Seating Arrangements at the Table of World Morality

Simon Chesterman

  • The Guilt of Nations: Restitution and Negotiating Historical Injustices by Elazar Barkan
    Norton, 414 pp, £21.00, September 2000, ISBN 0 393 04886 1

For the past four years, a debate has raged in Australia over whether the process of reconciliation between its indigenous and non-indigenous populations should include a formal apology for past injustices. John Howard, who became Prime Minister in 1996, has repeatedly rejected what he regards as an over-apologetic tendency, epitomised by certain policies of the previous Labor Government, and by references in the Australian High Court’s Mabo judgment, which recognised native title to Aboriginal lands taken by settlers, to ‘a national legacy of unutterable shame’. Speaking in Parliament that year, he warned of the need to guard against the ‘rewriting of Australian political history’:

I profoundly reject the black armband view of Australian history. I believe the balance sheet of Australian history is a very generous and benign one. I believe that, like any other nation, we have black marks upon our history but amongst the nations of the world we have a remarkably positive history. I think there is a yearning in the Australian community right across the political divide for its leader to enunciate more pride and sense of achievement in what has gone before us. I think we have been too apologetic about our history in the past. I believe it is tremendously important, particularly as we approach the centenary of the Federation of Australia, that the Australian achievement has been a heroic one, a courageous one and a humanitarian one.

Howard’s refusal to make a formal apology for the policies of the past (he has expressed ‘personal sorrow’ over some injustices) is at odds with a growing number of official apologies that have been made in different parts of the world since the late 1980s. A lot of these relate to World War Two: Switzerland has recently apologised to Jews for its actions during and after the conflict, Germany for its use of slave labour, the United States for the imprisonment without trial of Japanese Americans. The Queen’s travels of late have been punctuated by apologies to the legatees of colonialism; President Clinton has apologised for US support of Guatemalan rightists, for its treatment of native Hawaiians, and, in part, for the institution of slavery. Even the Pope has made a series of extraordinary statements, apologising for the Church’s silencing of Galileo, for its role in persecuting the Jews, and for its treatment of women and minorities (though without mentioning the Inquisition, the Holocaust or the Crusades by name).

Seizing on one such act of contrition, Elazar Barkan begins his survey of how countries attempt to deal with historical injustices on a portentous note: ‘Virginia Woolf might have said that on or about 5 March 1997, world morality – not to say, human nature – changed.’ Woolf’s often-quoted line referred to a Post-Impressionist art exhibition organised by her friend Roger Fry in December 1910. Barkan’s chosen date is that of the Swiss Government’s announcement that it would sell substantial amounts of its gold to create a humanitarian fund of $5 billion, to be dispensed in part to Holocaust victims. He sees this admission of wrongdoing, backed up by compensation, as a watershed in ‘international morality’, promising a new ethic of restitution for past injustices.

The Guilt of Nations is a timely book, usefully describing 11 situations in which reconciliation has been attempted. They are linked by the idea that restitution may provide an effective model for their resolution (and the resolution of other historical conflicts). Preceded and followed by forays into the theory of restitution, the main text is divided into two parts. In Part One Barkan considers the aftermath of World War Two, discussing the processes that led to reparations being made by Germany to the Jews, Switzerland’s opening up of its secret bank accounts to inspection, and the compensation paid to Japanese Americans who were interned on the West Coast. Separate chapters look also at the less successful example of Japan’s treatment of the ‘comfort women’ forced into sexual slavery by the military, as well as the unresolved questions of Russian plunder of Nazi art (and vice versa), and restitution in post-Communist East Central Europe. In Part Two he turns to the legacy of colonialism, examining the situation of indigenous populations in the continental United States, Hawaii, Australia and New Zealand, concluding with a chapter on the question of restitution for slavery.

The first problem with the book is that the title, though powerful and evocative, is somewhat misleading: the book is not really about guilt, and only partially about nations. There is an important distinction to be made between guilt and liability. Outside a court of law, the term ‘guilt’ usually carries with it some sense of anxiety or unhappiness about the commission of a wrongful act. In a court of law, ‘guilt’ is established by due process, a criminal act having been proved to have taken place. ‘Liability’, by contrast, refers simply to legal responsibility: if I steal your property, I may be found guilty of theft and held accountable in a court of law, but that is a matter between me and the state. For you to require me to return your property, or to pay monetary compensation, you need only to prove that I am liable (i.e. legally responsible) to do so. The extra-legal meaning of guilt might apply if my conscience drives me to return your property or to pay you off voluntarily, but this is quite different from a legal determination that I have committed a crime.

Barkan tends to confuse these two meanings of guilt when it seems that he doesn’t really intend either of them. His focus is on the non-legal sense of guilt, but as a sentiment that can require a legal remedy in the form of restitution. Quite apart from the legal contradictions to which this gives rise, his reliance on the ‘voluntariness’ of many compensatory payments is undermined by his thoughtful and thorough analysis of the pressures typically brought to bear on states to make such payments. Here it is helpful to contrast guilt with another concept mentioned only in passing: shame. The essential difference between the two is that guilt is personal, whereas shame is social. Whatever the term ‘international morality’ might mean, the public condemnation of Switzerland’s banks and government – and a crowd of New York lawyers waving writs – surely played a greater role in effecting the disbursement of Nazi gold than the troubled consciences of a few Zurich bankers.

The reference in the title to ‘nations’ is misleading for similar reasons. In each of Barkan’s case studies, it is not the nation as a whole that engages in negotiations, or formally agrees to a remedy such as restitution, but a particular administration – which is one reason why apologies for the sins of previous administrations are often controversial. And, importantly, it is on governments that action groups will put pressure in order to encourage them to take the lead in any reconciliation process. This is implicit in Barkan’s argument that democracies are more open to the possibility of reconciliation, because they are prepared to entertain ideas that depart from the norm.

Restitution, however, is the word that recurs most frequently throughout the book, so it is particularly unfortunate that Barkan isn’t a little clearer about what it might mean. Having stated that, stricto sensu, it refers to the return of specific items that have been taken – he contrasts it with ‘reparations’ and ‘apology’ – he then goes on to redefine it as a ‘cultural concept’ that includes ‘the entire spectrum of attempts to rectify historical injustices’. This is so broad a definition as to verge on meaninglessness. Nor does it help when restitution is referred to variously as a ‘beacon of morality’, ‘an adjudicator of national identity and ethnicity’, and ‘not merely a moral idea but a political and social solution’, or when Barkan perpetrates such solecisms as to wonder ‘precisely who was being restituted’ and refers to decisions to ‘restitute at least part of’ a historical injustice.

For the most part, however, Barkan is concerned with the use of money to redress historical wrongs – the Swiss fund of $5 billion, the $20,000 payments made to eighty thousand Japanese Americans, and so on. Here his insistence on the notion of guilt becomes more troubling, as he makes a direct link between the payment of money and the expiation of that guilt. For example, he compares the Swiss response to that of other European countries tainted by their actions during World War Two:

The Swiss were prouder of their moral regime and humanitarian history than most countries and could therefore be pressured to act morally. Switzerland is also generally richer, so restitution and compensation can be demanded from them more easily than from former Soviet bloc countries. The international magnitude of the guilt made comparisons possible, but in the long run, how much was owed – how much a country was to repent – was mostly a national decision.

Later, he says that restitution is not intended to lift the burden of victimisation, but to formalise the identity of the victims. And the ‘more generous the restitution, the more validated the victims’ deprived position’ – which leads one to wonder whether his repeated references to the ‘moral economy’ of a nation are not sometimes meant literally.

As for Native Americans, the success of certain restitution claims is, apparently, to be found among groups now enjoying considerable material wealth. One such story is that of the Pequots in Connecticut, whose slot machines and blackjack tables generate more than a billion dollars annually. With no obvious irony, Barkan observes that the new political power of Native Americans can be seen in the success of a 1998 proposition to legalise additional gambling in California. Such victories may well be important in a particular group’s political evolution, but it is far from clear that they benefit Native Americans more generally, or have any effect at all in terms of recognising the culpability of the US in the treatment of its indigenous population.

There is, of course, nothing unusual in paying compensation to redress a wrong. Much of the energy spent in the cases documented in The Guilt of Nations has come from litigiousness on the model of the US, notorious for its capacity to quantify any and all loss in dollar terms. For the most part, Barkan deals sensitively with the question of what compensation means to the victim – the material need for it in some cases, the less tangible need for recognition in others. When he turns to the party paying the money, or transferring the property, however, he frequently gives the impression that restitution is something more than a mechanism for giving legal or financial substance to a political decision, equating it with the new ‘international morality’ that he claims to have identified. But in each of his case studies, restitution (in its various forms) followed, rather than drove, a political shift. At best it can provide the terms of reference for a debate, but the right incentives have to be in place for such a debate to be opened in the first place.

This is nowhere made clearer than in Barkan’s chapter on the debate over what restitution might be made to African Americans as victims of slavery. During the Civil War, legislation to confiscate the land of slave-owners and distribute it in 40-acre parcels to freed slaves was introduced in Congress. Though implemented in part by General William Sherman in respect of the former slaves who had fought under him, this early gesture towards restitution was ended by President Andrew Johnson in 1869 and has been the subject of bitter jokes ever since. Looters in urban riots a century later claimed their loot was their 40 acres, promising to ‘be back for the mules’.

In relation to other claims, Barkan stresses that the amount of money claimed must be substantial enough to be taken seriously; but when it comes to slavery, efforts at estimating the magnitude of the sum that might be paid to the descendants of slaves are dismissed here as an ‘obsession’. Certainly, claims such as that made by the Vice-President of the self-styled Provisional Government of the Republic of New Africa, Kwame Afo – to the amount of $4.1 trillion – are unlikely to bear fruit, but it is hardly their scale that makes ‘reparation politically inconceivable’ or places it ‘in a political fantasy land’.

Elsewhere, Barkan observes that ‘building on a willingness to turn … guilt into political recognition and on the perpetrator’s need for the victim’s approbation, the discourse of restitution turns this acceptance of guilt into a political tool.’ This seems closer to the mark, but it elides the most important question in the politics of restitution: why some issues get on the agenda when others do not. Why is it that Jews and, to a lesser extent, Japanese Americans are the groups that have ‘profited’, whereas Native Americans and African Americans have not?

It is no coincidence that much of the pressure that led to the setting-up of the Swiss fund for Holocaust victims came from New York, not least from politicians anxious to court Jewish votes. Similarly, Barkan documents the elaborate politicking that brought Japanese claims onto the national agenda. His chapters on Native Americans and slavery, by contrast, suggest but do not analyse the relative powerlessness of these groups to press their claims effectively. Native Americans have had some minor successes because they retain a coherent cultural identity in American political life (however caricatured that identity might be); African Americans do not even have that. It might be argued that some claims are simply stronger than others – it is, for example, easier to prove and quantify the effects of an ongoing loss of land (Native Americans) than it is to prove and quantify the effects of one’s great-grandparents having been enslaved. But this does not explain the failure to compensate Gypsy victims of the Holocaust. Barkan mentions them in passing on three occasions, noting merely that they suffer continued discrimination and are unlikely to profit from restitution. As he acknowledges in the book’s conclusion, almost ruefully, ‘restitution obviously is not always on the side of the weak victims, some of whom never attain seats at the table.’ These seating arrangements are a crucial test of whether ‘world morality – not to say, human nature’ – has indeed changed.

The attempt at analytical coherence in the conclusion merely underscores the fact that Barkan’s book is not so much a theory of restitution as an ill-formed history of it, and one which overestimates its virtues. The book’s main strength is its sporadic examination of the political processes that precede acts of restitution.

Which returns us to John Howard’s rejection of the ‘black armband’ view of Australian history. Wags on the intellectual Left have derided the Prime Minister’s position as an alternative ‘three cheers’ view, but his refusal to admit guilt for things that his Government did not do makes more sense if one adopts a strict definition of the term ‘guilt’. Howard made this clearer in a lecture in November 1996: ‘I do not exclude or ignore specific aspects of our past where we are rightly held to account. Injustices were done in Australia and no one should obscure or minimise them. But in understanding these realities our priority should not be to apportion blame and guilt for historic wrongs but to commit to a practical programme of action that will remove the enduring legacies of disadvantage.’

Where he goes wrong, however, is in equating an apology with an admission of guilt in this strict sense. As The Guilt of Nations shows, an apology often serves as a catalyst for change, for movement towards reconciliation. It is not an admission of guilt, but a taking of responsibility for one’s past. Such an acceptance forms the basis for any kind of restitution, but, as Barkan shows almost despite himself, it is rarely entered into voluntarily. In many cases it is very clearly a transaction, in which one party is granted some degree of absolution in return for granting money or property or political rights to the other.

But the apology must come first, establishing the political conditions for anything that might follow. And here Howard is wrong again to equate the making of an apology with a lack of pride. To express shame about elements in one’s history is not the same as expressing shame about the whole of it. On the contrary, it is difficult to see how one can claim to take pride in selected aspects unless one also takes some responsibility for its less ‘heroic’ aspects, a point made by one of Australia’s more prominent Aboriginal activists, the lawyer Noel Pearson:

We need to appreciate the complexity of the past and not reduce history to a shallow field of point scoring. I believe that there is much that is worth preserving in the cultural heritage of our dispossessors as a nation, the Australian community has a collective consciousness that encompasses a responsibility for the present and future, and the past. To say that ordinary Australians who are part of the national community today do not have any connection with the shameful aspects of our past is at odds with our exhortations that they have connections to the prideful bits. If there is one thing about the colonial heritage of Australia that Indigenous Australians might celebrate along with John Howard it must surely be the fact that upon the shoulders of the English settlers or invaders – call them what you will – came the common law of England and with it the civilised institution of native title. What more redemptive prospect can be painted of our country’s colonial past?