JUSTICE IN CATACLYSM: CRIMINAL TRIBUNALS IN THE WAKE OF MASS VIOLENCE
Brussels, Belgium
20 - 21 July 1996
ALTERNATIVES AND ADJUNCTS TO CRIMINAL PROSECUTIONS
Dr Alexander Boraine Vice Chairperson South African Truth and Reconciliation Commission
INTRODUCTION
In order to understand the nature and implications of the Truth and Reconciliation Commission in South Africa it is important to see the Commission both in the national and international contexts.
South Africa, oppressed and oppressors together, were imprisoned by the chains with which one group sought to bind the other for many generations. There are those who argue that the period under review for the TRC in South Africa should start as far back as the first arrival of white settlers in 1652! Others are of the view that at the
very least one should look at the period which began with South Africa's first constitution in 1910. There are also many who maintain
that the starting point should be 1948 when the National Party came into power.
In 1910 when the first South African constitution was promulgated it characterised white hegemony and was fundamentally undemocratic, excluding as it did the vast majority of the population. It was also structurally racist, because the exclusion of the majority was in terms of skin colour. However, this undemocratic and racist constitution was further entrenched when the National Party came into
power in 1948. Under the National Party, through its policy of apartheid, a policy of domination was enforced which was not only a denial of basic political rights but a systematic piece of social engineering which embraced every area of life from birth to death. Thus the system of apartheid determined state policies relating to the franchise as well as to land, housing, residence, schools and universities, transport, health services, sport, hotels, restaurants and even cemeteries.
In other words, apartheid was a system of minority domination of statutorily defined colour groups on a territorial, residential, political, social and economic basis.
It was a system which was entrenched for almost 50 years. Although the cards seemed to be stacked against South Africa achieving a relatively peaceful and relatively democratic election, the transition from oppression, exclusivity and resistance to a new negotiated, democratic order in 1994 has been realised. The chains which bound the majority of her people in what appeared to be perpetual servitude have been shattered. Many people, both within South Africa and beyond its borders, have described this transition as nothing short of a miracle.
However, because of the social and economic legacy there remains unfinished business which has to be tackled otherwise it will be impossible to sustain the miracle, consolidate democracy and ensure a peaceful future for all South Africa.
Therefore any serious attempt at dealing with the legacy of the past will include at least a strong commitment to transformation in the economic and social life of the majority of South Africa's citizens.
There is also a compelling need to restore the moral order which was put in jeopardy by the abdication of the rule of law and gross violations of fundamental human rights.
One of the ways in which to start the healing process in South Africa is an honest assessment and diagnosis of the sickness within our society in an attempt to give people, both perpetrators and victims, an opportunity to face the past and its consequences and to start afresh. The Truth and Reconciliation Commission is an opportunity to make a contribution in order to deal finally with the past without dwelling in it and to help create the conditions for a truly new South Africa.
Whilst it is true that South Africa's Commission has been shaped very much by its own history and the circumstances and the nature of its particular and peculiar transition, there are many similarities to the experiences in eastern Europe and South America which impinge upon the nature of the Commission in South Africa. These can be listed briefly as follows:
South Africa, in company with many other countries, has had to face up to three critical questions:
Firstly, how do emerging democracies deal with past violations of human rights
Secondly, how do new democratic governments deal with leaders and individuals who were responsible for disappearances, death squads, psychological and physical torture and other violations of human rights?
Thirdly, how does a new democracy deal with the fact that some of the perpetrators remain part of the new government and/or security forces or hold important positions in public life?
Priscilla B Hayner reminds us that there have been some 19 truth commissions in 16 countries over the last 20 years, including those now in formation. We have in the work leading up to the appointment of the Truth and Reconciliation Commission been greatly influenced and assisted in studying many of these commissions and particularly those in Chile and Argentina.
There are, however, some unique features to the South African model which may be of some relevance and assistance to this conference and to students of international human rights, and it is to these we now turn.
1. UNIQUE FEATURES IN THE SOUTH AFRICAN MODEL
1.1 The process by which South Africa arrived at its Commission is quite different from any other that I know of. It was essentially democratic and gave as many people as possible an opportunity to participate in the formation of the Commission. The idea of a truth commission came first from the African National Congress prior to the election in 1994. Ironically, that is, seen against the background of widespread human rights violations committed by the South African state over many decades, the ANC was accused of perpetrating human rights violations in some of its camps whilst in exile. The response of the ANC was to appoint an internal commission of inquiry. A report was published but there was considerable criticism in that it lacked impartiality. A second independent commission was appointed. Its findings were made known to the national executive of the ANC and their decision was that there were grounds for criticism but that these should be seen against the overall human rights violations which gripped South Africa over a very long period, and the way to resolve this was the appointment of a truth commission.
Two major conferences were held under the auspices of civil society in South Africa. The first was simply entitled "Dealing with the Past" and a number of leading scholars and human rights practitioners from eastern Europe, central Europe and South America were invited to share their experiences with a group of South Africans. A book was published under the same title of the conference which was distributed very widely throughout South Africa and thus the debate was joined.
A second conference was held some months later entitled "Truth and Reconciliation". The majority of participants were from South Africa but there were key participants from Chile and Argentina as well. The
Minister of Justice, who had been appointed soon after the election, was the keynote speaker and he developed the idea of a commission which he had already announced in Parliament. A second book was published under the title of "The Healing of a Nation?" which was also widely read and a number of workshops and conferences were held throughout South Africa, looking at the concept of a truth and reconciliation commission and considerable input was gained from participants from a wide spectrum of society.
This input was sent to the parliamentary standing committee on justice who were charged with the finalisation of the Parliamentary bill. Public hearings were held and this was followed by the debate in Parliament itself where the Promotion of National Unity and Reconciliation Bill was finally passed by an overwhelming majority.
One further contribution to the democratic process was President Mandela's decision to appoint a small representative committee who drew up a list of 25 names from which he would appoint the final 17 commissioners, which the Act required. People from all walks of life were encouraged to apply and 299 names were received. After a process which involved public hearings, 25 names were sent to President Mandela and he then, in consultation with his cabinet, appointed the 17 commissioners, who now form the heart of the Truth and Reconciliation Commission.
It will be seen, therefore, that from the very outset the process leading to the actual promulgation of the Act as well as the appointment of the commissioners has been as open and as transparent and as democratic as possible. I think this will contribute in no small measure to any success which the Commission may achieve.
1.2 I have already referred to the Act of Parliament which brought the Truth and Reconciliation Commission into being. This, too, is very different from any other commission that I know of. In most instances the commission is appointed by the President or Prime Minister of the country concerned and they have to work out their own procedures, objectives, methodologies etc. The benefit of a commission being based in an Act of Parliament is that you have a democratically elected group of people participating in the debate and finalising the content of the commission. Objectives are clearly set out, restraints are laid down and the commissioners have to abide by the Act.
In the Act provision is made for 17 commissioners who serve full-time. The Commission has to complete its work in 2 years (an additional 3 months is allowed in order for the final report to be completed). The Act also provides for three separate committees: a Human Rights Violations Committee which conducts public hearings for victims/survivors; a Reparation and Rehabilitation Committee which works on policies and recommendations arising from those hearings; and an Amnesty Committee which hears applications for amnesty.
In addition to the 17 commissioners a number of Committee Members are allowed for, plus an professional and administrative staff and an Investigative Unit.
1.3 A critical decision was made relating to the hearings of the Committees, both in terms of human rights violations and the stories of victims, as well as the amnesty hearings. Despite the risk and the additional complications, it was decided that these hearings should be open to the media and to the general public. This has placed an enormous burden on the commissioners who travel throughout South Africa conducting hearings because they haven't the benefit of working quietly and in private, but are constantly under the scrutiny of the media and of the public. On the other hand, there is the enormous advantage of the nation participating in the hearings and the work of the Commission from the very beginning through radio, television and the print media and the right of anyone to attend any of the hearings. This enables transparency and also a strong educative opportunity so that healing and reconciliation is not confined to a small group but is available to all.
1.4 A further departure from the norm was the decision to publish the names not only of the victims and some details of the human rights violations suffered by them, but also the publication of the names of perpetrators. A major problem was the need to ensure due process and a fairly elaborate system has been worked out so that people who are going to be named by victims are alerted ahead of time and are invited to make either written representation or, if desired, may appear at a subsequent hearing. These names are not only mentioned during the process of the hearings but once the Investigative Unit has had an opportunity to recommend its findings to the Commission, the Commission will publish the names on the balance of probability in its final report and in the Government Gazette.
1.5 A further difference from most commissions is the powers which are vested in the Commission. The Commission has powers of subpoena and of search and seizure. This enables the Commission to firstly invite alleged perpetrators or those who may have critical information to come to the Commission and share that information with the Commission. If that invitation is spurned, it can proceed to subpoena those concerned. It also means that the Commission can secure files and documents which have been secreted away by the previous government and its agents. This has resulted in agreements made by political parties and military and security institutions to make public submissions to the Commission.
There is also a major difference in the approach of South Africa's Commission to amnesty, but this deserves a special section.
2. AMNESTY PROVISIONS
2.1 At a conference held last year in Guatemala I was forcibly struck by the feeling of revulsion amongst South American delegates when a discussion on amnesty took place. It is clear that for most people in
South America the only experience of amnesty was what could be termed a "general" or a "blanket" amnesty which, in most instances, was devised and imposed by the very regime which was responsible for the violations of human rights. It is understandable, therefore, that general amnesty is looked upon by human rights organisations and human rights lawyers as a betrayal of those who suffered those violations and is something to be avoided at all costs.
It was in order to avoid an amnesty which amounted to little more than impunity that we attempted to introduce an amnesty programme which included accountability and disclosure.
General amnesty has created considerable problems in the whole quest for reconciliation and justice. There is a widespread debate, particularly in South America, which continues to focus on this dilemma. The following two quotes exquisitely sum up the contradictions inherent in "blanket amnesty":
"How can I ever have peace when every day I risk meeting my unpunished torturer in the neighbourhood?" (tortured ex political prisoner, Argentina).
"How is reconciliation possible when lies and denials are institutionalised by the responsible authorities?" (human rights activist, Chile)
There are many implications flowing from general amnesty, which really amounts to impunity. These amnesty laws have made it possible for those responsible and guilty to escape any trial or any punishment whatsoever or even to acknowledge their involvement in the violations of the past. In the debate which is being conducted, there are a number of very disturbing points which have to be acknowledged. These include:
South Africa has attempted to avoid the problem of a general amnesty in the following way:
Firstly, amnesty has to be applied for on an individual basis - there is no blanket amnesty.
Secondly, applicants for amnesty must complete a prescribed form which is published in the Government Gazette and which calls for very detailed information relating to specific human rights violations;
Thirdly, applicants must make a "full disclosure" of their human rights violations in order to qualify for amnesty;
Fourthly, in most instances applicants will appear before the Amnesty Committee and these hearings will be open to the public.
Fifthly, there is a time limit set in terms of the Act. Only those gross human rights violations committed between the period of 1960 to 1993 will be considered for amnesty. Secondly, there is a 12 month period during which amnesty applications may be made, from the time of the promulgation of the Act, which was in December 1995, and a cut-off point on 15 December 1996.
Finally, there is a list of criteria laid down in the Act which will determine whether or not the applicant for amnesty will be successful.
Where a particular act, omission or offence is an act associated with a political objective shall be decided with reference to the following criteria:
However, it does not include the following criteria:
A further point is that the Truth and Reconciliation Commission is not a substitute for criminal justice. The fact that 17 former military generals (including the former Minister of Defence) are on trial for murder illustrates this fact. Only last week warrants for the arrest of five persons in the former security force were issued. Three of the persons who will appear in court in two weeks' time have already applied for amnesty! The combination of judicial stick and TRC carrot may emerge as a potent force in flushing out former operatives who have adopted a "wait-and-see" approach.
Nevertheless, there are problems relating to the amnesty provisions as laid down in the Act. There are those in South Africa, some organisations and individual families, who have suffered very grievously from human rights violations who believe that there ought to be no amnesty provisions whatsoever. They want nothing more and nothing less than trials, prosecutions and punishment. More especially they are concerned that in terms of the Act those who apply for amnesty and are successful will never again be liable, either criminally or civilly. Some are even prepared to accept that if one has to pursue the way of amnesty as a price for peace and stability in South Africa there still ought to be an opportunity to bring civil action against either the organisation, the state or the individual. There are those who feel so strongly about this that they have brought a case against the Act before the Constitutional Court, which is the highest court in the land and even has sovereignty over Parliament. We are awaiting the result of that court application.
The dilemma is that if people are encouraged to apply for amnesty but are then still liable in a criminal court or in a civil court, what is the incentive for their coming forward?
Many of us believe very strongly that if reconciliation is to become a reality in South Africa then both victim and perpetrator must be encouraged to participate in the life and work of the Truth and Reconciliation Commission.
South Africa's experience is very similar to many other countries in that witness after witness at the Human Rights Violations Committee hearings have emphasised their deep fundamental need to know the truth surrounding the loss of their loved one. Over and over again people have pleaded to know what happened to the father or the mother, the sister, the brother, the son or the daughter. Where is he or she buried? Why did they do this? This is a common refrain at almost every public hearing. In other words, knowing the details and circumstances of the human rights violation in itself is part of the healing process. But how will we know the truth if perpetrators do not come forward? The fact of the matter is that repression has been with us for generations in South Africa and there is very little likelihood of new evidence coming to light or even witnesses being prepared to testify. The only way we are going to know some of the truth is for perpetrators to come and tell their story of what they did, why and how. This may be small comfort but in terms of the pleas of victims, it is of some consolation to them as they try to reconstruct their lives.
CONCLUSION
As indicated above, there are obvious problems surrounding any truth and reconciliation commission and South Africa is no exception.
Within the restraints of a negotiated settlement major compromises had to be made. I believe that South Africa's Truth and Reconciliation Commission has achieved the best possible outcome. South Africa has decided to say no to amnesia and yes to remembrance; to say no to full-scale prosecutions and yes to forgiveness. Those who have committed violations of human rights will, if they apply for amnesty, in most instances go free. In South Africa's circumstances where there was no victor and vanquished, it really had no other alternative but to follow this route. It should be borne in mind, however, that the administration of the justice process continues. Already there have been prosecutions and there will obviously be more. And if perpetrators decline to apply for amnesty they face the possibility of prosecution at some future date. The current trial of Captain Eugene de Kock is an indication of the seriousness with which the state takes violations against human rights, but it also raises the question of how many such trials can South Africa afford, not merely in financial terms but in the damage that this can do when skeletons constantly fall out of the cupboard, bringing with them further divisions and recriminations. Is it not a better alternative to deal with the past through the means of a commission which has a limited life, and thus put the past behind us and move forward into the future?
For South Africa, as in many other countries, the central tension is between the politics of compromise and the radical notion of justice.
This tension has been expressed in different ways by different analyses of the process from authoritarian rule in Latin America and eastern Europe to a democratic form of government and is a genuinely universal issue. Garreton, from Chile, sees it as "ethical logic" vs political state logic" (Journal of Latin American Studies, 1994). Jelin, drawing on Greek tragedy, sees the tension as the "logic of mourning/remembrance" vs "political logic" (Latin American Perspectives, 1994).
Political scientists, such as O'Donnel state the dilemma somewhat more pragmatically. For them it is the need for democratic or stable democratisation as against the notion of justice, equality and restitution.
Another way of stating the tension is to distinguish between retributive justice on the one hand and a prudential focus on the common good and future injustice on the other. The former is the Nuremberg model based on the positive duty of successive governments to dispense justice for past crimes. This approach, as an analysis of the Nuremberg trials will reveal, has very real limitations and indeed challenge the very notion of justice itself. Furthermore, many countries emerge from a totalitarian system not via a military victory but through a state of collapse, and/or through negotiation, and therefore have to deal with the messy business of compromise.
In South Africa the transition was essentially determined by a political compromise and a recurring question is "was there a moral basis to that compromise?" And I think in one sense there was. It is morally defensible to argue that amnesty is the price we had to pay for peace and stability. Whether in fact a military coup was a reality or not, one thing is certain. If negotiation politics had not succeeded the bitter conflict would have continued and many more human rights violations would have occurred and hundreds, and possibly thousands, would have been killed. Hard choices had to be made and it does not follow that the choices that were made lie easily on the consciences of the politicians who made them. The alternative was, in my view, far less desirable and potentially much more destructive.
It must be conceded that whilst the opportunities presented by the appointment of the Truth and Reconciliation Commission are far- reaching, there are clear limitations as well. In the same way that the healing of a nation and bringing about genuine reconciliation cannot be achieved merely by holding conferences or writing books, it must also be stated that there is no guarantee that through the appointment of a Truth and Reconciliation Commission this can be achieved. Discussion, debate, analysis, listening and the recording of the truth can be a significant part of the healing process, but only that. Much more will need to take place over many years. The wounds incurred in the long and bitter period of repression and resistance are too deep to be trivialised by imagining that a single initiative can on its own bring about a peaceful, stable and restored society.
Essentially the Truth and Reconciliation Commission is committed to the development of a human rights culture and a respect for the rule of law in South Africa. In attempting to do this, I believe that there is an irreducible minimum and that is a commitment to truth. As Roberto Canas of El Salvador puts it, "Unless a society exposes itself to the truth it can harbour no possibility of reconciliation, reunification and trust. For a peace settlement to be solid and durable it must be based on truth."
In his splendid introduction to the English edition of the Chilean Commission's Report, Pepe Zalaquett sums it up:
"Although the truth cannot really in itself dispense justice, it does put an end to many a continued injustice - it does not bring the dead back to life but it brings them out from silence; for the families of the "disappeared" the truth about their fate would mean at last the end to an agonising, endless search."
In a word, it is important that knowledge of the past is known and shared, but it is equally important that this knowledge, this truth, is acknowledged by the South African community - if reconciliation is to have any chance in that deeply divided society.