Dilemmas of Transitional Justice: The Case of South Africa's Truth and Reconciliation Commission.

• Author: van Zyl, Paul

After almost three years of work, South Africa's Truth and Reconciliation Commission (TRC) delivered its final report to President Nelson Mandela on 29 October 1998. The delivery occurred amid considerable controversy as both former President F.W. de Klerk and South Africa's current ruling party, the African National Congress (ANC), launched last-minute legal proceedings in an attempt to block the publication of the report. The TRC agreed to temporarily excise a small section of the report, which implicated de Klerk in gross violations of human rights, pending final legal settlement of the matter in early 1999.

The ANC's court application, in which it argued that the TRC had failed to properly consider its objections to the TRC's findings regarding the party's responsibility for human rights abuse, was rejected only hours before the report was scheduled for public release. The fact that both former and current rulers were distressed by aspects of the TRC's final report is perhaps the strongest evidence that the TRC fulfilled its mandate in a fair and impartial manner. It also demonstrates that any attempt to deal with past human rights abuse is likely to be both complex and contested.

The TRC can be characterized as representing a "third way" in dealing with a legacy of human rights abuse and attempting to institutionalize justice. This is because it steered a middle path between an uncompromising insistence on prosecution on the one hand, and a defeatist acceptance of amnesty(1) and impunity on the other. This article will examine the structure and mandate of the TRC and assess its contribution to an evolving discussion about the nature of international justice and the institutional mechanisms best suited to achieving it.

Drawing on the TRC experience, this article argues that new democracies emerging from periods of massive and/or systematic violations of human rights are unable, for a combination of practical and political reasons, to prosecute more than a tiny percentage of those responsible for human rights abuse. For this reason, strategies for dealing with the past must not become narrowly focused on attempts to prosecute. Rather, more expansive and creative strategies should be considered and employed in order to address the rights of victims and the needs of society as a whole.

DEALING WITH THE PAST

Why Amnesty?

The manner in which a successor government chooses to deal with those who have committed gross violations of human rights, during the tenure of a previous repressive regime is profoundly influenced by the balance of power between the old and new orders at the time of transition. The Nuremberg trials were possible in postwar Germany only because the Allies had militarily defeated the Nazi regime and therefore possessed sufficient power to ensure the prosecution of the leaders of the Third Reich.(2) Conversely, when the transition to democracy occurred in Chile, the newly established government was unable to prosecute those who had committed gross violations of human rights during military rule(3) because the military still commanded considerable authority--so much so that former Chilean dictator General Augusto Pinochet was able to remain in office as head of the armed forces.

The contrast between the postwar German and the Chilean approaches to those who have committed gross human rights violations indicates that a country's choice of policy has as much to do with power as it does with principle. The approach to amnesty adopted in South Africa confirms this fact: the transition from a nondemocratic to an elected government occurred in circumstances similar to those of the Chilean transition in which the former government maintained considerable power during the regime change. The South African liberation movements did not succeed in removing the apartheid government from office by military means. In fact, throughout the negotiation process, which resulted in South Africa's first democratic elections, the former government retained control over a formidable military and police force. If the former government had wished to dig in its heels and retain power at all costs, it could have done so for a prolonged period of time. However, the balance of power in South Africa did not exclusively favor the former government.

By the late 1980s and the early 1990s, liberation movements commanded the support of the overwhelming majority of South African citizens as hundreds of thousands of supporters mobilized to defy the government. This mobilization, though costly and disruptive, was unlikely to overthrow the government as it could be contained, for the most part, by security forces. Nonetheless, the liberation movements gained the support of the majority of the international community that had called for democracy in South Africa. As a result, the country was subjected to a concerted campaign of international isolation consisting of in economic sanctions as well as athletic, academic, scientific and cultural boycotts. This isolation had tremendously detrimental effects on all aspects of South African life and placed the former government under considerable pressure to change its policies.

By the late 1980s, the major parties to the South African conflict realized that matters had reached an impasse that only negotiations could resolve. The government understood that it could no longer ignore or repress the massive domestic resistance to its rule, nor could it indefinitely defy world opinion or weather international isolation. The liberation movements recognized that even if they continued their military campaign against the former government, they were unlikely to win. Furthermore, the two sides realized that if a lasting and viable solution to the South African conflict were to be achieved, both would have to be accommodated in the new order.

The agreement to grant amnesty to those who committed gross violations of human rights must be understood in this context. The former government and its security forces never would have allowed the transition to a democratic order had its members, supporters or operatives been exposed to arrest, prosecution and imprisonment. The issue of amnesty bedeviled the constitutional negotiations until the last possible moment, such that the final draft of the interim Constitution(4) was completed without agreement on whether an amnesty provision should be included. In fact, amnesty became the final obstacle to transition to democracy: only a few months before the scheduled elections, generals in command of the South African police delivered a veiled warning to the ANC that they would not support or safeguard the electoral process if it led to the establishment of a government that intended to prosecute and imprison members of the police force.

The ANC faced a massive dilemma. Without an amnesty agreement, the negotiations would collapse and the mass mobilization and politics of confrontation would return. The ANC also concluded that hostility and opposition from the security forces would have made it impossible to hold successful elections. Dullah Omar, a key ANC negotiator and current Minister of Justice, stated publicly that "without an amnesty agreement there would have been no elections."(5) The amnesty agreement occurred so late in the process that it had to be added onto the end of the interim Constitution in the form of a "Postamble."(6) It stated that:

... gross violations of human rights, the transgression of humanitarian principles in violent conflicts and the legacy of hatred, fear, guilt and revenge ... can now be addressed on the basis that there is a need for understanding but not vengeance, a need for reparation but not for retaliation.... In order to advance such reconciliation and reconstruction, amnesty shall be granted ...(7) The Postamble constituted a legally binding promise made at the negotiating table by those expected to win South Africa's first democratic election to grant amnesty to those who had committed political crimes. Both the former government and the ANC accepted the amnesty deal. The former government and its security forces were reassured that if they handed over power, they would not be automatically prosecuted. For the ANC, amnesty was acceptable for several reasons. First, the previous government would not be granting itself amnesty.(8) The ANC believed that only a new legitimate order had the right to forgive the crimes of the old regime. Second, it permitted the new government to grant amnesty according to a set of objective criteria and preconditions, such as full disclosure of the crimes or the acknowledgment that a crime was politically motivated. In general, amnesties granted before democratic transitions have effectively foreclosed investigations into the crimes.

As outlined above, several historical factors influenced and shaped South Africa's amnesty agreement and thus enabled the country's transition to democracy. While I argue that the costs of indefinitely postponing the transition would have been extremely high, this assertion is by no means uncontroversial. In fact, the amnesty agreement has been severely criticized, particularly by certain victims and their families who have called for the prosecution of perpetrators. In the following section, I will consider whether prosecution constituted a viable alternative to amnesty.

The Possibilities of Prosecution

Those opposed to amnesty agreements generally base their arguments on the assumption that it would be both preferable and possible to prosecute perpetrators. However, even if the South African transition could have occurred without any form of amnesty agreement, thus leaving open the possibility of large-scale prosecutions, only a small fraction of those responsible for gross violations of human rights could have been prosecuted successfully. A number of arguments support this contention.

First, it is commonly accepted that South Africa's criminal...