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is published by Princeton University Press and copyrighted, © 2000, by Princeton
Edited by Robert I. Rotberg and Dennis Thompson: Truth v. Justice
I
Truth Commissions and the Provision of
Truth, Justice, and Reconciliation
R O B E R T I . R O T B E R G
“Never again!” is a central rallying cry of truth commissions, and one about
which perpetrators and victims can agree. The notion of “never again” captures
the response of societies that are recovering their own equilibria, their own
dignity, and their own sense of integrity. Truth commissions are intended to
be both preventive and restorative.
But if societies are to prevent recurrences of past atrocities and to cleanse
themselves of the corrosive enduring effects of massive injuries to individuals
and whole groups, societies must understand—at the deepest possible levels—
what occurred and why. In order to come fully to terms with their brutal pasts,
they must uncover, in precise detail, who did what to whom, and why, and
under whose orders. They must seek, at least, thus to uncover the truth—
insofar as this aim is humanly and situationally possible after the fact.
Truth commissions generally are created after a totalitarian/authoritarian
regime has been succeeded by a democratic one. Sometimes the transition is
preceded by civil and economic war bolstered by world public opinion, sometimes
by invasion, and sometimes when societal revulsion overwhelms a military
junta, a minority dictatorship, or strong arm pseudodemocrats. Massive
human rights violations usually accompany such arrogations of power. The
mandate of the successor regime is to establish or revive democracy and to
prevent any resumption of human rights abuses. It also seeks to reconcile the
old and the new, and to move forward in effective harmony.
Truth commissions thus seek, whatever their mandate from a new government,
to uncover the past in order to answer questions that remain unanswered:
What happened to husbands, sons, wives, and lovers at the hands of
the ousted regime? Who gave the orders? Who executed the orders? What was
the grand design? Who benefited? Getting the facts provides closure, at least
in theory. Making it possible for perpetrators to be confronted by victims and
the heirs of victims (as in the South African and Guatemalan cases) can provide
further closure. In societies as disparate as Argentina, Bosnia, Cambodia,
Cyprus, El Salvador, Guatemala, Haiti, Nigeria, South Africa, and Sri Lanka,
and now in Sierra Leone and Kosovo, there is a natural, consuming desire to
elicit as complete an accounting as possible of how people disappeared, how
4 C H A P T E R I
they were assassinated, how and why they were flung from airplanes above the
Atlantic Ocean, and how and why they were slaughtered in groups and tossed
into unmarked graves.
There are the clinical commissions that have tried to discover precisely what
happened to persons who vanished during a “dirty war” organized by the defeated
regime. They have largely taken testimony behind closed doors and
published as accurate a recounting as possible given their constrained circumstances
and resources. Sometimes, publication has been delayed or avoided, as
in Sri Lanka for some months and in Haiti, for all practical purposes, indefinitely.
In several of those cases, especially in the earliest truth commissions,
there has been little attempt to go beyond the bare facts—to examine
the moral and historical underpinnings of the crimes committed. It has been
enough to answer specific questions rather than to affix societal blame. Some,
however, have done neither; Haiti’s Si M Pa Rele, its National Commission for
Truth and Justice, is the prime example.
Those more circumscribed and limited commission efforts reflect both the
previous paucity of experience with the truth commission method, and also
the bargains struck, as in Guatemala and El Salvador, and in adverse or better
than adverse circumstances between an outgoing regime and its successor or
between modern governments and human rights watchdogs. Most of the commissions
that were formed later had broader mandates and extensive goals.
They have sought more than an accounting, and something closer to an approximation
of a full truth, about the chain of circumstances that resulted in
massive human rights violations, and how each individual atrocity fitted into
a carefully constructed mosaic of guilt. These more ambitious commissions
have tried to apportion that guilt, both to those who attacked others individually
and to those who authorized the dastardly acts by direction or indirection.
Ultimately, these commissions wanted to understand the structure of previous
abuse, and the extent to which it could be articulated.
The Guatemalan three-man Commission on Historical Clarification
(1997–1999) was prohibited from naming names and from apportioning
blame directly. Yet the nine-volume report of the United Nations–backed
Guatemalan commission found the army responsible for more than 200,000
deaths and disappearances during thirty-six years of civil war. It documented
626 massacres perpetuated by the army and 32 by its opponents, and labeled
the military actions genocide. By so doing, the commission nullified a 1996
blanket amnesty that banned prosecution for all other crimes.
South Africa’s Truth and Reconciliation Commission (TRC) is the prime
example of a commission with a mandate much broader than that of Guatemala’s,
extensive goals, and a comprehensive vision of how such an effort can
prevent future conflict and ensure that “never again!” becomes a societal reality.
A book examining the nature of truth commissions inevitably must focus
largely (but not exclusively) on the new standard-setting model of the practice.
T H E P R O V I S I O N O F T R U T H 5
The TRC, though flawed in many ways, has set a high standard for future
commissions.
The importance and rationale of the TRC must be understood in the context
of apartheid. The rigid, legalized segregation of South African apartheid
began in 1948 when the National Party (led and participated in largely by
Afrikaners) won a narrow victory and proceeded to legislate against the vast
African majority, against Communism, and against all forms of dissent and
disagreement with the political aims of Afrikanerdom. Basic human rights
were discarded. Terror gradually became perfected as an instrument of state
control. For all Africans, coloureds, and Indians, and even for some white
liberals, National Party rule was arbitrary and autocratic, obviously discriminatory,
and mean. The police state that was created was supported by atrocities
and brutalities equal to if not exceeding those on the other side of the Atlantic
Ocean.
After the tyranny of apartheid was removed in 1994, and Nelson Mandela,
a long-time prisoner, became the new South Africa’s first president, Parliament
was established, and he appointed (in 1995) the Truth and Reconciliation
Commission to discover the dark facts of apartheid, to report them to
South Africa and the world, and to trade amnesty, where necessary, for information.
The TRC grew out of an elaborate political compromise that rejected
the outgoing regime’s demand for blanket amnesty and no retribution in exchange
for a mechanism (the TRC) that could grant amnesty for political acts.
The origins of the commission are discussed more fully below, in chapters in
this volume by Alex Boraine and Dumisa Ntsebeza. They are two among the
seventeen original members of the TRC, chaired by Anglican Archbishop
Desmond Tutu. The TRC’s report, published in 1998, is discussed by nearly
all of the contributors, but especially by Wilhelm Verwoerd and Charles VillaVicencio,
two of its authors.
Whereas the first commissions (Uganda, Bolivia, Argentina, Zimbabwe, Uruguay,
the Philippines, Chile, and ten or so more) dared not hear testimony in
public for fear that it might be too inflammatory or arouse retaliation from the
ousted military officers (who were still around) or their patrons, the South
African commission not only insisted on public as well as private testimony,
and the public interrogation of accused perpetrators by victims as well as prosecutorial
figures from the commission’s staff, and by the commissioners themselves,
but it also went a step further and permitted press and television
reports. Widely disseminated verbatim accounts became the content of an ongoing
national drama. Rather than having a distilled version of what had occurred
in past times summarized in a commission report, and then released,
the South Africans were (with very few exceptions) totally transparent. Their
activities educated the new society directly, well before its official findings
could be presented to parliament and the president.
6 C H A P T E R I
Truth could thus be affirmed by individuals across the land as well as by
commissioners. The story of the past could not therefore be just one story, but
a million perceptions of what had been revealed before the commission and
argued back and forth between those charged with revealing what and why,
and the victims, who wanted nothing but the full truth. The South African
version of a commission empowered a popular understanding incrementally,
rather than comprehensively by polished summary. Moreover, in this way, the
new society was able to begin continuously to reconstruct itself—in terms of
what it had gone through and how it was going to cope with its travails. As the
South African TRC itself learned more and more, it could peel back layer after
layer of apartheid atrocity. The report of the TRC, said a commissioner, could
“not tell the story of apartheid as a whole, but only the story of its abuses of
bodily integrity.”1
The TRC’s hearings could slice closer and closer to the bone
of terror and inhumanity in a way that the more limited commissions in El
Salvador or Haiti never could.
The South African commission has become the model for all future commissions,
which is why the chapters in this book examine the experience of the
TRC much more fully than they do commissions elsewhere. But this book is
about the theory of truth commissioning as well as its practice. It is about the
tensions between truth and justice, about the prevention of future conflict
through truth commissions, about reconciliation in postconflict situations,
about knowledge as opposed to retribution, about victim’s as well as perpetrator’s
rights, and about societal restoration.
There is a strong sense that a society can move forward only after it comes
to terms with its collective angst. In the South African case, that meant dealing
with outrages committed by whites against Africans, Africans against Africans,
Africans against whites, and the African National Congress (ANC)
against its own members, as well as with whites coming to terms with the evils
of apartheid, perpetrated over more than forty years, with blacks primarily the
victims. Tutu asked whites to apologize and take responsibility for their actions
during apartheid. Is there no leader of “some stature and some integrity
in the white community,” he asked in a statement released to the press, who
will admit that the whites “had a bad policy that had evil consequences?”2
“Moving forward” and “coming to terms with” are figures of speech that
provide the rationale for most truth commissions. There is an assumption that
a society emerging from an intrastate cataclysm of violence will remain stable,
and prosper, only if the facts of the past are made plain. Critics, including
several contributors to this book, question that assumption, suggesting that
the “truth” that a commission may uncover can only be tentative. Additional
truths, they argue, will emerge by encouraging conflict and controversy, not by
establishing one truth and declaring consensus. Continuing moral controversy
is desirable in a democracy, and fact-finding in the service of reconciliation
must take that goal into account.
T H E P R O V I S I O N O F T R U T H 7
The rationale for truth commissions, nevertheless, is that the inexplicable
should be understood, that actual murders and murderers will be unmasked,
that unmarked graves will be located, and, for example, that the bizarre attempt
to poison apartheid’s opponents will be revealed. As contributors to this
book imply, proper remembrances fulfill the collective needs of badly damaged
societies. There is too much injury to individuals and nations. Forgetting reinforces
losses of self-esteem among victims and even among victims as a group.
Truth commissions exist because of political compromises, in South Africa’s
recent case as a substitute for the broad amnesty that the outgoing regime
wanted, and could not get.3
But commissions also exist because society
is unwilling to forgive and forget, refusing to move on without confronting the
repression of its precursor generation. Those who advocate dispensing with
truth commissions and simply moving on after a massive regime change argue
that the kinds of confrontation engendered by the commission process only
make societal tensions more palpable. Opening the old wounds, they argue,
harms rather than helps beneficially to reconstruct a society in transition. By
this logic, the truth commission process retards reconciliation. Indeed, a society
cannot forgive what it cannot punish.4
Thus, the prevailing assumption
that postconflict reconciliation is both desirable and possible, as well as necessary,
may be incorrect. Similarly, some wonder wisely whether the approach to
reconciliation that most of the contributors to this book support may be culturally
specific; South Africa may have special qualities that differentiate its
potential for reconciliation from a society like Sri Lanka, where a bitter seventeen-year
civil war continues.
Most commissions have not tried to reconcile the old, which oppressed,
with the new, which enshrines democracy. But the Chilean commission did,
and the South African version had as its primary mission the seeking of reconciliation
through acquiring and displaying the truth, and, in its chairman’s
religious design, requesting atonement. Thus, for him and for the other commissioners,
uncovering the facts—the truth—of the past was a necessary if not
sufficient stage that could prepare the new South Africa to be reconciled, and
whites and blacks to be reconciled to one another.
Reconciliation may or may not prove possible in the aftermath of an apartheid-riven
society. But the TRC operated as if it were, and as if retailing the
truth of the deepest machinations of apartheid—the culpability of its highest
leaders and its mad-doctor schemes of biological and chemical warfare—
would somehow set South Africa free to forge a successful multiracial society.
To meet those goals—to encourage the kinds of testimony that would reveal
apartheid at its moral worst—the TRC had to find a way to compel the real
culprits to come forward and confess. Amnesty was the result, as the postamble
to the interim constitution prefigured: perpetrators, black and white,
would receive perpetual immunity from prosecution if they testified fully and
candidly about their terrible deeds and if they could demonstrate (by the loose
8 C H A P T E R I
standards that the TRC used pragmatically) that their crimes were political;
that is, that they served political ends or were motivated by political beliefs.
Because the South African TRC is the latest and the grandest example of
postconflict truth seeking, it is critical to inquire to what extent truth can be
acquired by such means. Can justice in its several forms be served equally well?
Would standard forms of prosecution be preferred? Does the amnesty process
satisfy various criteria for justice? Does it distort the trial system that societies
usually use to punish transgressors and prevent evildoing? Assuming that reconciliation
is both desirable and possible, does the truth commission method,
with its transparency and attendant publicity, retard or advance the process?
How can commissions achieve these goals through the processes of their constituted
endeavors and activities, and through the medium of a published
report?
Such questions form the core of this book’s combined philosophical and
pragmatic inquiry. Gutmann and Thompson’s chapter raises a central objection
to the truth commission endeavor: truth commissions, they write, “sacrifice
the pursuit of justice as usually understood for the sake of promoting
some other social purpose such as reconciliation.” But “trading criminal justice
for a general social benefit . . . is, and should be, morally suspect.” Indeed, if
the moral case for truth commissions in a democratic society is to be made it
must satisfy three critical criteria: It must (1) substitute rights and goods “that
are moral” and equivalent (or “comparable”) to the justice foregone; (2) be
broadly inclusive so as to foster social cooperation among all citizens who have
legitimate claims on the society being reconstructed; and (3) be “moral in
practice,” and intimately connected to the democratic ethos of the successor
government so that the retribution being sacrificed can be appreciated in terms
of the realization of specific, not general, forms of societal benefit.
Gutmann and Thompson assert that the mere stability of a successor government
would not satisfy the first criterion, with its emphasis on moral goods.
Such social stability only becomes morally relevant when it is part of a new,
just dispensation or can be shown to promote justice in the future. Those who
defend truth commissions therefore must distinguish moral justifications from
the interests of individuals or groups.
The second criterion in their scheme does not mean putting such justifications
to a referendum. Rather, there is the test of reason. Gutmann and
Thompson want truth commissions to be accessible and inclusive, and they are
prepared to take into account the previous history of the country and the
conflict, with its critical legacy of injustice. Likewise, the third criterion cannot
be satisfied by even a fully moral critique of contemporary violence and injustice
for the sake of future peace. The commission is justified best that functions
in the democratic spirit of the government which it serves.
Gutmann and Thompson, conscious as they are of the postamble that certified
an important political compromise, insist that a political compromise is
T H E P R O V I S I O N O F T R U T H 9
not necessarily a moral compromise. Providing for amnesty satisfied political
needs, not moral ones. What is needed to transform a purely opportunistic,
pragmatic political decision into a morally defensible one is the approach that
Tutu has articulated so consistently: that criminal justice may be sacrificed for
the greater moral justice of enduring societal harmony. This is the restorative
justice about which Elizabeth Kiss writes in another chapter of this book.
Tutu also wanted forgiveness and atonement. But those human accomplishments
may not be sufficient, morally, to substitute for criminal justice.
Forgiveness erases wrongdoing, which has the effect of submitting to evil.
According to David Crocker, another chapter’s author, “It is morally objectionable
as well as impractical for a truth commission . . . to force people to
agree about the past, forgive the sins committed against them, or love one
another.”
Rajeev Bhargava assesses these and other objections to forgiveness. He asks
if forgiveness is morally appropriate, and suggests, in any event, that truth
commissions cannot bear the burden of bringing about forgiveness by individuals.
To forgive is not always appropriate or virtuous. It must, Bhargava concludes,
be “consistent with the dignity and self-respect of the victim.”
Societal reconciliation is of a different order. Indeed, Gutmann and
Thompson claim, “reconciliation is an illiberal aim” if an entire society is expected
to embrace one comprehensive moral approach. It is undemocratic,
too, for disharmony is desirable and an attribute of a healthy democracy.
A further test of the truth commission method is the extent to which it serves
the reciprocal requirements of deliberative democracy. To do so it must practice
the democratic principles of the society that a commission is attempting
to create. It must share its own views, which the TRC through Tutu has done,
with citizens broadly and transparently. Providing a final report that spoke to
the entire society also advanced this goal of reciprocity. Unlike a trial, or a
series of trials, a truth commission report can express the range of behavior
that society needs to judge and condemn, and to which it needs to be reconciled.
If it does all that it can do to satisfy such moral criteria, then the goals
of societal justice may be satisfied.
The TRC found that the state committed gross violations of human
rights, including many of criminal nature. It condoned the extrajudicial killing
of political opponents, and colluded with the Inkatha Freedom Party
and others. The highest levels of the apartheid regime were responsible for
these crimes. Although the “predominant portion” of the gross violations
was perpetrated by the state and its agents, the African National Congress
(ANC) also blurred the distinction between military and civilian targets. It
tortured and killed alleged defectors and collaborators, and thus committed
its own gross violations of civil rights. The TRC report named many names,
and pulled few punches.5
It also uncovered evidence of secret biological,
10 C H A P T E R I
chemical, and weapons experiments; the TRC exposed South Africa’s Operation
Coast, for instance, which tested biological and chemical weapons on
troops from Mozambique and tried to invent infertility drugs to give to
blacks only.
Bhargava’s essay focuses on restoring a society’s norms of basic procedural
justice. A truth commission does so by discovering grave past injustices and by
encouraging perpetrators to confess to their responsibilities. Only through
those means, Bhargava suggests, can a defeated barbaric social formation gradually
be transformed into a minimally decent society. That is the overriding
objective of a truth commission. Morality flows from the restoration of confidence
in procedural justice.
Bhargava’s essay distinguishes between barbaric social formations that are
asymmetric, where a controlling political group generates evil, and symmetric
ones, in which social and political evil is produced collectively by an entire
society. The second kind of barbaric social formation is profoundly amoral.
The first, where a dominant group violates norms and the rest of society seeks
to enforce the rules of procedural justice, is much more promising. It is particularly
promising when the dominant group, despite its massive system of evil,
still honors the intent of procedural justice, if more in the breach than in
practice. When the dominant group is ousted, procedural justice needs primarily
to be restored, not introduced (as it would be after a period of societal
collapse and amorality).
For Bhargava’s analysis, it is essential that the distinction between perpetrators
and victims is fully acknowledged by truth commissions. If not, truth
commissions will find it almost impossible to help transform a traumatized,
postconflict society into a minimally decent society. Nor would they be able to
help societies stabilize a system of basic procedural justice, which must be a
critical objective.
Kiss’s chapter affirms truth commissions as a modern instrument capable of
strengthening civil society and providing restorative justice. Because they are
simultaneously investigative, judicial, political, educational, and therapeutic
bodies, they can pursue morally ambitious ends of profound value to a transitional
society. Indeed, their moral ambition makes truth commissions politically
innovative. At the heart of this innovation is a concept of justice that is
survivor or victim centered, not retributive. It has been praised for being
“moral, cultural, psychological, and human rather than . . . solely legal or instrumental”;
in short, “the creation of a nation.”6
Restorative justice emerges from this desire to create a new nation—the
desire to reconstruct a just society. Punishment alone for perpetrators, in accord
with prosecutions and the requirements of an arms-length criminal system,
hinders the achievement of restorative justice. The better path, the believers
in restorative justice suggest, is forgiveness and reconciliation preceded
by an accounting of violations, a confronting of perpetrators by victims, repa-
T H E P R O V I S I O N O F T R U T H 11
rations, and a continuing emphasis on personal motivations and transformations.
It is the individual-centered approach of the best truth commissions that
contributes meaningfully to restorative justice.
Truth commissions, Kiss asserts, provide a mechanism to do justice to and
to acknowledge that there were victims and perpetrators on more than one
side. Commissions can be used in promising ways to advance beneficent societal
goals despite competing narratives of oppression, and bitter, if opposite,
memories of evil. If the goal is to reorient a society that has lost its moral way,
truth commissions are more supple and constructive than criminal trials or
forms of lustration (the banning of perpetrators from public office). There is
positive value in what truth commissions seek, especially those like the
Argentinean, the Chilean, and the South African versions—where the explicit
goal was to restore a just society.
Crocker’s transitional justice, like Kiss’s restorative justice, is general and
expansive. Rather than confining transitional justice to penal or retributive
justice, Crocker employs transitional justice to encompass compensatory and
distributive justice. Wisely, he suggests that the challenge for a new democracy
is to respond effectively to past evils without “undermining the new democracy
or jeopardizing prospects for future development.”
Crocker judges the extent to which truth commissions actually serve transitional
justice by how well they ferret out the truth, provide salutary platforms
for victims and their kin, sanction violators effectively (a weakness of Guatemala’s
Historical Clarification Commission), uphold and strengthen the rule
of law (critical if the new society wants to distinguish itself from the authoritarianism
and institutionalized bias of the outgoing regime), compensate victims
through reparations collectively or individually, contribute to institutional
reform and long-term national development, reconcile the defeated
with the victorious, and foster public debate leading to publicly acceptable
compromises.
André du Toit’s concept of transitional justice includes truth as acknowledgment
and justice as recognition, together providing a coherent alternative
to retributive justice. With victims’ hearing as a central focus, du Toit suggests
that the TRC’s form of transitional justice passed moral tests. Differing with
Gutmann and Thompson, du Toit avers that moral determination should depend
on context; the compromise that was represented by the TRC was justified
by postapartheid needs and circumstances.
Chile’s special commission compensated the survivors of human rights
abuses and the families of victims. The South African TRC’s Reparation and
Rehabilitation Committee recommended to Parliament who should be compensated,
and by how much. But President Thabo Mbeki said that funds were
short, and the provision of financial recompense became unlikely. One of the
three Sri Lankan commissions of inquiry devoted almost all of its efforts to
deciding whom to compensate, and by how much. The principle, which
12 C H A P T E R I
Crocker supports, is that the truth commission process is complete only when
victims obtain financial redress as well as knowledge (“truth”), and a moral
sense of completion. Reparations and compensation strengthen the rule of
law, reconciliation, and the overall process of institutional reform. Martha
Minow feels even more strongly: no long-term vision of social transformation
is possible if the need for reparations (such as monuments, parks, and renamed
buildings as well as cash) is ignored.
Crocker examines the contribution of national and international civil society
(transnational nongovernmental organizations for the most part) to the
effective accomplishment of transitional justice. The experiences of Honduras
and Guatemala, where civic groups succeeded only partially in influencing
their nations’ postconflict attempts to come to terms with human rights
abuses, were very mixed, but Crocker argues that a well-informed international
or globalized civil society (including agencies of the United Nations,
which Crocker assesses) will increasingly reinforce the work of truth commissions
in preventing future intrastate conflicts. Never again! will become a
greater reality because of the attention of international civil society.
Boraine, the deputy chairman of the TRC and one of those who originally
advocated using an elaborated form of the Chilean commission model to deal
with South Africa’s “unfinished business” in the aftermath of apartheid, argues
for a wide-ranging, powerful, and public investigatory commission capable of
extraordinary truth-telling and truth-finding. Creating such a body made it
possible to contemplate restoring the nation’s moral order, profoundly jeopardized
as that order had been by abuses of the rule of law and of fundamental
human rights. An attempt by the incoming ANC-led government to hold
Nuremberg-like trials would have antagonized any hope of a peaceful transition.
(Ntsebeza, another member of the TRC and its chief investigator, also
develops this argument in his chapter.) Granting the agents of apartheid a
blanket amnesty would have infuriated the long-oppressed majority. Establishing
a TRC was an available middle course, and one advocated by important
sections of civil society; indeed, only such a forum could provide a collection
of individual, but carefully investigated, amnesties. No other method could
have legitimized the amnesty or forgiveness process that was essential, Boraine
and others argue, if South Africa were to move peacefully from war to peace.
Hence the postamble (recognizing the political compromise that overcame
apartheid) and the adding of reconciliation to truth as the commission’s
mandate.
Boraine argues that deeply divided societies cannot rely on punishment to
heal and reconcile their several communities. He and Ntsebeza explain what
the South African Parliament intended by reconciliation and the development
of national unity: understanding not vengeance, reparation but not retaliation,
and humanness not victimization. The nature of the TRC’s hearings were
intended to achieve those goals; its final report (as Villa-Vicencio and Ver-
T H E P R O V I S I O N O F T R U T H 13
woerd make clear) was shaped with that same intent in mind. Boraine believes
that acquiring a series of individual truths can contribute to the healing process,
albeit partially.
In contrast to most other truth commissions, the manner in which the idea
of a South African commission was advanced as an alternative to a potentially
costly and inconclusive war crimes tribunal, the nature of its mandate and
procedures, and the character and composition of its members were decided
upon democratically. Other commissions were presidentially appointed and
were composed (as in the Chilean case) by leading figures from the old regime
as well as the new.
In South Africa, civil society played a large role in composing the commission
and its mandate; Parliament, not a president or prime minister, authorized
the TRC. Its striking structure and many goals were mandated by an act
of Parliament. Its committees—Human Rights (the one that held hearings
and made most of the headlines), Reparation and Rehabilitation, and Amnesty—and
their functions were laid down in the act. So was its public nature,
its powers of subpoena (which the TRC used sparingly), and the procedures by
which amnesty could be granted by the committee that subsequently developed
into a specialized commission of its own and was not expected to conclude
its work until the end of 2000.
Amnesty was never intended to be easily accessible. It was available in South
Africa for individuals only; applicants were required to make full disclosure
during open hearings. A long list of qualifications limited the consideration of
amnesty only to those whose motives and objects were political and subject to
the approval of, or were committed at the behest of, a political body. Boraine
and others argue that amnesty was the price South Africa had to pay to achieve
a peaceful transition and to achieve a “limited” form of justice—to obtain a
series of revelatory truths for victims and kin of victims. Ntsebeza says, indeed,
that there was no other way. Likewise, in Brazil, Rwanda, and other countries
that were at one time overwhelmed by atrocity, it may be impracticable on
multiple grounds to prosecute. For retributive justice to have worked for victims,
evidence would have been needed, and only through the amnesty procedures
could that evidence have been developed.
“The really big maggots are beginning to come out from beneath the
stones,” exclaimed the husband and father of two victims of apartheid letter
bombs in Angola.7
Like so many relatives of victims, he preferred retribution,
but he also appreciated that persons like himself would have been unlikely to
have learned how and why their loved ones were killed by agents of the old
South African state without the availability of amnesty. In these late 1998 and
1999 hearings before the Amnesty Committee of the TRC, several of the
more mendacious South African operatives sought idemnity from prosecution
in South Africa and, if they could achieve it, protection from extradition to
Britain, Angola, and Mozambique.
14 C H A P T E R I
Demanding truth for amnesty, as did the TRC, is suspect because the confessed
guilty go unpunished, and in the case of the killers of Amy Biehl, an
American Fulbright student, go free retrospectively.8
When the TRC’s amnesty
committee granted amnesty to four ANC activists who had killed a black
Bophuthatswanan policeman in 1986, the committee said that the applicants
had fulfilled the two main conditions for amnesty: “telling the truth and proving
a political motive.” But in the case of the two whites jailed for killing Chris
Hani, an ANC leader, in 1993, the committee ruled that they had failed to tell
the whole truth and had acted without the authority of their political party.
They did not have the necessary “political mandate.” Jeffrey Benzien, a confessed
apartheid torturer who demonstrated his “wet bag” methods to the
TRC, was pardoned for several murders. Eugene de Kock, involved in 107
cases of murder, torture, and fraud, and serving a 262-year sentence in a highsecurity
prison, was among the last to plead for amnesty, and an escape from
incarceration and future punishment. Even he was given an amnesty for some
of his crimes, but remains imprisoned for many others.
“It stinks to high heaven,” said a prominent black editor of the amnesty
process. “To imagine that after confessing, these people who committed the
more horrendous crimes will then be patted on the shoulder by the TRC,” he
complained. Indeed, the editor went on, “The TRC is a denial of justice.
Without justice, how can the victims feel healed?” For Boraine, forgiveness
was preferable to trials that would not only have been costly but could have
caused further division in society. “There was no victor and vanquished,” he
reminded. “Is it not a better alternative,” he asked, “to deal with the past
through the means of a commission which has a limited life . . . and move
forward into the future?”9
“We know the decisions are going to upset a lot of
people,” a spokesman for the amnesty committee said about rulings that indemnified
torturers and killers of Africans, “but we really don’t have a choice.
It is part of the process of reconciliation.”10
Truth for amnesty is said to achieve justice through reconciliation—an “enriched
form of justice.” But is this special pleading? According to Christian
Tomuschat, coordinator of Guatemala’s commission, “no one can today insure
that [the] immense challenge of reconciliation through truth can be met
with success. In order to do so, the historic facts must be recognized and
assimilated into each individual consciousness and the collective conscious-
ness.”11
If amnesty is allowed, the common conception of justice is subordinated
to future-oriented societal moral considerations. Gutmann and
Thompson remind us that whatever the claims for an enriched form of justice
(e.g., strengthening democratic institutions), there is a moral cost that is significant.
It is a cost that the families of Steve Biko and Griffiths Mxenge,
murdered by the apartheid regime, have paid. The justice that comes with
punishment of perpetrators has been denied them (despite their strenuous
protests). Gutmann and Thompson also suggest that a genuinely moral com-
T H E P R O V I S I O N O F T R U T H 15
promise implies no blanket amnesties, a condition that the TRC’s Amnesty
Committee breached in one notorious decision that was subsequently overturned
by South Africa’s High Court.12
Ronald C. Slye supports amnesty as a tool for increasing both the quantity
and the quality of information available about the past and its abuses. The
South African example is unusually important, he says, because of the innovative
nature of the amnesty procedure introduced by the TRC; Slye calls it the
most sophisticated ever undertaken for violations of fundamental international
human rights. Previously, most amnesties were granted to a cohort, and without
demanding testimony. The TRC offered amnesty only in exchange for full
individual revelations. (However, the TRC could not later revoke that amnesty
if new information were discovered.)
In the search for truth and for individual rehabilitation, the TRC process,
unlike that of earlier commissions, provided many of the advantages of a criminal
trial. Indeed, Slye’s examination of the TRC proceedings found more
participation by the accused than in a typical trial. He also discovered that
despite the absence of the highly developed rules of evidence, procedure, and
proof that govern trials in a Western setting, the quality and quantity of information
collected by the TRC was comparable or superior to that which might
have been produced in a courtroom.
Another advantage of the process pioneered by the TRC, unlike earlier
truth commissions, is that it provided accountability, and thus permitted the
possibility of reconciliation. Applicants for amnesty (there were more than
7,000) had to describe their acts, and those seeking amnesty for the most
heinous violations of human rights had to participate in public hearings and
submit to questions from victims and victims’ families. Amnesty applicants
were compelled to accept responsibility for their actions. In Sri Lanka, families
and parliament refused to accept the amnesty for truth trade-off, and hence
received limited answers to questions about disappearances.
In his essay in this book, Kent Greenawalt also asks, “Is the granting of
amnesty . . . an injustice?” If it is, can the truth commission process justify such
an injustice? Or is it primarily that such an injustice prevents other and larger
injustices? One answer is that there are gains in justice from identifying
offenders, even if some go free. More will be learned that way. Like Slye,
Greenawalt suggests that relying on a truth commission will deliver more justice
than criminal prosecutions. But Greenawalt would not want readers to
assume that every society would experience “more healing” by avoiding criminal
prosecutions. Greenawalt concludes that murderers and torturers do not
deserve amnesty; indeed, amnesty for them is not moral.
Greenawalt reviews the American history of granting amnesties and executive
grants of immunity (mistakenly called pardons), and provides a detailed
checklist of different bases for amnesties. Although political expedience is not
justice, amnesties may be highly political and still serve the ultimate ends of
16 C H A P T E R I
justice. Blanket amnesties are not, however, the best ways to proceed. Moreover,
he says, amnesty is not a failure to convict. It is something more, with
utilitarian results of importance.
Boraine, along the same line, concludes that the truth commission procedure
in South Africa at least “broke” the deathly silence surrounding the grotesque
consequences of the apartheid system. The new nation and thousands
of individuals achieved an important catharsis. Bringing forth truth about
what happened helped to create an open society. In addition to knowledge of
specific acts, there was an acknowledgment of individual and group collusion
with apartheid. Part of “never again!” is the impossibility, thanks to the TRC,
of any South African easily ignoring or dismissing the consequences and
atrocities of apartheid. Fortunately, too, the generous amnesty process limited
renewed victimization and favored forgiveness, thus contributing to the peace
of transitional society, or “stable democratization.” That is true restorative
justice.
Ntsebeza, in his chapter in this book, also focuses on catharsis. The TRC,
he says, restored to victims of gross human rights violations their civil and
human dignity. The truth did set victims and kin of victims free. It also destroyed
a culture of impunity on the part of perpetrators. The public shaming
that came through the open nature of the TRC procedures substituted reasonably
well for penal justice. Exposure is punishment. It is a powerful component
of accountability.
If the goal of healing individuals and society in posttraumatic situations is
elevated morally and practically, Minow suggests, the truth commission
method might be better than the prosecutorial. Litigation “is not an ideal form
of social action.” Trials have procedural pitfalls. If resisting the dehumanizing
of victims is a societal objective, trials are inadequate. Hence, for public acknowledgement
of what happened and who did what to whom, a truth commission
provides a safe and effective setting for explicating the truth. In this
context, the trade of amnesty for testimony (with amnesty’s ability to encourage
the lower-ranking perpetrators to implicate higher-ups) is justifiable.
Trials are assumed to proceed by a strict observance of due process. A serious
objection to the truth commission endeavor is its inability to operate according
to the canons of that process. The chapter of this book that most fully
addresses that issue is Sanford Levinson’s. He cites Chief Justice Earl Warren’s
majority opinion in Hannah v. Larche (1957), which approved the less
than full due process procedures of the U.S. Civil Rights Commission (despite
the dissents of Justices William O. Douglas and Hugo Black, two fierce civil
libertarians), and supported the flexible quality of due process. This resembles
the position advanced by South African Constitutional Court Justices Richard
Goldstone and Albie Sachs at a conference in 1998 in South Africa. They both
agreed with Levinson that truth commissions need not operate like trial courts
T H E P R O V I S I O N O F T R U T H 17
since the objectives of the one differ from the other. Trials might deprive
individuals of life, liberty, or property; truth commissions seek to piece together
the fabric of the past, and thus can operate best—most effectively—
with fairness but without the strict requirements of due process. Truth commissions
could accept hearsay, even if they evaluated it critically. Courts could
not accept it at all.
Levinson also suggests that the granting of amnesties by truth commissions
may be considered a special kind of plea bargain. It absolves a perpetrator of
legal liability for terrible acts if he or she spells out fully and accurately the
extent of the abuse. By waiving their right to a trial, plea bargainers waive their
protection against unfounded accusations, which is what the lack of due process
does in a truth commission proceeding. They also forfeit their right to
counsel, but in that instance as well as one regarding unfounded allegations,
the commissioners themselves can attempt effectively to act to protect the
accused as well as the victims. (The Chilean and Sri Lankan commissions
refused to name names.)
The use of plea bargaining was extended in the twentieth century in part
because of numerical burdens on the judicial process. Hence, if the number of
persons potentially prosecutable is too high, a commission method of examination
is wise. So is a method that gains the most information (the most truth)
with the fewest impediments (but still has safeguards). That is the argument
that Levinson presents; it was widely discussed by an array of lawyers and
jurists at the 1998 meeting.
There is also the question of trauma as a consequence of a truth commission
endeavor. After a detailed assessment of how deep and enduring trauma affects
individuals in situations like apartheid, and how psychologists of such
trauma believe that sufferers can best recover their lives and senses of self,
Minow suggests, in chapter XII, that whereas courtrooms carry memories of
repression, hearings before the Human Rights Committee of the TRC did
not. They created an atmosphere of trust and safety. The absence of adversariality
also assisted. So did the TRC’s public ability to acknowledge a victim’s
pain. (Where the TRC failed, many agree, was in its inability to provide sufficient
counseling; the need to help victims overwhelmed all the resources
available to the TRC.) The TRC proceedings would have failed to provide
restorative justice if they had not been seen to be fair, compassionate, and
far-ranging.
Minow believes that truth contributes more to reconciliation than does justice.
Similarly, she favors final reports that lay out detailed narratives based on
the cumulative testimony of perpetrators and victims alike, not a verdict.
Commissions can express the complexity of events; tribunals cannot. This
process can restore justice through accountability and societal repair, not
retribution.
18 C H A P T E R I
Reports produced by truth commissions follow a process that is less like
those of working historians than are criminal trials. Charles Maier, in his
chapter, affirms historians’ interest in affixing responsibility, which is also the
aim of most trials. Truth commissions are less able than either historians or
jurists to reach an aggregate judgment about the context of societal responsibility,
concentrating as they do on disclosure and contrition. Historians give
protagonists their due by exploring their possible choices. Doing justice and
doing history, Maier says, are akin because they produce a narrative that is
both synthetic and open to conflicting testimony. The narrative is also meant
to be coherent, one that interprets, explains, and records. Trials and historians
focus on causality, and build a case based on a chain of verifiable events. Judges
and historians, at their best, display jurisprudential wisdom.
Truth commissions can also collect materials for a narrative. They may help
render what Maier calls weak retributive justice. It may be emancipatory, but
a truth commission inevitably produces less than history. Historians, he predicts,
will use truth commission revelations of coercion and abuses of power,
but will integrate such truth commission findings into a wholly different
framework. Historians evaluate issues of complicity and a chain of events that
extends both temporally and morally beyond that usually considered by truth
commissions. History is rendering justice to the nuanced complexities of different
assumptions and divergent views of a chain of events, and all within a
single, unified narrative that is much more than a compromise. In that sense,
historians have an obligation to render judgment, not to reintegrate a society
or attempt to heal victims. It might be harder to satisfy historians than it is
victims and kin who want to know what happened, or who did what to whom.
Historians want much more.
The legislative act that created the TRC committed the commissioners, in
their final report, to “establish as complete a picture as possible—including
antecedents, circumstances, factors and context of such violations as well as the
perspectives of the victims and the motives and perspectives of the persons
responsible for the commission of the violations.”13
But Villa-Vicencio and
Verwoerd, who helped to write the report, explain that the TRC could hardly
provide a complete picture. A lack of resources limited the commission’s staffs’
ability fully to investigate a number of barbarities. The TRC was unable to do
so in the time available (three years was long enough to open festering sores
but too short to have enabled the TRC to follow up all of the potential leads
its witnesses and its own investigations suggested). Its mandate also confined
the commission to an investigation of a narrow range of violations that had
occurred within thirty-four years (not the whole period of apartheid), and to
limit it to those who had suffered gross, not everyday, abuses.
Villa-Vicencio and Verwoerd see the report as a road map rather than a
comprehensive history. It is less an expansion of the truth than a reduction in
T H E P R O V I S I O N O F T R U T H 19
the number of lies about apartheid that can be circulated unchallenged.14
The
final report presents decisions in individual cases based on a balance of probability
(rather than beyond all reasonable doubt), given the evidence offered to
the commission and an honest attempt on the part of the commissioners and
their staff to examine that evidence and corroborating material in an unbiased
manner. Ultimately, the report balances precariously but precisely between the
TRC’s responsibility to the public interest and to individuals who may be
harmed.
Villa-Vicencio and Verwoerd treat as sacrosanct a commission’s obligation
to accept what went wrong in the past, without rationalizations, and why.
Equally sacrosanct is an obligation to promote national unity on the basis of
the full acknowledgment of evil. To fail effectively to acknowledge the extent
to which an individual, a state, or a liberation movement violated the rights of
others “is to fail to give a full account of the past.” It would be immoral and
irresponsible to sidestep that challenge.
This book seeks to confront that and many other formidable questions. It
does so in multiple iterations, for the contributors accept some but not all of
the premises of their colleagues. Where they agree with others’ premises, they
sometimes argue differently. Since they bring the perspectives and training of
political philosophers, political scientists, historians, lawyers, theologians, psychologists,
and physicians to bear on the myriad issues that affect conclusions
about the truth commission process, it is hardly surprising that they speak with
more than one voice. Yet, in composite form, that voice is remarkably supportive
of the value of truth commissions for developing truth in postconflict
societies. There is less agreement, however, about the possibility of achieving
societal reconciliation as a result of truth commission activities. In that regard,
several of the authors of this book would not be surprised by the results of
public opinion polls: an A. C. Nielsen–Market Research Africa survey reported
that two-thirds of the South Africans asked believed that the TRC’s
investigations had led to a deterioration of race relations. An earlier survey by
MarkData found that a majority of whites, coloureds, and Indians, and a third
of Africans, believed the TRC to be biased and unfair. The leader of the
National Party suggested that the people of South Africa were “further apart
than when the Truth Commission started.”15
But the contributors to this
book, like their South African colleagues in the meeting at Somerset West,
feel that such judgments are premature and situational.
The contributors to this book believe the South African TRC remains the
most far-reaching, and the most effective of its genre. Indeed, it is obvious
that truth commissions as a whole would have been judged more harshly by
this volume’s authors if the extraordinary work of the TRC had not been before
them. Thus, this volume is about both truth commissions as a genre
and the practice of truth commissioning as performed specifically in South
20 C H A P T E R I
Africa. Its conclusions apply to both the general and the specific, particularly
since the South African commission’s mandate and procedures will become
the starting point for all future truth commissions. It is the prescription for
the next commissions, whether in the Balkans, in Cyprus, or elsewhere in
Africa.
Notes
1. Mary Burton, in summary (16) of Somerset West meeting between the authors of
this book, the TRC, and invited South African jurists and academics, May 1998.
A much more pointed critique of the TRC appeared in mid-1999. Anthea Jeffery, in
an analysis of the Final Report of the commission, called the work of the TRC fatally
flawed. It distorted rather than produced “truth.” Her Truth about the Truth Commission
(Johannesburg, 1999) argues that the TRC relied too heavily on testimony not given
under oath and not subject to rigorous cross-examination. Of the more than 22,000
statements by victims, more than 17,000 were based on hearsay. Moreover, when the
report was published, only 102 of the 7,000-plus amnesty applications had proceeded
through public hearings and thus been subject to cross-examination. In reviewing several
instances of massacres and other atrocities, Jeffery also bases her criticisms on the
TRC’s rejection of official inquest findings, but without convincing explanation.
2. Archbishop Tutu, statement on Truth and Reconciliation, quoted in the Boston
Globe, 7 August 1998.
3. Albie Sachs and Leon Wessels, speaking at the Truth v. Justice conference in
Somerset West, referred specifically to the postamble to the interim South African
constitution. It laid out the compromise that resulted in the TRC. See also the chapters
in this book by Ntsebeza and Minow.
4. See Martha Minow’s chapter in this book for the argument and the context.
5. Excerpts from the Final Report of the TRC, New York Times, 29 October 1998.
6. Albie Sachs, quoted in Alex Boraine and Janet Levy (eds.), The Healing of a Nation?
(Cape Town, 1995), 103; Sachs, quoted in Alex Boraine, Janet Levy, and Ronel
Scheffer (eds.), Dealing with the Past: Truth and Reconciliation in South Africa (Cape
Town, 1994), 146.
7. Marius Schoon, quoted in the New York Times, 9 September 1998.
8. On July 28, 1999, the TRC freed the four African killers of Amy Biehl. They had
served three years of their eighteen-years sentence for murder. But the TRC decided
that they deserved amnesty since their crime was politically motivated. Boston Globe, 29
July 1998.
9. Boston Globe, 9 September 1998; New York Times, 8 April 1999; Christian Science
Monitor, 9 July 1999.
10. Mdu Lembede, quoted in “S. African Amnesties Reopen Old Wounds,” Boston
Globe, 20 February 1999.
11. Quoted in “The Atrocity Findings: The Historic Facts Must Be Recognized,”
New York Times, 26 February 1999. One critic of the TRC saw its effects as an attempt
to execute, shape, and correct memory as needed “to serve as backbone to the new
N O T E S 21
history of the new nation.” Breyten Breytenbach, Dog Heart: A Memoir (New York,
1999), 21.
12. In late 1997, the Amnesty Committee of the TRC gave blanket immunity to
thirty-seven key officials of the ANC. None had appeared before the committee or
explained themselves in public. The court overturned the amnesties in May 1998.
13. Promotion of National Unity and Reconciliation Act, no. 34 (1995), Section
3(1)(A). Technically, the Final Report is an interim report, with a final Final Report
meant to be produced in 2000 or 2001, when Amnesty processes conclude.
14. See Michael Ignatieff, “Articles of Faith,” Index on Censorship V (1996): 113. See
also Jeffery’s critique, in note 1.
15. The Nielsen–Market Research sample was 2,500 persons. The results were reported
and summarized in Southern African Report, 31 July 1998, 4.