Taking Apology Seriously

Summary

“Reparations cannot be deprived of their great historical meaning, to overcome private revenge and attain public justice. What we witness today, the reductionist approach that tends to assimilate them to mere pecuniary compensation… for damage suffered, in my view constitutes a regrettable distortion of their true meaning.”

Judge A. A. Cancado Trindade

INTRODUCTION

A Seattle newspaper in 2004 published an editorial headed ‘Apology is fine, but justice is better.’ In this simple but compelling phrase, it conveyed the notion of a dichotomy between apology and justice and implied that it might be possible to have one or the other, but not both. The editorial, which reflected on the US Government's response to the land claims of Native Americans, epitomised the weary cynicism felt by some observers about the ‘age of apology’ into which we are now said to have entered. It rightly emphasised the need to be alert to and wary of attempts to conceal or dress up in fine words the perpetration of further injustice against those already wronged. Nevertheless, there is no necessary dichotomy between apology and justice. Indeed, for some victims of injustice, contemporary and historic, individual and collective, apology forms an essential ingredient of the justice sought.

In the law of state responsibility, an apology from one state to another for an internationally wrongful act is an established form of reparation. Its capacity to prevent the escalation of conflict between nations and to ensure that wrongs committed by one nation against another do not fester is apparently accepted with little difficulty by international lawyers. The role of apology as a form of reparation for violations of human rights and international humanitarian law, however, is relatively poorly established and receives little attention from international courts and tribunals, practising international lawyers or international law academics. This chapter considers whether more can and should be done to promote apology as a form of reparation for human rights violations and crimes under international law. It argues that it is time for international lawyers to take apology seriously.

In some national legal systems, the importance of apology has long been recognised. In their fascinating and insightful piece of comparative law scholarship published in 1986, Hiroshi Wagatsuma and Arthur Rosett observed that ‘a basic assumption in Japanese society’ seemed to be ‘that apology is an integral part of every resolution of conflict’.