in Suzuki 1960, p. 117) Chinese master Hung-chi Cheng-chüeh (Hongzhi Zhengjue in Japanese, 1091–1157) taught that continuous silent sitting meditation while withdrawing from any exclusive focus on a particular object or story would break down the false dichotomy between subject and object, self and other ; and the vast, empty field of the universe would become luminously bright. There is nothing more that need be attained. The field of boundless emptiness is what exists from the very beginning. You must purify, cure, grind down, or brush away all the tendencies you have fabricated into apparent habits. Then you can reside in the clear circle of brightness. The practice of true reality is simply to sit serenely in silent introspection. Here you can rest and become clean, pure, and lucid. Bright and penetrating, you can immediately return, accord, and respond to deal with events. (Cheng-chüeh 1991, pp. 4–5) The great Japanese Zen Buddhist leader Dogen (1200–53) insisted that all beings not only have the potential to achieve the Buddha-nature but already are the Buddha-nature. To outsiders who view this claim as nonsensical, Buddhists warn that this perspective cannot be grasped in conceptual terms alone but must be realized in the process of following the Buddha’s Eightfold
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Noble Path. While Mahayana Buddhists may not use the term “reconciliation” in anything like the meaning in Christian theology, they find a type of reconciliation in some way already present even in the bitterest conflict. However, this insight cannot be learned from a lecture or a book, but a wise teacher can point the way. The Flower Ornament (Avatamsaka) Sutra presents a vision of the cosmic Buddha in whom all things already are reconciled: The Buddha’s body emanates great light With physical forms boundless and totally pure Filling all lands like clouds, Everywhere extolling the Buddha’s virtues. All illumined by the light rejoice, Beings in distress are all relieved: This is the work of the Buddha’s power. (Flower Ornament Sutra 1984, p. 264)
It also proclaims: Buddha, with various bodies, Travels throughout the worlds, Unhindered in the cosmos, Beyond the ken of anyone. The light of his wisdom always shines everywhere, Removing all the darkness of the world; It has no compare at all How can it be comprehended? (1984, p. 372)
Mahayana Buddhism paradoxically asserts both that all realities are already at peace and also that the world of our ordinary experience is warped by the three poisons of ignorance, anger and craving. When the Buddha awakened, he realized he had nothing gained; yet life was transformed.
Vietnam: Thich Nhat Hanh How can reconciliation and peace possibly be present in the midst of strife? Some of the most dramatic responses to this challenge have come from the Vietnamese Buddhist monk Thich Nhat Hanh, a Vietnamese Zen Buddhist monk who founded a new order of Zen Buddhism in the wake of his experiences during the war in Vietnam in the 1960s. Nhat Hanh was born in Vietnam in 1926 and entered a Zen (Thien in Vietnamese) monastery there at the age of sixteen. The Zen tradition in Vietnam was strongly influenced by both the Pure Land Buddhist tradition and also by the Theravada Buddhism of its neighbors to the west. On entering the monastery, he was given a simple
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manual of meditation practice. Thinking himself already somewhat sophisticated, he looked down on the text as merely for beginners. He would later come to see the entire wisdom of the Buddha was to be found in that simple manual. During the 1960s, as Vietnam was torn apart by war, Thich Nhat Hanh decided that he could not simply continue his monastic routine but had to intervene to relieve suffering in any way he could. The demands of compassion led him and his colleagues to become actively involved in aiding the victims of war and seeking an end to the violence through demonstrations, writings, and the education of foreign leaders. In 1964 Thich Nhat Hanh founded the School of Youth for Social Service, which prepared young people to assist villagers harmed by the fighting. In the same year he also established the Tiep Hien Order of Engaged Buddhism to apply the practice of compassion to the suffering of the Vietnamese people. He composed the Fourteen Precepts of the Tiep Hien Order, which offer a structure for applying ancient Buddhist principles to the problems of contemporary life. The Eighth Precept advises us: “Do not utter words that can create discord and cause the community to break. Make every effort to reconcile and resolve all conflicts, however small” (1987b, p. 45). Nhat Hanh expresses the hope: “The reconciler is not a judge standing outside the conflict, but an insider who will take his or her responsibility for the conflict. The reconciler is able to transcend the conflict by understanding the suffering of both sides” (1987b, pp. 45–46). The core principle of reconciliation for Nhat Hanh is understanding and compassion for each side: “During our contact with each side, we should communicate clearly the suffering endured by the other side. The conflict’s resolution should be offered on the basis of an ideal common to both sides. Our purpose is not the satisfaction of fame or selfinterest, but the realization of understanding and compassion” (1987b, p. 46). Seeking reconciliation in the midst of strife, Thich Nhat Hanh and his coworkers refused to side with either the government of South Vietnam or the Communists, and thus were distrusted and opposed by both sides. Some members of his movement were kidnapped, wounded, or killed; one night hand grenades were thrown at the window of Thich Nhat Hanh’s own bedroom, but they were deflected by a curtain. In 1966 he traveled to the United States to explain the situation and became a friend of Thomas Merton, Daniel Berrigan, and Martin Luther King, Jr., who nominated him for the Nobel Peace Prize. He authored a book on non-violence in conversation with the Jesuit activist Daniel Berrigan (2001). He later toiled actively for reconciliation by serving as the chair of the Buddhist Peace Delegation at the Paris Peace Conference. After the war ended, the Communist government of Vietnam refused to allow him to return for many years. He worked for a time to provide aid to refugees from Vietnam, the boat people who fled by sea only to become the prey of brutal pirates. At a most difficult time in his life, when he was
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struggling to help vulnerable refugees fleeing Vietnam, Thich Nhat Hanh learned that he had to find peace with every step, even in the most hopeless of situations; for any peace that depended on outward circumstances would not be secure and lasting. He recalled a meditation that he had earlier written down: “If you want peace, peace is with you immediately” (1988, p. 124). He came to see: “If I could not be peaceful in the midst of danger, then the kind of peace I might have in simpler times would not mean anything” (1988, p. 125). Exhausted and frustrated, he withdrew from active life for a time, making a five-year retreat in France. Since 1982, he has traveled around the world, conducting retreats. He lives at Plum Village, the monastic community he founded in the south of France near Bordeaux. In November 2014 he suffered a severe brain hemorrhage. Nhat Hanh expressed the possibility of finding reconciliation and peace amid wartime conflict in moving short stories set during the time of the war in Vietnam. In one story, a young girl named Hoang Thi Tú is badly burned by chemical defoliants dropped by airplanes. Afterwards, she cannot see; and she wanders helplessly through the forest, only to experience the realities around her in a new way as all the creatures communicate with her. She comes to forget that she is a little girl “and she became a tiny creature living in the forest with thousands of friends. She was at one with the forest. Trees, moss, grass, and roots began to dance, and her pain dissolved. Tú was no longer only Tú” (Nhat Hanh 1989, pp. 7–8). She encounters a mystical companion, Stone Boy who is the presence of Dharmakaya, the ultimate. Through their friendship, Tú comes to see the world in a new way. Stone Boy tells her, “In truth, you and I are one, because I am within you, and you are within me. You do not see this now but one day soon you will understand. And once you understand this, wherever you go in this world, you will see that I am with you” (Nhat Hanh 1989, p. 51). Tú hears a bird sing and understands the voice of Stone Boy : But one day, when you no longer see me, smile, and quietly look at me in all the things that come and go. You will find that I am that which never comes and goes. I am that reality beyond time, beyond perception. (1989, p. 52) This realization gives Tú hope even in the midst of violent conflicts.
To manifest the peace that is already present, Thich Nhat Hanh applies the traditional Buddhist practice of mindfulness to contemporary life. He worries that society places many unhealthy stimuli before young people at an age when they are vulnerable to manipulation:
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Our society is sick. When we put a young person in this society without trying to protect him or her, he or she will receive violence, hatred, and fear every day and get sick. Our conversations, our TV programs, our advertisements, our newspapers, our magazines all water the seeds of suffering in young people and not-so-young people. We need guidelines — a diet — and we need to practice watering the seeds of peace, joy and happiness in ourselves. The most important practice for preventing war is to stay in touch with what is refreshing, healing, and joyful inside us and all around us. (Nhat Hanh 1993, p. 83)
Even in situations of conflict, Nhat Hanh directs attention to both the horror and the wonder of life: “Life is both dreadful and wonderful. To practice meditation is to be in touch with both aspects. Please do not think we must be solemn in order to meditate. In fact, to meditate well, we have to smile a lot” (Nhat Hanh 1987a, p. 4). Nhat Hanh worried that those who were demonstrating for peace were often filled with anger and could not manifest peace: “The peace movement can write very good protest letters, but they are not yet able to write a love letter” (1987a, p. 79). Nhat Hanh grounds his confidence in our fundamental identity in the Buddha nature: “This capacity of waking up, of being aware of what is going on in your feelings, in your body, in your perceptions, in the world, is called Buddha nature, the capacity of understanding and loving. Since the baby of that Buddha is in us, we should give him or her a chance. Smiling is very important” (1987a, p. 9). Speaking to troubled American veterans of the war in Vietnam, Thich Nhat Hanh explained: You continue to suffer, because you feel guilty about your actions in Vietnam. Shame, guilt and regret can be helpful or harmful; it depends how you use them. When you realize that you have caused a lot of damage, if you vow not to do it again, that regret is wholesome and beneficial. But if your guilt persists for too long and becomes a complex, it blocks the way to joy and peace. The way to liberate yourself is to look deeply into the nature of the guilt and self-hatred and see the seeds of the suffering — your ancestors, your parents, and the violence and lack of understanding in our society and its institutions. (1993, p. 89)
Despite their continued suffering, Nhat Hanh holds out hope to these veterans: “You have to look deeply to understand what really happened. Your personal healing will be the healing of the whole nation, your children, and their children” (1993, p. 88). He comments further on the process: “You have been embracing your suffering for many years, but when you see it directly, it will transform itself into a positive source of energy that will empower you to share your insight. To help others, we have to go to them with arms extended, filled with loving kindness and compassion” (1993, p. 94).
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Japan: Buddhism and Imperialism In Japan, Buddhism has long been associated with training for warfare. In centuries past, Samurai warriors practiced Zen to develop single-pointed concentration so they could be more effective in battle. The noted interpreter of Zen to the West, D.T. Suzuki commented: “Zen has sustained them [the samurai] in two ways, morally and philosophically. Morally, because Zen is a religion which teaches us not to look backward once the course is decided upon; philosophically, because it treats life and death indifferently” (Suzuki 1973, p. 61). The most troubling example of Buddhist support for military action in the twentieth century occurred during the growth of the Japanese Empire in the Pacific. During the earlier Tokugawa Period (1600–1868), Buddhism had enjoyed strong support from the government as a bulwark of Japanese identity against the dual threat of Christianity and colonization, but the support came at the price of heavy government controls and led to lethargy and corruption. The situation changed drastically with the Emperor Meiji’s proclamation in 1868 that he was assuming control of the government. As H. Byron Earhart comments, “Buddhism had been practically an extension of the government during the Tokugawa period but was unseated in favor of Shinto at the beginning of the Meiji era. Nevertheless, Buddhism had forged such a strong tie with Japanese nationalism that it even provided the motivation for ultra-rightists (and some sensational assassinations)” (Earhart 1980, p. x). During the Meiji Period (1868–1912), many Buddhist leaders felt threatened by the rise to favor of Shintoism, the suspicions of Buddhism as a foreign influence coming from China, and the resulting closing of over forty thousand Buddhist temples in Japan. They responded by eagerly supporting government initiatives (Victoria 1997, pp. 3–7). From the late nineteenth century until the end of World War II, many prominent leaders of Japanese Buddhism supported the development of Japan’s military prowess, the conquest of other nations and the development of the Japanese Empire, leading the religion to be known as “Imperial Way Buddhism.” Buddhist leaders encouraged Japanese men to fight in the expansionist military campaigns and taught all people to support the government. Buddhists lent support to colonial authorities in their efforts to incorporate new peoples into the Empire and render them obedient subjects (Ives 2002, pp. 157–58). At the beginning of the twentieth century, Shaku Soyen, a leading Japanese Zen master, served as a chaplain in the war with Russia because he wished “to convince them [the Japanese soldiers] that this war is not a mere slaughter of their fellow-beings, but that they are combating an evil, and that, at the same time, corporeal annihilation really means a rebirth of [the] soul, not in heaven,
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indeed, but here among ourselves” (Shaku Soyen, cited in Victoria 1997, p. 26). Inoue Enryo, a leading Japanese Buddhist scholar, justified war against Russia as a just cause: It goes without saying that this is a war to protect the state and sustain our fellow countrymen. Beyond that, however, it is the conduct of a bodhisattva seeking to save untold millions of living souls throughout China and Korea from the jaws of death. If theirs is the army of God, then ours is the army of the Buddha. It is in this way that Russia is not only the enemy of our country but of the Buddha as well. (Victoria 1997, p. 30)
There was a minority of Buddhist leaders who opposed Japanese militarism. A group of mostly young lay Buddhists, led by Seno Giro (1889–1961), organized the Youth League for Revitalizing Buddhism in 1931 to resist imperial policies in the name of Buddhist principles. Seno urged his followers to take Buddhist practice into everyday life as a force for social change: “Carry the Buddha on your backs and go out into the streets! Go out into the farm and fishing villages” (Victoria 1997, p. 71). In 1936 Seno was arrested and charged with treason. After being tortured, he confessed to the charges and pledged to support the government and the emperor. Beginning in the fall of 1937, the Japanese authorities arrested over 200 members of the League, effectively ending its influence. The large majority of Buddhists, both monastic and lay, however, enthusiastically supported the Japanese war effort. Shiio Benkyo (1876–1971) expressed the program of “Imperial-way Buddhism”, identifying the sangha (the Buddhist community) with the Japanese nation and exalting “The Superior National Character of Japan” as uniquely capable of practicing Buddhism due to the merits of the Japanese Emperor (Victoria 1997, pp. 81–82). He identified the teaching of the Buddha on duty with unquestioning loyalty to the Japanese government: The Buddha Dharma is nothing other than modestly doing one’s duty while upholding righteousness. I believe that it will only be possible for Buddhism to accomplish its task in the future if we take the lead in obeying the will of the imperial household. To venerate the Three Treasures [of Buddhism] means to revere imperial edicts without question. (Victoria 1997, pp. 83–84)
Buddhist theorists Hayashiya Tomojiro (1886–1953) and Shimakage Chikai (b. 1902) developed a rationale for war as a form of compassion because it advances society in a manner similar to parents striking their children to discipline them. The just monarch must wage war to oppose injustice, perfect the state and better conditions for his people (Victoria 1997, pp. 86–89). After the end of World War II, a number of Buddhists in Japan and elsewhere reflected critically on the tragic heritage of Buddhist support for the war. In light of the horrors of the war, Tanabe Hajime developed a philosophy
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of repentance as a collective responsibility of the Japanese nation, drawing upon Pure Land Buddhism, Zen Buddhism and Christianity (Tanabe 1986; Victoria 1997, pp. 147–81). There continues to be controversy over the roles of the leading Japanese Buddhist philosophers known as the Kyoto School (Heisig & Maraldo 1995) and over the interpretation of the Buddha-nature in relation to imperialism (Hubbard & Swanson 1997). It was in this context that a new form of Buddhist practice arose, to which we now turn.
Rissho Kosei-kai The involvement of Japanese Buddhist leaders in supporting Japanese imperialism posed one of the great challenges for Buddhist practice in Japan. One of the most vigorous traditions working for reconciliation during and in the aftermath of World War II is Rissho Kosei-kai, which focuses its practice on the teachings of Shakyamuni Buddha in the Lotus Sutra. The Japanese lay Buddhist movement Rissho Kosei-kai has dedicated considerable energy and effort to reconciliation based on an all-encompassing religious view of the universe that teaches compassion for all, non-retaliation for evil, and that seeks points of contact with other religious traditions.
Nikkyo Niwano In the twentieth century, during the climax of Japanese imperialism, a number of movements arose in Japan seeking to renew the Buddhist tradition and apply its teachings to contemporary life in the world. One of the most significant and influential of these is Rissho Kosei-kai, which was founded as an organization of Buddhist laypersons on March 5, 1938 by Nikkyo Niwano and Myoko Naganuma in order to spread the teachings of the Buddha in the Lotus Sutra (Kisala 1999, p. 98). After Naganuma’s death in 1957, Niwano continued as the sole leader. Central to this project was Niwano’s interpretation of the Lotus Sutra as proposing a “peace ideology” (Niwano 1982, p. 7). Niwano explains the meaning of the society’s name: Rissho means ‘to stand on the true teaching,’ that is, to depend on the universal truth as revealed by Sakyamuni. Kosei means ‘the perfection of men’s personality through mutual communication and encouragement.’ Accordingly, Rissho Kosei-kai is a Society organized by people of the same faith in order to realize a happy world by making efforts to perfect men’s personality through mutual communication and encouragement on the basis of the true teaching proclaimed by Sakyamuuni. (Niwano 1966, p. 34)
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Niwano later recalled that his early life was decisively shaped by his encounter with the Lotus Sutra ; as a result, during his youth he worked to spread the message of the Lotus Sutra. Later his focus broadened to include social issues. “In the second half of my life, my activities deepened in the social sphere, widening to an international scope, as I became convinced that the Lotus Sutra is the vehicle of world peace” (1982, p. 7). One formative influence was his military service in the Japanese navy in the 1920s, which left him opposed to war ; he later recalled that “one of the greatest harvests from my military experience was the reinforcement of my philosophy of nonviolence” (1982 cited, p. 100). Niwano applied the traditional Buddhist principles of the Eightfold Path and the Six Perfections to concrete personal and social and political issues in the present (Niwano 1966, pp. 55–65; see also Niwano 1989 and 2011). Niwano grounded his movement’s approach to establishing harmony in the teaching of the Lotus Sutra on the way to peace through not bearing grudges. When Shakyamuni Buddha was attacked by his cousin Devadatta, he did not respond by seeking vengeance but by peacefully remaining calm. When Devadatta sent a charging elephant to attack the Buddha, “the Buddha, radiating benevolence, calmly approached the elephant. And it is said that the elephant quite suddenly became gentle and, after kneeling solemnly to the Buddha, turned away” (1982, p. 16). Even though Devadatta was not immediately won over to peace, his followers one by one abandoned him so that he was deserted. Even though what Devadatta did was evil, Niwano emphasized the good that came out of this crisis: First, owing to the fact that there was such a traitor of the Law as Devadatta, the righteousness of the middle path which Sakyamuni preached as one of His basic ideas, became clearer and clearer, and the whole community of Sakyamuni took a right course without turning aside to a wrong way. Second, owing to the fact that Devadatta revealed his weak points as a man and a most terrible nature of man, Sakyamuni Himself learned something from it and His enlightenment grew deeper. (Niwano 1971, p. 132)
Niwano emphasizes the importance of the Lotus Sutra for resolving conflicts nonviolently : “Buddhism in general and the Lotus Sutra in particular are profound teachings on peace. This is because Sakyamuni, the historical Buddha, who expounded the teachings, actually lived his life in accord with the teachings he handed down to us” (1982, p. 14). Niwano recalls the saying of the Buddha that “if one seeks retribution for vengeance through revenge, the chain can never be broken,” and adds: “these are important teachings that we should be practicing right now” (1982, p. 24). Niwano cites the teaching of Shakyamuni Buddha in the Dhammapada: “For hatred does not cease by hatred at any time: hatred ceases by love, this is an unchanging Law” (1982, pp. 24–25). Niwano saw this as a model for international relations, and he praised the decision of the government of Ceylon (Sri Lanka) at the 1951 peace
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treaty conference in San Francisco, where “Mr. Jayewardene, the representative of Ceylon, prefacing his remarks with quotes from the Dhammapada, stated that the country of Ceylon had no intention of seeking war reparations from Japan. Thunderous applause greeted this statement” (1982, p. 25). Niwano was aware that the practice of peacemaking can lead to suffering, and he praised the example of Mahatma Gandhi, who was fatally shot by a militant Hindu. As Gandhi was being carried on a stretcher immediately after the shooting, he made the traditional hand gesture of the Buddha known in Japanese as semui, holding an open right hand close to the chest with the palm facing outward, which means “to give a power that is fearless according to the truth” (1982, p. 33). Niwano exhorts his followers: “To suffer any hardship for the sake of the Law and not only to endure hardship patiently but also to go anywhere and actively preach the Law — this is the very essence of the practice of the apostles of peace who are devoted to nonviolence” (1982, p. 32). Niwano reads the celebrated parables of the Lotus Sutra in a similar fashion, noting the lessons for peacemaking. He recalls the Lotus Sutra’s description of the bodhisattva who bowed to everyone he met, saying: “I cannot despise you, because you will all become Buddhas”; when people thought he was mocking them and attacked him, he did not respond in kind but continued his path of respect, eventually becoming Shakyamuni Buddha in a later life (1993, p. 22). Niwano interprets the Lotus Sutra as teaching: There is a single, invisible entity that is embodied in all things existing in our universe. This is the great life force of the universe. All things in this world fundamentally are of this one entity. Therefore, though phenomena appear in infinite variety, essentially they are equal in their existence. (1982, p. 36)
The fundamental nature of all things is shunyata (voidness or emptiness). Niwano explains: Voidness is the only one, real existence that makes everything and every phenomenon of the universe. Scientifically speaking, it is the fundamental energy that is manifested in all phenomena, and religiously speaking, it is the great life force that permeates everything that exists in the universe, namely, the Eternal, Original Buddha. (1982, p. 37)
If we realize this truth, then we see all beings in the universe as our brothers and sisters: “One will be filled with a sense of harmony and cooperation” (1982, p. 37). This is the basis for compassion, karuna: “When one sees others moaning in suffering or agony, one cannot refrain from moaning oneself. If all people in the world had this sense of jihi (benevolence), how could they hate or have ill feelings toward others? How could they fight wars?” (1982, p. 38). Niwano’s quest for peace is grounded in this vision of
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the universe: “[T]he view springs from a deep realization of the true nature of the universe. As such, it is deep-rooted, firm, and constant through all phenomenal changes” (1982, p. 38). Humans face a fundamental choice in constituting their mental attitude toward the universe: “Therefore, in the human mind there exists the potential to fall into hell as well as to rise to the state of Buddhahood” (Niwano 1982, p. 39). This leads Niwano to a deep-seated hope regarding human potential: “We tend to think, ‘I can’t change myself.’ But we should realize that this is not so; we can change ourselves if we try hard enough. We even can become buddhas” (1982, p. 39). By acknowledging the universal equality of all persons, Niwano hoped that humans could come to see “the equal Buddha-nature (potential to become a Buddha) within the personalities of others. And we come to respect those whom we have despised or considered quite incapable” (1982, p. 40). Humans are an integral part of nature. Since the Buddha-nature embraces all beings, including plants and the earth, this vision sees all beings as manifesting the Original Buddha, which is the great life of the universe. This perspective led Niwano to reject an anthropocentric course that sought human happiness at the expense of other beings: “It is time for us to return to the spirit of the Lotus Sutra, which teaches us to live in harmony with nature and with other beings, letting each form of existence fulfill its potential to perfect its own buddha-nature” (1982, p. 52). Nonetheless, Robert Kisala points out that “Niwano and Rissho Koseikai do not advocate a strictly pacifist position. In his writings Niwano makes a distinction between the ideal aimed at and the reality with which we are face, and, for example, the necessity of a Self-Defense Force is explained by means of the analogy of public safety” (Kisala 1999, p. 107).
Interreligious Relations Niwano believed that the essential meaning of all religion is universal and adopted a harmonizing approach to other religious traditions. “My humble efforts for peace are based on interfaith cooperation, and this cooperation is based on the idea that the essential meaning of every religion is essentially the same” (1982, p. 67). Thus he assimilated the life force that the Buddhist tradition names shunyata (voidness) or Buddha to belief in God in theistic traditions : “Therefore Buddhism calls this fundamental life force ‘Buddha’ and Christianity calls it ‘God ; Judaism, ‘Yahweh’; Islam, ‘Allah’” (1982, p. 71). Niwano interprets religious differences as arising from the variety of communities around the globe, each with its own kami (supernatural being or beings), variously understood as a local protecting spirit or as the fundamental life force of the universe. In addition to following the Lotus Sutra, Niwano drew inspiration from the teaching of the Bible : “The Bible says, ‘Blessed are the peacemakers.’ Peacemakers
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should first develop the practice of constantly extinguishing their own greed and struggling to overcome their own egoism. Such people will be protected by God and the Buddha” (1993, p. 24). Niwano saw religious rivalry as arising from misunderstanding and leading to violence. Since he believed that the Original Buddha and the God of Christianity are identical, infinite and ineffable, he thought they should not become the subject of controversy : “I myself believe that the God in Christianity and the Eternal, Original Buddha in Buddhism are quite the same. Isn’t it limiting or belittling the Supreme Being for people to add explanations that God and the Buddha, which are boundless existences, are such and such, or describe their functions and powers, or compare God and the Buddha while discussing their differences?” (1982, p. 126). Given this confidence that religions are essentially one, at one stage of his career he hoped to promote religious unification. However, he encountered such strong opposition that he shifted his goal from unification to religious or interfaith cooperation. Grounding his call for interfaith cooperation is his trust that there is already a fundamental point of oneness: “In essence, every great world religion preaches love for mankind and tries to provide peace of mind. Religious believers generally have a far stronger love for mankind and desire for peace than those lacking faith” (Pope Paul VI, cited in Niwano 1982, p. 73). In March 1965, Paul Cardinal Marella, who was the first President of the Secretariat for non-Christians in the Vatican, visited Japan and invited Niwano to attend the final session of the Second Vatican Council. During this time the Catholic Church was going through a far-reaching transformation of its attitude and relationship to other religious traditions, including Buddhism. Niwano was profoundly impressed by the changed attitude among Catholic leaders: “Once the Catholic Church was stubborn and authoritative. By freeing itself of that stubbornness, the Vatican and the Catholic Church with its 500 million believers in the world have undergone a remarkable revolution during the last years” (Niwano 1966, p. 101). Niwano was deeply moved by the solemnity of the opening ceremony on September 14, 1965, and by the words of Pope Paul VI on peace and ecumenism. The following day Niwano met personally with Pope Paul, who encouraged Niwano to continue his activities for interfaith cooperation, exhorting him: “It is important for people of religion not to cling to factions or denominations but to recognize each other and pray for each other” (Pope Paul VI, cited in Niwano 1982, p. 87). Niwano later recalled: “During the interview we kept our hands together. This strong shaking of hands expressed the cooperation, friendship and mutual understanding between Buddhism and Catholicism in a very special way” (1966, p. 31). He further reflected: “Although there are differences with regard to the words and teaching, it may safely be said that Catholicism is the same as Buddhism with regard to what is essential, that is, the way for mankind to attain peace and the way for human beings to live” (1966, p. 31).
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Niwano and Pope Paul VI shared a profound concern for world peace; and when they met, they expressed a deep respect for each other’s traditions. In the long history of the Catholic Church, there have been many church councils, but this was the first time that a Buddhist leader has attended an ecumenical council. A number of years after the meeting with Pope Paul, Niwano commented: On my way back to the hotel after meeting the Pope, I thought that Buddhism and Christianity must come from the same source. There is no difference between the compassion of Buddhism and the love of Christianity. Basically, they teach us to forgive each other, to be tolerant and open-minded, to exercise mutual warmth and caring, and to lead happy and peaceful lives. There in the Vatican, I felt an affirmation of the truth and the world. It can be said that at that time I finally became able to cherish hope of the possibility of holding a peace conference at which all religious leaders in the world would gather to discuss world peace. (1982, p. 88)
The Quest for Peace In 1963 Niwano was part of the Peace Delegation of Religious Leaders for Banning Nuclear Weapons, which invited religious leaders around the world to work for peace by limiting and eventually banning nuclear arms. They issued a Peace Proposal in September 1963, and Niwano was a vice–chair of the delegation that brought it to Rome and presented it to Pope Paul VI, who welcomed the delegation and the proposal warmly, commenting: “I would like to express my deep respect and gratitude to you all, who have come from afar with the great aim of banning nuclear weapons and realizing world peace. I totally agree with your peace declaration” (1982, p. 82). The delegation then continued to Geneva, Switzerland, where they met Secretary General Visser’t Hooft of the World Council of Churches, who also strongly endorsed the proposal. The delegation toured the world, meeting many prominent political and religious leaders, though President John F. Kennedy and Premier Nikita Khrushchev did not meet with them. Nonetheless, Niwano thought the delegation accomplished a major side-effect: “As a by-product of this mission, many religious people understood and cooperated with each other in purpose and action, transcending sectarianism far more than they had ever anticipated. I sensed at that time that the day of the religious cooperation that I had been advocating was dawning, and I felt inexpressible joy” (1982, p. 83).
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World Conference of Religion for Peace Niwano’s meetings with many religious leaders and his continuing activities for peace led him to help organize the World Conference on Religion and Peace (WCRP) in Istanbul in January 1969 (McGreeley 1993, p. 11). He later commented that in undertaking this project he was directly inspired by the example of the Catholic leaders at the Second Vatican Council, who voted 2308 to 70 to approve Nostra Aetate (The Declaration of the Relation of the Church to non-Christian Religions) (Niwano 1982, p. 112). At the first assembly of WCRP in Kyoto in October 1970, leaders from the Buddhist, Christian, Islamic, Shinto, Confucian, Hindu, Jewish, Sikh, Zoroastrian, Jain, and Bahai traditions all participated. In his opening address to the assembly, Niwano stated: “At one time, various religions, precisely because of their own convictions, were unable to cooperate and were even antagonistic to each other. But the times have changed. It is my firm belief that religion alone can provide the motive power to create a peaceful world, not through armed might but through respect for humanity” (1982, p. 95). A few days later, Roman Catholic Archbishop Helder Camara of Brazil stated: “Some years ago, a meeting such as this would have been unthinkable. And, let us admit, even today, each one of us is aware of the difficulties he has to face within his own congregation. The important fact is that the miracle of our being here has been accomplished by the Lord” (Helder Camara, cited in Niwano 1982, p. 106). Later Niwano looked back on the question that challenged the organizers: We asked ourselves whether, in order to rid the world of the sense of distrust that fills people and to wrestle with the various causes that prevent peace, it wasn’t necessary for representatives of the various world religions, whose mission it is to serve peace and mankind, to gather together and discuss matters concerning peace. They should become of one mind and respond to the various issues that confront religion today. (1982, p. 131)
The conference led to the establishment in 1971 of a new international, interreligious organization, with a slightly changed name: the World Conference of Religion for Peace (the British associate called itself the World Conference of Religions for Peace, Jack 1993, pp. 25–26). The new organization established an international secretariat in New York City close to the United Nations headquarters and also decided to send a delegation to South Vietnam. In 1971 the officers of the organization met in New Delhi, seeking greater cooperation with Hindu, Muslim, Zoroastrian, Sikh, and Buddhist leaders, as well as those of other traditions. In 1972 there was an Interreligious Consultation on Japanese-American Relations held in Hawaii, seeking to resolve differences and promote mutual understanding and trust at a time of major tension over trade relations.
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The second meeting of WCRP was in Louvain, Belgium in August 1974. Again Niwano addressed the assembly. In November 1976, the Asian Conference on Religion and Peace (ACRP) was held in Singapore, a site with bitter memories of Japanese atrocities during the Second World War. This meeting, which was hosted by the Inter-Religious Organization of Singapore, focused on issues of importance to Asian and Pacific nations and peoples. Japanese representatives repented what the Japanese nation had done to other Asian people during the Second World War and asked what they could do to promote peace. Participants in the conference went either to the Kranji War Memorial for the military who died during the war or to the Memorial Tower, which honors the civilian victims, for interfaith prayer services. Niwano led the prayer at the Kranji War Memorial, accepting “a deep sense of responsibility and repentance for Japan’s part in the war. We all prayed together, and I offered a bouquet of flowers. The sky was clear, and the sound of many languages united in prayer was solemn yet warm” (Niwano 1982, p. 147). Mother Teresa of Calcutta was among the participants, describing her role: “I attend this conference as the representative of the poorest among the poor.” (Mother Teresa, cited in Niwano 1982, pp. 148–49). The conference addressed the desperate situation of those fleeing Vietnam who were often victims of violence at sea and who had difficulty finding asylum in the nearby nations. One result of this conference was the organization of the Boat People Rescue Project to assist these people. WCRP has sponsored numerous symbolic gestures. Young people of Rissho Kosei-kai built a Friendship Tower in the Philippines, hoping to overcome the bitter legacy of Japanese atrocities during World War II. The governor of Bataan conferred the title of “Son of Bataan” upon the Japanese RKK youth, a recognition especially significant in light of the infamous Bataan Death March during the Pacific War. Another remarkable development occurred in 1992, during the pontificate of Pope John Paul II, when the Holy See of the Roman Catholic Church recognized Niwano’s contributions to interreligious relations and to world peace by naming him a Knight Commander with the Silver Star of the Order of St. Gregory, one of the most distinguished honors in the Roman Catholic community. This recognition is a sign of the friendship and partnership to which Buddhists and Catholics are called. Two years later, in 1994, Niwano joined with Pope John Paul II in presiding over the Sixth Session of the World Conference for Religions and Peace in the Vatican. Like other movements seeking peace, WCRP faces the challenges of how to handle violent threats and situations. While there is much good will in the efforts of WCRP, Robert Kisala is critical of WCRP for advocating peace while not formulating specific criteria for the use of force or concrete proposals for handling violent conflicts. After interviewing WCRP leaders and surveying Rissho Kosei-kai members, Kisala concluded: “Although on an official doctrinal level Rissho Koseikai recognizes the need for arms in a world not yet
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perfect, the reluctance to speak of situations where the use of force might be necessary, to offer criteria, or a ‘policy’ for its use, seems to have left the members confused as to what position to take on the concrete matters of war and peace” (Kisala 1999, pp. 110–11). Both Thich Nhat Hanh and Nikkyo Niwano believed that the great religions of the world spring from a common root and share a common concern to alleviate suffering. Both lived in times of tremendous suffering and proposed paths of reconciliation to heal the wounds of war. Both cultivated cordial relations with Christians and with followers of all religious traditions, and both stand as shining examples of interfaith friendship and cooperation. The gathering space of Rissho Kosei-kai, Fumon Hall, is significant as “the gate open to all peoples,” standing as a powerful witness tothe vision of a community embracing people from all backgrounds and the entire cosmos.
References Cheng-chìeh 1991, Cultivating the Empty Field: The Silent Illumination of Zen Master Hongzhi, trans. T D Leighton & Y Wu, North Point Press, San Francisco. Earhart, H B 1980, ‘“Translator’s Introduction” in Shigeyoshi Murakami’ in Japanese Religion in the Modern Century, trans. H B Earhart, University of Tokyo Press, Tokyo. Flmig, S & Leiner, M 2012, ‘Reconciliation in the Middle of Dispute: Introduction to the Series’ in Latin America between Conflict and Reconciliation, eds M Leiner & S Flämig, Vandenhoecht & Ruprecht, Göttingen. Flower Ornament Sutra 1984, ATranslation of the Avatamsaka Sutra, vol. 1, trans. T Cleary, Shambhala, Boulder. Heisig, JW & Maraldo, JC (eds) 1995, Rude Awakenings: Zen, the Kyoto School, and the Question of Nationalism, University of Hawai‘i Press, Honolulu. Hubbard, J and Swanson, P 1997, Pruning the Bodhi Tree: The Storm over Critical Buddhism, University of Hawai‘i Press, Honolulu. Ives, Ch 2002, ‘Dharma and Destruction: Buddhist Institutions and Violence’, Contagion: Journal of Violence, Mimesis and Culture, vol. 9, pp. 151–74. Jack, HA 1993, WCRP: A History of the World Conference on Religion and Peace, World Conference on Religion and Peace, New York. Jerryson, MK 2011, Buddhist Fury : Religion and Violence in Southern Thailand, Oxford University Press, Oxford. Kisala, R 1999, Prophets of Peace: Pacifism and Cultural Identity in Japan’s New Religions, University of Hawai‘i Press, Honolulu. Lefebure, LD 2014, ‘Rissho Kosei-kai and the Search for Interreligious Harmony and Peace’ in Jeevadhara: A Journal for Socio-Religious Research, Socio-Religious Movements, vol. 44, pp. 66–77.
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Mc Greeley, D, Mc Lean 1993, ‘Foreword’ in WCRP: A History of the World Conference on Religion and Peace, ed Jack, HA, World Conference on Religion and Peace, New York. Nhat Hanh, T 1987 a, Being Peace, ed. A Kotler, Parallax Press, Berkeley. Nhat Hanh, T 1987 b, Interbeing: Commentaries on the Tiep Hien Precepts, ed. F Eppsteiner, Parallax Press, Berkeley. Nhat Hanh, T 1988, The Sun My Heart: From Mindfulness to Insight Meditation, trans. AH Nguyen et al., Parallax Press, Berkeley. Nhat Hanh, T 1989, The Moon Bamboo, trans. V-D Mai & M Ho, Parallax Press, Berkeley. Nhat Hanh, T 1993, Love in Action: Writings on Nonviolent Social Change, Parallax Press, Berkeley. Nhat Hanh, T, Berrigan D 2001 (reprint of 1975), The Raft Is Not the Shore: Conversations toward a Buddhist-Christian Awareness, Orbis Books, Maryknoll, NY. Niwano, N 1966, Rissho Kosei-kai, Hinode Printing Co. and Kosei Publishing Co., Tokyo. Niwano, N 1971, The Lotus Sutra Life and Soul of Buddhism: A Modern Introduction to the Lotus Sutra Giving a Better Understanding of the Buddha’s Teachings, Hinode Printing Co. and Kosei Publishing Co., Tokyo. Niwano, N 1982, A Buddhist Approach to Peace, Kosei Publishing Co., Tokyo. Niwano, N 1989, Shakyamuni Buddha: A Narrative Biography, trans. K Miyasaka & RM Davis (revised English ed.), Kosei Publishing Co., Tokyo. Niwano, N 1993, ‘Foreword’ in WCRP: A History of the World Conference on Religion and Peace, ed Jack, HA, World Conference on Religion and Peace, New York. Niwano, N 2011, Buddhism for Everyday Life: Memorable Dharma Messages from a Long Spiritual Journey, trans. S Murata, Kosei Publishing Co., Tokyo. Suzuki, DT 1960, Manual of Zen Buddhism, Grove Press, New York. Suzuki, DT 1973 (reprint of 1959), Zen and Japanese Culture, Bollingen Series LXIV, Princeton University Press, Princeton. Tambiah, S 1992, Buddhism Betrayed? Religion, Politics, and Violence in Sri Lanka, University of Chicago Press, Chicago. Tanabe, H 1986, Philosophy as Metanoetics, trans. T Yoshinori, V Viglielme & JW Heisig, University of California Press, Berkeley. Tikhonov, V, and Brekke, T (eds.) 2012, Buddhism and Violence: Militarism and Buddhism in Modern Asia, Routledge, New York. Victoria, B (Daizen) A 1997, Zen at War Weatherhill, New York and Tokyo. Yu, X 2005, Buddhism, War, and Nationalism: Chinese Monks in the Struggle against Japanese Aggression 1931–1945, Routledge, New York.
Seiko Mimaki1
Norm Dynamics and Reconciliation-Japan, US, and East Asia
Introduction Though this year marks the 70th anniversary of the end of World War Second (WWII). The echoes of WWII have never stopped reverberating in East Asia, and the conflicts over the memory of the war remain tense. How can we break the deadlock situation and move forward toward a better regional future? My paper explores a relatively successful case – the U.S. – Japan recent reconciliation over the U.S. atomic bombing of Hiroshima and Nagasaki during WWII. In 2010, for the first time since 1945 the U.S. Ambassador to Japan John Roos, attended the annual memorial ceremony in Hiroshima. In 2012 and 2013, Roos attended the annual ceremonies in both Hiroshima and Nagasaki. In 2014, the U.S. Ambassador to Japan Caroline Kennedy, attended the memorial ceremonies held at Hiroshima on August 6 and at Nagasaki on August 9, to express her condolences for the victims of the U.S. atomic bombing. Though President Obama’s visit to Hiroshima and Nagasaki has not yet been realized, we should not underestimate the U.S. Ambassador’s constant appearance at the memorial ceremonies in both cities. It would have been unimaginable just 20 years ago, when a grave gap in perspectives between the U.S. and Japan on the atomic bombing of Japan came to the surface through the fierce controversies over the Enola Gay exhibition at the Smithsonian Institution’s National Air and Space Museum in Washington D.C. In the early 1990s, the curators at the Smithsonian National Air and Space Museum planned an exhibition titled “The Crossroads: The End of World War II, the Atomic Bomb and the Origins of the Cold War” for the 50thanniversary of the Hiroshima bombing. With the cooperation of prominent historians, the curators intended to use the Enola Gay, the plane that had dropped the atomic bomb on Hiroshima, with the intention to stir public reflection on the use of nuclear weapons and its consequences. The planned exhibition included materials on the bombs’ immediate effects, the role of the atomic bomb in the beginning of the nuclear proliferation, and a range of various opinions about the decision to drop the bomb. Ultimately, however, the exhibition ended up being canceled as a result of vocal protests from the veterans and legislators. 1 Dr. Mimaki is Associated Professor of Foreign Studies at Kansai Gadai University, Japan.
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For them, the war with Japan was a just war, and the nuclear attacks on the two cities were necessary to save the lives of allied troops who would have otherwise been killed in the planned invasion of the Japanese mainland. In Japan, however, few people accept the view that the U.S. atomic bombing contributed to bringing a rapid end to the war, saved a lot of lives and thus could be justified. For the majority of Japanese including those who basically accept the view that the war with Japan was a just war, the atomic bombing was an unnecessary merciless attack on civilians. However, a question arose- what was behind the recent U.S.-Japan rapprochement? Might the constant appearance of the US Ambassador at the memorial ceremonies in Hiroshima and Nagasaki mean that the two countries have ultimately overcome their differences over the use of atomic weapons against Japan? Not necessarily. This paper argues that a growing antinuclear consensus became an important driving force of the U.S.-Japan reconciliation. When we think about historical reconciliation, our focus is naturally directed to the past. Certainly, developing mutually acceptable understanding of the past is an essential step toward reconciliation. Nevertheless, the U.S.Japan case will show us that, even if there are still significant divergences over the past, reconciliation can be promoted through building a consensus on what the future world should be. First, this paper analyzes how an emerging anti-nuclear consensus helped U.S.-Japan rapprochement. Then it explores what ethical consensus has emerged over the East Asian problem of a contested history, and how it might promote East Asian reconciliation.
Regional Reconciliation as an Essential Condition for a “Normal” Japan Since he returned to power in December 2012, Abe has visited a total of 54 countries under the banner of “diplomacy that takes a panoramic perspective of the world map,” which set the record for the number of foreign countries visited by a Japanese Prime Minister (Ministry of Foreign Affairs 2014). Nevertheless, his “panoramic” diplomacy has been criticized as “doughnut” diplomacy for its failure to improve the relations with Japan’s important neighbors- China and South Korea. There is a stark contrast with the effort expended in strengthening the ties with European countries. The Abe cabinet has not taken effective action toward improving deteriorating relations with China and South Korea, both of which have required Japan to take more sincere reflections and apologize for its past wrong doings before they would agree to have a bilateral summit. Last November, Abe finally met Chinese President Xi Jingping for the first time in
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more than two years at the sideline of the APEC summit held in Beijing, but it is clear that more intensive meeting is necessary to take real steps toward a better regional future. In the meantime, China and South Korea have increasingly strengthened their bilateral relations after Xi and Korean President Park Geun-hye met in each other’s capital in 2013 and 2014. Recently, their bilateral relationship has been tightened to a level that they are able to describe it as “a matured strategic cooperative partnership.” While Japan’s regional relations have been “abnormal,” Japan has tried hard to become a “normal” country through a series of significant measures to ensure national security. Since late 2012, the Abe administration has established a National Security Council (NSC), released Japan’s first National Security Strategy (NSS) and National Defense Program Guidelines (NDPG), and lifted the ban on collective self-defense. According to Shinichi Kitaoka, the deputy chairman of Abe’s Advisory Panel on Reconstruction of the Legal Basis for Security, “all of these steps were necessary to bring Japan closer to a “normal country” (Takahashi 2014). We should ask, however, what precisely a “normal” country means? For many Japanese including Prime Minister Abe and his advisors, becoming a “normal” country means abolishing the constitutional limits on military activities, and playing a more “symmetric” role in world economy and security spheres. The argument of a “normal” Japan gained momentum after the Gulf War (1990–1991). At that time, Japan provided $13 billion financial support, but was excluded from Kuwait’s “thanks” list after the war, which became a “traumatic experience” for Japanese people. Since then, an increasing number of Japanese people have dreamed of a “normal” Japan, which would be no longer shackled by constitutional restrictions and could play more active roles in international security. Opinion polls clearly show a change in public opinion toward Japan’s role in international society. According to an opinion poll conducted by the Cabinet Office in 1989, 52.5 % respondents agreed that Japan should contribute to the world through promoting sound development of the world economy, 39.1% emphasized the importance of economic assistance to developing countries. Only 8.7% affirmed Japan’s military contribution to the Western Alliance (Cabinet Public Relations Office 1989). By contrast, in answer to the same questionnaire conducted in 1992, 49.4%respondents agreed that Japan should no longer limit its contribution to financial aid, and should increase its personnel contribution”(Cabinet Public Relations Office 1991). However, can Japan really achieve the status of a “normal” Japan just through increasing its personnel contribution overseas? In fact, we are now witnessing a situation where the more Japan tries hard to become a “normal” country, for example, by offering military assistance to the International Community, the more its regional relations become “abnormal.” Rather than welcoming a militarily strong Japan, Korea and China have been watching Japan’s lifting of the constitutional ban on its armed forces fighting overseas
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with great anxiety. This is a reason why we should seriously question what perspectives have been missing in Japan’s debates over being a “normal” country. John G. Ikenberry pointed out that, while “normalization” of postwar Germany has been embedded in its efforts toward strengthening regional security frameworks, most of the advocates for a “normal” Japan have been concerned sorely with strengthening the U.S.-Japan alliance (Ikenberry 2006). In order for Japan to become a “normal” country in the true sense, Japan should redouble its efforts toward improving the ties with its Asian neighbors. Otherwise, a series of struggles toward a “normal” Japan might be misinterpreted and have the opposite effect from what Japan intends. Neither can we overlook negative effects of the entangled history problems on Japan’s domestic society. Rising anti-Korean movements and racial hatred speeches in Japan have stirred the increasing concern of the international community. In summer 2014, the UN Human Rights Committee on the Elimination of Racial Discrimination urged Japan to regulate hate speech by law. It can be said that historical reconciliation is an essential condition for Japan to fulfill its long-term goal of becoming a “normal” country and to maintain a healthy liberal society.
U.S.-Japan: Conflicting War Memories over US Atomic Bombing In contrast to the stagnant reconciliation process in East Asia, Japan has made remarkable progress in reconciliation with the United States over the U.S. atomic bombing in 1945. It is instructive to examine the forces that have pushed the two countries toward reconciliation. Until 20 years ago, there was still a sharp gap in perspectives between the U.S. and Japan on the atomic bombing of Hiroshima and Nagasaki. In the early 1990s, the curators at the Smithsonian National Air and Space Museum in Washington D.C. planed an exhibition entitled “The Crossroads: The End of World War II, the Atomic Bomb and the Origins of the Cold War” for the 50th anniversary of the Hiroshima bombing. With the cooperation of some prominent historians, the curators intended to use the Enola Gay, the plane that had dropped the atomic bomb on Hiroshima, in order to provoke public reflection on the use of nuclear weapons to end WWII. The planned exhibition included the materials on the bombs’ horrible consequences, the arms race that followed, and the discussion within the Truman administration of whether to use the bomb. Ultimately the exhibition ended up being canceled as a result of vocal protests from interested citizens’ groups, politicians, and legislators. The strongest protests came from the veterans’ organizations, such as the American Legion, the Retired Officers Association, and the Air Force Association. They insisted that the exhibition should be patriotic and
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celebratory, and that the proposed exhibition paid too much attention to Japan’s suffering and too little to Japan’s brutality during and before the war (Hogan 1996, Wittner 2005). General Paul Tibbets, the pilot of the Enola Gay, strongly demanded that the exhibition be cancelled. It was, he said, for him a “damn big insult.” Firmly believing that atomic bombing was “his patriotic duty and the right thing to do”, Tibbets never expressed regret over his role until his death in 2007. In a 1975 interview, he said, “I’m not proud that I killed 80,000 people, but I’m proud that I was able to start with nothing, plan it and have it work as perfectly as it did” (Smyth 2007). When Martin Harwit, the museum director made a small change in the number of casualties after the consultation with the historians in 1995, the American Legion demanded cancellation of the exhibition and his dismissal. Lawmakers also joined the attack and called for the cancellation of the exhibition. Senate endorsed a resolution which praised the role of the Enola Gay “in helping to bring World War II to a merciful end, which resulted in saving the lives of Americans and Japanese.” The resolution denounced the Smithsonian exhibition as “revisionist and offensive to many World War II veterans,” and demanded that “any exhibit displayed by the National Air and Space Museum with respect to the Enola Gay should reflect appropriate sensitivity toward the men and women who faithfully and selflessly served the United States during World War II and should avoid impugning the memory of those who gave their lives for freedom” (S. Res. 257, 1994). A group of Congressmen threatened the Smithsonian saying that, if the museum would not change its “anti-American” exhibition, they would cut the funding of the museum. Facing these assaults, the officials at the Smithsonian decided to substantially scale down the exhibition, and they deleted all of the 10.000square-foot display except for the plane’s restored fuselage and a small plaque, which caused strong opposition from the historians. 40 historians signed a letter of protest which denounced the Museum’s decision as “historical cleansing,” and demanded the Smithsonian display the Enola Gay with balanced explanations (Linenthal 1996). Nevertheless, their voice had little resonance in the wider society. According to the gallop poll conducted in 1995, the approval rate of the atomic bombing among Americans reached 59 %, and 86 % of Americans believed that the bombs had saved American lives by shortening the war (Moore 2005). Ultimately, Harwit resigned, and the exhibition that opened in mid-1995 completely lacked the victims’ viewpoints. In 2003, the Smithsonian announced plans for another Enola Gay exhibition, which identified the Enola Gay as the aircraft that “dropped the first atomic weapon used in combat” and described the B-29 as the “most sophisticated propeller-driven bomber of World War II.” Historians once again rallied together in order to demand that the Smithsonian include a balanced explanation of the historical context of US atomic bombing. The Committee for a National Discussion of Nuclear History and Current Policy
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charged that the proposed exhibit would be “devoid not only of historical context and discussion of the ongoing controversy surrounding the bombings, but even of basic information regarding the number of casualties,” and issued a statement that displaying the Enola Gay as a technological achievement would reflect “extraordinary callousness toward the victims, indifference to the deep divisions among American citizens about the propriety of these actions, and disregard for the feelings of most of the world’s peoples” (Doyle 2003). Martin Sherwin and Kai Bird, the leading historians in the rally denounced the Smithsonian museum for its “misguided sense of American exceptionalism” that “continues to dictate that public displays of American history be morally pure and patriotically correct” (Bird & Sherwin 2003).The discussion became transnational when Nihon Hidankyo (Japan Confederation of A- and H-Bomb Sufferers Organizations) joined the protest. They visited the museum, and presented the letters from the Mayors of Hiroshima and Nagasaki, and a petition which called for the presentation of an appropriate exhibition. The protesters, however, again faced bitter criticisms from the veterans (Los Angeles Times, 19 December 2003; Los Angeles Times, 22 December 2003), and failed to get broad popular support. A gallop poll conducted in 2005 showed that 57 % approved of the U.S. atomic bombing against Japan, and 80 % responded that the bombs had saved American lives by ending the war quickly (Moore 2005).
Development of the Anti-nuclear Norm and US-Japan Rapprochement Even today, 56 % of Americans, especially those 65 years of age and older, still believe that the dropping of atomic bombs on Hiroshima and Nagasaki was justified, while about 80 % of Japanese regard it as unjustified (Pew Research Center 2015). Nevertheless, they have increasingly adopted an anti-nuclear norm developed since the late 1980s. During the Cold War, the abolition of nuclear weapons was generally regarded as a mere fantasy. Toward the end of the Cold War, however, a worldwide network of peace activists, lawyers, and physicians developed the World Court Project (WCP) in order to outlaw nuclear weapons. They succeeded in persuading the UN to ask the International Court of Justice (ICJ) for two advisory opinions on the legal status of nuclear weapons (Dewes & Green 1999).From October 30 to November 15, 1995, the ICJ heard oral statements from various countries regarding the illegality of the use and threat of the use of nuclear weapons, and invited the mayors of Hiroshima and Nagasaki as well as government representatives from Japan. Hiroshima Mayor
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Takashi Hiraoka emphasized that “the damage caused by nuclear weapons is more cruel and inhumane than that of any weapons prohibited by international law.” Nagasaki Mayor Iccho Itoh, showing photographs of the blackened corpses of children, asked, “What crime were these children guilty of ?” which caused weeping from the audience. An Algerian-born judge, Mohammed Bedjaoui said, “thank you for your moving testimonies” (Inter-city Solidarity Newsletter 1995). In July 1996, the court’s historic decision confirmed that “the threat or use of nuclear weapons would generally be illegal, and that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to complete nuclear disarmament under strict and effective international control” (International Court of Justice 1996). Following the decision, the UN General Assembly and the European Parliament adopted a resolution welcoming the ICJ Advisory Opinion and calling for multilateral negotiations leading to the conclusion of a Nuclear Weapons Convention. “Middle powers” were active players in the global anti-nuclear movement. In December 1997 Canadian senator and former Disarmament Ambassador Douglas Roche formed a new network of international citizen organizations, which became known as the Middle Powers Initiative (MPI). By mobilizing influential middle-power nations, MPI pushed the nuclear powers to take practical steps toward a nuclear free world. In June 1998, the Foreign Ministers of Brazil, Egypt, Ireland, Mexico, New Zealand, Slovenia, South Africa and Sweden formed the New Agenda Coalition (NAC), and issued a Joint Declaration titled “Towards A Nuclear Weapon-Free World: The Need For A New Agenda,” calling on the states with nuclear weapons and those suspected of having them to take practical measures towards eliminating their nuclear arsenals as soon as possible. When the measure was introduced to the UN General Assembly, it was harshly criticized by nuclear powers but was supported by an overwhelming majority (Green 2000). More recently, an anti-nuclear platform was shared by world leaders including U.S. President Barak Obama. On April 5, 2009 in Prague, Obama proclaimed his desire “to seek the peace and security of a world without nuclear weapons,” and emphasized U.S. “moral responsibility as the only nuclear power to have used a nuclear weapon”(White House 2009). Certainly, Obama was enough realistic to add that, “as long as these weapons exist, the United States will maintain a safe, secure and effective arsenal to deter any adversary, and guarantee that defense to our allies.” Still, it was an historic statement offered by the U.S., the most powerful nuclear state in the world. Moreover, Obama’s statement became an important impetus for U.S.-Japan reconciliation regarding the past atomic bombing of Japan. Though Obama carefully avoided mentioning that the use of atomic bombs had been wrong, or offering an apology for having used them, the politicians in Hiroshima and Nagasaki welcomed his speech. Rather than demanding Obama’s apology,
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they highlighted the necessity of a U.S.-Japan future collaboration toward realizing a “world without nuclear weapons.” On August 6, 2009, Akiba Tadatoshi, Mayor of the city of Hiroshima gave a speech. Making approving mention of Obama’s “world without nuclear weapons” speech in Prague, he declared that, “Nuclear weapons abolition is the will not only of the hibakusha but also of the vast majority of people and nations on this planet […] we support President Obama and have a moral responsibility to act to abolish nuclear weapons.” Then, he introduced a “2020 Vision” plan, which aims at eliminating all nuclear weapons by 2020, and demanded the Japanese government lead the world as a standard-bearer for the movement”. He concluded his speech by stressing that, “We are the Obamajority. Together, we can abolish nuclear weapons. Yes, we can” (Akiba et al. 2009). Motofumi Asai, president of the Hiroshima Peace Institute of Hiroshima City University criticized people who stubbornly demanded Obama’s visit to the city and his apology. Showing a conciliatory understanding toward the difficult political situation facing Obama as President of a nuclear superpower, Asai emphasized that, “there are certainly circumstances under which a visit to Hiroshima by Obama could be regarded as an apology for the bombings. Such a decision could cost him his political career. There’s no way he will come to Hiroshima any time soon […]. If his visit is made into a circus it will set back rather than advance nuclear abolition” (Akechi 2009). In the “Nagasaki Peace Declaration” issued in August 9, 2009, Tomihisa Taue, Mayor of the City of Nagasaki also emphasized that Obama’s Prague speech was “a watershed event, in that the U.S., a superpower possessing nuclear weapons, finally took a step towards the elimination of nuclear armaments,” and demanded the Japanese government support Obama’s vision and take steps together towards “a world without nuclear weapons” (Akiba et al. 2009). On the other hand, Hiroshima and Nagasaki have been bitter critics of Obama when they discovered that U.S. policy was running counter to the trend toward a “world without nuclear weapons.” In June 2013, Obama visited Berlin and gave a speech to outline his arms control agenda for the remainder of his presidency (White House 2013). Although Obama’s Berlin speech was far less radical than his Prague speech in 2009, it assured people who had begun wondering if Obama still keep his ideal. In September and October 2014, just a year after his Berlin address, the Obama administration conducted nuclear tests on the Z-Machine involving plutonium. Right after the tests, Matsui Kazumi, Mayor of Hiroshima issued a “Letter of Protest,” which stated that, […] The continuation of these tests have betrayed the hopes of the survivors of the atomic bombings and the millions of others who seek the elimination of nuclear weapons, and have given other nuclear-armed countries and those seeking nuclear capabilities an excuse to accelerate their nuclear programs. Moreover, they have
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made the prospects of the realization of a world without nuclear weapons, which you expressed your commitment to in the 2009 Prague speech, further recede…. You demonstrated your determination to pursue nuclear disarmament again in your speech of June 2013 in Berlin, and thus you are obliged to lead the United States to become a model of nuclear disarmament. Nonetheless, your country continues to conduct nuclear tests and I feel strong indignation. I urge you to stop betraying our hopes. Please contemplate the agonizing experience of the hibakusha, understand their sincere wish for peace, and strive for the earliest possible realization of a world free from nuclear weapons (Matsui 2014).
The ideal of “a world without nuclear weapons” has been shared with the Japanese government, too. In August 2014, Foreign Minister Fumio Kishida contributed an article entitled “Seventy Years after Hiroshima and Nagasaki: Toward a World Free of Nuclear Weapons” to the Foreign Affairs in which he emphasized that, Next year marks the 70th anniversary of the atomic bombings of Hiroshima and Nagasaki, which will coincide with the upcoming Nuclear Nonproliferation Treaty (NPT) review conference. This important occasion will offer a unique opportunity to advance the vision of a world free of nuclear weapons.… In light of these circumstances, the government of Japan welcomed US President Barack Obama’s speeches on nuclear disarmament in Prague, in 2009, and Berlin, in 2013, and has closely cooperated with Washington to advance a common vision of a nuclear-free world (Kishida 2014).
In a 2005 interview, well before Obama’s Prague speech, Theodore Van Kirk, the last surviving navigator of the Enola Gay said that his WWII experience showed that wars and atomic bombs could not settle anything, and that he would like to see all the weapons abolished, though he also emphasized that, “I honestly believe the use of the atomic bomb saved lives in the long run” (Yee 2005). He died in July 2014, without changing his belief about the appropriateness of US atomic bombing against Japan. Nevertheless, it is worth remembering that at least some of the crew of the Enola Gay also shared the ideal of a “world without nuclear weapons.” According to the recent Pew Research Center survey, which was conducted in the United States among 1,000 adults from February 12 to February 15, 2015, and in Japan among 1,000 adults from January 30 to February 12, 2015, WWII no longer dominates the memory of the two nations. To the question about the most significant periods in the US-Japan relationship during the modern era, 31 % of Americans answered WWII, yet the same proportion of Americans said that the Great East Japan earthquake and tsunami which hit Japan in 2011. For Japanese, the most important aspect of US-Japan relation is the postwar US-Japan military alliance (36 %), and the second one is the Fukushima earthquake and tsunami, where 24,000 US service members were involved in humanitarian relief and Americans donated more than $700 million to the
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victims. Only 17 % of Japanese said WWII is the most significant incident for the two countries (Pew Research Center 2015). It can be said that, though a painful past cannot be entirely erased, its painful effects can fade through the building of good relations.
Growing Awareness of Women’s Rights and the Changing Discourses on the “Comfort Women” Issue Today, Northeast Asian history problems are no longer just a regional problem. Of critical importance is the issue of the “comfort women,” who were forced to engage in sexual service for the Japanese military before and during WWII. This atrocity has attracted international attention. On March 5, 2014, South Korea’s Foreign Minister Yun Byung-se for the first time raised the issue of “comfort women” in a speech delivered at the UN human rights meeting in Geneva. Mentioning disastrous human rights situations in Syria, North Korea, and other parts of the world, he called for increased international attention toward sexual violence in armed conflicts, and urged solution of the “comfort women” issue (Ministry of Foreign Affairs 2014). Korea’s claim that “comfort women issue is a human rights issue, therefore should be everyone’s concern” has become a common understanding at the UN human rights committee. Navi Pillay, a South African jurist who served as the United Nations High Commissioner for Human Rights from 2008 to 2014, emphasized that, “the issue of ‘comfort women’ is not relegated to history, but continues to impede violations of victims’ human rights. It is a current issue, as human rights violations against these women continue to occur as long as their rights to justice and reparation are not realized” (UN News Centre 2014). In Japan, Korea’s successful appeals on the “comfort women” issue at the UN have been often linked with its active propaganda efforts and lobbying activities, but it has a much deeper and more substantive root. As discussed below, with a growing awareness of wartime sexual violence since the 1990s, the “comfort women” issue has been recognized as a serious violation of human rights and has became a concern not only for Korea and other countries from where victims were taken but also for the international community in general. It is relatively recently that rape has been recognized as a grave violation of human rights and as a crime against humanity. In the 1907 Hague Convention, rape was described as a “violation of family honor and rights,” a view which reflected the then prevailing idea of male entitlement to control the bodies and lives of women. Although the four Geneva Conventions of 1949 and its Additional Protocols of 1977 represented a certain step forward in the protection of women from rape and other forms of sexual assault by
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prohibiting “outrages upon personal dignity, in particular humiliating and degrading treatment,” it fell short of creating a comprehensive prohibition against rape (Inal 2013, pp. 92–132). It was in the 1990s that rape victims and women’s human rights activists were first taken seriously and the international community clearly came to recognize wartime sexual violence as a grave human rights violation. In the early l990s, former Korean “comfort women” spoke out for the first time in order to expose Japan’s s military sexual slavery system during the war. Large scale sexual violence in the Yugoslav conflict which lasted from 1991 to 2001 made the world acknowledge the necessity of legislating against rape as soon as possible. At the l993 World Conference on Human Rights in Vienna, it was stated that “violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law. All violations of this kind, including in particular murder, systematic rape, sexual slavery, and forced pregnancy, require a particularly effective response” (Vienna Declaration 1993). The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) which were established in 1993 and 1994 respectively, prosecuted rape as a war crime and a crime against humanity (Nahapetian 1999). These developments laid the foundation for the gender provisions of the Rome Statute of the International Criminal Court (1998), the world’s first permanent criminal court which has jurisdiction over genocide, war crimes, and crimes against humanity in addition to crimes of aggression. The Rome Statute names a broad range of sexual and reproductive violence, including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence as among the gravest crimes of war. They constitute a “crime against humanity,” when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (Rome Statue 1998). In the 2000s, the movement seeking redress for comfort station survivors spread widely beyond the countries from which victims had been taken, and took the form of a Congressional resolution. In July 2007, the U.S. House passed Resolution 121 which demanded the Japanese government take the concrete step for “comfort women” redress (H. Res. 121, 2007). In December 2007, the European Parliament adopted a similar resolution (European Parliament resolution 2007). On one hand, these resolutions showed a certain appreciation for what Japan had done to that point. In 1993, the then Chief Cabinet Secretary Yohei Kono issued a statement which acknowledged the Japanese military’s involvement in setting up wartime brothels before and during WWII, and apologized to the former “comfort women”(Ministry of Foreign Affair 1993). On the 50th anniversary of the end of WWII on August 15, 1995, the then Prime Minister Tomiichi Murayama stated that Japan had caused “tremendous damage and suffering” to the people of Asia and other
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countries through its colonial rule and aggression, and he expressed “feelings of deep remorse” and “heartfelt apology” (Ministry of Foreign Affair 1995). In 1995, the Japanese Government took the initiative in establishing the Asian Women’s Fund, a largely government-funded private foundation, to distribute ‘atonement money’ to the former “comfort women” (Ministry of Foreign Affair 2014). On the other hand, these resolutions concluded that these measures were far from enough, and that Japan should take further action, including an official apology and the payment of reparations to all surviving victims. It should be noted, however, the scope of this resolution was not limited to the “comfort women.” Explaining its goal, Korean American attorney Daniel Lee, one of the chief supporters of the resolution, stated that, “H. Res. 121 is the ultimate human rights and woman’s rights issue, not a Japan-bashing issue […]. Such resolution will increase awareness of issues of the exploitation of women and children during any war, such as Darfur in Sudan” (Tokudome, 2007). World leaders have also endorsed the view that the “comfort women” issue is primarily an issue of human rights which no one can deny, and have urged Japan to handle the issue constructively. On April 25, 2014, at a press conference with Korean President Park, Obama stated that, the “comfort women” issue was a “terrible, egregious violation of human rights,” and demanded that both Japan and Korea “look forwards as well as backwards and to find ways in which the heartache and the pain of the past can be resolved” (White House 2014). Responding to the rising international pressure over the issue, the Abe cabinet has decided to strengthen its public diplomacy efforts. In August 2014, the Asahi Shimbun, the major liberal newspaper in Japan, admitted that some of its past articles on “comfort women” were a fabrication, after it turned out that the source of these articles, Seiji Yoshida’s testimony that women in Jeju Island, South Korea, were forcibly taken away to serve as “comfort women” for Japanese soldiers during WWII lacked objective evidence (Yoshida 2014). Bitterly criticizing the Asahi for spreading “false” information on the “comfort women” issue and damaging Japan’s international reputation, Chief Cabinet Secretary Yoshihide Suga emphasized the inappropriateness of the Coomaraswamy Report, submitted to the UN Commission on Human Rights by Sri Lankan lawyer Radhika Coomaraswamy in 1996, which concluded that Asian women were forced to work in wartime brothels for the Japanese military as “sex slaves,” citing Yoshida’s testimony as one of the evidences (Asahi Shimbun 16 October 2014). On October 3, 2014, at the Budget Committee of the House of Representatives, Prime Minister Abe emphasized that Japan should “make sure that correct perceptions of history are formed based on objective facts, and that Japan will gain a fair evaluation from the international community.”(ABS-CBN News 3, October 2014). In February 2015, through the Japanese embassy, the Japanese government asked McGraw-Hill Co., an American publishing
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house, to correct a college textbook containing “factual inaccuracies” about the “comfort women.” Japan’s “active” public diplomacy to correct “false” information on the “comfort women,” however, might have only a small chance of success, or even work in a counterproductive way in a world where people have increasingly been critical of any type of wartime sexual violence. Responding to the Asahi controversy in Japan, Coomaraswamy stressed that the Yoshida testimony was “only one piece of evidence” of her report, and that, “we met many comfort women, in Korea especially. It was very clear that they were abducted, by no means could one say they voluntarily joined” (Kyodo News International 5 September 2014). The Japanese government’s request for McGraw-Hill Co. to remove the “inaccurate” paragraphs about the “comfort women” immediately provoked harsh criticisms from American historians. In their March 2015 newsletter, the American Historical Association (AHA) showed their “dismay at recent attempts by the Japanese government” (Dudden et al. 2015). McGraw Hill refused to change the textbook, saying that, “scholars are aligned behind the historical fact of ‘comfort women.’” Explaining the purpose of the AHA newsletter, Alexis Dudden, Professor at the University of Connecticut, who was one of the organizers of the newsletter, stated that, “we do not want this to be seen as Japan-bashing […] It’s the opposite of Japan-bashing. It’s a statement in support of our Japanese colleagues” (Fifield 2015). Indeed, Japanese historians have also kept eye on the Japanese government’s increasing tendency towards historical revisionism. In December 5, 2014, the Historical Science Society of Japan issued a public statement stating that, “even if some women did ‘consent’ to becoming prostitutes, this should call into question the everyday realities of class, racial, and gender inequality and injustice that formed the backdrop to such ‘consent.’ To focus solely on the question of whether there was direct coercion, without considering the political and social context, is to miss the full picture” (Committee of the Historical Science Society of Japan 2014). In 2004, Joseph Nye Jr. had already warned that, “the Japanese government’s unwillingness to deal frankly with its record of foreign aggression in the 1930s” and “the residual suspicion that lingers in China and Korea” had been limiting Japan’s soft power (Nye 2004, pp.87–88). Japan should not seek to reduce the “comfort women” issue into a mere technical issue of how to carry out effective propaganda campaign against Korea. If Japan wishes to “gain a fair evaluation from the international community,” as Prime Minister Abe emphasized at the Diet, Japan must realize the increasing linkage between the “comfort women” issue and human rights, and handle the issue in a way that will fulfill moral requirement and impress the world as a standard-bearer of human rights. This year, the 70th anniversary of the end of WWII, would be a good year for Japan to take significant measures toward improving its regional relations.
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Prime Minister Abe and his advisors are preparing a statement to mark the 70th war anniversary which will be issued on August 15. Beijing and Seoul have paid close attention to whether Abe will uphold the 1993 Kono statement and the 1995 Murayama statement, which have been regarded as the official position of the Japanese government on WWII. In his 2005 statement to mark the 60th anniversary of the end of WWII, the then Prime Minister Junichiro Koizumi followed Murayama’s statement, including the key phrases such as “heartfelt apology” and “colonial rule and aggression” (Ministry of Foreign Affairs 2005). So far, Prime Minister Abe has not been entirely clear on this point. On one hand, he has stated that his anniversary statement would “on the whole” follow the position adopted by successive Cabinets on the perceptions of wartime history. On the other hand, he suggested that he would refrain from using exactly the same words as seen in the past statements to make his statement more “future-oriented” by including his administration’s “proactive pacifism” concept (Japan Times 30 December 2014). This Spring Abe paid a week-long state visit to the U.S., and became the first Japanese Prime Minister to give an address at the joint session of the U.S. Congress in Washington DC on April 29. In his speech entitled “Toward an Alliance of Hope,” Abe stressed that, “on behalf of Japan and the Japanese people, I offer with profound respect my eternal condolences to the souls of all American people that were lost during World War II.” Subsequently, he showed “deep remorse” over Japan’s past actions which “brought suffering to the peoples in Asian countries,” and stated that he would “uphold the views expressed by the previous Prime Ministers in this regard”(Cabinet Public Relations Office 2015). Abe’s week-long US visit impressed the world by indicating steady progress of U.S.-Japan historical reconciliation. Shortly before arriving at Capitol Hill, Abe toured Washington’s World War II memorial, which honors hundreds of thousands of Americans who died during the war, and laid a flower wreath at the Freedom Wall. In his speech to the Congress, Abe introduced retired Lawrence Snowden, who led a U.S. company in the battle of Iwo Jima, one of the bloodiest battles of the Pacific War, and Yoshitaka Shindo, the grandson of a Japanese general who died on the island. When the two men stood and shook hands, a big round of applause and a standing ovation followed. This was a symbolic moment in the reconciliation between former enemies who are now the closest allies. Abe’s congressional speech satisfied the majority of his American hosts. Vice President Joe Biden reacted positively to Abe’s speech, saying that Abe “made it very clear that there was responsibility on Japan’s part.” The Republican Senator John McCain described Abe’s comments as an “historic recognition of two peoples reconciled with their shared history” (Pennington 2015). As the fourth and final destination of his weeklong tour of the U.S., Abe visited the Go For Broke Memorial in downtown Los Angeles, which is dedicated to the Japanese-Americans who formed the 442nd
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Regiment, the highest decorated infantry group in WWII, and there he met Japanese-American veterans. However, Abe’s speech did not satisfy those who had expected a direct statement of apology to the victims of Japan’s past aggression. Although he showed his determination to “realize the kind of world where finally women are free from human rights abuses,” Abe barely touched the inflammatory issues of “comfort women” in his speech, though during a joint press conference with Obama the day before, he had reaffirmed his earlier stance upholding the 1993 Kono statement. Democrat representative Mike Honda, a Japanese-American, who invited a 86-year-old “comfort woman” survivor, Yong-Soo Lee, to the House gallery during the speech, said that Abe’s speech was “shocking and shameful” for omitting direct mention of the issue (Dorell 2015). The Chinese and South Korean media have denounced Abe for stopping short of issuing an explicit apology for Japan’s wartime actions, especially its sexual enslavement of Asian women, most of them from the Korean peninsula (McCurry 2015). In Los Angeles, responding to the question about his August statement, Abe reiterated that, “I will compile one using a great amount of our wisdom that can show the rest of the world what kind of a country Japan will aim to be toward the 80th, 90th and 100th anniversaries” (Nikkei Asian Review 2 May 2015). Nevertheless, people in Japan have been increasingly wondering what Abe might be implying by “future-oriented” statement.” On March 9, former Prime Minister Tomiichi Murayama was on TV expressing his concern over whether Abe’s August statement would constitute a significant departure from his 1995 statement. He emphasized that the 1995 Murayama statement had been widely acknowledged in the world, including South Korea, China, and the U.S., and that negating it would cause significant damage to Japan’s relations with these countries. Appointed as a deputy chairman of an advisory panel on Abe’s 70th war anniversary statement, Shinichi Kitaoka appeared at the symposium held in Tokyo on March 9, 2015, where he warned that deviations from previous statements of contrition for the war would run counter to widely held opinions in Japan, and recommended Abe “clearly state that ‘Japan invaded its neighbors.’” Then, he stressed that, “99 percent” of Japanese historians “would say Japan committed aggression, waged a vicious war and killed many Chinese people- and we sincerely apologize for that.” Deputy Chief Cabinet Secretary Hiroshige Seko also appeared at the same symposium, and emphasized that the Japanese government would stand by the Murayama statement and the Kono statement (Asahi Shimbun 10 March 2015). On April 22, 2015, the Yomiuri Shimbun, the leading conservative newspaper in Japan, published an editorial article titled, “Does Abe Want to Avoid Mentioning ‘Aggression’ in his WWII Statement?” Questioning the Prime Minister’s intention of saying that he prefers a “future-oriented” statement, the editor of the Yomiuri emphasized that, “there is no problem in his putting emphasis on a “future-oriented” country. However, it is impossible to comprehensively
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review the 70 years without a historical perception that starts from the point where postwar Japan admitted the aggression was wrong.” Then, Yomiuri criticized Abe’s statement made at a Diet session in April 2013 to the effect that the definition of aggression had not been officially established either academically or internationally, and stressed that, “it is a fact that there are various debates in terms of international law as to the definition of aggression. But there is no denying that, at least, the acts by the former Japanese military from the 1931 Manchurian Incident were aggression.” Finally, he demanded that Abe realize that “the statement on the 70th anniversary is no longer that of the Prime Minster alone. It has been accepted in Japan and abroad as a statement to represent the stance of the entire nation. The Prime Minister is asked to listen humbly to opinions of many people and to wisely choose the content of the statement from a broader perspective” (Yomiuri Shimbun 22 April 2015). Public opinion surveys have also shown that the majority of Japanese would prefer that the Prime Minister not deviate from the previous statements of apology. According to the opinion poll conducted by the Yomiuri last February, 44 % of Japanese think that Abe should follow the previous statements issued on the occasions of the 50th and 60th war anniversaries by the then Prime Ministers Murayama and Koizumi respectively, both of which expressed regret and apology for Japan’s colonial rule and brutal aggression, while 34 % of Japanese think that Abe does not need to do so (Yomiuri Shimbun 7 February 2015).The opinion poll conducted by the Asahi this April also showed that 74 % Japanese appreciate the 1995 Murayama statement and the 2005 Koizumi statement (Asahi Shimbun 14 April 2015).
Global Justice and Regional Reconciliation Abe’s statement for the 70thanniversary has increasingly become of international concern. On May 5, 2015, a group of 187 Western scholars of Japanese and East Asian studies, issued an open letter entitled, “Open Letter in Support of Historians in Japan.” While the letter praised the peaceful relations Japan had enjoyed with its neighbors during the postwar period, it stressed that history problems had been a serious impediment to celebrating the many achievements made by Japan since the end of the war. The letter then called on Japan to take the opportunity to “show leadership by addressing Japan’s history of colonial rule and wartime aggression,” particularly the issue of the ‘comfort women,’” warning that, “the evidence makes clear that large numbers of women were held against their will and subjected to horrific brutality,” and they added, that “employing legalistic arguments focused on particular terms or isolated documents to challenge the victims’ testimony
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both misses the fundamental issue of their brutalization and ignores the larger context of the inhumane system that exploited them.” At the same time, the letter sought to be even-handed and never simply confined itself to criticizing Japan’s attitudes toward the past. A critical eye was also directed to the victim countries, and to the other former colonial countries. The statement emphasized that the “comfort women” issue had been distorted by nationalist invective not only in Japan but also in Korea and China, and that “many scholars, along with journalists and politicians, had lost sight of the fundamental goal of historical inquiry, which should be to understand the human condition and aspire to improve it.” The letter also emphasized that the challenge that Japan has been facing was a common challenge for every country which carried a dark history of colonization, by saying that “none of the imperial powers of the nineteenth and twentieth century, including the United States, the European nations, and Japan, can claim to have sufficiently reckoned with their histories of racism, colonialism, and war, or with the suffering they inflicted on countless civilians around the world.” Specifically mentioning Abe’s April address to the U.S. Congress, in which he spoke of the universal value of human rights, of the importance of human security, and of facing the suffering that Japan caused to the other countries, the statement demanded that Japan acknowledge that the equal rights and dignity of women lie at the core of the “comfort women” issue, and make constructive efforts toward realizing the equality of women and men in Japan, East Asia and the world (Manabe 2015). Following the Western scholars’ statement, 16 groups of Japanese historians issued a joint statement which endorsed that the cases of forced recruitment of “comfort women” against their will were widely confirmed, and warned that, “by continuing to take the irresponsible stance of denying the facts of wartime sexual slavery by the Japanese military, certain politicians and sections of the media are essentially conveying to the rest of the world that Japan does not respect human rights,” and “tramples further upon the dignity of the victims, who have already borne terrible hardships” (Reynolds 2015). With regard to the inviolability of human rights and the necessity of their full realization, there should be no difference between Japan, Korea, and the international society. The international community is closely watching what diplomatic actions the Abe cabinet will take in order to “realize the kind of world where finally women are free from human rights abuse.” It is true, as Japanese conservatives who deny Japan’s responsibility toward the former “comfort women” often say, that women rights have been violated not only by Japanese army during WWII but by almost every army at every conflict. They are definitely wrong if they use this fact as a justification for Japanese military’s sexual violence exculpatory move to sanities this aspect of Japan’s military history. Yet, they rightly point out that sexual assalt (prevent repetition) not only by the Japanese army but by any army sexual violence by any army should be prosecuted and punished.
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It should be noted that the victims themselves have already acted to seek global justice beyond redress of their personal grievances. This year, the 70th anniversary of Korea’s liberation from Japan’s colonial rule is the 50th anniversary of South Korea’s sending soldiers to the Vietnam War. With the cooperation of Korean peace activists, in April 2015, at the House of Sharing in Gwangju, Gyeonggi Province, the former “comfort women” for the Japanese imperial army met the survivors of the massacres during the Vietnam War. Huynh Ngoc Van, one of the coordinators, emphasized that, “neither the Japanese government nor the South Korean government has apologized. Despite this, I hope that these women will continue fighting as they are now doing until the day that all wars end. We’ll keep doing the same thing.” Han Hong-gu, the other coordinator also stressed that, “even if only to create an opportunity for Japan to acknowledge and apologize for its wrongdoing, the South Korean government and society should waste no time in acknowledging and apologizing for the massacres and other tragedies that occurred in Vietnam.” Nguyen Tan Lan, a survivor of the Vietnam War said that, “my hope is that South Korea and Vietnam will walk forward on the road to peace. In order to go down that road, both countries need to have a correct perspective on history” (Park 2015). Since the “comfort women” issue is a universal human rights issue, the ultimate solution should be realizing redress for all the victims of wartime sexual violence, creating a comprehensive mechanism for the prevention and eradication of sexual violence, and realizing an equal and safe world where women as well as men could live with dignity. Toward realizing this ultimate goal, we should sincerely listen to the voice of the victims for global justice, and wholeheartedly support them.
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