Transformative Justice

TRANSFORMATIVE JUSTICE:
CHARTING A PATH TO RECONCILIATION
Erin Daly*
INTRODUCTION: RECOGNIZING THE

TRANSFORMATIVE AGENDA
When nations transition from oppressive and law-less regimes to
democratic ones they face rnyriad challenges. As an anxious public
and an impatient w-orld look on, they must create new- governing
bodies, w-rite new- law-s and repeal old ones, redefine the balance of
private and public pow-er, and organize elections, just to name a few-
of the daunting tasks. But perhaps the greatest challenge facing these
nascent liberal governments is one that receives insufficient atten-
tion: if the values of the new- government are to take root, the new-
leaders must also transform the culture in which they operate.
This aspect of transitional justice is implicit in the growing rec-
ognition of the role of the public at large in the commission of state
oppression and atrocity. "The relatively recent Rwandan and Yugo-
slavian events, no less than apartheid before them, throw into ques-
tion the inherited distinction between civilian and rnilitary spheres,
combatants and non-combatants.,,1 Thus, it has become abundantly
clear that oppressive policies often emerge from cultures that tolerate
* Associate Professor of Law, Widener University. I would like to thank

Andrew Strauss in the United States and Christopher Roederer, Jeremy Sarkin, and
Francois du Bois in South Africa for their very helpful discussions and comments
on drafts of this article. I would also like to thank Hugh Corder and the law faculty
at the University of Cape Town for their generous support and assistance during
my sabbatical, and Tyrone Savage at the Institute for Justice and Reconciliation in
Cape Town for making materials relating to Rwanda available to me.
1 Kader Asmal, Louise Asmal, and Ronald Suresh Roberts, When The As-
sassin Cries Foul, in LOOKING BACK, REACHING FORWARD: REFLECTIONS ON THE
TRUTH AND RECONCILIATION COMMISSION OF SOUTH AFRICA 94 (Charles Villa-
Vicencio and Wilhelm Verwoerd eds., UCT Press 2000).
Electronic copy available at: http://ssrn.com/abstract=1562045

74 INTERNATIONAL LEGAL PERSPECTIVES
or actively promote them. If the new democratic governments aim to

secure their authority and their values, then it is necessary for them
to transform their societies from ones that tolerated or fostered op-
pression to ones that respect human rights and democratic values. In
other words, if the public was involved in some way in the original
oppression, then the culture that allowed the oppression to take place
or actively pursued it must be changed. Sirnply changing the gover-
nors won ' t cure a problem that resides as well in the governed.
This entails not just a transition, but rather a transformation.
Transition suggests movement from one thing to another - from op-
pression to liberation, from oligarchy to democracy, from lawless-
ness to due process, from injustice to justice. Transformation, how-
ever, suggests that the thing that is moving from one place to another
is itself changing as it proceeds through the transition; it can be
thought of as radical change. A nation in transition is the same nation
with a new government; a nation in the midst of a transformation is
reinventing itself. Because transformation entails a recreation of the
culture, it fulfills the promises of reconciliation and deterrence that
transition alone can not achieve.
While llluch has been written about transitional justice and the
process of democratization throughout the world, inadequate atten-
tion has been paid to the irnportance of transformation as an element
of the transitional project. Indeed, in much of the literature, the terms
"transition" and "transformation' tend to be used interchangeably.
Yet, the distinction is critical: because transition happens at the top,
it does not reach deep into the soil of the new society where the
commitment to democratic values actually takes root.
One of the most important opportunities for promoting the
transformation of the culture is in the new govemments response to
past abuses - the gross violations of human rights that were com-
rnitted by the predecessor (and sometimes by the current) regime.
This response has the potential to inculcate the values of the new
government in the society at large because it has a far greater hold on
the public's attention than most other aspects of the transition. Un-
like an election or an inauguration, the govemments response to past
abuse is not a transitional moment, but can last over an extended pe-
Volume 12, Numbers 1 & 2
Electronic copy available at: http://ssrn.com/abstract=1562045

TRANSFORMATIVE JUSTICE 75
riod of tillle and can therefore seep into the public consciousness and
even evolve dialectically. Whereas a new constitution or a set of laws
can codify new values, a tribunal comprises individuals "Who can ar-
ticulate and even embody those values. By engaging in a dialogue
"With the public, the institutional actors can promote the values of the
new government, This institutional response is often the earliest and
most visible manifestation of the deepest values of the new order. 2
As such, it can begin the transformation of the society at large. The
ne-w governments choice of institutional mechanisms to deal with
past abuses is therefore critical.
Since the second "World "War, the dominant paradigm for dealing
with past abuses has been the Nuremberg trials." The emergence of
2 In South Africa, the Truth and Reconciliation Commission was viewed as

having the potential to "rneaningfufly contribute to establishing a new moral order
that is required to underpin a human rights culture in South Africa." George De-
venish, Constitutional and Political Developments, in 6 SOUTH AFRICAN HUMAN
RIGHTS YEARBOOK 1995 (Centre for Socio-Legal Studies) 42. See also Dullah
Omar' s introduction of the TRC Act in Parliament, noting that "it was neces-
sary ... to deal with South Africa's past, including the question of amnesty, on a
morally acceptable basis." Quoted in Alex Boraine, A COUNTRY UNMASKED (Ox-
ford U. Press 2000) 68; and see Antjie Krog, COUNTRY OF My SKULL: GUILT,
SORROW, AND THE LIMITS OF FORGIVENESS IN THE NEW SOUTH AFRICA (Times
Books 1998) 24-25, (quoting the Reverend Frank Chikane as saying that "The
Truth Commission should bring a new morality to this country ... People de-
manding punitive justice are ignoring the greater justice a new morality could
bring - a shared morality, freed from colonialism, oppression, and greed.").
3 "The paradigm of justice established at Nuremberg and its vocabulary of
international law, despite its shortcomings, continue to frame the successor justice
debate." Ruti Teitel, TRANSITIONAL JUSTICE (Oxford U. Press 2001) at 33, see
generally 31-39. See also Richard J. Goldstone, FOR HUMANITY: REFLECTIONS OF
A WAR CRIMES INVESTIGATOR 75 (noting that the Nuremberg trials "ushered in a
completely new era in international law."). As a result, "Nuremberg" has become
the shorthand term for reliance on criminal prosecution as a primary mechanism
for dealing with those responsible for wrongs committed during a prior dispensa-
tion. Although the Nuremberg trials were conducted internationally, the term is
equally applied to intranational situations. See e.g. David Dyzenhaus, TRUTH,
RECONCILIATION AND THE APARTHEID LEGAL ORDER 2 (Juta & Co. 1998): "Since
the handover of power was negotiated, it was not considered a realistic option to
have Nuremberg-type criminal trials where perpetrators, or at least the main per-

the principle of universal jurisdiction for crimes against humanity" as

well as the international criminal tribunals for Yugoslavia and
Rwanda and the incipient International Criminal Court have rein-
forced the view that the primary route to transitional justice is
through criminal prosecution.f Further underscoring the value of this
approach are the perceived failures of its presumed alternative,
namely amnesty, as has been tried in parts of Latin America and
elsewhere." Thus, "in the contemporary debates over transitional jus-
tice, the issue is often framed as 'punishment versus amnesty. ,,,7
In recent years, how-ever, a third course has emerged as a nor-
matively appealing and pragmatically sound response to the problem
of predecessor abuses. By most accounts, the most successful of
these efforts is South Africa's Truth and Reconciliation Conunission
(TRC). Because truth conunissions eschew both criminal prosecution
petrators, of human rights abuses would be punished for their crimes."

4 For instance, Belgium has tried people accused of participating in the
Rwandan genocide for crimes against humanity. Rwandan Nuns on Trial for
Genocide, CAPE TIMES, April 18, 2001 at 4 (noting that "Belgium's eagerness to
stage the £1.4 million trial reflects its failure to prevent the genocide in its former
colony"). See also N.Y. TIMES, June 22, 2001 (noting that United States courts are
increasingly taking jurisdiction over cases involving overseas crimes of state).
5 Pressure has been mounting to establish either domestic or international
(or both types of) tribunals to try war crimes in East Timor, Cambodia, and else-
where. Cambodia has enacted a bill (undergoing technical revisions in mid-2001)
to enact a war crimes tribunal to try members of the Khmer Rouge for the 1975 -
1979 genocide in which 1.7 million are estimated to have died. For information on
the Cambodia efforts, substantially sponsored by members of the United States
Congress, see Yale University, Cambodia Genocide Program, available at
<http://www.yale.edu/cgp/>.
6 See Tina Rosenberg, Foreword, in Martin Meredith, COMING TO TERMS:
SOUTH AFRICA'S SEARCH FOR TRUTH (Public Affairs 1999). For a useful survey of
both of the·se approaches, see e.g. A. James McAdams, TRANSITIONAL JUSTICE
AND THE RULE OF LAW IN NEW DEMOCRACIES (Notre Dame 1997). See also Teitel,
supra n. 3, and Martha Minow, BETWEEN VENGEANCE AND FORGIVENESS: FACING
HISTORY AFfER GENOCIDE AND MASS VIOLENCE (Beacon Press 1998); Neil J.
Kritz (ed.) Transitional Justice: How Emerging Democracies Reckon with Former
Regimes (Washington, D.C.: United States Institute of Peace Press, 1995) (3 vol-
umes).
7 Teitel, supra note 3, at 72.
VolUllle 12, Numbers 1 & 2

on the one hand and blanket amnesty on the other, they are often re-
ferred to as a "middle path" or "third course" or "golden mean.'
While there have been truth corrnnissions in the past, none has
been as successful or has garnered as much international attention as
South Africa's. This article posits that the key to the TRC's success
lies in its responsiveness to "What can be called South Africa's "social
geography'T - that is, the TRC was carefully designed to attend to
the particular ills that characterized South Africa at the end of the
apartheid era.
This contextuality creates a bit of a paradox, as evidenced by
the international praises garnered by the TRC. The TRC "Was so suc-
9
cessful that countries around the world want to copy it. But if its
success lies in its particularity, then how can it be copied? This para-
dox makes it important to carefully identify what lessons should be
learned from the TRC. The TRC's success does not demonstrate that
TRC clones are the panacea to the "World's transitional ills. Rather, it
demonstrates that contextuality itself is critical. Each country's tran-
sitional path consists of a unique constellation of social, historical,
political, economic, ethnic, racial, religious, military, and other fac-
tors; these factors distinguish each transition from the others; and it
is these differences in transitions that compel different institutional
responses to past "Wrongs. What "Works in one place "Will not neces-
sarily "Work in another.
This contextuality is critical to the transformational project.
8 The term is from Mark Drumbl, Punishment, Postgenocide: From Guilt

To Shame To Civis In Rwanda, 75 N.Y.U.L. REv. 1221 (2000).
9 Priscilla Hayner, Same Species, Different Animal: How Soutlt Africa
Compares to Truth Commissions Worldwide, in LOOKING BACK, REACHING
FORWARD 32, supra note 1. See also Comments of Yasmin Sooka, Report on
Khulumani Reparations Indaba (April 25 and 26, 2001) (Compiled by Shirley
Gunn) (on file with author). By this I do not mean to suggest that the TRC was ab-
solutely successful, by any measure. Its most significant failure is its failure to se-
cure reparations for its designated victims, especially given that many perpetrators
of politically motivated violence have already been granted amnesty. See infra at
Part III (A). Nonetheless, the international response to the TRC suggests that it,
more than any other recent experiment in transitional justice, is the beacon to
which other emerging nations are looking.

Only institutional mechanisms that are tailored to the specific attrib-

utes of the local society at thetime of transition can hope to deal with
the problems that characterized the society's dysfunction. Prosecu-
tion and amnesty may not even achieve the transitional goals attrib-
uted to them in many instances, let alone the transformational goals
required by a new democratic regime, Thus, the middle path is ap-
pealing not just because it rnay be more pragmatic, but because it
presents the opportunity of transforming the culture by tailoring the
institutional response to past oppression to the needs of the particular
society at a particular time. This requires transitional governments to
study closely the nature of the ills from which they are emerging, in
order to fashion an institution that is responsive to those ills.
In part one of this article, I elaborate on the difference between
transitional and transformative justice and explain the irnportance of
the transformational dimension of justice with particular attention to
the role of reconciliation. In part two, I focus on the transformative
opportunities of the new governments response to past abuse. It is
here that the new government has the greatest prospect for promoting
its transformative agenda. I therefore argue that the classic dualism
of prosecution and amnesty are inadequate because they can not
promote societal transformation. Rather, as part three explains, only
institutions that are tailored to the particularities of time and place of
the society in which they operate can hope to transform those socie-
ties. South Africa's Truth and Reconciliation Commission is an ex-
ample of an institution whose success lay in its ability to promote the
transformation of the South African polity because it was responsive
to the nature of apartheid. At the end of part three, I contrast the TRC
with an experiment that R "Wanda is developing as a response to the
genocide of 1994. This experiment, called the gacaca courts, is tai-
lored to the particular nature of the Rwandan genocide and its after-
math.!" While gacaca raises many serious questions (primarily con-
cerning the deficiencies in due process), the idea of gacaca is
appealing because it may promote the transformation of Rwandan
society more than any feasible alternative. Part three, therefore, fo-
10 Gacaca is pronounced ga-TCHA-tcha.

cuses on these two institutional responses from the perspective of

transformative justice. Because the TRC and the gacaca courts are
distinguishable in every meaningful respect, they illustrate, when
considered together, the broad and creative possibilities of the middle
path. I conclude that the TRC should not be taken as a panacea for all
transitional ills, any more than the Nuremberg model should. Each
country needs to develop a response to past abuses that permits the
transformation of its own society in order to promote the reconstruc-
tive interests of reconciliation and, ultimately, deterrence.
I. THE TRANSFORMATIVE DIMENSION OF JUSTICE
A. The many faces of injustice

For two basic reasons, the standard form of retributive justice
seems ill-suited to societies in transition attempting to deal with the
wrongs of a previous regime. 11 First, the nature of injustice in these
contexts is not necessarily conducive to correction by retribution or
punishment. Second, the need for justice may be felt throughout the
society at large, and not just in the isolated and individuated arenas
that are the locus of retributive justice. Transfonnative justice offers
a broader palliative that may be better suited to the needs of societies
in transition.
Countries emerging from oppressive and unjust regimes con-
front a daunting variety of complex and profound problems. Injustice
in these societies may have many different faces: it may be seen in
the deep rifts between people in different socio-econotnic classes or
in rank racial or religious division; it may manifest itself in the lack
of information about the past regime; it may be felt in the instability
of the economy, or in the lack of adequate housing, health care, edu-
cation, and other basic needs; it may be noticed when known wrong-
doers stay in power or office or receive perquisites. In Rwanda, the
genocide of 1994 left tnillions of people homeless and traumatized,
and in desperate need of all manner of social services; in South Af-
11 Retributive justice is analyzed further below in the context of institutions

that pursue retributive justice.

rica, apartheid was marked by the deliberate economic and civic re-
pression of miflions of blacks. In the former Yugoslavia, 'War left en-
tire cities in tatters and in desperate need of repair. The number of
homeless refugees in Afghanistan, East Timor, and Sierra Leone
climbs daily. The list goes on.
All of these are forms of injustice that the new regime must ad-
dress. Thus, in transitional societies, the scales of justice may lack
equifibriurn for a range of reasons, in a range of combinations and
intensities. What counts as justice, then, must entail the correction of
these various forms of wrongs. 12 Depending on the nature of the in-
justice(s) in the particular society at the moment of transition, differ-
ent kinds of justice are needed to redress the balance. For instance, if
the predominant feature of the society is the social cleft, then recon-
ciliation may be the primary goal of the transitional governrnent; if it
is sheer turbulence, then the transitional government should focus on
stability since no society can survive prolonged periods of social up-
heaval.l ' If the principal problem is simply dire poverty, then justice
must have a central economic component.
In addition to the different forms of injustice, there is a question
12 Thus, I disagree with those who would argue that certain universal values
must always be accommodated. See, e.g., Juan Mendez, In Defense of Transitional
Justice, in McAdams, TRANSITIONAL JUSTICE AND THE RULE OF LAW, supra note
6, arguing that the successor regimes owe four duties to the polity: 1) to do justice
(in the retributive justice sense), 2) to grant victims the right to the truth, 3) to grant
reparations to victims, and 4) to ensure that perpetrators in the security forces
should not continue in their positions under the new regime. While I agree that
these may all be important, I believe that their relative value in any society may
vary so widely that their enumeration does little to answer the question of what the
successor regime's priorities should be. In addition, the society may have other
needs (e.g. reconciliation or socio-economic equality or other rights) that may
make stronger claims at the moment of transition. Thus, I do not believe it is useful
to insist on abstract truths, except that each society's response should be formed by
that society's needs during its transition.
13 Hence, self-styled governments of "national unity" as existed in South Af-
rica and now exist in Rwanda and East Timor, are temporary creatures, usually
ending with the first democratic transfer of power. The Rwandan government's
extension of its "government of national unity" beyond its initial mandate evi-
dences the delayed return to normality.

TRANS FORMATIVE JUSTICE 81
of the level at "Which injustice occurred and must be redressed.

Countries embarking on transitions usually start by drafting constitu-
tions, trying to stabilize their econonries and adopting other policies
aimed at showing to the domestic and international public that they
are conunitted to the rule of law. But, as has increasingly frequently
been noted, everyday people "Were also involved in and to SOITle ex-
tent responsible for the oppression.
Public participation in oppressive governmental regimes ranges
dramatically from one place and time to another. In SOITle instances,
the majority of the participatory population benefits rather passively,
by simply enjoying the spoils of privilege. Thus, for instance, most
"White South Africans lived very comfortable lives thanks to the op-
pressive apartheid regime whether or not they actively supported it. 14
In other cases, members of the public might benefit slightly rnore di-
rectly, as did, for instance, "White Californians during World War II
"Who bought land and household items at bargain prices from their
neighbors of Japanese descent "Who "Were suddenly forced to evacu-
ate. 15 Further along the continuum are those who choose the oppres-
sive policies by voting for it, as did Serbian voters "Who repeatedly
elected Slobodan Milosevic to lead them into "War. 16 SOITle forms of
oppression involve a "Wide swath of the population more generally,
either wittingly (as in the case of the Stasi spies and informers") or
14 Most whites were implicated in the crime of apartheid by passively en-

joying the exclusive use of 87% of the land in South Africa, (Heinz Klug,
CONSTITUTING DEMOCRACY: LAW GLOBALISM AND SOUTH AFRICA'S POLITICAL
RECONSTRUCTION (Cambridge 2000) at 128), and a monopoly on non-menial
skills, etc. (David Dyzenhaus, supra note 3, at 9). Many Tutsi in Rwanda may also
have been in this position. See also Desmond Tutu, No FuTURE WITHOUT
FORGIVENESS (Image 1999) at 217-244 (discussing collusion of white population
in apartheid).
15 See Korematsu v. US, 323 U.S. 214 (1944) (Jackson J. dissenting).
16 See generally, Misha Glenny, THE FALL OF YUGOSLAVIA: THE THIRD
BALKAN WAR (Penguin 1992) for an excellent account of the early years of the
Balkan War and of the rise of Slobodan Milosevic.
17 See Rosenberg, Foreword in COMING TO TERMS, supra note 6; and see
generally Rosenberg, THE HAUNTED LAND: FACING EUROPE'S GHOSTS AFTER
COMMUNISM (Vintage 1996) .

perhaps unwittingly (as in the case of perhaps well-intentioned par-

ents whose adoption of Australian aboriginal children contributed to
the eradication of aboriginal culture I 8 ) . Ultimately, there are those
who actively participate in the oppression such as, perhaps most
gruesomely, the hundreds of thousands of Rwandans who massacred
their neighbors in 1994. 19 Whatever the role of the public in these
particular situations, it can fairly be said that in each instance, the
donrinant culture was one of violence, prejudice, or injustice. Coun-
tries seeking to transition out of these situations may therefore not be
satisfied with just changing the rules that govern the governors; they
must also change the culture that permeates the society. Justice must
have a transfonnative dimension, so that the people themselves \ViII
never allow either their governors or themselves to backslide. 20
Transfonnative justice requires metamorphosis at all levels of
18 See generally BRINGING THEM HOME: REpORT OF THE NATIONAL INQUIRY

INTO THE SEPARATION OF ABORIGINAL AND TORRES STRAIT ISLANDER CHILDREN
FROM THEIR FAMILIES (Human Rights And Equal Opportunity Council, Australia
1997). See also Coral Edwards & Peter Read, eds, THE LOST CHILDREN (Double-
day 1997). The same could be said of white American couples who adopted Native
American children, although the United States has not embarked on any systematic
effort to understand this phenomenon comparable to Australia's Stolen Children
report.
19
Alison Des Forges, LEAVE NONE To TELL THE STORY (Human Rights
Watch 1999) at 2.
20 The bridge metaphor that has gained currency in the South African transi-
tional culture suggests the distinction between transition and transformation. See
e.g. INTERIM CONSTITUTION, Postamble (Act 200 of 1993). People walking across
a bridge may move from one place to another, but they are the same people when
they get to the other side. The bridge has moved them, but has not changed them.
A transformative experience, by contrast, changes people in the process of moving
them. "[T]he problem [of transitional justice] is not simply one of correcting previ-
ous unjust distributions, transactions and crimes, but of doing so in a way that
promotes the transformation of the society into a society that consistently provides
justice along all three fronts into the future." Christopher J. Roederer, 'Living Well
is the Best Revenge' - If One Can: An Invitation to the Creation of Justice Off the
Beaten Path, 15 S.A. J. Hum. Rts 75, 79 (1999). See also Willie Esterhuyse, Truth
as a Trigger for Transformation: From Apartheid Injustice to Transformational
Justice, in LOOKING BACK, REACHING FORWARD, supra note 1, at 146-154.

society. Victims become survivors; perpetrators become good neigh-

bors; powerful people learn to wield their authority responsibly or
become less powerful. Part of the process of transformation, there-
fore, entails inculcating new values in the society. In a transformed
society, the people \ViII not only have democratic elections or a con-
stitution, they \ViII actually believe in democracy, human rights, and
the principles of constitutionalism, Institutions that are part of tran-
sitional justice must then do more than restore or even advance; they
must actually foster change in the society, leaving it qualitatively dif-
ferent than it was when they found it. In South Africa, as Johnny de
Lange has explained,
The governm.ent has called for a com.prehensive and integrated
approach to deal with the legacy of the past. This approach is
best captured in the strategic objective - during this transitional
period - that am.ounts to the social transform.ation of our society
into a united, dem.ocratic and prosperous society. Transform.a-
tion is seen as a holistic project to change the attitudes, con-
sciousness and m.aterial conditions of our people, and in a
m.eaningful way to reflect the values that we struggled for and
are now em.bodied in our constitution and in the hum.an rights
. . . 21
cuI ture we strive .Lor.
21 Johnny De Lange, The Historical Context, Legal Origins and Philosophi-

cal Foundations of the South African Truth and Reconciliation Commission, in
LOOKING BACK, REACHING FORWARD, supra note 1, at 16-17. He continues:
"The main content of this programme is the transformation of the political,

economic, social, ideological and moral aspects of the apartheid dispensation.
This is achieved by building a single nation that acknowledges the diversity of
its people; instilling a new sense of patriotism; healing the wounds of a shame-
ful past; liberating black people from political and economic bondage; eradi-
cating gender inequalities and women's oppression in particular; improving the
equality of life for all through the eradication of poverty and the attainment of
the basic needs of the majority; and creating a culture of democracy and hu-
man rights. [<j[] Flowing from ·the above, three elements of this programme,
namely reconciliation, reconstruction and development, have been identified as
forming the kernel of our social transformation project during the transition."
He further explains that "the twin goals of economic justice (economic reconstruc-
tion) and the restoration of moral order in our country (moral reconstruction) ....
Volum.e 12, Num.bers 1 &·2

The Truth and Reconciliation Connnission, then, emerged as the

principal institutional mechanism "to deal 'With the past 'Without
dwclling on it and to establish the moral foundation from 'Which to
build a truly new South Africa.,,22 Likewise, some aspects of
Rwandas reconstruction program have the potential to promote so-
cietal transformation, although they may in reality fall considerably
short of this ideal.
B. The goals oftransforrnative justice: reconciliation and

deterrence
Countries emerging from oppression are, by definition, deeply
divided and wounded societies. Thus, the two principal goals of
transformative justice are the related aims of reconciliation and de-
terrence. In general, reconciliation may be taken to mean that people
learn to live with one another and deterrence means that they con-
tinue to do so in the future. Together, they represent the transforma-
tion that is necessary if countries are to transition from oppression to
peace and stability.
Most nations attempting this transition put reconciliation at the
top or near the top of their agenda: it is not only a desirable outcome,
but often it is presented "the primary desirable outcome' of the tran-
sition.v' This is especially true since South Africa has highlighted the
theme of reconciliation in its program. Thus, even nations that in-
stinctively embrace retribution eventually begin talking of recon-
ciliation, either because they truly believe in it or because they truly
believe that reconciliation has cash value insofar as donor nations in-
have crystallized as the two issues that have to be vigorously pursued to achieve
social justice as a means of dealing with South Africa's legacy of its power." Id.
22 Johnny De Lange, LOOKING BACK, REACHING FORWARD, supra note 21
at 16-17.
23 Jennifer Balint, Law's Constitutive Possibilities: Reconstruction and Rec-
onciliation in the Wake of Genocide and State Crime, in LETHE'S LAW: JUSTICE,
LAW AND ETHICS IN RECONCILIATION (Emilios Christodoloudidis and Scott Veitch,
eds., Hart Publishing 2001) at 130. For instance, the 1994 Lusaka Accords that
were meant to end hostilities in Angola created a Government of Unity and Na-
tional Reconciliation. See Press Statement by Secretary of State Albright, April 11,
1997 at <http://secretary.state.gov/www/briefings/statements-/970411.html>.

TRANSFORMA_TIVE JUSTICE 85
sist on a conciliatory component of the transitional agenda. (With re-

spect to Rwanda in particular, serious doubt has been expressed as to
the genuineness of the governments commitment to reconciliation.
In Jennifer Balint's view, "While official rhetoric supporting societal
reconciliation can be heard in Rwanda, there are few officially sup-
ported or endorsed attempts on the ground to achieve this reconcilia-
tion.,,24)
While the word itself is seen on every transitional government's
"to do" list, its precise meaning is unclear. There is no consensus as
to what reconciliation entails in general or in any particular set of
circumstances, and most uses do not identify the meaning that they
assume. This is a critical problem in transitional justice. Under-
standing what we mean by reconciliation is necessary both to iden-
tify the goals of these transitions and to recognize whether or when
the goals have been achieved. In South Africa, for instance, where it
can safely be said that the heart of the transitional period is over,
there is a perception that reconciliation has not been achieved. But it
is not at all clear that it would be recognized if it were there.
The Truth and Reconciliation Conunission Report, which one
would expect to provide a thoughtful elucidation of the term, disap-
points: it offers instead a catalogue of examples of heartwarming
moments in the life of the Conunission without explaining how these
exemplified the concept of reconciliation. The examples fall into
three general categories. First, are the situations in which one could
say that "human dignity" was "restored" in the sense that the fact of
testifying or the existence of the Conunission itself created the space
in which catharsis or release was possible for an individual. Second,
are the situations in which the victim and perpetrator of a gross vio-
lation of human rights COIne together and either verbally or other-
wise, redefine their relationship in a way that is viewed by the TRC
as positive. These often entail SOIne form of forgiveness, acknow-
ledgement, or corning to terms on the part of the parties. Finally, in a
rather under-explored way, the TRC linked reconciliation to democ-
racy-building. As the report explains, "Reconciliation requires that
24 Jennifer Balint, Law's Constitutive Possibilities, supra note 23, at 141.

all South Africans accept moral and political responsibility for nur-
turing a culture of hUITlan rights and democracy within which and so-
cio-econotnic conflicts are addressed both seriously and in a non-
violent manner, Reconciliation requires a commitment, especially by
those who have benefited and continue to benefit from past discritni-
nation, to the transformation of unjust inequalities and dehumanising
poverty.,,25 Thus, in the TRC's understanding, reconciliation, though
individually experienced, has national ratnifications.
Others have tried to offer Inore precise definitions or at least to
shed SOITle light on aspects of reconciliation. Many of these concep-
tualizations involve change. A member of South Africa's Human
Rights Connnission put it this way: reconciliation, says Pansy Tlak-
lula, is "a turbulent process" in that it "takes people out of their COIn-
fort zone.,,26 In other words, it requires both sides to view their ac-
tions not from the safety of their own fatniliar world view, but from
the outside, from the other side's perspective. This journey entails
some gain (a broader understanding of the events) and, inevitably,
some loss -- loss of confidence in the justness of one's actions, loss
of invulnerability from criticism and judgment, perhaps material loss.
At every level of society, from the individual to the institutional, this
turbulent process is equally difficult in that, like any journey, it
forces a departure from the status quO. 27 Bert van Roennund empha-
25 TRC REpORT vol. 5 <j[<j[ 151-152. The TRC Report can be found at
<http://www.truth.org.za> and, at least at the time of this writing, in searchable
format at <http://www.struth.org.za>.
26 Speaking at "Genocide and the Rwandan Experience: A Rwanda-South
Africa Dialogue," sponsored by the Institute for Justice and Reconciliation on Feb-
ruary 5-7, 2001 at Cape Town (materials on file with author). Mark Drumbl pro-
vides an alternative metaphor: "Individuals must peel off the layers of their own
prejudice and involvement." Drumble, Sclerosis: Retributive Justice and the
Rwandan Genocide, 2 PUNISHMENT & SOC'Y 288, 295 (2000).
27 The structure of reconciliation in the South African context made this loss-
and-gain aspect explicit. In the TRC, reconciliation entailed a bargain: truth for
amnesty. Perpetrators lost anonymity but gained amnesty; victims and survivors
lost the right to sue or prosecute but gained truth. This bargain was also perhaps
meant to embody the reconciliation itself, by evidencing the ability of people on
both sides of the apartheid divide to do business, and hence to live, with each other

sizes that reconciliation entails a change in the victim in particular:

the victim must come to recognize that "w-hat the oppressors did ...
belongs to the evil humans do to each other, and not to a mythic evil
that intrudes on the w-orld of humans from the outside;" that is, the
victim must "acknowledge[] being a sinner.,,28 Presumably this ac-
knowledgement removes the instinct for retribution or vengeance.
Conversely, reconciliation may entail the victims acknowledgement
that there is good in the perpetrator. 29
Moving a-way from this theological and philosophical dimen-
sion of reconciliation, van Roennund offers what may be the most
pragmatic explanation of reconciliation: "to defer the right to retri-
bution to the extent that retribution would obstruct peace. ,,30 This is
useful although (or perhaps because) it is both abstract and minimal.
It does not suggest national hugs, or tears, or even catharsis. It sim-
ply suggests that the victim (who, in van Roennund's vie-w is in
charge of reconcihation"), recognizes peace as more valuable than
in post-apartheid South Africa. For an elaboration of the "bargain" nature of am-

nesty under the TRC, see Kader Asmal, The Second Annual Grotius Lec-
ture: * International Law and Practice: Dealing With the Past in the South African
Experience, 15 Am. U. Int'l L. Rev. 1211, 1226 (2000) ("This incentive scheme - a
give and take arrangement [is], useful for a society aimed at reconciliation.").
28 Bert Van Roermund, Rubbing Off and Rubbing On: The Grammar of Rec-
onciliation in LETHE'S LAW, supra note 23, at 182-83.
29 Cynthia N gwenu, the mother of a boy who was shot by the Apartheid po-
lice, expressed this thought:
"We do not want to see people suffer in the same way that we did suffer, and
we did not want our families to have suffered. We do not want to return the
suffering that was imposed upon us. So, I do not agree with that view at all.
We would like to see peace in this country. I think that all South Africans
should be committed to the idea of re-accepting these people back into the
community. We do not want to return the evil that perpetrators committed to
the nation. We want to demonstrate humaneness towards them, so that they in
tum may restore their own humanity."
TRC REpORT Vol. 5 ch. 9 <][33.

30 Van Roermund, Rubbing Off and Rubbing On, supra note 28 at 180.
31
"The peace envisioned is not a compromise because it is the oppressed
who determine what could be obstructive for what they conceive of as a worthy
peace in their future society." Id. at 181.

retribution. What is achieved, then, may be described as "civil

· I h armony" 3 or
peace ,,32 or " socia 3 , , reconvtvencta
. . - a peno · d 0 f get-
ting used to living with each other again.,,34

Whether reconciliation entails a change of heart or a pragmatic
commitment to moving OQ, it involves some measure of change or
transformation, whether in the oppressed, the oppressor, or both.
Once achieved, the conciliatory transformation is the precondition
for civil peace and stability.35
Whether any core meaning emerges when one considers these
and other understandings of reconciliation is open to debate. There
are, however, SOIne themes that reappear throughout the discussions
of reconciliation. It is clear, first of all, that reconciliation may oper-
ate on multiple levels. On an individual level, reconciliation may oc-
cur by oneself or with one or more individuals. A person may, on her
own, "reconcile" herself to something that has happened. This in-
volves little gain, but the opportunity to move forward which may
have eluded the person until the moment of reconciliation. It is a
self-affirming event. In other instances, reconciliation may produce
affirmation from others, such as when victim and perpetrator corne
32 I,d .,
at passim.
33 Jennifer Balint, Law's Constitutive Possibilities, supra note 23, at 142.
34 Charles Villa-Vicencio, On the Limitations ofAcademic History, in AFTER
THE TRC: REFLECTIONS ON TRUTH AND RECONCILIATION IN SOUTH AFRICA (Wil-
mot James and Linda van de Vijver eds. 2000) at 27, invoking a word that has
gained currency in Chile.
35 Another view of reconciliation takes a page from the theory of restorative
justice. Here, reconciliation can be thought of "as meaning at its core the restora-
tion of relationships, the rebuilding of trust, and the overcoming of animosity."
Jennifer Balint, Law's Constitutive Possibilities, supra note 23, at 144, para-
phrasing P. Gobodo-Madikizela, Truth and Reconciliation, Public Discussion:
Transforming Society Through Reconciliation: Myth or Reality? This is useful
only to the extent that relationships had previously been healthy and that trust and
friendship had previously existed. This was probably not ever true, on a societal
level, in South Africa where whites have oppressed blacks since Jan van Riebeck
set down roots in Cape Town in 1652. In Rwanda, it is a point of debate whether
relations between Hutu and Tutsi were ever friendly and, if so, how far back one
has to go to find trust and friendship. In any event, even this return to the status
quo ante is itself a change from the immediately preceding condition of strife.

together to reach a common understanding of the event for which

reconciliation is sought or when a public institution acknowledges
the victim's pain.i'"
The gacaca courts in Rwanda may offer the possibility of recon-
ciliation on a communal level, where communities COllle together to
make sense of the past. Rwanda may also be providing additional ex-
arnples: the United Nation's Special Representative reported on one
organization called the Womens Consultative Conunittee. "Sixty per
cent of its 2,055 members are widows of genocide victims. The rest
are married to suspected killers, who are now in prison. Y et both
groups till the fields together, prepare food for the wives to take to
the husbands in jail, and stood together for election during the March
local elections.t'" The TRC provides other examples of this where
reconciliation - through gatherings and meetings - took place in
various communities around South Africa often at the behest of the
TRC. One example is the lengthy mediation process between Brian
Mitchell (who was responsible for the deaths of 11 members of the
Trust Feed Community, for which he served 5 years in prison before
getting amnesty) and the community he had terrorized. 38
Reconciliation may occur at an institutional level as well. In
June 2001, the health sciences faculty of the University of Cape
Town launched a six-month "reconciliation programme' that "will
involve introspection, examination of acts of discrimination or op-
pression against black students, and a look at acts of resistance to le- .
galized discrimination during the university's long history.t'" Other
institutions that may be in the throes of reconciliation are the now-
36 See infra on the TRC's understanding of the importance of restoring per-

sonal dignity.
37 Michel Moussalli, REpORT OF THE SPECIAL REPRESENTATIVE OF THE
UNITED NATIONS COMMISSION ON HUMAN RIGHTS ON ~fHE SITUATION OF HUMAN
RIGHTS IN RWANDA, 4 August 2000 (Hereinafter Moussalli 2000) at <][ 197 avail-
able at www.unhcr.ch. Moussalli concludes that" Reconciliation of this kind is a
lesson for the whole world. It belies the image of Rwanda as a country riven by
ethnic hatred." Id..
38 TRC REpORT, Vol. 5 ch. 9 <j[<j[70-82.
39 Vanessa Johnstone, UeT apologises for role in Bika's death: Department
begins reconciliation process, CAPE ARGUS 11 (June 6,2001).

integrated South African Defense Force and the South African po-
lice, both of which previously had a long and ample record of gross
violations of human rights against South African blacka/'" In
Rwanda, Likewise, institutions that have previously been bastions of
Tutsi elitism might benefit from ethnic integration.
Ultimately, there is the possibility of national reconciliation.
This is the most amorphous level: while one can measure the recon-
ciliatory efforts of individuals and communities and institutions, it is
very difficult to measure the extent to which constituencies at the
national level have become reconciled. Nonetheless, this may be
what is involved in Australia's efforts to acknowledge the wrongs
perpetrated against aboriginals.f ' It is what is meant by Desmond
Tutu's reference to democracy-building.Y
One other aspect of reconciliation that can be gleaned by these
varied efforts to define it is that reconciliation, in the context of tran-
sitional justice, is likely to be a two-step process. The first step may
be finite and may be achieved by an organ of the transitional gov-
40 During a TRC hearing, Ronnie Kasrils spoke of the appeal he had made to
the soldiers who had fired on marchers at Bisho:
"I would like to say a few words about the Ciskeian soldiers who opened
fire on the march. An irony of this rainbow nation of ours, as you've coined it
Archbishop, is that, with all the strange things happening, Raymond Mhlaba is
now here at Bisho where Oupa Gqozo used to lord it. Here I am, a Deputy
Minister of Defence in this democratic government, and I have a responsibility
to the soldiers of this country including [these] and to the members of former
SADF who trained and commanded them. We are creating a new defence force
of seven former antagonistic forces, and we can only do this on the basis of
reconciliation, which is vital to the well-being of our society and our future."
41 See BRINGING THEM HOME, supra note 18. Australians also commemo-
rated the oppression of aboriginals on Reconciliation Day in March 2000, when
thousands of Australians marched across the Sydney Harbour Bridge. See also
Mabo v. Queensland and others (No.2) (1992) 175 CLR 1 (recognizing for the
first time in Australian judicial history that Australia was not "terra nullius'.' when
the whites carne to it in the 18 th century).
42 Certainly the euphoria that accompanied the election of Nelson Mandela
as President in 1994 is an aspect of reconciliation. The challenge, however, is to
maintain that commitment to the "rainbow nation" in the long term.

crnment such as the TRC or some other institution. Thus, it can be

said that "the power of the Conunission is really to define the terms,
to set the terms of a social debate.,,43 In Jennifer Balint's terms, this
constitutes creating the "public space" in which reconstruction can
happen; for instance, she says that the "very presence" of the TRC
"provides a tangible set of reference points to which people were and
are forced to respond.T'" Viewed in this way, the transitional institu-
tion can become foundational by laying the ground-work for the rec-
onciliation or creating the preconditions upon which it can take
place. The second step, which is where most of the actual work of
reconciliation takes place, is open-ended and can only be done by
civil society and government, but can not be accomplished by the
transitional institution itself. Indeed, as Francois du Bois argues,
"Truly to entrust reconciliation to an unelected body such as the TRC
would amount to handing over the reins of government, thereby de-
feating the very process of democratisation it is supposed to accorn-
pany.... National reconciliation is the stuff of government, not of ap-
pointed commissions.v''" The transitional organ of government can
do nothing more than start the process. It then leaves it to the rest of
society to do the hard work of reconciling.Y'
Whether or not the transformative institution is successful, then,
should be measured not by whether reconciliation has in fact oc-
curred but by the extent to which the institution has laid the ground-
43 Mahmood Mamdami, Truth and Reconciliation Commission Public Dis-

cussion: Transforming Society Through Reconciliation: Myth or Reality?, cited in
Balint, Law's Constitutive Possibilites, in LETHE'S LAW, supra note 23, at 143.
44 Jennifer Balint, Law's Constitutive Possibilities, in LETHE'S LAW, supra
note 23, at 143.
45 Francois du Bois: "Nothing but the Truth": The South African Alternative
to Corrective Justice in Transitions to Democracy, in LETHE'S LAW, supra note 23,
at Ill.
46
Thus, Archbishop Tutu's statement in his Foreword to the TRC Report -
"I commend this Report to you" seems particularly apt. He does not identify "you"
implying that everyone who reads the report has the responsibility to follow up on
it. In Rwanda, where the government has established a National Unity and Recon-
ciliation Commission, the first step itself may be more open-ended. Nonetheless,
its charge remains to create the public space in which reconciliation can take place.

work or established the preconditions by which reconciliation might

occur. In other words, are the "points of reference" identified by the
institution useful to people? Did it provide people with the tools - the
attitudes, the vocabulary, the \ViII - to use these points of reference to
promote the ne\V values? Are they consistent with what is both desir-
able and feasible in the new society? In the case of the TRC, the
question is whether civil society follows up on the TRC's pro-
granune by developing its own conciliatory progranunes. The Un-
viersity of Cape Town's progranune is one of many examples of this.
This progranune was launched as a direct response to the TRC,
which was perceived as having begun a process that civil society was
meant to pursue. As Professor Njabulo Ndebele, who announced the
progranune, said, "The TRC hearings were not an event, but a proc-
ess that will continue in the future just as apartheid was a process. ,,47
The success of the TRC can be judged by the extent to which efforts
like these are incorporated into the fabric of post-apartheid life in
South Africa. In the case of the Rwandan gacaca courts, for instance,
the test \ViII be not just how well the courts themselves function but
also how well the conununities function outside the courts and after
they are disbanded.
Given these themes, it is important to remember that reconcilia-
tion itself may have a contextual nature - that is, what counts as rec-
onciliation in one society may be different from what is required in
another situation. In South Africa, whites have been asked to live
side-by-side with blacks and to participate in the new democracy
with them and, for the most part, they have done so, with little racial
violence.Y' Reconciliation involves transcending their psychic com-
fort zones by reexamining their beliefs about race and their relation-
ships to their fellow South Africans. This is not too much to ask
47 See supra at note 39. Interestingly, the launch of the programme was cou-
pled with an apology for the role that VCT graduates had played in the death of
student-activist Steven Biko and others. The TRC had identified graduates of the
Health Sciences department who had issued false death certificates to cover up the
actual causes of detainees' deaths. "The complicity was an open secret," said Pro-
fessor Ndebele.
48 Or, they have taken their capital and left the continent.

given that most South African whites live in material comfort. At this
stage in Rwanda, however, when the reconcilers are the very people
who participated in, witnessed, and survived the genocide and where
more than 70% of Rwandans live below the poverty line,49 it may be
possible to ask people to live with one another, but it rnay not be fea-
sible to expect more, at least not of this generation. People have been
so traumatized by the genocide that they may have only the thinnest
comfort zone, if any at all. Nor would it necessarily be healthy for
individuals, communities or the society generally to disturb any com-
fort R wandans have managed to regain in the years since the geno-
cide. In Rwanda, therefore, this thin or weak version of reconcilia-
tion may be the only feasible goal. 50
If the meaning of reconciliation varies from one situation to
another, so must the route that must be taken to achieve it. In South
Africa, for instance, reconciliation was perceived as largely an inter-
personal phenomenon, manifested by instances of victim forgiveness
and perpetrator repentance. It was widely assumed that truth was a
necessary precondition for this form of reconciliation; thus, the
TRC's motto was "Reconciliation through Truth.,,51 If, however,
reconciliation is reformulated to mean something else - simply for-
bearance, perhaps, or self-reconciliation - then it is not obvious that
truth would be relevant to achieving that goal. Perhaps intensive in-
dividual therapy, rather than public vindication, would be more con-
ducive to permitting people to move on with their lives. Another
way of approaching the question is to ascertain what obstacles stand
in the way of reconciliation in the current social climate. If the prin-
cipal obstacles to reconciliation are viewed as lack of information
about the other's motives and views (or, as in East Germany, lack of
49 International Panel of Eminent Personalities to Investigate the 1994 Geno-

cide in Rwanda and the Surrounding Events - Special Report (7 July 2000) (here-
inafter OAU) at 117.4 (available at <http://www.oau.org>).
50 Another consideration is the question of "opting out." In South Africa, it is
reported that many whites were 110t involved in the reconciliation process. Rwan-
dans, almost all of whom were deeply affected by the genocide, may not have that
option.
51 du Bois, Nothing but the Truth, in LETHE'S LAW, supra note 45.
VolulTIe 12, Numbers 1 & 2

information about "Who "the other" is), then revealing the truth "Would
assist in overcoming that. If the principal obstacles are understood to
be material, for instance, then a program of reparations or "Wealth
creation and redistribution might be more productive than a program
aimed at talking and catharsis. Alternatively, reconciliation might
comprise an international component, as for instance in the Congo,
"Where no fewer than 6 neighboring nations are "Waging "War against
the Congolese population.Y Given the transformative institution's
role in promoting reconciliation, it is critical that it understands what
reconciliation means for that particular society at that particular time.
It is therefore necessary that the institution be deeply rooted in the
culture it seeks to transform - an institution that is not tailored to or
"of" the culture "Will not be as successful in speaking to it or under-
standing its needs, promoting reconciliation, and transforming it.
While the goals of reconciliation may be amorphous and elu-
sive, the goal of deterrence is much more straightforward: ensuring
that the injustices of the past are not repeated. Again, transformative
justice is necessary to achieve this goal because it entails changing
the culture that tolerated or pursued the prior injustices. If the culture
remains fundamentally violent, or racist, or nationalistic, or in "What-
ever way retains the impulses that prompted the violence in the first
place, then, absent societal transformation, there can be no guarantee
that violence "Will not reassert itself. The prosecutorial response to
successor justice raises this concern vividly. In Rwanda, for instance,
the prosecution of Ferdinand N ahimana for promoting the propa-
ganda that incited R wandans to kill each other removes the threat of
recurrence only at a superficial level": it makes it impossible for that
person to incite people again. But it does not preclude another from
doing substantially the same thing. Only when Rwandan society is
sufficiently transformed that it resists the homicidal urgings of a
leader or resists the leadership of a killer, can it be said that genocide
is truly unlikely to recur. The same could be said of the arrest of Ser-
52 CAPE TIMES, July 1,2001.

53 See, War Criminal Watch - Coalition for International Justice at
<http://www.wcw.org> (listing Nahimana as indicted war criminal responsible for
propganda).

bian leaders, and leaders throughout the world, Indeed, it is a hall-

mark of unstable societies to have successive transitions, precisely
because the cause of the instability - the cultural tolerance for op-
pression - has not been rooted out. 54 Attention to transformative jus-
tice as the vehicle for reconciliation and ultimately deterrence indi-
cates how profoundly difficult societal transformation is, but it also
demonstrates its importance.
II. THE INSTITUTIONS OF TRANSFORMATIVE JUSTICE:

CHARTING THE MIDDLE COURSE
Transitions, like stable regimes, are characterized by broad
normative maxims about what the future should bring. In South Af-
rica, for instance, the interim Constitution enshrined such values as
"the need for understanding but not vengeance" and for "reparation
but not retaliation" and the African principle of ubuntu.i? But these
goals can only be achieved through specific programs or institutions
that promote the values of the new dispensation. Creating these in-
stitutions requires resolving difficult questions: Who should be the
officers of the institution and what should their credentials be? What
should be its budget? How much independence should it have?
Should it be created by executive or legislative act? What should its
term be? Which specific structural features, in other words, would
most conduce to the transformation envisioned by the broad max-
inls?
As will be discussed, the standard approaches to transitional
justice are ill-suited to these transformational goals. Transformative
54 Thus, the recurring cycles of violence in- places like Kosovo, where the
same battles have been fought for six centuries. See Robert Kaplan, BALKAN
GHOSTS: A JOURNEY THROUGH HISTORY (St. Martin's 1993).
55 INTERIM CONSTITUTION, Postamble (Act 200 of 1993). The interim Con-
stitution recognizes a "need for understanding but not for vengeance, a need for
reparation but not for retaliation, a need for ubuntu but not for victimization.'" Id.
Ubuntu is an articulation of the intrinsic humanity of each person, as understood in
the context of a larger community. The concept is discussed further below in Part
III A (3) (b).

or reconstructive justice" requires an institutional response to past

abuses that fits the particular needs of each transitional society.
A. Features of transforrnative institutions

There is an infinite variety of vehicles of transformative justice,
depending on the nature of the abuses they seek to correct: trials,
truth commissions, amnesty programs, lustration programs, and vari-
ous forms of reconstructive projects have all been tried, with varying
degrees of success. Nonetheless, successful transformative institu-
tions or programs may share certain features. Some of these features
are common to most agencies of good government, but even these
may have additional salience in times of transition. Other features are
peculiar to engines of transformative justice, particularly those that
seek to foster reconciliation among a divided people.
First, the transformative institution must, in form and in content,
exemplify the values it seeks to promote in the society at large.57
This is especially important for transformative agencies because, as
Ruti Teitel argues, "the conception of justice in periods of political
change .... is alternately constituted by, and constitutive of, the tran-
sition.,,58 The agency is often an early and prominent instantiation of
56 See Dyzenhaus, TRUTH, RECONCILIATION, AND THE APARTHEID LEGAL

ORDER, supra note 3, at 6 ("If the TRC's purpose is to do justice, the kind of jus-
tice at which it aims is best described as reconstructive - a mode of justice which
seeks institutional transformation through an examination of the wrongs of the
past."). I would add that the reconstructive project seeks cultural transformation as
well.
57
As Francois du Bois has pointed out, "reconciliation has a mental subjec-
tive constituent that requires forging process and outcome and precludes separating
them as one separates procedural and substantive justice." Nothing but the Truth,
supra note 45, at 103-104. The point may also be made as a moral imperative as
well. Amy Gutmann and Dennis Thompson have argued that "the justification for a
truth commission should be moral in practice: it should offer reasons that are to the
extent possible embodied or exemplified by the commission's own proceedings,
and are not only intended to be put into practice by other institutions, observers,
and future governments." The Moral Foundations of Truth Commissions 23, in
TRUTH V. JUSTICE: THE MORALITY OF TRUTH COMMISSIONS (Robert I. Rothberg
and Dennis Thompson eds., Princeton 2000).
58 Teitel, TRANSITIONAL JUSTICE, supra note 3, at 6.

the values of the new government, If it seeks to promote trust in gov-

ernment, for instance, the institution itself should be transparent and
its officers should be known to have integrity. If a priority is to en-
sure that the polity has a voice in policy-making, then the agency's
structure should include a wide range of voices, whether as officers
or through public input, or both. Otherwise, the institution appears
hypocritical and the people have no reason to follow where the lead-
ers themselves have failed to go. When the government is creating
the agency, then, it is important to ensure that its structural features
exemplify the values of the agency and of the new society generally.
Careful attention should also be paid to the legal and practical
authority of the institution. The institution must have a legal mandate
whose breadth demonstrates the commitment of the new government
to an exhaustive exploration of the atrocities of the past. Further-
more, it must have the resources to do its job thoroughly. Although it
is generally true that a government agency that is insufficiently em-
powered \ViII be ineffective, this is particularly threatening to trans-
formative institutions. Whereas an ordinary institution that fails in its
mandate and thereby favors the status quo may be tolerable, even if
not desirable, a transfonnative institution that favors the status quo
completely betrays the transfonnative project ipso facto. It is critical,
therefore, that such institutions are adequately resourced. Further-
more, in stable societies, an aberrationally weak institution \ViII not
threaten the legitimacy of the entire state; in transitional societies,
however, where the state's legitimacy is generally tenuous, tnore
rides on the legitimacy of the institution that was designed to mark
the departure of the old regime. Here, failure could have widespread
ramifications, imperiling the stability of the new government itself.
Certain features of these institutions are unique to the context of
transfonnative justice. Almost by definition, these institutions are
victiIn-oriented. The Final Report of the TRC regards this aspect of
its enabling legislation to be its central feature.i'" This is necessarily
true of transfonnative institutions that are products of an inversion of
59 TRC REpORT, vol. 1, p. 53, <j[ 21.

power, where the formerly oppressed set the new agenda.l''' That
agenda must reflect the values of the population that the new gov-
ernment represents. But this is not just a question of replacing the old
values with new values. It is also a question of revealing the wrong-
fulness of the prior regime by reference to the experience of the op-
pressed. Crime may look justified from the criminal's point of view;
its criminal nature may only emerge from the perspective of the vic-
tim, individually or collectively. Likewise, it may only be from the
perspective of the victim class that widespread abuse becollles suffi-
ciently apparent to warrant correction. Finally, where wrongdoing
was widespread, the victim class is a large one and its experience
permeates and defines the society generally. An institution that does
not respond to the interests of that class can not hope to transform the
broader society.
The victim orientation of the transfonnative institution balances
precariously among competing interests. This can be conceptualized
as the competition for room within the public space created by the
institution. If the institution is insufficiently oriented towards the ex-
perience of victims - that is, if it creates too little space for victims -
it \ViII fail in distinguishing the new order from the old and transfor-
Illation \ViII be diminished, The victims of the old dispensation re-
main victims in the new. If, on the other hand, the public space cre-
ated by the institution is excessively dominated by the victim class,
transformation may occur so extensively that the non-victims may
feel excluded from the new order. But reconciliation, by definition,
requires some attention to both the former victirns and the former
perpetrators. The situations in Rwanda and South Africa illustrate
the dangers of striking the wrong balance. In R wanda, the Tutsi, who
60 This was true, for instance, in South Africa where the ANC which was
banned between 1960 and 1990, became the dominant political force of the transi-
tion. The victim-orientation of transformative institutions in other places may be
less palpable, but no less important. For instance, in the former Yugoslavia, the
current political power does not lie with the victims of Serbian aggression; none-
theless, any institution aiming to rebuild this society must attend to the needs of
these victims and survivors. The same may be said of the importance of attending
to the needs of women in post-Taliban Afghanistan.

were the primary victims of the 1994 genocide but who constitute
only a small nrinority of the R wandan population, control the present
R wandan government. While the reconstructive efforts there need to
be responsive to their needs, they also need to guard against capitu-
lating to a potentially vengeful class. In South Africa, the numbers
are different, but the danger is nonetheless present: the TRC's em-
brace of victims and survivors of apartheid made many on the other
side feel excluded and that the transformation of South African soci-
ety would go on without them. Furthermore, an institution that does
nothing more than reflect the balance of power within the society
generally risks the criticism that has been lodged against the TRC,
that it failed to "insert anything distinctive into the network of power
relations" that govern modern South Africa. 6 1 Where the line should
be drawn in any given society is both a difficult and an important
question, because on that decision may rest both the effectiveness of
the institution and its perceived legitimacy.
Perhaps the most critical feature of transformative institutions is -
that they must attend to the specifics of time and place. Only by un-
derstanding the particular nature of the oppression that occurred can
the institution hope to transform the culture in \¥hich it operates. This
feature has been described as contextuality and is often ascribed to
the uniqueness of the underlying atrocity.Y This is important for a
number of reasons, but <;>ne reason that has been insufficiently under-
stood is that the transformative power of an institution derives from
its connection to the society. One can only transform a society that
one understands and is connected to. This, as will be discussed fur-
ther below, is where the TRC's power and the gacaca courts' poten-
tial lie. This contextuality, in turn, means that the middle path Inust
indeed be broad enough to embrace the multiplicity of vehicles of
transformative justice.
The test of the legitimacy of the transforrnative institutions
should be whether the institution successfully promotes the transfor-
61 du Bois, Nothing but the Truth, supra note 45, at 110.

62 See Mark Drumbl, Punishment, Postgenocide, supra note 8, and sources
cited therein (arguing that since each disaster is unique, so must each recovery
program be unique).

Illation of the new dispensation. If those values are legitimate, then

the institutions promoting them would normally be as well. 6 3 In the
situations that come under the rubric of transitional, the IlloveIllent is
from repression to democracy as the political ideology, and from
violence to deliberation as the medium of choice for public dis-
course.?" Transformative institutions should therefore promote the
values of dernocracy and deliberation to enjoy the benefits of do-
mestic and international legitimacy. As will be seen below, in the
context of successor justice the best hope for transformation lies not
in the old prosecutorial paradigm but in the emerging middle path.
B. Rejecting the traditional alternatives

The traditional view of predecessor abuse is that prosecution is
the means of choice to avoid impunity and that amnesty is the means
of choice to avoid open-ended and perhaps ultimately fruitless forays
into the past. 6 5 Neither of these conventional options, however, nee-
63 The test should not be how the institutions compare with an idealized ver-
sion of retributive justice. If the values of the new government are not legitimate,
there is no reason to think that conventional models would fare any better. Indeed,
criminal trials are generally unable to transcend the illiberal values of a regime, as
courts are generally only as independent as the government permits them to be. See
generally David Dyzenhaus, HARD CASES IN WICKED LEGAL SYSTEMS: SOUTH
AFRICAN LAW IN THE PERPSECTIVE OF LEGAL PHaOSOPHY (Oxford 1991). Thus, in
Rwanda, where there is a question as to the degree of genuine commitment to de-
mocracy on the part of the government, the best hope for transformation may lie
outside the government, in civil society; to the extent that the gacaca courts diffuse
power, they may be an ideal transformative vehicle.
The Rwandan example suggests another dimension that may animate
transformative justice: whereas the TRC enjoyed sufficient goodwill and moral
authority to promote the transformation of South African society, in Rwanda, the
transformative project may work in the other direction: the grass-roots gacaca
courts could earn sufficient moral authority to help instill transformative values in
the governing structures.
64 See Teitel, TRANSITIONAL JUSTICE, supra note 3 in Introduction.
65 "The justifications for international criminal liability for perpetrators of
the international crimes of genocide, war crimes, and crimes against humanity have
remained essentially unchanged in the half century since World War II's Nurem-
berg and Tokyo trials. Despite the vast literature on those famous prosecutions, in-

essarily even achieves it own goals, let alone the goal of transforma-
tion. 6 6
Blanket amnesty has virtually nothing to reconunend it. It is
eluding extensive critiques leveled at what they accomplished, there is a remark-

able degree of consensus among international lawyers in favor of international
criminal accountability for mass murderers, rapists, and torturers." Jose Alvarez,
Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 YALE J. INT'L L. 365,
365-366 (1999) (citations omitted).
I do not address the possibility that nations in transition may simply ignore
the past violations. First, that option has no transformative potential and so is
worthless from the perspective of transformative justice. Second, pressure from the
international community to act precludes that option for any transitional nation
needing or wanting international recognition or foreign aid. The ICC statute per-
mitting jurisdiction if the state does not act codifies the international community's
preference for action over inaction and, further, for criminal prosecution over al-
ternatives.
66 Of course, governments can, and most do, adopt a combination of re-
sponses. For instance, in South Africa, prosecution of perpetrators who did not get
amnesty is possible. In Rwanda, in addition to the gacaca courts, the government
has established a National Unity and Reconciliation Commission. In East Timor,
the plan is to develop a Reception, Truth, and Reconciliation Commission (CRTR)
which itself may have several components. As one commentator has explained,
"The likely procedure would be for perpetrators to meet with the affected commu-
nity, offer a public apology, and undertake some form of community service by
way of atonement. This agreement would be registered by a court; following com-
pletion to the satisfaction of the CRTR, the perpetrator's debt to society would be
deemed to have been paid. It is likely that a perpetrator would be required to make
some sort of a declaration accepting that the result of the August 1999 popular
consultation reflects the will of the majority of the Timorese population. A separate
function would enable victims to enter testimony about violations suffered in the
period 1974-1999." Simon Chesterman, The International Peace Academy (May
2001), available at <http://www.globalpolicy.org/intljustice/general/2001/esttimor.
htm>. This CRTR would proceed along with traditional domestic courts, foreign
courts (such as in the United States and elsewhere), and perhaps a UN-sponsored
ad hoc International Criminal Tribunal. There is also talk of an international recon-
ciliation tribunal. See East Timor Truth & Reconciliation Commission, The World
Today (Broadcast May 1, 2001) on Australian Broadcast Corporation (transcript
available at <http://www.abc.net.au/worldtoday/s286769.htm>). Given this range
of approaches, the central questions are, first, whether any of the approaches a
country chooses will promote societ.al transformation and, second, what the pri-
mary response will be.

quick, but it signals to the people that their suffering has no legal or
public significance and that the government has no part to play in
reconciliation.i" Furthermore, blanket amnesty laws are susceptible
to subsequent invalidation, as recent events in Peru and Argentina
indicate. 68
At the other extreme, a strategy of extensive criminal trials --
what is referred to as the Nuremberg approach -- is not an appropri-
ate resolution for most current transitions. First of all, in very few in-
stances, is the victory by the ne\¥ government as complete as the
victory of the Allied Forces over the Nazis in 1945. Rather, victory is
more often wrested from the previous regime through tenuous mili-
tary victory or cautious negotiation and bargaining. This was cer-
tainly true in South Africa where the evolution from apartheid to
democracy, known as "the negotiated revolution," would have been
virtually impossible without the offer of amnesty to the National
party.69 In most instances, long-lasting and secure peace will only
emerge with the involvement of multiple parties no one of which
would typically accept massive prosecutions against it.
Even if it is possible, prosecution as a prirnary response is un-
likely to be effective. Most of the reasons for this are endemic in
67 Blanket amnesty amounts to a rejection of the engagement of law which,

"constitutes the official, legitimate recognition of wrongs done, and their integra-
tion into the official history of the states." Jennifer Balint, Law's Constitutive Pos-
sibilities, supra note 23, at 134.
68 See Reed Brody, Justice: The First Casualty of Truth?, THE NATION 26
April 30, 2001 (noting the March 6, 2001 invalidation by an Argentine judge of
that country's amnesty law as contrary to national and international law, and the
March 20, 2001 invalidation of Peru's amnesty laws as violative of the American
Convention on Human Rights by the Inter-American Court of Human Rights).
69 It may also be fairly said that amnesty was in the ANC's own interest as
well. The ANC approached the bargaining table knowing that there were skeletons
in its closet, and the high proportion of amnesty applicants who were ANC mem-
bers lends some credence to this theory. See Priscilla B. Hayner, Fifteen Truth
Commissions - 1974 to 1994: A Comparative Study, in TRANSITIONAL JUSTICE:
vol. 1, pp. 225-261 (Neil Kritz ed., 1995). Ironically, of course, the entire negoti-
ated revolution was impelled by the National Party's decision to release the politi-
cal prisoners of the liberation movement and to remove the ban on their organiza-
tions which, itself, constitutes a general amnesty.

criminal prosecution, though some are exacerbated in the transitional

context.
Criminal prosecution is notoriously time-consuming and incre-
mental; it does nothing to tell the anxious population that something
is being done now to ease the pain or that the battle really was worth
fighting. As Christopher Roederer reminds us, "the standard of
prosecuting criminals to the full extent of the Iaw is a standard that is
rarely achieved even in settled democracies. There are many corn-
promises based on overloaded court dockets, and overloaded prisons.
The vast majority of cases are plea-bargained and criminals rarely
serve their full sentences.t'/" Punitive justice is inevitably character-
ized by compromises and pragmatism which become more promi-
nent in times of transition because they are subject to closer inspec-
tion. The stakes in transitional situations may also be higher because
of the precariousness of the new government.. Criminal prosecutions
should therefore be vie\Ved with great caution before being adopted
as the new government's primary response to past abuses.
As has been extensively documented in both stable and transi-
tional situations, the criminal justice system does not produce a reli-
able or comprehensive version of the truth both because of the Iim-
ited scope of each trial's inquiry and because of the use and
manipulation of rules of evidence that govern the release of informa-
tion. Production of the truth is not the prirnary purpose of a criminal
trial.i ' While this may be an acceptable cost of justice in stable so-
cieties, truth rnay not be expendable in times of transition and trans-
formation. It is often thought to be a precondition to reconciliation as
well as a necessary antidote to arnnesia. The institutional response to
70 Roederer, Living Well is the Best Revenge, supra note 20 at 94.

71 Trial courts "may impede or ignore truth. Democratic guarantees protect-
ing the rights of defendants place those rights at least in part ahead of truth-
seeking; undemocratic trials may proceed to judgment and punishment with disre-
gard for particular truths or their complex implications beyond particular defen-
dants." Minow, BETWEEN VENGEANCE AND FORGIVENESS, supra note 6. See
Drumbl, Sclerosis, supra note 26, at 293-296 and sources cited therein, for a dis-
cussion of the limits of the truth-revealing potential of criminal trials; see also Bo-
raine, A COUNTRY UNMASKED, supra note 2, at 280-299, for a comparison be-
tween trials and the TRC.

past societal abuses would therefore normally incorporate truth-

sccking.f '
There are pragmatic reasons as well why criminal prosecution
rnay not be feasible in tirnes of transition. First, courts in transitional
democracies are either non-functioning (as in Rwanda) or, if they
exist (as they did throughout the transition in South Africa), they are
staffed by adherents to the old regime operating under old mental
and legal frameworks which are inconsistent with the purported rule
of law values of the new regime.t ' Second, money in transitional so-
cieties is always scarce and is inevitably more desperately needed
elsewhere. By definition, the new government is taking over for one
that harmed or oppressed the population as a whole and the rebuild-
ing of society as well as individual or collective reparations may
make a stronger claim on the nascent governments Iimited resources
than punishing a fraction of the wrongdoers. In South Africa, the
choice of criminally prosecuting the leaders of the apartheid regime
was starkly put to the citizens: the twelve million rands (approxi-
mately US $1.3 million) "in taxpayer-supported court costs" that
were spent to prosecute the former Minister of Defense yielded an
acquittal. 74 Punishment for wrongs is important, but so are electric-
ity, medical care, jobs programs, education, housing, and so on.
There are also conceptual difficulties with using crirninal trials
72 The rampant destruction of evidence that is common at the end of regimes

may also impede the discovery of truth. See TRC REpORT vol. 1 ch. 8 ("The de-
struction of records"). While this may also besiege other types of institutions, as it
did the TRC, innovative arrangements may at least alleviate this problem. For in-
stance, the rules of evidence could be broadened to emphasize the disclosure of
truth or incentives could be developed to secure truthful disclosure.
73 Furthermore, rewriting the laws implicates some of the problems of retro-
activity fruitfully explored by Martha Minow. See Minow, BETWEEN VENGEANCE
AND FORGIVENESS, supra note 6, at 29 et seq.
74 Elizabeth Kiss, Moral Ambition, within and beyond political constraints:
Reflections on Restorative Justice, in TRUTH V. JUSTICE, supra note 57, at 77
(noting that Magnus Malan later "appeared before the [TRC] and told his own
story, denying some allegations but admitting to much more than his trial had dis-
closed."). See also Meredith, COMING TO TERMS, supra note 6.
Volull1e 12, Nurnbers 1 & 2

to deal with gross society-wide abuses.I" Many of these derive from

criminal prosecution's focus on individuals and on the ideology of
the individual responsibility of voluntary perpetrators. But this ap-
proach may not fit situations where mass segments of society are re-
sponsible for the deprivation of human rights: individuals often act
collectively, with varying degrees of responsibility and under vary-
ing degrees of coercion. Responsibility in these situations is both
more widespread and more resistant to the generalities that define
non-transitional criminal law.
International and foreign criminal tribunals may be more ap-
pealing because they literally externalize the cost of prosecution.
They nonetheless suffer from many of the same faults as domestic
prosecution, and then create others, such as inconsistent penalties
and the failure to resonate in the local society.I"
Even where criminal prosecution is fiscally and politically fea-
sible, there are strong reasons why transitional governments should
seriously consider alternatives. Even in their ideal form, criminal
prosecutions are unlikely to achieve the goals that are important to
transitional governments. Criminal trials do not foster social stability
because criminal trials are designed for stable societies that operate
well, where crime is an aberration. Assuming that the society is oth-
erwise healthy, they simply seek to reInove criminal anomaly, Trials
address the problem of crime only incrementally, one perpetrator at a
time. In transitional societies rife with massive violations of human
rights, however, crime is the norm. It is not sufficient to remove an
isolated offender, even a leader; rather, it is necessary to treat, and
transform, the society as a whole.
Nor do trials promote reconciliation because they are both ad-
75 Perhaps the most thorough exploration to date of this idea is in Teitel,

TRANSITIONAL JUSTICE, supra note 3 at 27-67. See also Minow, BETWEEN
VENGEANCE AND FORGIVENESS, supra note 6, at 25-51. I mention them here just to
highlight the disjunction between criminal prosecution and transformative justice.
76 See sources cited in previous note. This has been a chronic problem in
Rwanda as tensions between the national government and the ICTR have plagued
the processes since the ICTR's inception. See Goldstone, FOR HUMANITY, supra
note 3.
Volume 12, Numbers 1. & 2

versarial (due to the nature of the legal system) and divisive in that
they reinforce the power that the new regime wields over adherents
of the old. 77 Trials separate victims and perpetrators; a regime of
criminal trials creates separate victim and perpetrator classes. They
do nothing to bring people together. The result of a trial is the execu-
tion or incarceration of the perpetrator, not the strengthening of soci-
ety. Moreover, because the emphasis in crinrinal trials is on the
wrong done by the perpetrator to the state, the victim or survivor is
often side-lined; far from empowering the victims of the old dispen-
sation, this further marginalizes them. 78
Finally, criminal prosecution is unlikely to satisfy the goal of
deterrence in transitional societies for t\\TO related reasons. First,
criminal trials do not address the causes of the wrong; because they
treat the wrong as aberrational, the primary concern is to remove it
from society, not to understand it. But where the wrong is woven into
the fabric of society, as in the case of mass atrocities, its etiology
must be understood and treated. Second, trials only address the lead-
ers of the prior regime. If society permitted or promoted the atrocity
and violence and prejudice permeated the culture, then prosecuting
only the leaders does not deter society generally. Only if the society
is transformed from one that tolerated or promoted the wrong to one
that does not is the likelihood of recurrence diminished. Ultimately,
it is the transformation of society that is the best deterrence. 79
77 See e.g. Minow, BETWEEN VENGEANCE AND FORGIVENESS, supra note 6,

at 26 (noting that "Reconciliation is not the goal of criminal trials except in the
most abstract sense."). This may be a particular hazard of importing into the do-
mestic sphere a mechanism that may have been appropriate when one nation van-
quishes another as at the end of World War Two; the Allies were not interested in
reconciling with the Germans or the Japanese, but of asserting their authority over
them. But civil disputes may demand less retribution and more reconciliation.
78 Recent efforts in the form of restorative justice have highlighted this fail-
ure of conventional retributive justice and have made steps to correct it.
79 "Prosecutions and punishment of systematic human rights abuses seem to
have little deterrent effect" Kader Asmal, supra note 27 at 1221. Asmal quotes
Robert Jackson at the time of the Nuremberg trials saying: "Judicial action always
comes after the event. Wars are started only on the theory and in the confidence
that they can be won. Personal punishment, to be suffered only in the event the war

Criminal trials are therefore most appropriate w-here the only

fonn of injustice is the prospect of impunity; thus, in a stable society
where crime is anomalous, a judicial regime that punishes the indi-
vidual wrongdoer restores the balance and preserves order. As sug-
gested above, how-ever, transitional societies are beset with myriad
forms of injustice. These different aspects of justice may call for a
range of institutional responses. In one society, reconciliation may be
promoted by a centralized, elite-driven institution, while elsewhere, a
localized, participatory forum may be most appropriate. The one-
size-fits-all nature of conventional criminal prosecution is unlikely to
achieve these various kinds of justice or to suit the varying needs of
each society. Rather, institutions that lie somewhere in the middle
path may be more amenable to local tailoring.
c. Shifting the Burden of Persuasion

At some level, the shortcomings of criminal prosecution are
recognized. As Ruti Teitel has pointed out, "[t]he relatively low- inci-
dence of successor trials reveals the dilemmas in dealing with often
systemic and pervasive wrongdoing by way of criminal Iaw.v '" This
is true despite the ideological affinity for criminal prosecutions
within and among states. It is as if the theory that prefers conven-
tional crirninal law- has not caught up w-ith the practice that recog-
nizes its deficiencies. Thus, nations that do choose alternatives are in
the position of having to justify this choice as a departure from the
norm.f ' But the deficiencies are so pervasive that, in the context of
is lost, will probably not be a sufficient deterrent to prevent a war where the war-
makers feel the chances of defeat to be negligible." Id. at 1221-1222. This points
to another reason why deterrence is unlikely to result from criminal prosecution:
while the fear of punishment may deter an ordinary criminal from committing a
crime, politically motivated offenses are likely to be resistant to the threat of pun-
ishment: a political actor will abstain because the political motives change, not be-
cause of the fear of being caught.
80 Teitel, TRANSITIONAL JUSTICE, supra note 3 at 7. "Punishment dominates
our understandings of transitional justice. This harshest form of law is emblematic
of accountability and the rule of law; yet, its impact far transcends its incidence."
Id. at 27.
81 See e.g. Amy Gutmann and Dennis Thompson, The Moral Foundations of

successor trials, the question ought perhaps to be reversed: nations

choosing criminal prosecution (or amnesty) as their primary or sole
response should be asked to account for their rejection of other more
effective and more transfonnative mechanisms to deal with the past.
To look at it another way, the question becomes whether the
goals that are attributed to the criminal justice system may be ac-
complished more effectively in other ways, These goals have been
articulated in a variety of ways, although many descriptions of the
contributions that trials are said to make overlap. One elegantly sim-
ple articulation of the goals of retributive justice is as follows:
"The ideal is equal dignity of all persons. Through retribution,
the conununity corrects the wrongdoer's false message that the
victim was less worthy or valuable than the wrongdoer; through
retribution, the conununity reasserts the truth of the victim.' s
value by inflicting a publicly visible defeat on the wrongdoer.t'Y
Ruti Teitel ascribes a variety of more complex goals to criminal

justice:
In much prevailing political theorizing, successor trials are
thought to have the potential of playing a distinct role in draw-
ing the line between the old tyrannies and new beginnings.
Criminal justice offers normative legalism that helps to bridge
periods of diminished rule of law. Trials offer a way to express
both public condemnation of past violence and the legitimation
of the rule of law necessary to the consolidation of future de-
mocracy. Successor criminal justice is generally justified by
forward-looking consequentialist purposes relating to the estab-
Truth Commissions, in TRUTH V. JUSTICE, supra note 57 (premising their argument

on the view that "In a democratic society, and especially in a society that is trying
to overcome injustices of the past, trading criminal justice for a general social
benefit such as social reconciliation requires a moral defense if it is to be accept-
able" at 22). The Truth and Reconciliation Commission accepted this challenge
and attempted to defend itself both politically and morally. See TRC REpORT vol.
1. ch 1 II 20-32.
82 Minow, BETWEEN VENGEANCE AND FORGIVENESS, supra note 6, at 12
(citing Jean Hampton, The Retributive Idea, in JEFFRIE C. MURPHY AND JEAN
HAMPTON, FORGIVENESS AND MERCY (1988)).

Iishment of the rule of law and to the consolidation of democ-

racy. This version of the consequentialist argument particular to
transitions is characterized here as the "democracy' justification
of punishment largely on the basis of the purposes of the transi-
tion. Criminal proceedings are well suited to affirm the core lib-
eral message of the primacy of individual rights and responsi-
biliti
I rties. 83
Thus, in this view, criminal trials are preferred because they

achieve several goals. They draw lines betvveen the old dispensation
and the new, They promote rule of law interests including bridging
past and present and expressing public condemnation for past vio-
lence. They promote or consolidate democracy interests (that is, the
democratic purposes of the transformation) by affirming the liberal
message of individual rights and responsibilities.
A perhaps more pragmatic formulation of similar ideas is pro-
vided by the late Judge Cassese of the International Criminal Tribu-
nal: he suggests that prosecuting wrongdoers of a previous regime
(and especially international prosecution) fulfills several goals, in-
cluding, notably the goal of reconciliation.
[T]rials establish individual responsibility over collective assig-
nation of guilt, i.e., they establish that not all Germans were re-
sponsible for the Holocaust, nor all Turks for the Armenian
genocide, nor all Serbs, Muslims, Croats or Hutus but individual
perpetrators - although, of course, there may be a great number
of perpetrators; justice dissipates the call for revenge, because
when the Court metes out to the perpetrator his just desserts,
then the victims' calls for retribution are met; by dint of dispen-
sation of justice, victims are prepared to be reconciled with their
erstwhile tormentors, because they know that the latter have now
paid for their crimes; a fully reliable record is established of
atrocities so that future generations can remember and be made
fully cognizant of what happened. 84
83 Teitel, TRANSITIONAL JUSTICE, supra note 3 at 30.

84 Alvarez, Crimes of State/Crimes of Hate, supra note 65 at 373-374, para-
phrasing Antonio Cassese, Reflections on International Criminal Justice, 61 MOD.
L. REv. 1 (1998).

110 INrrERNATIONAL LEGAL PERSPECTIVES
In Cassese's view, the principal accomplishments of criminal

trials are 1) to distinguish the culpable perpetrators from others
within the same broad class or ethnic category, 2) to dissipate calls
for revenge because, essentially, the victim has entrusted to the state
the right to punish the perpetrator.Y' 3) to foster reconciliation by en-
suring that perpetrators pay for the crimes which, Cassese seems to
posit is a precondition for reconciliation, and 4) create a fully reliable
record of the past atrocities.
Whether criminal trials actually achieve these goals, particu-
larly in transitional settings, is debatable. But in any event, there is
no reason to believe that they are uniquely positioned to do so. Na-
tions in transition should consider whether the middle path can
achieve these goals at least as effectively and, at the same time,
achieve the societal goals of transfonnative justice. Sometimes, this
assessment \ViII point in the direction of a truth coIIllllission, though
sometimes it might not. As Part Three demonstrates, home-grown
solutions such as the TRC and Rwandas gacaca courts may produce
a broader fonn of justice than has been possible under the conven-
tional paradigm.
III. THE DETAILS OF TRANSFORMATION: SITUATING

THE INSTITUTIONAL RESPONSE
Because of the importance of the transformative project in times
of transition, and because of the opportunities presented by the ques-
tion of predecessor abuse, new governments need to carefully plan
their institutional responses to the past. The traditional alternatives
have become less appealing because of the fiscal, political, and
pragmatic challenges they present as well as because they fail to de-
liver on the transformative promise, But simply opting for the middle
course does not answer all the questions. One still has to determine
what that middle course \ViII be.
The middle course has yet to be charted. It can include any
85 This dovetails with Van Roermund' s conception of reconciliation, in

which victims "defer the right to retribution to the extent that retribution would ob-
struct peace." See Van Roermund, Rubbing Off and Rubbing On, supra note 31.

number of institutional responses, including Iustration.f" truth com-

missions, and reparations programs, and reconstructive projects. Im-
portantly, it includes yet-to-be-tried formulations that are tailored to
each country's needs as it emerges from oppression and injustice.
Because emerging nations are currently in the midst of defining
the middle course, this pathway presents the possibility of a degree
of creativity that is unusual in lawmaking. Unlike other legal institu-
tions, which are constrained by precedent and practice and estab-
lished legal culture, a transitional governments treatment of past
abuses, by definition, must not be guided by past practice; after all, it
is the past governments practice that is being challenged. Indeed, it
has been suggested that "Iaw itself is being challenged to provide a
new fonn of justice. ,,87 The consistency required of the rule of law in
times of transition is necessarily modified to permit the rejection of
the past and the installation of a new nonnative framework. 88
Although the nation's own history may not constrain the choice,
international practice may ironically be more influential: transitional
governments are unusually susceptible to foreign influence since
they rely disproportionately on international legitimacy and material
86 Lustration is the process of stripping power, office, or privilege from indi-

viduals who are found, non-judicially, to have been responsible for wrongs com-
mitted usually in a prior regime. See Teitel, TRANSITIONAL JUSTICE, supra note 3;
see also generally Tina Rosenberg, THE HAUNTED LAND: FACING EUROPE'S
GHOSTS AFTER COMMUNISM (Vintage 1996). Although the practice is not prose-
cutorial in nature, it shares a sufficient number of features with criminal prosecu-
tion that, for purposes of this paper, it can be considered a subset or an aspect of
criminal prosecution. Like prosecution, lustration adopts an individualist presump-
tion about responsibility, treating the wrongs committed as aberrations; thus, lus-
tration removes the stain from the nation's consciousness without enquiring into
the causes of the injustice or attempting to treat the conditions that gave rise to it. It
therefore does no more to promote the transformative agenda of the transitional
government than does criminal prosecution. Lustration does, however, generally
cost less than criminal prosecution and removes the constant reminder of the past's
injustice; furthermore, it promotes rule-of-law values by exacting punishment from
alleged wrongdoers.
87 Emilios Christodoulidis and Scott Veitch, Introduction, in LETHE'S LAW,
supra note 23, at xv.
88 See generally Teitel, TRANSITIONAL JUSTICE, supra note 3.

aid. A transitional government, therefore, may shape its institution to

conform to international norms. While these norms may have an im-
portant moderating influence, nations in transition should remain
mindful of their own needs - to transform their domestic culture
from one that tolerated the abuses of the past to one that would resist
them,
By far the most influential of these middle path mechanisms has
been South Africa's Truth and Reconciliation Connnission. Indeed,
the international response to the TRC suggests that it, more than any
other recent experiment in transitional justice, is the beacon to which
other emerging nations are looking. This is both good and bad. One
of the most important contributions the TRC has made to the inter-
national connnunity is to demonstrate that values other than retribu-
tive justice can and should be promoted during times of transition.
Furthermore, the TRC has provided one example of how this can be
achieved. In other words, it seems to have proven the viability of a
middle path. However, the TRC's success in South Africa does
nothing to predict the success of other TRCs elsewhere, It worked in
South Africa, as \ViII be shown below, because it was carefully
crafted to respond to the specific needs of post-apartheid South Af-
rica. It redressed the specific imbalances left behind by the end of
apartheid. Other nations, experiencing other forms of injustice, \ViII
\Vant to equally carefully craft their responses to injustice, but \ViII
want to create different mechanisms that are suited to their unique
situation.f"
89 In this regard, the example of East Timor is instructive. See supra note 66.
The blueprint for East Timor's reconstruction project seems to braid together vari-
ous strands: it combines a centralized, victim-oriented TRC-like truth and recon-
ciliation commission charged with producing a comprehensive history with a more
communal requirement of a public apology and community service that would earn
the perpetrator amnesty. While the Commission would not be judicial, its findings
regarding individuals' accomplishment of the requirements would be registered
with a court. See generally Simon Chesterman, The International Peace Academy
(May 2001), available at <http://www.globalpolicy.org/intljustice/-general/
2001/esttimor.htm>. At this writing, the legislation is being drafted, so it is not
yet known what the final form of the institution will be, and the extent of its suc-
cess will not, of course, be known for years. See National Council Debating Draft
Volume 12, Numbers 1 &2

Contextuality is critical to transformational justice because

transformation itself is deeply contextual: each nation's path from
past to future is unique and so the engine that drives the transforma-
tion can not be generic but must be fitted to each nation's trajectory.
As has been shown, where the society functions generally well and
crime is aberrational, retributive justice may work well. But justice
must be shaped to the society where crime is inunanent in the law, as
it was in apartheid, or where crime is pervasive, though not neces-
sarily formally legalized, as it was in Rwanda, Both of these situa-
tions \ViII demand a different mechanism for transformation, as \ViII
other situations in other places where the balance between law, vio-
lence, and other factors of the transition \ViII vary.
A. The South African Truth and Reconciliation Commission
1. The Nature ofApartheid: the Past is Key to the Future

There are myriad ways to describe apartheid in South Africa but
two of its features are especially striking and bear particular atten-
tion; as a result, they had, implicitly or explicitly, particular rele-
vance to the architects of the TRC. The first is the role of the rule of
Iaw in apartheid. The second is the nature of victimhood under apart-
heid.
Unlike many other IllonuIllental atrocities, apartheid was a sys-
tem of oppression that was defined by law. 90 As Kader Asmal has
written,
Apartheid was distinct from other twentieth cen-
tury atrocities in that it was an extended system
of socio-econonric pillage based on race and -
crucially - underpinned by the entire legal sys-
Regulation On Reception, Truth And Reconciliation Commission (Timor

Post/25/05/01) available at http://www.gov.easttimor.org/news/Media_Monitor-
ing/-20010528am.php> (noting that in the view of at least some members of the
National Council, the reconciliation process will not preclude prosecution).
90 In this regard, it resembles American slavery and segregation, but not the
lawless Rwandan genocide or Pol Pot's Cambodia, or the ethnic cleansing of
Kosovo. This aspect of apartheid may also be compared with Nazi Germany.

teIn. The legalized nature of racial segregation is

what set apartheid apart.?'
A strong legal framework, including all branches of govern-
ment, succeeding constitutions, and a vast array of laws duly passed
by Parliament, supported this system of oppression. The apartheid
Parliaments, w-hich. w-ere unrepresentative of and unaccountable to
the non-white majority, were also largely immune from judicial re-
view thanks to the principle of parliamentary sovereignty. 92 Mem-
bers of Parliament exercised their unfettered power to enact into law
the grossest oppressions, including racial registration Iaws, segrega-
tion Iaws, dispossession laws, rellloval laws, pass Iaws, suppression
of expression and assembly laws, detention laws, disenfranchisement
laws, dis-employment laws, dis-education laws, anti-miscegenation
laws, and anti-injunction laws to name just a few. 9 3 Indeed, legality
was so pervasive as to blur the line between what was legally
authorized and what was not. As David Dyzenhaus argues, "one can
say that even the illegal acts of the security forces were 'under cover
of the law", since the law made it so difficult to get evidence of what
was happening. ,,94
91 Kader Asmal, Foreword, DYZENHAUS, TRUTH, RECONCILIATION, AND THE

APARTHEID LEGAL ORDER, supra note 3, at viii. Minister Asmal continues: "Thus,
apartheid is a case study in how legal norms and ideals - which ought to embody
our common humanity at its most cultured and articulate - came instead to express
violence, divisiveness and, in the end, lawlessness." Id. For a fictional interpreta-
tion, see e.g. SINDIWE MAGONA, FORCED TO GROW 2-3 (David Philip 1992). ("I
was jobless in a country with a myriad of laws, none of which was of any benefit
to me or mine. As an African, I was not covered by any social security laws. In-
deed, the laws that did cover me did so only to my detriment.").
92 Not coincidentally, one of the principal changes wrought by the negotiated
revolution of the early 1990s was the creation of a constitutional court that would
have broad power of judicial review of parliamentary actions. See CONSTITUTION
s. 165(2) et seq. Act 108 of 1996 ("The courts are independent and subject only to
the Constitution and the law, which they must apply impartially and without fear,
favour or prejudice."). An insightful explanation for this turn to constitutionalism
is given in Klug: CONSTITUTING DEMOCRACY, supra note 14.
93 For a complete catalogue of apartheid laws, see TRC REpORT vol. 1, pp.
448-496.
94 Dyzenhaus, TRUTH, RECONCILIATION AND THE APARTHEID LEGAL ORDER,
Volume 12, Numbers 1 '& 2

But as the TRC recognized,

"This preoccupation of the government with the law, with due
constitutional process, with obtaining a legislative mandate for
whatever acts (however heinous) it or its security forces com.-
m.itted, was frequently com.m.ented upon favourably by political
analysts of the 1960s and 1970s. It was also used to m.ount a de-
fence of the system. The argum.ent m.ade was that it was at least
a system. of law, albeit bad law, and thus preferable to the m.ili-
tary or political dictatorships to the north.
"What these analysts failed to acknowledge was that the law was
a veneer. Twentieth century law in SA, to paraphrase Hannah
Arendt, made crime legal. [Apartheid law was described as]
"crim.e which was institutionalized as the law.?"
This was indeed no ordinary system of laws; it was law COITl-

pletely rent from justice. As a young lawyer and defendant, Nelson
Mandela recognized this disjunction between law and justice under
apartheid:
"[T]he whole life of any thinking African in this country is
driven continuously to a conflict between his conscience on the
one hand and the law on the other.... The law as it is applied, the
law as it has been developed over a long period of history, and
especially the law as it is written and designed by the Nationalist
governm.ent is a law which, in our view, is im.m.oral, unjust and
intolerable. Our consciences dictate that we m.ust protest against
it, that we must oppose it and that we m.ust attem.pt to alter it.,,96
Eventually, this legal system unsupported by principles of jus-

tice foundered and the Iaws proved inadequate to maintain order; the
government turned its legitimacy over to the security forces. As the
supra note 3, at 26.

95 TRC REpORT, vol. 1, pp. 41-42, <][<][73-74.
96 Nelson Mandela, LONG WALK TO FREEDOM (Abacus 1995) at 392, quot-
ing his unsuccessful plea in mitigation of sentence in his 1962 trial for sabotage,
inter alia. Upon termination of this speech, he was given "the stiffest sentence yet
imposed in South Africa for a political offense." Id. at p. 395.
V olume 12, N umbers 1 & 2

TRC Report explains, "in the 1980s, when the state was in crisis, it
became clear that the la-w had run its course; that it could no longer
do the job.... At this stage, real rule-making po-wer shifted from Par-
Iiament and the Cabinet to a non-elected adnrinistrative body, the
State Security Council (SSC) "Which operated beyond public scru-
tiny.,,97 The TRC refers to this legislative oppression as "the tragic
injustice of apartheid-at-law.T"
Beyond being divorced from justice, the law of apartheid was
itself a crime. As many have noted, apartheid has been for years con-
sidered a crime against humanity by the international community.r" It
was crinrinal in that it sanctioned, indeed mandated, that crinrinal
acts be conunitted in its name. The fundamental conclusion of the
TRC Report is that not just crimes but indeed gross violations of hu-
man rights were committed by and on behalf of the government of
South Africa. 100 It was clear quite early on that men at the uppermost
reaches of the government, including the last t-wo apartheid state
presidents, PW Botha and FW deKlerk, were at least aware of if not
architects of some of the most extreme violence conunitted in the
nallle of apartheid.
In a section entitled the "The law and violence in South African
history," the TRC sho-ws how violence was inextricable from the le-
gal regime. The Conunission reports that "[v]iolence has been the
single tnost determining factor in South African political history. The
reference, ho-wever, is not simply to physical or overt violence - the
violence of the gun - but also to the violence of the Iaw or "What is
often referred to as institutional or structural violence.Y'Y' Apartheid
was a system of la-w, but the law was founded not on justice, but on
97 Vol. 1, p. 42, <][76.

98 Vol. 4, p. 101, <][31.
99 TRC REpORT vol. 1 ch .1 <][ 62.
100 "On the basis of the evidence available to it, THE PREDOMINANT
PORTION OF GROSS VIOLATIONS OF HUMAN RIGHTS WAS
COMMITTED BY THE FORMER STATE THROUGH ITS SECURITY AND
LAW-ENFORCEMENT AGENCIES." (original in capital bold type). TRC
REpORT vol. 5 ch 6177.
101 Id. at vol. 1, p. 40, 168.

violence.
The second striking feature of apartheid is the silencing of the
victims. 102 This is perhaps common to all oppressive conditions: after
all, what good is a perpetrator who lets the victim tell his or hel· side
of the story. Where there is an imbalance of power, the more power-
ful can define the w-orld of the pow-erless. Law- is an explicit mecha-
nism for defining the w-orld of others. But implicit mechanisms are
also effective. The powerful can consistently and pervasively ignore
and deny the reality of oppressed individuals. Silencing is a particu-
larly painful aspect of oppression because it forces the internalization
of pain. Yet, the silencing of apartheid w-as pervasive: the harm of
apartheid w-as so w-idespread and so longstanding, that its silencing
affected nrillions upon milhons of lives, in one generation after an-
other. 103 Until the comnrissions and inquests, for instance, it was a
simple matter for w-hites to brush off the deaths and disappearances
of thousands w-ith the claim that detainees had connnitted suicideY"
or with the blanket denial of any know-ledge at all about the inci-
dents. People's perceptions that their loved ones were being system-
102 See TRC REpORT vol. 1 ch. 8 <j[ 1 ("The story of apartheid is, amongst
other things, the story of the systematic elimination of thousands of voices that
should have been part of the nation's memory. The elimination of memory took
place through censorship, confiscation of materials, bannings, incarceration, assas-
sination and a range of related actions. Any attempt to reconstruct the past must
involve the recovery of this memory - much of it contained in countless documen-
tary records. The tragedy is that the former government deliberately and systemati-
cally destroyed a huge body of state records and documentation in an attempt to
remove incriminating evidence and thereby sanitise the history of oppressive rule.
As this chapter will demonstrate, the urge to destroy gained momentum in the
1980s and widened into a co-ordinated endeavour, sanctioned by the Cabinet and
designed to deny the new democratic government access to the secrets of the for-
mer state.")
103 As the Commission report straightforwardly put it, "Secrecy was particu-
larly characteristic of apartheid rule .... Along with secrecy went silence, and much
of the country's populace was silent, through fear, apathy, indifference or genuine
lack of information." Vol. 5 pp. 298-99 <j[ 138.
104 The official story of the death of student activist Steven Biko, for example,
was that he had slipped on a bar of soap and hit his head against the wall. The TRC
findings made this denial, and many others like it, impossible to maintain.

118 lNTERNATIONAL LEGAL PERSPECTIVES
atically abducted, tortured, and killed was just as systematically dis-

missed. As South Africa's new Constitutional Court has since ex-
plained:
Most of the acts of brutality and torture which have taken place
have occurred during an era in which neither the laws which
permitted the incarceration of persons or the investigation of
crim.es, nor the m.ethods and the culture which informed such
investigations, were easily open to public investigation, verifi-
cation and correction. Much of what transpired in this sham.eful
period is shrouded in secrecy and not easily capable of objective
dem.onstration and proof. Loved ones have disappeared, som.e-
tim.es m.ysteriously and most of them. no longer survive to tell
their tales. Others have had their freedom. invaded, their dignity
assaulted or their reputations tarnished by grossly unfair im.pu-
tations hurled in the fire and the cross-fire of a deep and
wounding conflict. The wicked and the innocent have often both
been victim.s. Secrecy and authoritarianism have concealed the
truth in little crevices of obscurity in our history. Records are not
easily accessible, witnesses are often unknown, dead, unavail-
able or unwilling. All that often effectively rem.ains is the truth
of wounded memories of loved ones sharing instinctive suspi-
cions, deep and traum.atising to the survivors but otherwise inca-
pable of translating them.selves into objective and corroborative
evidence which could survive the rigours of the law. I 05
The secrecy, of course, enabled the continuation of the violence,

and eventually entangled the judiciary in the perpetrators' web.
Judge Gerald Friedmans submission to the TRC's Legal Hearing
describes the "dilemma' in which judges found themselves when
considering the claims that evidence had been produced by torture.
The detainee would testify how he was assaulted. The police or
security force members, on the other hand, would go into the
witness box and deny these allegations. In this they would be
corroborated by the district surgeon who would testify that no
105 Azanian Peoples Organisation (AZAPO) and Others v. President of the

Republic of South Africa and Others, 1996 (8) BCLR 1015 (CC at 17), 1996
SACLR LEXIS 20 at 37-38.
Volum.e 12, Num.bers 1 & 2

evidence of any assault was found on the detainee. One knows

now from the evidence which has emerged at hearings of the
Commission that many of these witnesses were prepared to lie to
the Court. ... The fact that it was commonplace for detainees to
allege that they had been tortured, did not entitle the court, in
any particular instance, to depart from the principle that each
case must be decided on its own facts. 106
It has been suggested that one of the principal accomplishments

of the TRC was to reduce the deniability of the abuses of the apart-
heid era. 107 Indeed, the failure of many whites, particularly Afrikan-
ers, to embrace the TRC gives credence to blacks' fears that, but for
the TRC, not just their reality but their history too would be white-
washed, Giving the oppressors a monopoly over the past gives them
too much power over the present and future. 108
2. Legislating in the Middle Path

The TRC emerged in the midst of phenomenal change in
South African history. In 1990, the South African political landscape
changed dramatically and permanently with the unbanning of oppo-
sition parties and the release of scores of political prisoners including
Nelson Mandela. Three years of intense negotiation followed, with
the adoption of the interim Constitution in 1993. In 1994, milhons of
106 Dyzenhaus, s~pra note 3, at 63-64, quoting the Friedman Submission to

the TRC at 11-12.
107 "All that a truth commission can achieve is to reduce the number of lies
that can be circulated unchallenged in public discourse." TRC REpORT vol. 1 ch. 5
t 33 (quoting Michael Ignatieff). See also Reed Brody, Justice: The First Casualty
of Truth?, THE NATION April 30, 2001 at 27 (citing Richard Goldstone for the
proposition that the "TRC's major accomplishment ... is that no one now can deny
the worst manifestations of apartheid.")
108 This Orwellian observation has been remodeled to fit the transitional set-
ting. Various people have commented that the future is certain, it is the past that no
one can be sure of. Tina Rosenberg attributes this to Jacques Rupnick (see Rosen-
berg, THE HAUNTED LAND, supra note 86 at xv), while Martha Minow attributes it
to the South African satirist Pieter-Dirk Uys who reminds us that while the future
is certain, the past is "unpredictable." See Minow, BETWEEN FORGIVENESS AND
VENGEANCE, supra note 6, at 86.

South Africans voted for the first time, electing a transitional parlia-
ment, with Mandela as president; a Constitutional Court was insti-
tuted to provide a check on the political branches, and the transitional
parlrament began debating the TRC act. In 1995, the TRC act was
drafted, debated, and ultimately passed, with the first meeting of the
Conunissioners occurring on December 16 of that year. Nineteen-
ninety-six saw the first Human Rights Violations (HRV) hearings
and the concomitant publicity surrounding the Commission, as well
as the drafting and redrafting and ultimate adoption of the new final
Constitution. The HRV hearings lasted into 1997 and then gradually
gave way to the amnesty hearings, which proceeded from 1997 to
1998. The first five volumes of the final report were submitted to
President Mandela in October 1998 and subsequently debated in
Parliament, The following year, the first successor elections were
held. Throughout 2000, the Amnesty Conunittee continued to hold
hearings and consider backlogged requests for amnesty, with the last
decisions coming in mid-2001. The sixth and final volume of the
TRC Report is expected in September 2001 whereupon the Commis-
sion will close down,
Like any governmental initiative, the Truth and Reconciliation
Commission was the result of political compromise and negotiation,
simultaneously empowered and Iirnited by constitutional and prag-
matic considerations. Unlike most other agencies, however, there
was no precedent for the TRC at all: it was obviously not like any
other governmental agency or department within South Africa, nor
was it directly modeled on any truth commission abroad. 10 9 It truly is
109 Although it is true that the designers of the rr1RC were well schooled in the
recent experiences with truth commissions throughout the world, (see Priscilla
Hayner, Same Species, Different Animal: How South Africa Compares to Truth
Commissions Worldwide, in LOOKING BACK, REACHING FORWARD, supra note 3;
see also THE HEALING OF A NATION? (Alex Boraine, Janet Levy, eds) (Justice in
Transition 1994);DEALING WITH THE PAST (Alex Boraine, Janet Levy, Ronel
Scheffer eds) (Idasa 1995); Boraine, A COUNTRY UNMASKED, supra note 2, for
descriptions of international conferences held to inform South Africans about in-
ternational experience), the TRC was unique in several important respects, many of
which are discussed infra. These include the TRC adoption by statute rather than
executive order, the TRC's linkage of amnesty with truth, its extensive subpoena

sui generis. The fundamental difference between the TRC and other
truth connnissions is that the South African version was designed to
be not merely transitional but transformative.
The Government of National Unity (GNU) created the TRC
pursuant to the mandate of the postamble to the interim Constitu-
tion. 1 10 This brief but critical section is both broadly aspirational and
pragmatically specific. On the one hand, it speaks in expansive terms
about the achievement of national unity, justice, peace, opportunities
for all, reconciliation, and transcendence of the divisions and strife of
the past. The postamble itself is called "National Unity and Recon-
ciliation." It reads in part:
This Constitution provides a historic bridge between the past of
a deeply divided society characterised by strife, conflict, untold
suffering and injustice, and a future founded on the recognition
of hum.an rights, dem.ocracy and peaceful co-existence and de-
velopm.ent opportunities for all South Africans, irrespective of
colour, race, class, belief or sex.
The pursuit of national unity, the well-being of all South African

citizens and peace require reconciliation between the people of
South Africa and the reconstruction of society.
The adoption of this Constitution lays the secure foundation for

the people of South Africa to transcend the divisions and strife
of the past, which generated gross violations of hum.an rights,
the transgression of hum.anitarian principles in violent conflicts
and a legacy of hatred, fear, guilt and revenge.
power, and its publication of perpetrator names, among other things.

110 The Government of National Unity was the name given to the transitional
parliament between the elections of 1994 and 1999. The interim Constitution was
negotiated by 19 parties, including most prominently, the outgoing apartheid Na-
tional Party and its presumptive successor, the liberation movement-cum-political
party African National Congress. Hassen Ebrahim, THE SOUL OF A NATION:
CONSTITUTION-MAKING IN SOUTH AFRICA 104 (Oxford 1998); see generally ide
for background to the making of the South African interim and final constitutions.
Two salient features of the interim Constitution are 1) the epilogue or postamble
(discussed in the text) and 2) the list of 34 principles to which the final Constitu-
tion was to adhere.
Volum.e 12, Numbers 1 & 2

These can now be addressed on the basis that there is a need for
understanding but not for vengeance, a need for reparation but
not for retaliation, a need for ubuntu but not for victirnisation. 11 1
Against this ambitious vision of a healthy future is the rather

stark announcement of the considerable concession rrrade to the out-
going government that "amnesty shall be granted in respect of acts,
ontissions and offences associated with political objectives and
committed in the course of the conflicts of the past.,,112 In the sense
that the transition in South Africa required some fonn of amnesty as
a political matter, South Africa was no different than many other
countries.l v ' Nor was it different from other nations in recognizing
the need for truth as a precondition to healing and justice. But the in-
novation of the TRC was to make truth a precondition for amnesty.
By linking truth and amnesty, the TRC process was able to fulfill the
transitional obligation of amnesty while realizing the transfonna-
tional potential of the interim Constitution.l i"
The Promotion of National Unity and Reconciliation Act, which
created the TRC, was passed in 1995. 11 5 Most of the TRC Commis-
sioners were appointed through a public process in December 1995
and the Commission began work immediately.L'" Over the next 34
months, it would hold hundreds of hearings, receive statements from
21,000 individuals, process more than 7000 applications for amnesty,
and make headline news regularly. On October 28, 1998, it presented
111 INTERIM CONSTITUTION, Postamble (Act 200 of 1993).

112 Id.
113 See Rosenberg, CHILDREN OF CAIN: VIOLENCE AND THE VIOLENT IN
LATIN AMERICA (Penguin, 1992).
114 This is suggested but not elaborated on in the preamble itself: "In order to
advance such reconciliation and reconstruction, amnesty shall be granted ... " But
the link between the transformational agenda and the amnesty is not explicit, as the
"mechanism" called for is directed only to deal with such amnesty. An Amnesty
Committee, unattached to the TRC would have fulfilled the constitutional mandate.
115 Act 34 of 1995 (known as the TRC Act).
116 Boraine, A COUNTRY UNMASKED, supra note 2, at 76-97; see also TRC
REpORT vol. 1, ch. 3 "Setting up the Commission. "

its 3500-page report to President Nelson Mandela.v'"

The Act requires the Conunission to "promote national unity
and reconciliation" by
(a) establishing as complete a picture as possible of the causes,
nature and extent of the gross violations of human rights ...
including the antecedents, circumstances, factors and con-
text of such violations, as well as the perspectives of the
victims and the motives and perspectives of the persons re-
sponsible for the commission of the violations,
(b) by conducting investigations and holding hearings; facili-

tating the granting of amnesty to persons who make full dis-
closure of all the relevant facts relating to acts associated
with a political objective and comply with the requirements
of this Act;
(c) establishing and making known the fate or whereabouts of

victims and by restoring the human and civil dignity of such
victims by granting them an opportunity to relate their own
accounts of the violations of which they are the victims, and
(d) by reconunending reparation measures in respect of them;

compiling a report providing as comprehensive an account
as possible of the activities and findings of the Conunission
contemplated in paragraphs (a), (b) and (c), and which con-
tains reconunendations of measures to prevent the future
violations of human rights. I 18
As \ViII be discussed in more detail below, many commentators,

as well as the Conunission itself, have criticized the Act for limiting
117 Although this marked the conclusion of the TRC's work, one semi-
independent committee of the commission, the Amnesty Committee, continues to
process applications.
118 Act 34 of 1995 §3(1). The Act organized the Commission into three com-
mittees, responsible for investigating and disclosing gross violations of human
rights (the Human rights Violations Committee), assessing reparations (the Repa-
rations and Rehabilitation Committee), and amnesty (the semi-autonomous Am-
nesty Committee). Act 34 of 1995 §3(3).

the Commission" s jurisdiction to only those human rights violations

that occurred after 1960 and to those that amounted to gross viola-
tions of human rightS. II9 However, it could be argued that what Par-
Iiament Iimited through statutory language, the President expanded
through personnel choices. First, staffing the TRC with officials from
a wide-range of backgrounds, rather than with lawyers, virtually en-
sured that the Commission" s approach in interpreting and adminis-
tering its mandate would be capacious rather than strict. 120 Members
were chosen specifically for their varied understanding of the strug-
gle rather than for their skills in statutory construction. 121
Second, the selection of Archbishop Desmond Tutu is roundly
considered an inspired choice. As a Nobel laureate and leader of the
Anglican Church, the Archbishop had no legal authority, but abun-
dant moral authority.I22 As David Dyzenhaus has argued, his ap-
pointment "resulted in a particular understanding of [the TRC's] role
in reconciliation, one which was in no way suggested or required by
the official statutory mandate. Under his direction," writes Dyzen-
haus, "CoII1II1issioners go beyond the statutory mandate and actively
seek professions of repentance from perpetrators of abuses and of
forgiveness of their victims.,,123 In this sense, then, the Commissions
119 This is by far the most common criticism of the statute. As will be shown
below, however, some commentators have directed their criticism not to the legis-
lators but to the Commissioners for interpreting their jurisdiction unnecessarily
narrowly. See infra part III A (3) (a) (iv).
120 See Boraine, A COUNTRY UNMASKED, supra note 2, for a subjective de-
scription of the Commissioners. The Amnesty Committee is a partial exception to
this approach: it was staffed primarily by judges and lawyers because it was
viewed as having the greatest legal authority given its power to grant (not just rec-
ommend) a very broad brand of amnesty which would immunize people from all
civil and criminal liability in perpetuity.
121 The membership of the TRC has been criticized on grounds of balance,
see generally AFTER THE TRC, supra note 34. However, no one has lamented the
paucity of lawyers.
122 See Boraine, A COUNTRY UNMASKED, supra note 2, at, at 267-268. Bo-
raine quotes Antjie Krog as saying that "the process is unthinkable without Tutu.
Impossible. Whatever role others might play, it is Tutu who is the compass ... " Id.,
at 269, citing Krog, COUNTRY OF My SKULL, supra note 2, at 152.
123 Dyzenhaus, TRUTH, RECONCILIATION AND THE APARTHEID LEGAL ORDER,

approach was both narrower and broader than it might have been.
The narrowing relates to the scope of jurisdiction in a virtually quan-
titative sense: how many abuses would be investigated? The broad-
ening, however, relates to the complexity of the narrative and the
richness of the truths that were revealed.
3. The Responsive Nature of the TRe.

Whereas the two most salient features of apartheid were the
disjunction between law and justice and the silencing of the victims,
the two most salient features of the TRC are the attempt to fuse Iaw
and justice and the acknowledgment and "restoration" of dignity to
the victims, The TRC was a deliberate and explicit corrective to the
evil of apartheid.
a. Reconnecting Justice and Law

Perhaps the most notable aspect of the TRC is its marriage of
principles of law and justice. It is, on the one hand, a duly created le-
gal institution: it is a creature of statute 124 and is obliged to operate
within statutory and constitutional constraints. It is answerable in
law: 125 on one occasion, it even sued its own Amnesty Committee. 126
On the other hand, it was empowered to transcend formal legalism in
order, presumably, to achieve greater justice. For instance, it ac-
supra note 3, at 3.
124 This distinguishes it from many other truth commissions, which were pro-
claimed by executive authority, often in order to avoid the political compromises
and lengthy delays that legislation often entails. See Hayner, in LOOKING BACK,
REACHING FORWARD, supra note 3, at 38-39. In South Africa's case, the open de-
liberative process that resulted in the TRC contributed to its legitimacy.
125 See Azanian Peoples Organisation (AZAPO) and Others v. President of
the Republic of South Africa and Others, supra note 105. See also Du Preez v.
TRC 1997 (4) BCLR 531 (A) for legal challenges to the TRC. The TRC instituted
legal proceedings against former State President P.W. Botha. See TRC REpORT v.
1, p. 197. See generally ide at pp. 174-200 for the Report's own discussion of legal
challenges in which the Commission was involved.
126 Boraine, A COUNTRY UNMASKED, supra note 2, at 331; see also Mary
Burton, Making Moral Judgments, in LOOKING BACK, REACHING FORWARD, supra
note 1, at 79.

cepted evidence from survivors without cross-examination.Y' It so-

licited information from many quarters when none was volunteered,
not being linrited to information provided by the parties. 128 As Rich-
ard Goldstone has written, "On the one hand, there is the vital legal
underpinning of the [TRC] without which such a conunission could
not succeed and would not exist. On the other hand, there are philo-
sophical, religious and moral aspects without which the conunission
\ViII be an empty legal vessel which would do a great deal of harm
and achieve nothing.,,129 For at least some of the Commissioners, this
was the starting point of the TRC. Commissioner Mary Burton has
written: "Any structure like the South African Truth and Reconcilia-
tion Conunission created after a period of conflict as one of the
mechanisms for sustaining peaceful co-existence between past ad-
versaries, must necessarily base its findings on moral principles.T'<"
Thus, transcending legal strictures was inevitable.
The TRC's fusion of law and justice manifested itself in several
different ways. Unlike law during the apartheid years which was
shielded from public view and insufficiently understood, the TRC
was committed to (perhaps excessive) transparency. Whereas apart-
heid law was gratuitously punitive, the TRC's brand of punishment
was instrumental. l31 Far from being solipsistic, the TRC~s under-
standing of law was informed by other aspects of human experience
and consistent with international nonns. 132 And unlike the apartheid
127 TRC Act § 11 (principles guiding Commission when dealing with survi-
vors) and § 14 (proceedings of Human Rights Violations Committee).
128 TRC Act, §14 (b) "The Committee may (i) collect or receive from any or-
ganization, commission or person, articles relating to gross violations of human
rights."
129 Richard Goldstone, in HEALING OF A NATION?, supra note 109 at 120. See
also TRC REpORT vol. 1 p. 104 <j[1.
130 Mary Burton, Making Moral Judgments, in LOOKING BACK, REACHING
FORWARD, supra note 1, at 77.
131 The extent to which the amnesty provisions of the TRC Act were punitive
at all is debatable. See infra at text accompanying note 153. To the extent that am-
nesty did entail a punitive component, however, the punishment was not for its
own sake but as a vehicle for ascertaining the truth and reconciliation.
132 Cf. John Dugard, Is the Truth and Reconciliation Process Compatible with

state which was defensive in the extreme, the TRC embodied a value
system that was self-critical and committed to dialogue. In so doing,
the TRC recast the image of la-w in South Africa - it reconfigured
la-w's nonnative frame-work.
1. Justice through transparency: I was blind but now I see 133

The TRC's actions, like that of any agency, meld statutory
mandate with administrative interpretation. The line between the t-wo
is not always clear. 134 In many ways the statute itself required a jus-
tice-infused conception of the law, and the TRC elaborated on this
suggestion. The most visible aspect of the TRC' s capacious concep-
International Law? An Unanswered Question. Azapo v President of the Republic of

South Africa, 13 S. A. J. Hum.Rts. 258 (1997). (arguing that amnesty was not con-
sistent with international norms).
133 One of the classics of anti-apartheid literature, Andre Brink's "A Dry
White Season" encapsulates - almost presages - the need for a truth commission in
post-apartheid South Africa. Gordon Ngubene asks his white benefactor about
Ngubene's son's death. "'How did Jonathan die, Baas?" "That's what we don't
know" [replies the white man]. "That's what I got to know, Baas. How can I have
peace again if I do not know how he died and where they buried him?" "What
good can it do, Gordon?" "It can do nothing, Baas. But a man must know about his
children. ... A man must know, for if he does not know he stays blind." Andre
Brink, A DRY WHITE SEASON (Vintage ed. 2000) at 48.
This may have been prophetic. The TRC Report recounts the story of Lu-
kas Baba Sikwepere who "described to the Commission how he was shot in the
face and lost his sight." He also told of how, two years later, the police beat him
with electric ropes, suffocated him, forced him to lie in an empty grave and tor-
tured him in other ways.
When a Commissioner asked Mr. Sikwepere how he felt after having de-
livered his testimony, he replied: "I feel that what has been making me sick all the
time is the fact that I couldn't tell my story. But now it feels like I got my sight
back by coming here and telling you the story." TRC REpORT, vol. 5 p 352 II 8
and 9.
134
Critiques of the TRC do not commonly distinguish between the legislative
mandate and its administrative interpretation. The exceptions tend to be those cri-
tiques that accuse the Commission of unnecessarily narrowing its mandate to ex-
clude the quotidian violence of apartheid, as discussed above. See Mahmood
Mamdami, in AFTER THE TRC, supra note 34, and see Asmal et al , When the As-
sassin Cries Foul, in LOOKING BACK, REACHING FORWARD, supra note 1, at 86.

tion of justice is the Commissions commitment to transparency.T"

This was consistent with the background of the Constitution and with
the letter and spirit of the TRC legislation, 136 and the Commission
viewed this as an essential part of its task. 13 7 This commitment to
transparency operated simultaneously in three dimensions: the
Commission shed light on itself, on the victims and perpetrators of
extreme apartheid violence, and on the public generally.
The Illain purpose, of course, of the TRC was to discover the
truth about human rights abuses during the mandate period. This was
done from both the victims" and the perpetrators' perspectives by
holding a series of hearings on Human Rights Violations and on
Amnesty, respectively. These hearings were widely publicized.
Reams of newspapers were published and hundreds of hours of tele-
vision and radio programs about the TRC were broadcast as the
hearings were being conducted. There are 87 hours alone of the
weekly television programme on the TRC. 13 8
The role that publicizing the stories played in the success of the
TRC can not be overstated. This massive public relations campaign
had several effects. First, it brought attention to the TRC process it-
self. Although its planning and strategy meetings were not held in
135 See <http://www.truth.org.za.> This transparency was evident even before

the Commission began its work, in the selection process. All but two commission-
ers were chosen through a public process that involved hearings. See Boraine, A
COUNTRY UNMASKED, supra note 2, at 76-83.
136 "It was the first time that a nation had created a truth commission through
a public and participatory process, by way of an Act of parliament." Johnny De
Lange, in LOOKING BACK, REACHING FORWARD, supra note 1.
137 "From the outset, the Commission identified the mass media as critical in
drawing all South Africans into the Commission process. It resolved, in particular,
that one way of helping to restore the dignity of victims of violations of human
rights -- and of reporting to the nation such violations and victims -- would be to
promote maximum publicity for the Commission's activities, and in particular its
hearings, by opening them fully to both broadcast and print media." TRC REpORT
vo 1 1. p. 352 <j[ 1. Furthermore, the Commission tried to ensure that coverage of its
work was available in all of the country's 11 official languages. TRC REpORT vol.
1 p. 352 <j[ 3.
138 See, e.g. Boraine, A COUNTRY UNMASKED, supra note 2, at 270-271 on
the role of transparency in the Commission's work.
Volume 12, Numbers 1 &2

public, the principal members of the TRC - Chairperson Archbishop

Desmond Tutu and Vice-Chairperson Alex Boraine - frequently
communicated with the public through the media. 139 This transpar-
ency distinguished the TRC from courts of law, and even from most
governmental agencies, \¥hich do not normally see ongoing commu-
nication with the public as integral to their operations and necessary
to their success. Although there was a purposive aspect to this open-
ness-to facilitate the work of the Commission - there was also a
symbolic aspect: to demonstrate the cOllltnitlllent to transparency of
the new dispensation. Thus, a line was drawn between the covertness
of the old regime and the openness of the new. 140 The TRC would
prove, by its very operations, that the new order represented open-
ness, not covertness, and that trust in government was now justified.
Second, the TRC's commitment to transparency promoted what
could perhaps be described as its cardinal goal: to elinrinate or at
least reduce the deniability of apartheid-era violence. Eight months
after the first victim hearings were held, Archbishop Tutu wrote in a
newspaper article,
"Millions of South Africans have heard the truth about the
apartheid years for the first time, some through daily newspapers
but many rnore through television and, especially, radio. . ..
Black South Africans, of course, knew what as happening in
their own local conununities, but they often did not know the
detail of what was happening to others across the country. White
139 Mansoor Jaffer, Tutu and Boraine at the Helm of the TRC Ship, in TRUTHS
DRAWN IN JEST (Wilhelm Verwoerd and Mahlubi 'Chief' Mabizela eds.) (David
Philip 2000) at 44-58 (noting that "It is these two South Africans, both with strong
spiritual roots, both opponents of the former apartheid government and both with
long histories of public service, who are seen as the public faces of the TRC."). Id.,
at 44. For their efforts, they were rewarded with frequent appearances in often
critical political cartoons.
140 The transparency might have been overdone. Not only were the internal
battles among the commissioners made public, but individual commissioners may
also have complicated the work of the Commission through the public comments
they made. See Sarkin, The Necessity and Challenges of Establishing a Truth and
Reconciliation Commission in Rwanda, 21 HUM. RIGHTS Q. 767, 815 n. 317
(1999).

South Africans, kept in ignorance by the SABC and SOIne of

their printed media, cannot now say they do not know what hap-
pened.,,141
Publicizing the stories had a dual effect: it revealed what the

perpetrators had been doing as w-ell as how the victims lived and sur-
vived. Twenty-one thousand victim statements and seven thousand
amnesty applications each told a story, and these stories were then
recounted to the public through the media and word of mouth. The
TRC recognized that uncovering truth would have had no transfor-
mative impact had those truths not been made accessible to the pub-
lic. It was as if the TRC had to weave into the fabric of society, on a
daily basis, the reality of apartheid to replace the violence and blind-
ness that it was weaving out.
Once told, these stories resonated in the public consciousness,
thus involving the general public in the curative experience of the
TRC - whether or not they wanted to participate. What can be un-
charitably described as a "dog-and-pony show' or the TRC "circus
corning to town' can also be seen as an effort to include as many
people as possible in the reconstructive project. 142 Whether a person
testified or not, applied for amnesty or not, approved of the TRC or
not, everyone was to be involved in the national drama unfolding be-
fore their eyes. The inclusiveness in the TRC process - as spectators,
if nothing else -matched the breadth of public participation in apart-
heid.
In societies such as South Africa's, which have experienced
prolonged periods of authoritarian rule, involving massive vio-
lation of entire groups' rights, there has been a collective experi-
ence of abuse and victitnization. Conversely, these periods of
abuse were supported and sustained in a systematic fashion by a
large portion of South Africa's white population. Our own brand
of transitional justice, therefore, required the treatment of inter-
generational injustice. It required that individuals and groups
141 Reprinted in TRC REpORT vol. 1 p.352 <j[ 5.

142 There is still grave concern that many people - particularly those living in
rural areas - were left out of the TRC drama, even as spectators.

who were neither perpetrators nor victims in any uncomplicated

sense had to be involved in this process. If you never pulled a
trigger nor held a smoking gun, but yet you benefited from. the
societal system. defended by the violence - if all you did was loaf
around a poolside in an opulent white apartheid suburb - you
still needed to be involved in the process. 143
Though it focused on the grossest violations of human rights,

the transparency of the TRC process revealed the involvement of the
society at large in the problem of apartheid and then invited the soci-
ety at large in to participate in the correction. Apartheid needed to be
resolved by a mechanism that was at least as expansive as the prob-
lem itself. In this sense, it was more effective at responding to apart-
heid than crinrinal prosecution, which would touch only the trigger-
pullers. The TRC's democratized solution contributed to the percep-
tion that the new dispensation understood and exercised democracy
in a way that distinguished it markedly from the old regime. The
new regime not only invited everyone's participation, but expected
it. This also may have contributed to the construction of a positive
"common' experience to replace the COIllIllon nightmare of apart-
heid.
ll. Justice through truth and truth through amnesty

The TRC experiment also aimed to integrate justice back into
law through the process of amnesty. If it succeeded, this would be a
public relations tour de force. Many blacks saw the grant of amnesty
as a cOlllplete abdication of the ANC's responsibility towards its
long-suffering constituency. In fact, one of the two principal chal-
lenges to the TRC argued -- ultimately unsuccessfully -- that the
granting of amnesty violated several sections of the interim Consti-
tution in that it denied victims their day in court.l'" The argument
143 K a d er Asmal, International Law and Practice: Dealing With the Past in
the South African Experience, 15 AM. U. INT'L L. REv. 1211, 1226 (2000).
144 See AZAPO supra note 105 (upholding the amnesty provisions on the
ground that they were politically necessary and not inconsistent with the other pro-
visions of the Constitution). The Court was deeply sympathetic to the petitioners
though ultimately ruled against them.

132 lNTERNATIONAL LEGAL PERSPECTIVES
that amnesty is unjust is obvious: people 'Who do bad things should

be punished, and people 'Who do especially bad things should espe-
cially be punished. Amnesty - particularly the broad brand of am-
nesty adopted in South Africa that precluded all crinrinal and civil
liability forever - is akin to impunity which is akin to injustice. 145
The acceptance of amnesty as a form of justice required a more
elaborate thought process and a conception of justice that transcends
retribution. The framers of the interim Constitution intimated this
approach when they linked amnesty with reconciliation 146 although
the thought was not developed in the Constitution itself. It was left to
the TRC and the courts to explain why amnesty 'Was in fact more just
than the alternative. The Constitutional Court, in upholding the alTI-
nesty provisions, explained it this 'Way:
That truth, which the victims of repression seek so desperately
to know is, in the circumstances, much more likely to be forth-
coming if those responsible for such monstrous nrisdeeds are
encouraged to disclose the whole truth with the incentive that
they will not receive the punishment which they undoubtedly
deserve if they do. Without that incentive there is nothing to en-
courage such persons to make the disclosures and to reveal the
truth which persons in the positions of the applicants so desper-
ately desire. With that incentive, what might unfold are objec-
tives fundamental to the ethos of a new constitutional order. The
fanrilies of those unlawfully tortured, maimed or traum.atised
become more empowered to discover the truth, the perpetrators
become exposed to opportunities to obtain relief from the bur-
den of a guilt or an anxiety they might be living with for many
145 Not one to mince words, Archbishop Tutu noted the asymmetrical nature
of the outcry when the Amnesty Committee actually granted amnesty in certain
cases. "Sadly, in almost all cases," he wrote in the Foreword to the TRC Report,
"there was an outcry only when the victim was white and the perpetrator black. I
wonder whether people have considered how the Trust Feed Farm community
must have felt when Brian Mitchell got amnesty since it was his misinterpreted or-
ders that led to the death of eleven persons in the community." TRC REpORT vol. 1
p. 12 i 49. Mitchell is white; his victims were black.
146 "In order to advance such reconciliation and reconstruction, amnesty shall
be granted ... " INTERIM CONSTITUTION, Postamble.

long years, the country begins the long and necessary process of
healing the wounds of the past, transforming anger and grief into
a mature understanding and creating the emotional and structural
climate essential for the "reconciliation and reconstruction"
which informs the very difficult and sometimes painful objec-
tives of the arrmesty articulated in the epilogue.l'"
Viewed this way, amnesty is an essential part of justice: justice

requires truth and truth required the promise of amnesty. This expla-
nation reveals several important things about the South African un-
derstanding of justice and about the transformative project generally.
As a preliminary matter, however, it must be recognized that this ex-
planation assumes the existence of criminal trials as an adjunct to the
TRC process. Trials are necessary because they make the threat of
punishment credible, thereby creating an incentive to apply for am-
nesty; without the threat of criminal prosecution, there would be no
need to apply for amnesty. 148
First, the Constitutional Court's approval of amnesty recognizes
the limits of criminal trials as truth-seeking mechanisms: if trials
could produce truth, we would not need amnesty, but since we have
no stick, we need the carrot to get the truth. Second, the Court main-
tains that truth is a necessary component of justice. Thus, justice
must entail sornething broader than the retributive kind that criminal
prosecution produces. It may even entail something broader than "re-
storative justice" - a term that the TRC itself seems to favor. 14 9
147 AZAPO, supra note 105.

148 Indeed, this is the calculation that many perpetrators have made in declin-
ing to apply for amnesty. It is telling that the vast majority of amnesty applicants
are black, whereas the majority of perpetrators of gross human rights abuses are
white. The difference may be explained by the different perceptions of the likeli-
hood of criminal prosecution, even in post-apartheid South Africa.
149 See TRC REpORT vol. 1 at 1:1: 36 et seq. Restorative justice assumes that
the status quo ante was desirable and therefore that return to, or restoration of, the
previous condition is the appropriate aim of justice. Thus, restorative justice has
salience in the context of individualized crime, where the criminal act is anomalous
and the goal is to return the victim to her or his previous unharmed condition.
Thus, as Desmond Tutu has explained, "The African understanding [of justice] is
far more restorative - not so much to punish as to redress or restore a balance that

Third (and this follows from the first two), if criminal trials can't re-
liably produce truth and truth is a necessary component of justice,
then SOIne conception of justice other than retribution is called for.
The corollary to this conclusion is that SOITle institution other than
critninal trials must be necessary.
This broader conception of justice has a transfonnative dimen-
sion - its aiIll is "the ethos of a new constitutional order." One criti-
cal aspect of this new order, as conceptualized by the Court, is that it
engages individuals and the broader society simultaneously, The in-
dividuals it engages are both the victims (who become empowered to
seek the truth) and the perpetrators (who are released from anxiety
and guilt). Through these individual instances of transfonnative jus-
tice, the country as a whole emerges stronger and more "mature,'
and able to face the challenge of reconstruction and reconciliation.
As understood by the Court and throughout the TRC process,
this form of justice is characterized by medico-religious irnages of
healing, cleansing, curing, and nursing wounds.F'" While justice and
healing are not synonymous, there is a certain connnonality in the
sense that both are concerned with achieving a balance, within the
body or the body politic. Martha Minow posits that "[h]ealing and
justice are most compatible for groups poised to reclaim or restart a
nation under terms conducive to democracy,,,I5I that is, in situations
has been knocked askew. The justice we hope for is restorative of the dignity of the
people." Minow, BETWEEN VENGEANCE AND FORGIVENESS, supra note 6, at 81,
quoting Tina Rosenberg. Crime, or even an amalgamation of criminal acts such as
apartheid, threatens individual dignity which can then be replaced through restora-
tive justice. The problem with transporting this notion of restorative justice to the
national context, however, is that there may be no desirable status quo ante: in the
context of South Africa, the project is to create something new - a non-racial, non-
sexist South Africa - that never existed before.
150 See e.g. TRC REpORT vol. 1 at ch. 1 <][ 27: "However painful the experi-
ence, the wounds of the past must not be allowed to fester. They must be opened.
They must be cleansed. And balm must be poured on them so they can heal. This is
not to be obsessed with the past. It is to take care that the past is properly dealt with
for the sake of the future."
151 Minow, BETWEEN VENGEANCE AND FORGIVENESS, supra note 6, at 63;
see generally ide at 61-66 for an insightful discussion of the intersection between

of transformation, Arguably, healing is the only alternative to pun-

ishment, Francois du Bois notes that the TRC's "task was not to es-
tablish guilt, but to establish responsibility. Since it could not judge
and punish, it had to diagnose and heal.,,152 Healing and justice share
one other feature: for both, while the negative (that is, sickness and
injustice) can be devastating and irnmediate, the positive (that is,
healing and justice) is invariably incomplete and incremental. People
and nations both recover slowly from severe trauma.
Finally, the question of punishment is addressed implicitly by
the Constitutional Court in this passage. The punishment borne by
the perpetrators is not the classic model of incarceration, or even
forced community service; rather, punishment is of a moral dimen-
sion, entailing shame, opprobrium, and disgrace. It is a punishment
that a person feels, and has to live with, even if it doesn't show on
the outside. I53 This, too, is consistent with the extra-legal nature of
the Conunission's conception of justice.
Thus, the TRC's incorporation of amnesty as a necessary COIll-
ponent of justice exemplifies a more capacious understanding of jus-
tice than is often adopted, either in the context of transitional or non-
transitional justice. Whereas the traditional approach to justice for
past crimes is retributive and accornplished through criminal trials
which produce punishment, the TRC recognized a form of justice
that goes beyond punishment, to transformation and reconstruction,
and that is achieved not through hann to the perpetrator (as in incar-
ceration) as much as through gain to the victim (as in enhanced
knowledge and understanding of the truth). The emaciated version of
justice that existed in the apartheid state required a curative that pro-
duced a new, Illore holistic understanding of justice for the post-
healing and justice.

152 du Bois, Nothing but the Truth, in LETHE'S LAW, supra note 45.
153 For instance, in the view of the Chilean Truth And Reconciliation Report,
"the truth itself constitutes a 'moral conviction. ", Teitel, TRANSITIONAL JUSTICE,
supra note 3, at 89. "Exposure of perpetrators' offenses is itself a form of punish-
ment, of "shaming," subjecting perpetrators to social censure and ostracism."
Teitel cautions, however, that "[t]his form of sanction risks the possibility of lim-
itless condemnation, ultimately threatening the rule of law." Id., at 90.

apartheid period.
iii. Justice transcends the boundaries of the domestic law

The TRC experiment not only expanded South Africa's con-
ception of justice but of Iaw as well. It exhibited a willingness to
transcend the boundaries of legal thinking and seek to locate the le-
gal issues in the broader context of human experience. This effec-
ti vely repudiated the apartheid version of law which solopsistically
based its legitimacy on itself.
The ColllIllission's religious influence, in particular, was very
controversial. SOIne people viewed the constant references to relig-
ion and the religious tenor of many of the hearings as being inappro-
priate given that this was obviously intended to operate in a secular
context.F'" Members of the classes from which the perpetrators came
in particular objected to what was viewed as moralizing.F'" On the
other hand, it should not have surprised anyone that a colllIllission
chaired by an archbishop would have a religious orientation (not to
mention that the deputy chair had been a Methodist minister.Y''" As
Priscilla Hayner has recognized, whether good or bad, the religious
tenor of the TRC highlighted the difference between this and other
truth commissions, "Perhaps the ramifications of this approach, and
154 South Africa does not even have a single official language, let alone an
official religion. In a country marked by racial and ethnic diversity, an official re-
ligion is oxymoronic. See CONSTITUTION, Sect. 15, Act 108 of 1996. (Protecting
Freedom of Religion, Belief, and Opinion).
155 William Esterhuyse, TRC Cartoons and the Afrikaner Community, in TRC
IN JEST, supra note 139 at 63-76 (noting that '''Biegbank' [confessionalbench] be-
came the everyday term for the TRC" at 67). This is ironic, if not downright hypo-
critical, given the incestuous relationship between the apartheid policies of the Na-
tional Party and the Dutch Reformed Church. See generally Wynand Malan's
minority position at TRC Report vol. 5 ch. 9b CJI 16, noting "I learnt my politics in
church and much more of my religion in politics."
156 See Boraine, A COUNTRY UNMASKED, supra note 2, at 18-20 (describing
his own career in the church). See also id., at 265-268 (evaluating Tutu's religious
disposition and the religious character of the Commission). See also Desmond
Tutu, No FUTURE WITHOUT FORGIVENESS (Image 1999) at 80-87 discussing his
religious approach to the Commission" s work.

the positive, as well as linriting influence of this religious tone, have

not yet been fully appreciated. However, it is a striking difference
when the TRC is compared to other conunissions that have generally
been regarded more as legal, technical or historical investigations,
with little suggestion of a process rooted in religious conviction.v'<'
This emphasized the reality that this was not an ordinary govern-
mental institution, but deeply marked by other influences.
Literature seems to be another non-legal source of inspiration
for the Connnission. The report does not cite many literary sources,
but when it does, it uses them poignantly. Archbishop Tutu's fore-
word opens with a quote from Emily Dickinson: "the truth must daz-
zle gradually ... or all the world would be blind.,,158 Perhaps this is
an implicit acceptance of the Iimited nature of the Connnission' s
mandate, or perhaps it is just a cautionary note to the Commissioners
themselves about the likely repercussions of the information about to
be revealed. By the time the report carne out, of course, most people
knew much of its contents, because the information had COIne out
gradually during the two-year life of the Connnission. But there
would still be the shock of the seeing the revelations in black and
white, page after page after page.
Another example is the reference to Ariel Dorfman" s "Death
and the Maiden." The Report explains that victims can begin to heal
when perpetrators COIne forward to admit their involvement in past
abuses. Describing the situation of the characters in "Death and the
Maiden," the Report says: "his adnrission restores her dignity and her
identity." Recourse to literature suggests that it can sometimes reveal
truth more poignantly than reality can. 159 In another place, the
Connnission uses literature to learn, and teach, a moral lesson. In ex-
plaining the importance of forgiveness, and that to forgive is not to
forget but merely to forego resentment, the Report recalls "the strug-
gle of rrrernor'y against forgetting" described in Milan Kundera's
157 Priscilla Hayner, in LOOKING BACK, REACHING FORWARD, supra note 1,

at 41.
158
TRC REpORT, vol. 1 p. 4 i 16.
159 Id. at vol. 1 p. 7 i 26

"The Book of Laughter and Forgetting.,,160 The Commission's will-

ingness to go beyond the relatively narrow boundaries of positive
domestic Iaw has simultaneously pernritted it to reach a deeper truth
that resonates more broadly in human experience, and to illustrate,
through its actions, that the Iaw is not isolated from human experi-
ence or, as it was during the apartheid regime, in opposition to it, but
rather a part of the hUInan experience.
Like the literary sources the Report draws on, the legal sources
extend beyond national or cultural boundaries. Embracing non-
indigenous sources of law is not, of course, a transcendence of the
idea of law, since the sources consulted are still legal. It is, however,
a broadening of the conception of Iaw beyond the traditional state-
centered notion that still prevails throughout much of the world (and
notably in the United States). This effort to situate the new order in
South Africa within the norms of the international order parallel the
TRC's efforts to locate its conception of law within the broader
framework of moral philosophy.
Fittingly, this theme first emerged when the TRC was in its em-
bryonic stage when prominent South Africans convened two interna-
tional conferences to elicit the experiences and views of experts on
truth commissions worldwide.J'" The integration of the international
into the domestic was perpetuated in SOIne places in the Report as
where, for instance, the Commission documents the treatment of
apartheid as an international crime against humanity.Y''' This ability
160 Id. at vol. 1 p. 116 <j[ 51.

161 "[T'[hose preparing the groundwork for the truth commission in South Af-
rica were aware of many of the previous truth commissions, as well as other tran-
sitional mechanisms (such as lustration in Eastern Europe) that had been put in
·place around the world. South Africa very consciously reached out to persons, who
had played pivotal roles in Chile, EI Salvador, Argentina, Germany and elsewhere,
bringing a number of central actors to Cape Town in 1994 for two international
conferences to discuss transitional justice options." Priscilla Hayner in LOOKING
BACK, REACHING FORWARD, supra note 1, at 35. See also, HEALING OF A
NATION?, supra note 109 and see, DEALING WITH THE PAST, supra note 109.
162 Boraine, A COUNTRY UNMASKED, supra note 2, refers to frequent trips
abroad and to the international contributions made to the President's Fund, which
is the fund from which reparations are to be paid.

to locate the South African experience within the international COIn-

munity contrasts markedly with the international isolation which
characterized the waning years of the apartheid era: at that time, the
public face of the international community was characterized not by
cooperation but by boycotts, divestment, and ostracism. Archbishop
Desmond Tutu, in fact, came to international protninence (and
earned a Nobel Peace Prize) largely as a supporter of this program of
international ostracism, The TRC's invocation of international expe-
rience, from its inception to its final report, as well as the reciprocal
acceptance of the TRC by the international community exemplifies
one aspect of the transformation that South Africa has undergone in
the past few years.
This also distinguishes the TRC process from criminal prosecu-
tion. Trials are either conducted domestically or internationally but
the sources of law are generally kept separate. Nor is there generally
any significant effort to locate the domestic outcomes in the broader
international context, nor to justify the outcome by reference to in-
ternational norms.
At first glance, the TRC is marked by features that would seem
to threaten, rather than enhance, its prospects for legitimacy. As
noted, its most striking feature was its straddling of law and justice.
While it partook of SOIne legal traditions, it was not, strictly speaking
a legal tribunal. It had the power to issue legally binding decisions
(on amnesty) and it was created by statute and was expected to COll1-
ply with the statutory mandate, an expectation that was judicially re-
viewable and in fact judicially reviewed. But it was not, as it re-
minded the public on several occasions, a court of law. 163 Thus, it
163 See e.g., TRC REpORT, noting, "On the one hand, the Commission was a
legal institution with the responsibility of making defensible findings according to
established legal principles ... On the other hand, the Commission embodied a
moral and therapeutic process that aimed at acknowledging suffering and giving
victims an opportunity to tell their stories. This aspect of the work would have
been greatly diminished had the findings process been approached in too technical
a manner, focusing narrowly on rules of evidence and requirements of proof. The
methodology of the Commission sought to reconcile these potentially conflicting
objectives in various ways." TRC REpORT vol. 1 p. 144 <j[ 27. See also Minow,
BETWEEN VENGEANCE AND FORGIVENESS, supra note 6, at 72 et seq., noting some

was not held to strictly legal standards. Witnesses testified without

cross-examination and without regard to rules of evidence. It sought
out witnesses, designed the questions, assisted in the testimony, and
made its sympathies known from the outset. 164
Whether this was an asset or a defect is open to question. In-
deed, the obligation of the Conunission to adhere to legal procedures
was made explicit by the Du Preez decision that excoriated the
Conunission for failing to provide sufficient notice to individuals
who were to be identified as perpetrators during live testimony by
victims.i'f Supporters of the decision would argue that the Court cor-
rected the defects caused by TRC's amorphous nature by insisting
that legal procedures be followed; detractors argued that the TRC's
amorphous nature was an asset that needed no correction.
While this free-form might have hampered the TRC's legiti-
macy, the Conunission itself tried to use its hybrid nature to its ad-
vantage, playing on legal fonns when appropriate but replacing them
with others when not. The TRC used its legal authority to obtain
materials through subpoena power, for instance, or to summon wit-
nesses. But it resisted formalist obligations when it vie\Ved those as
impeding its pursuit of justice. And when legal authority seemed in-
sufficient, it transcended legal constraints and relied on other forms
of power as, for instance, the extraordinary cases of P.W. Botha 166
of the differences between the TRC and a court of law (perhaps encapsulated in
Justice Albie Sach's comment that "Tutu cries. A judge does not cry." Id. at 73).
164 As Commissioner Wynand Malan wrote in his minority position, "Evi-
dence was not tested. It was not intended to be tested. Except for a few statements,
they were not even attested to under oath. Most deponents giving oral evidence,
when taking the oath, made it clear that they would speak the truth 'as they see it'."
TRC REpORT vol. 5 ch. 9b <j[ 23.
165 Du Preez v. TRC 1997 (4) BCLR 531 (A).
166 When the Commission's efforts to get the former State President to appear
before the Commission failed, Nelson Mandela "telephoned him on a number of
occasions and pleaded with him to appear before the Commission. He had gone so
far as to offer to accompany Botha to the Commission hearing. And this from a
man who had suffered twenty-seven years of. imprisonment with the enthusiastic
support of Botha and his colleagues." Boraine, A COUNTRY UNMASKED, supra
note 2, at 202.

and Winnie Madikizela-Mandcla'{" demonstrate. In both these in-

stances, Tutu and the Commission relied on political, moral, and
even emotional suasion to promote their goals (of securing testimony
from Botha and an apology from Madikizela-Mandela). Although in
neither case was the blurring of boundaries successful.l'" the well-
publicized efforts permitted the Commission to create its O'Nn tradi-
tion that blended legal and non-legal influences. In all these ways,
the TRC process demonstrated a conception of justice that balanced
the formalism of law with other aspects of human experience, which
of course marked a sharp contrast with the prior regime.
iv. Justice through self-examination

Another means the Commission used to create faith in the new
legal order is, perhaps paradoxically, to be self-critical. One aspect of
this was the Conunission' s criticism of its enabling legislation. This
accomplished several things. Against the backdrop of the apartheid
regime, which held itself out to be immune from criticism from the
international community, from the polity (hence the secrecy), and
from the courts (as guaranteed by parliamentary sovereignty), the
TRC's public criticism of its organic act showed the new government
to be amenable to criticism from the public, as well as from other or-
gans of the government itself. In this new dispensation, the courts
have the power of judicial review, the people have the light to com-
167 The TRC held nine days of hearings on matters relating to Winnie
Madikizela-Mandela's involvement in the torture, murder, and disappearance of
several youths. At the close of the hearing, Desmond Tutu entreated Madikizela-
Mandela to acknowledge her central role that had become clear during the hearing.
Tutu "stressed the need to demonstrate that the new dispensation was different
qualitatively and morally and the need to stand up to be counted for goodness, for
truth, and for compassion." In closing, he said, "I speak to you as someone who
loves you very deeply. Who loves your family very deeply. I would have said to
you, let us have a public meeting. And at that public meeting for you to stand up
and say there are things that went wrong, there are things that went wrong, and I
don't know why they went wrong." Boraine, A COUNTRY UNMASKED, supra note
2, at 251-252. These are obviously not the words of a judicial officer.
168 The Commission failed to secure either Botha's appearance or
Madikizela-Mandela's apology.

ment on the government's work, and the government can be trusted

to acknowledge its own shortcomings, all without fear of reprisal.Y"
This was an early and highly visible manifestation of the paper guar-
antees of free speech that have been written into the new Bill of
Rights.
The content of the TRC's criticism of its own organic act
ranged from mild annoyance - for instance, over the use of the term
"victim' rather than survivor'{" -- to severe frustration over the limi-
tations in the legislation both in time and in scope. The clearest
limitation on the Commission" s jurisdiction was a temporal one. The
Conunission was authorized to investigate only those abuses that
took place between March 1, 1960 and May 10, 1994. This rnandate
period is thus substantially shorter than the period during which ra-
cism has existed in South Africa - which began when whites began
to settle permanently in South Africa in 1652, and continues to this
day - and shorter even than the apartheid era - which began offi-
cially in 1948 when the National Party gained control of Parliarnent.
March 1, 1960 marks the events leading up to the Sharpeville Massa-
cre (March 21, 1960), at which point tensions between the majority
and the governing nrinority escalated dramatically, This temporal
linritation would seem to prevent the Conunission from examining,
and therefore explaining, the historical context that gave rise to the
extreme violence that characterized the rnandate period.
The other linritation had more profound implications for the
work of the TRC. The statute authorized the TRC to "promote na-
tional unity and reconciliation" by "(a) establishing as complete a
picture as possible of the causes, nature and extent of the gross vio-
lations of human rights which were cornmitted during the [mandate]
169 TRC criticism of the legislation is not limited to its report, but can be
found in writings by the Commissioners themselves, in their individual capacities.
See Mary Burton, Making Moral Judgments, in LOOKING BACK, REACHING
FORWARD, supra note 1, at 77-85; and see Boraine, A COUNTRY UNMASKED, su-
pra note 2, at 300-339. See also dissenting view of Wynand Malan in TRC REpORT
vol. 5.
170 TRC REPORT, vol. 1 p. 59 <j[<j[ 37-39.

period.... ,,171 It then defined "gross violations of human rights" as

"(a) the killing, abduction, torture or severe Ill-treatment of any per-
son; or (b) any attempt, conspiracy, incitement, instigation, conunand
or procurement to conunit an act referred to in paragraph (a) ... ,,172
The Conunission took this definition to mean that specifics acts of
extreme violence were within its jurisdiction, but that acts that were
committed on a widespread basis - i.e. through legislation requiring
forced removals and passbooks - were outside its jurisdiction.
This Iimitation on the Conunission' s authority virtually forced
an emphasis on individual acts and individual suffering rather than
on the collective and cumulative experienc.e of apartheid. While this
permitted SOIne individual stories to be highlighted and thus seared
into the public consciousness, it might have minimized the impact of
the actual nature of apartheid which was felt as day-after-day oppres-
sion, as well as in individual instances of extreme violence. Twenty-
one thousand people told their stories, but millions did not. This has
material implications for the millions of people who were victimized
by apartheid but whose experiences did not amount to "gross viola-
tions of human rights" within the meaning of the statute: people who
are not "victims' of gross violations of human rights are not entitled
to reparations under the Act. It is therefore possible to read the report
as an indictment of apartheid on the ground that it entailed individual
acts of torture and murder, rather than because it entailed widespread
· I oppression,
racia · 173
171 Sect. 3(1)(a) of the TRC Act.

172 Sect. l(ix)(a) and (b) of the Act.
173 Mahmood Mamdami offers this analogy: "Imagine that a truth commis-
sion had been appointed in the Soviet Union after Stalin, and this commission had
said nothing about the Gulag. What credibility would it have had? The South Afri-
can equivalent of the Gulag was called forced removals. Between 1960 and 1982
an estimated 3.5 million people were forcibly removed, their communities shat-
tered, their families dispossessed and their livelihoods destroyed. There were not
inert outcomes of socio-economic processes, but outcomes of active violence by
state agents. [<j[] These 3.5 million victims comprise faceless communities, not in-
dividual activists. They constitute a social catastrophe, not merely a political di-
lemma. Were these removals not gross violations within the terms of reference set
by the law? Why, then, did the TRC not include these people among 'victims'?"

N arrowirig the mandate, however, might be defended on certain

grounds. A broader mandate might have been impossible to fulfill
and attempting to do so would have discredited the Conunission. In
34 months -- the time allowed by the statute and probably by the
public's patience -- the Conunission could hardly have been ex-
pected to investigate and write the definitive history of severe racism
in South Africa, and it would not have redounded to the Conunis-
sion's benefit to try. Furthermore, as Albie Sachs has suggested, the
violence of the forced removals and other legislative incidents of
apartheid were not shrouded in secrecy, as were the more extrellle
acts that violated even apartheid's own warped conception of law. 174
Thus, the Conunission might have reasoned that its resources would
be better spent shedding light on the extraordinary theretofore un-
known violations than on the widely felt and widely known injus-
tices. Finally, the Conunission might have perceived a material ad-
vantage to linriting the class of "victims" to those who had suffered
most egregiously: the Conunission might have calculated that asking
the government for less would increase the chance that the govern-
ment would pay the recommended reparations. 175 Arguably, the
mandate was tailored to what it was thought possible and most im-
portant for the Conunission to accornplish
Whether or not the linritations in the statute are ultimately desir-
able, the Conunission clearly viewed them as constraints that pre-
vented it from delving more deeply into the nature of apartheid. But
unlike an ordinary government agency that would simply stay within
its statutory linrits without drawing attention to them, the TRC effec-
tively circumvented them without appearing to do so. The Conunis-
sion took advantage of another section of the statute - empowering it
Mamdami, A Diminished Truth, in AFTER THE TRC, supra note 34, at 59-60.
174 See Albie Sachs, His Name was Henry, in AFTER THE TRC, supra note 34,
at 94-95 (suggesting that the TRC focused its attention on the cases that had previ-
ously been "hidden, secret and denied" as opposed to the Group Areas Act and the
Land Act and the "wars of dispossession [which] were known.").
175 To date, this calculation has turned out to be erroneous, as the government
has not paid even the moderate amounts recommended by the TRC. See Report on
Khulumani Reparations Indaba, supra note 9.

to "compil[e] a report providing as comprehensive an account as

possible of the activities and findings of the Commission't'<" - and
wrote an exhaustive report 177 detailing that which it was not author-
ized to investigate. This theme is repeated throughout the Report; it
is perhaps most succinctly raised in the "historical context" chapter,
a chapter devoted to describing what was excluded from the man-
date. In purely legal terms, this would be ultra vires and a commis-
sion committed to legalism would have taken advantage of the re-
striction to avoid the broader issues. By contrast, the TRC took the
position that commenting on the contours of its authority was en-
tirely within its authority. The Commission explained that
" ... [the] governing Act limited its investigation to gross viola-
tions of hUInan rights defined as the "killing, abduction, torture,
or severe Ill-treatment' and the "attempt, conspiracy, incitement,
instigation, connnand or procurem.ent to connnit" such acts. In
essence, therefore, the Connnission was restricted to examining
only a fraction of the totality of human rights violations that
emanated from the policy of apartheid - namely, those that re-
sulted in physical or Inental harm or death and were incurred in
the course of the political conflicts of the m.andate period.
[<j[]The Connnission's focus was, therefore, a narrow or re-
stricted one, representing what were perhaps SOIne of the worst
acts connnitted against the people of this country and region in
the post-1960 period, but providing a picture that is by no means
com.plete. For, simultaneous to the 'gross' abuses documented
later in this report, millions of South Africans, and m.ore par-
ticularly those who were not white, were subjected to racial and
ethnic oppression and discrimination on a daily basis - in pursuit
of a system which [this Report] describes as "systemic, all-
pervading, and evil. ",178
The Commission recognized the obvious point that gross viola-

tions of human rights were part of the fabric of apartheid. People
176 Sect. 3(1)(d)

177 The first five volumes comprise 3500 pages; the last volume will add an-
other few hundred pages.
17~ TRC REpORT vol. 1 p. 29 II 19-20
V olume 12, Numbers 1 & 2

who were simply black in South Africa were victims of gross human
rights violations, whether or not they were also victims of torture,
abduction, severe Ill-treatment, or the killing of their loved ones. It
was impossible, the CoIlllllission seemed to say, to fulfill its task of
comprehensively investigating, understanding, and telling of the
violations of the past \¥hen these were statutorily defined in such a
Iimited way. In these sections of the Report, the Commission makes
it clear that it is not exceeding its legal mandate because doing so
would contravene the rule of law. Rather, the CoIlllllission was doing
all it legally could do to import an understanding of the role of jus-
tice, and injustice, into its work. Failing to comment on the Iimita-
tions in the statute would itself be unjust.
It has been argued that the CoIlllllission itself read its mandate
unnecessarily narrowly.Y" Severe ill-treatment, the argument goes, is
broad enough to include the forced removals and day-to-day depri-
vations imposed on generations of South Africa's blacks. According
to this argument, the CoIlllllission compromised its own effective-
ness in achieving ju.stice by restricting itself to only the 1ll0st egre-
gious and individualized human rights abuses. For present purposes,
it is not as important to resolve this dispute of statutory interpretation
as to recognize the significance of the TRC's approach to its organic
legislation. The TRC's overt criticism of certain aspects of the law
ushers in a new era in which open debate can be conducted on mat-
ters of public importance. This, as much as the substantive conclu-
sions drawn by the report, can contribute to South Africa's transfor-
mation to a liberal democracy. 180
179 See Asmal et al., When the Assassin Cries Foul, in LOOKING BACK,
REACHING FORWARD, supra note 1, at 86-98.
180 One feature which oddly reinforces the legal or judicial side of the Com-
mission's work is the dissenting view of Commissioner Wynand Malan. This is a
fascinating document in which he simultaneously excoriates the Commission for
being too indulgent of the victims and for being too sympathetic of the perpetra-
tors. His comments are at times well-taken (is it really possible to "restore" human
dignity to someone else, or do people retain their dignity, despite the suffering and
humiliation?), but at other times his critique is explainable only by his failure to
have committed fully to the enterprise. For the most part, however, his comments
were not taken well by the majority of the Commissioners, who wrote a terse re-

b. Untold suffering from unspeakable acts

The previous section illustrates how the TRC deliberately em-
bodied the joinder of justice and Iaw that would characterize the new
South Africa. Another part of the transfonnative project was the
strong orientation of the TRC towards the people it called the "vic-
tims" of apartheid and towards South African blacks generally.
Again, this had a transfonnative purpose - to integrate the majority
of the population (namely blacks) into the polity, to promote a trust-
ing relationship between the population and the government, to pro-
mote reconciliation as the foundation on which the new South Africa
stands. It sought to end the "untold" suffering by giving everyone a
chance to speak and by listening. Furthermore, this victim orientation
exhibited a preference for aspects of black South African culture
over the culture of the previously dominant minority.
The victim orientation of the TRC manifested itself in many
ways, Again, some of these were mandated by the statute, while oth-
ers were devised by the TRC itself or by its interpretation of the stat-
ute. Perhaps the most obvious was the extensive series of victims
hearings held throughout the nation. The TRC took great pride in the
lengths it went to cOIllIllunicate with victims. On its own and with
the help of NGOs, the TRC located victims; it visited them in homes,
community centers, and churches; it invited them to speak in the lan-
guage they were most comfortable in; it gave referrals for physical
and mental health facilities. It was the only truth conunission in the
world to create a witness protection programme.Y" Furthermore,
victims were also able to make use of the TRC's mental health
unit. 182 This section was created by the Conunission itself, unman-
dated by the statute. 183 The emphasis on the victim hearings in the
sponse. See TRC REpORT Vol. 5 ch. 9c.

181 See Promotion of National Unity and Reconciliation Act, Sect. 35; see
also Priscilla B. Hayner, Fifteen Truth Commissions, 1974-1994: A Comparative
Study, 16 HUM. RTS. Q. 597 (1994).
182 See generally TRC REpORT vol. 1 pp. 364-371.
183 "The almost complete lack of reference to the issue of psychological sup-
port in the Promotion of National Unity' and Reconciliation Act created some am-
bivalence with issues relating to psychological support services remaining an on-

press for the first year and a half of the Commission" s life reinforced
that this was the orientation of the Corrnnission.
Indeed, it is hard to imagine a more sympathetic governmental
agency. As part of its interpretation of its mandate, it used a broad
conception of the word "truth" in order that peoples' experiences
might be accepted and acknowledged even if they could not be cor-
roborated with scientific evidence. The report quotes from a state-
ment made by Chairperson Tutu at one of the hearings:
This Corrunission is said to listen to everyone. It is therefore im-
portant that everyone should be given a chance to say his or her
· 184
truth as h e or s h e sees It.
The Corrnnission took this obligation to accept everyone's truth

as he or she sees it as directly mandated by the statute. According to
the Collllllission, section 3(c) of the Act, which states that the COITl-
mission shall achieve its objectives by "restoring the human and civil
dignity of victims by granting them an opportunity to relate their
own accounts of the violations of \Vhich they are the victims' re-
quires the Corrnnission to hear and "create" narrative truth. 185
The Commissions explicit endorsement of the narrative, as
well as historical and other forms of truth, concretizes its empathy
with the victims of apartheid. Although the Collllllission did not
equate narrative with scientific truth, it recognized the value of four
different types of truth. This conveyed the message to witnesses that
their experience - articulated in whatever form - is legitimate and,
furthermore, that the experiences of victims generally are an integral
part of the official story of apartheid. This distinction, between the
old regime which negated the experience of black South Africans
and the new regime which enshrines it, was made explicit by the
process through which the TRC obtained information and in the re~
going source of debate throughout the life of the Commission." TRC REpORT vol.
1 p. 364 <][ 1. One witness told me that the psychologist from the TRC actually
phoned her and insisted that they meet, and meet again. (Meeting with Shirley
Gunn, March 13,2001).
184 TRC REpORT vol. 1 P 112 <j[ 35.
185 Id. vol.1 p. 112 Cj[ 36, n. 6.
Volurn.e 12, Nurn.bers 1 & 2

sultant story woven together in pages of the final report.

The environment created by the TRC and the messages con-
veyed by it can be analogized to the sense of ubuntu of which the
new constitution and the TRC both speak. As the TRC Report ex-
plains,
"As far as traditional African values are concerned, the funda-
mental importance of ubuntu must be highlighted. Ubuntu, gen-
erally translated as 'humaneness', expresses metaphorically in
umuntu ngumuntu ngabantu - 'people are people through other
people. In the words of Constitutional Court Justice Makgoro:
"Its spirit emphasizes respect for human dignity, marking a shift
from confrontation to conciliation." 186
This sense of ubuntu is reflected throughout the new Constitu-

tion, from its "Founding Provisions" in chapter one to its extensive
Bill of Rights. But the TRC provided tangible evidence of what ub-
untu is and of its central place in the new South Africa. If the TRC -
and particularly the Human Rights Violations Hearings - can be said
to have restored people's individual dignity, they did so by listening,
understanding, empathizing with the victirns. People became (newly
re-dignified) people through the TRC. The process allowed survivors
to be reintegrated into society and it reshaped society to incorporate
survivors.
In hearings, victims often approached the Corrunission almost in
a foetal position as they came to take their seats and relate their
stories. They told stories as they saw them, as they experienced
them, as they perceived what had happened to them. As they left
their seats, the image was wholly different. They walked tall.
They were reintegrated into conununity. They could re-assume
their roles in society; they could manage themselves and the
world them again. They were healthy cells of the national or-
ganism, This too is restorative justice. This too is the spirit of
ubuntu.I'"
By suggesting that human dignity was irnpaired until the hear-
186 TRC REpORT vol. 1 ch. 5 <j[ 85.

187
TRC REpORT vol. 5 ch. 9B <j[ 37.

ings, the TRC recognized the relevance of other people - the larger
conununity - to making people whole. It gave survivors a space in
which to speak their deepest thoughts, and it validated them by ac-
knowledging, without judging, them. By evidencing, each day for
more than 2 years, this spirit of ubuntu, the TRC helped to make it an
intrinsic part of the new South African culture. 188
It should also be noted that in rnany important ways the Corn-
missioners have individually continued to. work for the enhancement
to victims' lives that was evident during their tenure as CoIll1llission-
ers. In addition to their writings about the ongoing process of recon-
ciliation, CoIll1llissioners remain involved in allllost all aspects of the
transition. At a recent meeting of uncompensated victims in Cape
Town, no fewer than three (of seventeen) CoIll1llissioners appeared
and contributed meaningfull y and honestly to the discussion about
how to secure reparations. 189
c. Situating the Dialogue

The TRC's contextuality - the fact that it could not have been
designed or have operated anywhere or at any time but in post-
apartheid South Africa -- means that it was perfectly situated to en-
gage in a dialogue with South Africans. It understood the new South
Africa and the people who inhabited it; it had spent more than 2
years getting to know the victims, perpetrators, and bystanders. This
was a critical feature of the TRC because of the nature of transfor-
mative justice. No institution can accomplish the transformation; it
can only set the course and begin the process. It must invariably
188 It could also be said that the TRC's manifested ubuntu in its negative as-
pect as well: by morally indicting perpetrators - from the poolside beneficiaries to
the torturers - it diminished the dignity of those who supported the apartheid re-
gime. Furthermore, this whole approach may have also contributed to the aliena-
tion that some whites felt from the TRC process. If the tenor of the hearings was
one that was intended to promote ubuntu, it may have resonated profoundly with
black South Africans, but may have been antithetical to white South African cul-
ture.
189
See Report on Khulumani Reparations Indaba, supra note 9 (reflecting
appearances by Yasmin Sooka, Dumisa Ntsebeza, and Hlengiwe Mkhize).

leave it to others to accomplish the goals identified and embarked on

by the institution itself. One measure of the TRC's success, then, is
how well it got the conversation started.
Nothing illustrates the dialogic potential of the TRC so much as
its final report. 190 The Report was quite obviously intended to create
faith in the new legal order. The Charipersons Foreword ends with
the words: "I am honoured to commend this report to yoU.,,191 To
whom? The report looks and reads, not like memoranda of an agency
to the President, nor even like judicial decisions but rather like a high
school textbook. It is available at bookstores, on the web 192, and on
CD-ROM. This suggests that the authors of the report wanted its
contents to reach a larger audience, not confined to academics or
Iawyers, but to the people at the most general and impressionable
level. Indeed the Report recommends that posters should be made for
distribution in schools, and that web sites be created, and that all
other media be considered as vehicles to communicate the TRC's
message to South Africans in this and future generations. The TRC
sought to speak to the nation, to entreat the nation to heed its call of
reconciliation and responsibility and to understand the need for ac-
countability and transformation. This is an offering from a govern-
mental agency to the people, a demonstration of the government' s
responsiveness to the people.
Beyond suggesting this overture from the government to the
people, the report indicates that it expects an answer. 193 The report is
peppered with caveats that the TRC is just the starting point but can
not be responsible for ascertaining the whole truth nor accomplishing
reconciliation. In doing so, the TRC is creating the modality of an
190 The first five volumes of the Report were submitted to President Nelson
Mandela on 29 October 1998. The sixth and final volume, containing an exhaus-
tive list of victims' names and the complete tally of amnesty grants and denials,
was expected in September 2001.
191
TRC REpORT, vol. 1 p. 23, <j[ 95.
192
See supra note 25.
193 "It is up to each individual to respond by committing ourselves to concrete
ways of easing the burden of the oppressed and empowering the poor to play their
rightful part as citizens of South Africa." TRC REpORT vol. 5 ch. 8 <jI115.

ongoing dialogue between the people and the government that, again,
had never previously existed, nor even been thought possible. Judg-
ing by the sheer size of the report, the dialogue envisioned by the
TRC is meant to be deep and comprehensive, not superficial or
skimpy. This approach, of speaking to the nation, is of course con-
sistent with the TRC's general commitment to conununication, as
seen in its own transparency and in the irnportance it attaches to
bearinz wi
eanng witnesses to t h e past. 194
The result of this effort was to encourage popular faith in a new
legal order. The TRC showed people a new kind of law, one that
resonated with people because it was connected, not opposed, to their
religion, their sense of morality, or their personal experience. Fur-
thennore, it exemplified the importance of the populace to govern-
ment, in a dernocracy, by seeking and indeed depending on the in-
volvement of individuals in the truth-ascertaining and reconciliation
progranune. In this sense, the TRC in 1996 was of a piece with the
holding of public elections in 1994 and the making of the constitu-
tion in the early 1990s. All three required for their success, for the
first tirne in South African history, the participation of vast numbers
of South African citizens. But as an ongoing process and an institu-
tion with public faces attached, the TRC, perhaps more than anything
else, exemplified the new governments genuine commitment to the
ideals of the liberation struggle.
4. Assessing success.
The success of a nation's response to past abuses can be rneas-
ured in two ways, First, one can compare how well the institutional
response achieved the goals traditionally associated with retributive
justice - consolidating rule of law values, instilling individual re-
sponsibility, achieving respect for human rights, and drawing clear
lines between the old dispensation and the new. Second, one might
evaluate how well the institutional response achieved the transfor-
194 Alex Boraine writes, "almost as important as the process of establishing

the truth was the process of acquiring it. The process of dialogue involved trans-
parency, democracy, and participation as the basis of affirming human dignity and
integrity." Boraine, A COUNTRY UNMASKED, supra note 2, at 290.

mational goals of the new order. Although the TRC "Was not "Without
its "imperfections,' as Nelson Mandela said upon receiving the Re-
port, it achieved a measure of success by either of these two stan-
dards.
Initially, it must be recognized that the traditional values of re-
tributive justice may operate in varying degrees in transitional socie-
ties. For instance, "While South Africa's past "Was marked by an ex-
cessive legalism, Rwandas genocide "Was marked by complete
lawlessness. Thus, promoting the rule of law "Will mean different
things in these two places at the moment of transition. In South Af-
rica, the goal of transformation "Would be the establishment of a more
humanized and moral form of Iaw, "Whereas in Rwanda, the goal
"Would be initially the establishment of a formal system of law that
confirms the centrality of law in an organized society. The TRC "Was
the appropriate instrument for promoting not "rule of law' in the ge-
neric sense, but the kind of rule of Iaw needed in South Africa. It
promoted the rule of law by presenting itself as an authoritative
(though not authoritarian) organ of government that, overall, dealt
fairly and respectfully "With the public at large.
Another goal of retributive justice is said to be the individuation
of responsibility. 195 In order to avoid general indictments of an entire
group, it is irnportant to distinguish between those "Who are culpable
and those "Who are not. The TRC accomplished this goal by remain-
ing focused on the role of individuals in apartheid. It refused to ac-
cept applications for blanket or collective amnesty, insisting that
each person "Who desires amnesty must on her or his own accept the
responsibility of his or her acts by fully disclosing the truth. 196 Indi-
vidual sufferers as well as individual perpetrators took center stage
during the TRC drama; indeed most of the piercing images of the
TRC are of individuals engaged in certain extraordinary acts: Tutu
crying, Jeffrey Benzien demonstrating his "wet bag" method of tor-
ture,197 Nomonde Calata's wail. 198 Indeed, this is one of the most
195 See supra at Part II C.

196 TRC REpORT Vol. 1 p. 118 159 (noting that "a considerable degree of ac-
countability was built into" the amnesty provisions of the TRC Act).
197 See Martin Meredith, COMING TO TERMS for a particularly powerful de-

conunon criticisms of the TRC - that it ignored the collective suf-

fering endured by the collective evil of apartheid. 199
In the context of transitional justice, however, it may not be suf-
ficiently precise to say that some people are guilty and some are not.
In periods of massive oppression, it is more likely that many people
are guilty in different ways and to different degrees. It is therefore
not sufficient to convict some while acquitting others; the task of in-
dividuating responsibility must in these circumstances be more nu-
anced. Unlike criminal trials, the TRC was able to accomplish this
more subtle version of indivduating responsibility by assessing the
relative culpability of all the major players in apartheid, from the
leaders, to the foot soldiers, to the institutional promoters of apart-
heid, to the passive beneficiaries. 200
In the context of the TRC, the punishment imposed on those
found "guilty" of apartheid crimes was not retributive punishment -
although of course those who are denied amnesty are amenable to
critninal trials. Rather, the punishment of the amnesty hearings is the
weaker form of punishment comprising shame, ostracism, and op-
probrium. While this may not be as harsh to the defendant, it may
equally well achieve the goal identified by Martha Minow of assert-
scription of Benzien's testimony; see also TRC REpORT vol. 5 ch. 6 <j[ 36.
198 On the second day of the first hearing of the Human Rights Violations
Committee, Nomonde Calata testified about her husband's death. "In the middle of
her evidence, she broke down and the primeval and spontaneous wail from the
depths of her soul was carried live on radio and television, not only throughout
South Africa but to many other parts of the world. It was that cry from the soul that
transformed the hearings from a litany of suffering and pain to an even deeper
level. It caught up in a single howl all the darkness and horror of the apartheid
years. It was as if she enshrined in the throwing back of her body and letting out
the cry the collective horror of the thousands of people who had been trapped in
racism and oppression for so long." Boraine, A COUNTRY UNMASKED, supra note
2 at 102. See also Desmond Tutu, supra note 156, at 147 (describing same incident
as "the defining sound of the TRC - as a place where people could come to cry, to
open their hearts, too expose the anguish that had remained locked up for so long,
unacknowledged, ignored, and denied.")
199 Mahmood Mamdami, in A Diminished Truth, in AFTER THE TRC, supra
note 34.
200 See supra at text accompanying notes 142-143.

ing truth of the victim's value by inflicting a publicly visible defeat

on wrongdoer. 20 1
For similar reasons, the TRC was able to demonstrate the new
dispensation's respect for human rights at least as well as courts
could have done. 20 2 By listening to victims and chastising perpetra-
tors, the TRC demonstrated the importance of respect for the rights
of all people. Indeed, the TRC's most controversial decision - to in-
vestigate the gross human rights abuses committed by the liberation
movements and in particular by the ANC - showed that it respected
human rights so much that it would respect the rights of even those
who supported apartheid. Nonetheless, it was also able to nuance its
message about the respect for human rights by examining the differ-
ences between various kinds of human rights violations: the TRC
distinguished between human rights abuses that were committed to
support apartheid and those that were conunitted to resist and change
it and, as suggested above, it distinguished amongdifferent degrees
of abuse. 203 The TRC's uniqueness and prominence meant that its
message was more effectively communicated than a court's decision
(or a series of court decisions) would have been. With criminal trials,
the possibility of acquittals creates the risk that the message of hu-
man rights respect will be defused. The correlative risk with the TRC
is the grant of amnesty, although the TRC (with the assistance of the
Constitutional Court 20 4 ) has done all it could to demonstrate that am-
nesty furthers the values of human rights more than it illlpedes them,
at least in the context of post-apartheid South Africa. This may not
be persuasive to all, but it is no less persuasive than an acquittal un-
der similar circumstances.
The TRC's central accomplishment, however, was not only in
achieving retributive goals at least as well if not better than criminal
201 See supra at text accompanying note 82.

202 See supra at text accompanying notes 83-84.
203 TRC REpORT vol. 1 ch. 4 <][<][60-81 (justifying decision to investigate hu-
man rights abuses committed by non-governmental as well as governmental ac-
tors). The ANC in particular took issue with this decision and it remains controver-
sial.
204 AZAPO v TRC 1996 (4) SA 562 (C); see above.

prosecution could have done; the TRC also promoted the transfor-
mational goals of the new South Africa. On this score, assessing the
success of the TRC is difficult for two related reasons.
First, there appears to be a schism between the reactions to the
TRC of South Africans and non-South Africans. While the world-
wide reputation of the TRC is extremely high, many South Africans
are very skeptical of it. 205 As one commentator has written, the Truth
and Reconciliation Commission was a misnomerr''", having produced
neither truth 20 7 nor reconctliation.r''" Indeed, it has been argued that
the goal of reconciliation, as achieved through truth was incoherent,
and therefore impossible to attain. 20 9 What it produced instead, the
205 This generalization, like any, is only true in the main. There are many
South Africans who did and continue to support the TRC, including most of the
black population at large and some elites like Albie Sachs, Antjie Krog, and Jer-
emy Sarkin as well as the Commissioners and staff themselves. See Gibson, James
L., and Helen Macdonald. 2001. Truth- Yes, Reconciliation - Maybe: South Afri-
cans Judge the Truth and Reconciliation Process, in RESEARCH REpORT,
INSTITUTE FOR JUSTICE AND RECONCll..,IATION (finding that 76% of South African
blacks but only 37% of South African whites approve of the TRC) at 3. Most of
the criticism of the TRC comes from within South Africa and it is deep and cut-
ting. See e.g.. AFTER THE TRC, supra note 34 and LOOKING BACK REACHING
FORWARD, supra note 1 (containing multiple essays by South Africans critical of
the TRC process). What follows is only a brief mention of some of the most
prevalent criticisms of the TRC. As a general rule, it can be said that South Afri-
cans who criticize the TRC tend to overemphasize its faults while foreigners who
laud it tend to overrate its accomplishments.
206 Kaiser Nyatsumba, Neither Dull Nor Tiresome, in AFTER THE TRC, supra
note 34, at 90.
207 See Mahmood Mamdami, A Diminished Truth, in AFTER THE TRC, supra
note 34; du Bois, Nothing But the Truth, in LETHE'S LAW, supra note 45.
208 As one commentator has put it, "The sad truth is that, for a host of reasons,
South Africans today are not any more reconciled now, especially across the racial
divides of old, than they were before the inception of the Commission. We have
had wonderful and very moving examples of reconciliation taking place between
victim and perpetrator or a victim's family and a perpetrator after the truth had
been told. However, such reconciliation as has taken place has not found resonance
across the country." Kaiser Nyatsumba, Neither Dull Nor Tiresome, in AFrER THE
TRC, supra note 206, at 90-91.
209 du Bois, Nothing but the Truth, in LETHE'S LAW, supra note 45 (arguing
VolUIlle 12, Numbers 1 & 2

skeptics argue, was division and pain and very high but unfulfilled
expectations of closure and healing. Thus, the view from inside, from
those who live day-to-day with the aftermath of the TRC, seeks an-
swers to why the end of the rainbow seems so dull.
From a purely material point of view, the TRC produced an im-
balance of justice: it granted amnesty to SOIne perpetrators but did
not secure meaningful reparations to any victims, This may have
been failure in planning.r '" the result of excessive, indeed unrealistic,
optimism about the government and the private sector's willingness
to engage in a reparations program that could be perceived as naked
wealth redistribution,211 or perhaps just evidence of the inevitable
schism between advisory panels and government,
Other criticisms have also been made, with SOIne justification.
First, there are the general criticisms: from the left that it was too
conciliatory to the leaders of apartheid and too insistent on docu-
menting the ANC's human rights abuses; and from the right, that it
was a witch-hunt that was intended to indict all whites in the crimes
of apartheid.v '' The next level of criticisms are more nuanced: that
that the truth would inevitably divide people and therefore frustrate the goal of rec-
onciliation).
210 This result might have been avoided if, for instance, the TRC had withheld
its amnesty decisions until reparations had been paid. This would have created the
political pressure necessary to ensure the payment of reparations. While the Com-
mission itself was bound by statute to make amnesty decisions and was limited by
statute to hortatory power with respect to reparations, the statute did not designate
the order in which these issues had to be resolved.
211 This theme was sounded repeatedly at the Khulamani Indaba held in Cape
Town in April 2001 at which members of the victim class and their political allies
(including former TRC commissioners) tried, largely unsuccessfully, to secure
commitments from government officials about the government's intentions to pay
constitutionally and statutorily mandated reparations. See Report on Khulumani
Report 011 Khulumani Reparations Indaba, supra note 9.
212 See Boraine, A COUNTRY UNMASKED, supra note 2, at 300-339 (describ-
ing reactions to the publication of the TRC Report). These criticisms culminated in
last-minute efforts by both the ANC and the National Party to prevent publication
of the Final Report. See e.g. Wally Mbhele, ANC, TRC clash over Final Report,
MAIL AND GUARDIAN October 9, 1998 (at <http://www.mg.co.za>) and see e.g.
Howard Barell, What ./t....,W did not want you to see, MAIL AND GTJARDIAN, October

the TRC was selective in its search for truth 2 13 (and in particular, that
it selected out the quotidian gross violations of hUlllan rights com-
mitted in the name of apartheid/''"), that it failed to transcend the
politics of the day or to "insert anything distinctive into the network
of power relations" that govern modern South Africa.f ' ? that it was
insufficiently welcoming to whites who, if given a bit more encour-
agement, would have participated more openly.r"?
While these may all be true, outside conunentators tend to focus
not on what the TRC failed to achieve but on its promise. This is a
luxury that outsiders have because they do not live with the problems
of quotidian life in South Africa and can think about how the lessons
learned in South Africa can be used in other parts of the world, Be-
cause there is no neutral observer, no one standing behind the veil of
ignorance who is neither insider nor outsider, there is no way to me-
diate who is right and who is wrong. I do not wish to argue that the
truth lies somewhere in between, but rather that the truth is both in-
side and outside simultaneously. The TRC has both shortcomings
30, 1998 (at <http://www.mg.co.za>).

213 See e.g. Minority Position of Wynand Malan, TRC REpORT vol. 5 ch. 9b
1123-28.
214 See supra. See also Asmal in LOOKING BACK, REACHING FORWARD, su-
pra note 1, at 86-98; Colin Bundy in AFTER THE TRC, supra note 34, at 18-19;
Mahmood Mamdami, ide
215 du Bois, Nothing but the Truth, in LETHE'S LAW, supra note 45 at 110.
216 This was suggested to me by Jeremy Sarkin in conversation, May 30,
2001. The TRC lobbed widespread criticism at all those who did not participate in
the process to the Commission's satisfaction (see extended criticism of the re-
sponse to the TRC process of the white community (vol. 5, p. 19611 3-4), leaders
of the National Party, the South African Defence Force, and the South African Po-
lice (Id. at 11 4, 7 -8, 10-16, 39-42), the African National Congress (Id. at 11 17-20,
43), the United Democratic Front (Id. at 1 21), the Inkatha Freedom Party (id. at
paras 22-26), the Pan Africanist Congress (Id. at 1 27), and organizations repre-
senting various sectors. of civil society especially the legal sector (Id. at 1 28)). This
almost reflects back on the Commission itself. Though it may be correct in its as-
sessment that "the spirit of genorosity and reconciliation enshrined in the founding
Act was not matched by those at whom it was mainly directed" and that "Few
grasped the olive branch of full disclosure." (Vol. 5 p. 196 1 3), it may have been
the responsibility of the TRC to ensure that civil society participated satisfactorily.

and promise. It is for that reason that we must be especially careful

about the lessons we think we can dra\V from the TRC process.
The TRC's success is difficult to assess for another, though re-
lated, reason. Notwithstanding its extensive legislative mandate, it is
difficult to ascertain exactly what the TRC was supposed to accom-
plish. As was suggested above, the meaning of reconciliation can be
slippery and, even in the specific context of the TRC, it was not
clearly defined. Likewise, the meaning of "truth" can be debated
endlessly. It may be important to recognize in the concepts of both
truth and reconciliation that they entail not an absolute but a contin-
uurn. There is a range of responses between covering up, making
possible the preconditions for disclosure, making some disclosure,
and revealing the whole truth. Likewise, there is a continuum be-
tween the "Weakest form of reconciliation - which may be described
as "SOIne kind of basically shared understanding of the terrible things
that were done, and of who did them,,217 - and a national hug. In both
instances, the strongest form is undoubtedly impossible as a prag-
matic matter and may even be conceptually incoherent.
No institution should be measured by its ability to achieve the
last rung on the ladder of either truth or reconciliation; this is SOIne-
thing that only civil society can do 'over time. Rather, the institution
should be judged by whether it moves the society up that ladder and
whether it enables the society to lllove itself up the ladder once the
institution has disbanded. Thus, the charge of these institutions
should be to open up a "public space" in which reconciliation and
truth-telling may occur or establishing a "set of reference points" for
society to use when it continues the truth-telling and reconciliation
process on its own.r '"
In South Africa, as perhaps in any country marked by strife and
division, the critical question of the transition was whether the dispa-
rate elements within South Africa could come together to lllake real
the aspirations of the transitional government of "national unity" and
217 Albie Sachs, His Name Was Henry, in AFTER THE TRC, supra note 34, at
97.
218Jennifer Balint, Law's Constitutive Possibilities, in LETHE'S LAW, supra
note 23, at 143.

"reconciliation.t'<" It is true that, for a few days in April 1994~ 90%

of South Africans came together to vote in the first ever democratic
elections, and that was indeed an impressive show of national unity.
And it is true that in a series of meetings and negotiations, represen-
tatives of the various warring factions caIne together to produce not
one but two impressive constitutions in 1993 and 1996. But the
question remained whether the citizens of South Africa share enough
to make the nation work on a continuing day-to-day basis.
In a way that recalls Ruti Teitel's point that transitional law
both constitutes and is constitutive of the society, the TRC both an-
swered the question in the affirmative and helped to ensure it would
continue to be so. As the Afrikaans poet and TRC chronicler, Antjie
Krog, has written: "Against a flood crashing with the weight of a
brutalizing past on to new usurping politics, the Conunission has
kept alive the idea of a common humanity.H22o The TRC thus em-
bodied, and thereby promoted, twin ideas that are critical to the new
South Africa. First, the "common-ness" of all South Africans repre-
sents a unity that has been the centerpiece of the ANC's liberation
struggle for decades'r" and that is explicitly enshrined in the 1996
Constitution. 222 Second, the substantive element of "humanity" en-
tails the respect for human rights that had all but disappeared in the
pre-apartheid and apartheid years, but surfaced with zeal- in the tran-
sitional period. The combined sense of the "common humanity'
marks an emphatic departure from apartheid which was, at its core,
an inhumane policy of division.v'" This common humanity of which
Krog speaks evokes the African concept of "ubuntu."
This is perhaps the most irnportant and lasting contribution that
219 See "National Unity and Reconciliation" Postamble to 1993 Interim Con-
stitution and "Promotion of National Unity and Reconciliation Act". See above for
discussion of both.
220 Krog, COUNTRY OF My SKULL at 278.
221 See the Freedom Charter (1955) in Ebrahim, THE SOUL OF A NATION, su-
pra note 110.
222 "There is a common South African citizenship." Ch. 1, <][ 3(1)
223 The word "apartheid" means separateness; apart has the same meaning in
Afrikaans as in English.

any organ of transitional justice can make, and it is for this reason
that the TRC is regarded throughout the world as a model. It failed to
write the definitive story of apartheid, it failed to deliver reparations,
it failed to secure reconciliation, but it did something perhaps more
important. After enduring 350 years of racism and 50 years of apart-
heid, South Africans might well have felt that justice is chimerical.
By ernbodying and prornoting principles of justice and humanity, the
TRC dernonstrated that justice was possible in South Africa and that
it would be a central feature of the new dispensation.
Viewed as such, the TRC was not simply an instantiation of
transitional justice, but of foundational and transformational justice
as well, Jennifer Balint describes the foundational moment as "a
break frorn the past, a basis for the transformation of state and soci-
ety, a turning point for it, a reconfiguration of its normative frame-
work.,,224 The TRC reconfigured the "normative framework" of
South Africa by infusing the public discourse with the incidents of
justice - respect for human dignity, acknowledgement of unjustifi-
able inequality, awareness of the harm caused to others by one's own
passive tolerance or active participation in injustice - and by demon-
strating the viability of justice in South Africa in the present and for
the future. Indeed, the TRC report may have said more about the new
dispensation - the values and priorities of the "new' South Africa -
than it revealed about the old.
B. A Counterpoint: Recovering from the Rwandan Genocide
1. Rwanda at the turn of the century

In April 1994, as South Africa was exhilarating over the im-
pending inauguration of Nelson Mandela as the first democratically
elected President, another kind of drama was unfolding a few thou-
sand miles to the north, in R wanda. If the events in South Africa
showed the miraculous triumph of reason over racism, contempora-
neous events in R wanda demonstrated the triurnph of evil over eve-
224 Jennifer Balint, Law's Constitutive Possibilities, in LETHE'S LAW, supra

note 23, at 133.

rything.
Between April and July of that year, the population of Rwanda
endured 100 days of the most brutal killing any nation has seen. It is
estimated that up to one million people (roughly one-seventh of the
pre-genocide population) were killed,225 sometimes individually and
sometimes in groups, sometimes with guns, and sometimes with
pangas, knives and sticks. 226 Most were murdered not by profes-
sional military personnel, but by fellow citizens, neighbors, friends,
teachers, priests, and even family members.v''' The genocide was or-
ganized by politicians but it was carried out by hundreds of thou-
sands of citizens in their villages and churches and schools and
homes. 228 By July 1994, when an invading army took control of the
capital's airport and established itself as the new government, it was
mostly over. 229
The genocide left R \Vanda in tatters. When the genocide ended
with the installation of the Tutsi-led RPF government, Rwanda was
one of the poorest nations on earth. By the end of the genocide, much
of R wanda had no electricity, no running water; there were millions
225 Alison Des Forges, LEAVE NONE To TELL THE STORY (Human Rights
Watch 1999). The Organization of African Unity puts the number at between
500,000 and 800,000. International Panel of Eminent Personalities to Investigate
the 1994 Genocide in Rwanda and the Surrounding Events - Special Report (7
July 2000) (hereinafter OAU) at 14.2 (available at <http://www.oau.org>).It
notes, however, that "[s]erious authorities disagree by hundreds of thousands of
deaths - a quite remarkable variation" ide at 14.80.
226 Mark A. Drumbl, Punishment, Postgenocide: From Guilt To Shame To
Civis In Rwanda, 75 N.Y.D.L. REv. 1221, 1246 (2000). See also OAD at 14.26.
227 OAU at 14.25-14.27
228 As the OAU found, "Nor can there be the slightest doubt about the goal, as
Jean Kambanda, the Prime Minister during these months, confessed at his trial four
years later when he pleaded guilty to genocide. Not only had it been planned in
advance, he admitted that 'there was in Rwanda in 1994 a widespread and system-
atic attack against the civilian population of Tutsi, the purpose of which was to
exterminate them.' Mass killings of hundreds of thousands occurred in Rwanda,
including women and children, old and young, who were pursued and killed at
places where they sought refuge: prefectures, commune offices, schools, churches,
and stadiums." OAD at 14.4.
229 The OAU puts the ending date at 18 July 1994. OAD at 17.1.

of homeless people, millions of refugees, and many millions of sur-

vivors who were profoundly physically and emotionally scarred.
There were 50 lawyers in the entire country. 230 Most of the doctors
and other professionals had been murdered. The new government in-
cluded only two people who had any previous government experi-
ence; most members of that government had never been in R wanda
before. This may have been the greatest reconstructive challenge
·
any nation h as ever f aced .231
230 GAD at 18.4.

231 The GAD's International Panel of Eminent Persons described Rwanda in
the wake of the genocide as follows:
"17.4. The country had been poor even when it was ostensibly booming. It
became poorer-as a result of the economic crash and poorer still during the pre-
genocide civil war. Now it was absolutely devastated. The economy was in a
shambles. The GDP had shrunk by 50 per cent. Per capita GDP was a pathetic
$95.00, a decline of 50 per cent in one year; inflation stood at 40 per cent.
More than 70 per cent of Rwandans lived below the poverty line. Nothing
functioned. There was a country but no state. There was no money; the geno-
cidaires had run off with whatever cash reserves existed. There were no banks.
Thirty thousand victorious soldiers had not been paid.The infrastructure had
been destroyed. There were no services. There was no water, power or tele-
phones. There were no organs of government, either centrally or locally.
There was no justice system to enforce laws or to offer protection to the citi-
zenry.
"17.5. Eighty per cent of cattle were lost, farmland was abandoned, land
was destroyed by the movements of millions of internally displaced persons.
The support systems for agriculture were destroyed and more than $65 million
was required for food aid for 1995. Similarly, the entire health and education
systems had collapsed. Despite exclusionary policies governing political and
military positions, Tutsi had been disproportionately represented among the
professions; as a result, over 80 per cent of health professionals had been killed
during the genocide. Medicine stocks had also been looted. Three-quarters of
all primary schools had been damaged, school equipment and material stolen.
Over half the teachers were dead or had fled.
"17.6. Rotting bodies were everywhere; they filled school playgrounds and
littered the streets, with neither people nor equipment to remove them. Hospi-
tals, churches and schools had been turned into stinking stores of human bod-
ies. An estimated 150,000 homes, mostly belonging to Tutsi, had been de-
stroyed.

The causes of the genocide are not thoroughly understood. It

was clearly a tribal war: a faction of Hutu extrerrrists organized a
campaign of terror against the Tutsi who have, since their arrival in
Rwanda in the fourteenth century, exerted power beyond their nUlTI-
bers -- never more than about 15 % of the total population.Y'' These
extrerrrists, who may have been responsible for the fatal airplane
crash of moderate Hutu President Juvenal Habyarimana, took ad-
vantage of the power vaCUUIn created by it and immediately launched
their effort to kill all the Tutsi in Rwanda.233 Nonetheless, it remains
obscure how ethnic conflict could have erupted so astonishingly
violently. Among the suspected sources of strife are the centuries-old
rivalry between the Tutsi herders with better diets and greater mili-
tary prowess than the Hutu cultivators, the Germans who initially
colonized Rwanda and Burundi.v'" the Belgians who came in later
and reinforced the ethnic divisions between Tutsi and Hutu, the
Catholic Church,235 poverty.v'" overpopulation, and the failure of the
"17.7. Few governments can ever have faced greater challenges with
fewer resources. On every front, internal and external, crises loomed. Only
two members of the Cabinet had ever had experience running a government;
few knew anything whatever about public administration or government. Most
had never been to Rwanda before the war. Most of the educated, the skilled
and the professionals were dead or in exile; many had supported the genocide."
DAU at 17.4-17.7.
232 Paul J. Magnarella, JUSTICE IN AFRICA: RWANDA'S GENOCIDE, ITS
COURTS, AND THE UN CRIMINAL TRffiUNAL (Ashgate 2000).
233 See Des Forges, supra note 225 at 1. This point was also made by Minister
of Justice Jean de Dieu Mucyo at "Genocide and the Rwandan Experience: A
Rwanda-South Africa Dialogue," sponsored by the Institute for Justice and Recon-
ciliation on February 5-7, 2001 at Cape Town (materials on file with author).
234 For a useful history of Tutsi-Hutu relations, see Magnarella, supra note
232.
235 As the International Panel of Eminent Persons of the DAD explained,
"Together, the Belgians and the Catholic church were guilty of what some call
"ethnogenesis' - the institutionalization of rigid ethnic identities for political pur-
poses." DAD at 2.17.
236 "Both experts and ordinary people, especially those who witnessed the
1994 killings, agree that poverty played a key role in pushing people to participate

international community to prevent or stop the genocide when it was

clearly indicated. 2 37
While all of these causes may have had some influence, the dis-
tinguishing feature of the genocide was its broadbased nature. As the
United States Institute for Peace has reported, "In many countries
that have suffered a campaign of massive violations of human rights,
the violence has been perpetrated mainly by military and political or-
ganizations associated with the regime, leaving the rest of society to
go [about] its business with relatively clean hands. In striking con-
trast, the R wandan atrocities were characterized by the attempt to
force public participation on as broad a basis as possible, co-opting
everyone into the carnage [of] Tutsis and moderate Hutus. ~~238
R wanda thus presents an archetypical case of the need for societal
transformation.
Yet, the R wandan government' s response to the genocide has
emphasized retributive justice. The government has embarked on an
extensive campaign of arresting and incarcerating suspects believed
to have participated, in any way, in the genocide.v'" The result has
in the genocide." www.nurc.org (website of Rwandan National Unity and Recon-

ciliation Commission).
237 Every authority cites this. See e.g. Gourevitch, We Wish to Inform you
That Tomorrow We will Be Killing You with Your Families: Stories from Rwanda
(Farrar Strauss & Giroux 1998); Magnarella, supra note 232; Des Forges, supra
note 225; Amnesty International, The Troubled Course of Justice (April 2000)
available at www.amnesty.org; the OAU Report in chapters 9 ("The Eve of the
Genocide: What the World Knew") and 10 ("The Preventable Genocide: What the
World Could Have Done").
238 United States Institute for Peace, Rwanda: Accountability for War Crimes
and Genocide (1/1995) at <http://www.usip.org/>. Each account of the genocide is
newly devastating. Human Rights Watch gives this description: "Like the organiz-
ers, the killers who executed the genocide were not demons nor automatons re-
sponding to ineluctable forces. They were people who chose to do evil. Tens of
thousands, swayed by fear, hatred, or hope of profit, made the choice quickly and
easily. They 'were the first to kill, rape, rob and destroy. They attacked Tutsi fre-
quently and until the very end, without doubt or remorse. Many made their victims
suffer horribly and enjoyed doing so. [<][Hundreds of thousands of others chose to
participate in the genocide reluctantly ... " Des Forges, supra note 225 at 2.
239 In 1996, the government passed an Organic Law that classified all geno-

been disastrous. It is estimated that 125,000 individuals are in jails or

community "cachots" (literally hiding places) while only 3000 trials
have taken place. Thousands are dying of disease and malnutrition
while the wheels of justice tum ever so slowly.r''" The government
itself has estimated that, at this rate, it would take more than two
centuries to try all the genocide suspects.r'"
Only recently has the Rwandan government begun to address
the issue of reconciliation, having said up until now that reconcilia-
tion would have to wait until justice has been done. 242 But clearly, if
cide-related crimes into 4 categories, according to their severity. See infra note
270.
240
The wheels of international justice are turning even more slowly. Six years
after the genocide, the International Criminal Tribunal for Rwanda had convicted
fewer than 10 people for war crimes. Rwandans on Trial, N.Y. TIMES May 1,2000
at A26 (editorial).
241 According to the Rwandan government, "The sheer bulk of genocide sus-
pects and cases due for trial has placed severe strain on Rwanda's criminal justice
system which is already crippled by poor infrastructure and the death of profes-
sionals during the genocide. Rwanda's prisons are heavily congested, and the cost
of feeding and clothing prisoners is a drain on the economy. [<j[] The lack of an
adequate number of prosecutors, judges and lawyers to try the cases exacerbates
the already bad situation. At the present rate, it would take over 200 years if
Rwanda was to rely on the conventional court system deliver justice." Official
website of the Government of Rwanda at http://www.rwandal.coml-
government/index.html. See also Drumbl at 1233: "Approximately 125,000 indi-
viduals - roughly ten percent of the adult male Hutu population - are incarcerated
in Rwandan jails designed to hold 15,000." Mark A. Drumbl, supra, note 226 at
1242-1243.
242 As the government has explained, "it is pertinent to the reconciliation pro-
cess that Rwandese feel that justice is being done. There can be no reconciliation
without justice." <http://www.rwandal.gov.> But as the UN Special Representa-
tive has noted, "After five years of refusing to talk of reconciliation until justice is
seen to be done, Rwandans have accepted that reconciliation must be a national
goal in its own right." Michel Moussalli, REpORT OF THE SPECIAL
REPRESENTATIVE OF THE UNITED NATIONS COMMISSION ON HUMAN RIGHTS ON
THE SITUATION OF HUMAN RIGHTS IN RWANDA, 4 August 2000 (Hereinafter Mous-
salli 2000) at <j[ 187 available at www.unhcr.chv Thusv it js significant that the
newly established National Unity and Reconciliation Commission has undertaken
to examine "the link between justice and reconciliation and in particular addressing
V olume 12, Numbers 1 & 2

Rwanda is to survive, reconciliation can not wait 200 years and must
be promoted in conjunction with Rwandas other inunediate needs.
The actual, if unrecognized, need for reconciliation may be as
strong in R wanda as it is in South Africa, though it manifests itself
quite differently. As in all transitional societies, the meaning of rec-
onciliation must be determined by reference to both the nature of the
past abuses and the pragmatic realities of the present. In South Af-
rica, the reconstructive project required citizens to understand what
their government had done in their names; in Rwanda, citizens must
COIne to terms with what their neighbors and friends have done. In
South Africa, apartheid's segregation ensured that the victim class
and the perpetrator class avoided contact.v':' Face-to-face reconcilia-
tion would occur only when chosen by both parties; otherwise, per-
petrators would return to their own, welcoming conununities and
victims could perhaps be forgotten. In Rwanda, where survivors and
the question of how the gacaca justice system could promote reconciliation ef-
forts." Michel Moussalli, SUPPLEMENTAL REpORT OF THE SPECIAL
REPRESENTATIVE OF THE UNITED NATIONS COMMISSION ON HUMAN RIGHTS ON
THE SITUATION OF HUMAN RIGHTS IN RWANDA, March 2001 (Hereinafter Mous-
salli 2001) at <j[ 14 (available at www.unhcr.ch).
Perhaps the failure of the Rwandan government to place reconciliation
high on its list is simply a matter of realpolitik. The Rwandan government fought
its way to victory, whereas in South Africa, the new government took power by
negotiating with the old and negotiation requires at least enough reconciliation to
bring the parties to the same table. Furthermore, the South African government re-
alized that while it had a surfeit of voting power, it had a deficit of economic
power; reconciliation was therefore necessary to induce the holders of South Af-
rica's capital to stay and remain a part of the "new" South Africa. Rwanda's new
government, on the other hand, does not have these constraints: it does not need
the Hutu for either power or capital; thus, it may believe that it can afford to privi-
lege retribution over reconciliation. This is, of course, short-sighted. If Rwanda
wants to become a democracy and gain the respect (and capital) of the international
community, it needs to develop a program to reconcile the two principal groups.
Or, perhaps it is a matter of realpolitik in another sense. There is only one Nelson
Mandela - avatar of reconciliation -- and he is not Rwandan.
243 Indeed, Gibson and MacDonald report that - even in 2001 -- 81 % of South
African blacks have "never shared a meal" with whites." Gibson and MacDonald,
supra note 205 at 15.

perpetrators lived and live side by side, acknowledgement of the

"other" is unavoidable as perpetrators return to the villages inhabited
by both their supporters and their victims. Reconstruction \ViII neces-
sarily involve "hundreds of thousands of localized reintegrations.Y't"
In R wanda, furthermore, the pillage was local, the damage done in
every village, in every home so that the material and psychological
devastation are inextricably intertwined.f'f In many instances Hutu
who have been acquitted of genocide-related crimes return to their
homes to find Tutsi living there. In other cases, "Returning refugees
who found their homes occupied, sometimes by powerful local fig-
ures, often consented to live in the same house with these occupants.
Sometimes victims had no other option but to live next to suspected
killers.,,246 Reconciliation in Rwanda is not an option but a necessity.
If South Africans have reason to distrust the state, R wandans
have reason to distrust their own families and communities, It is
here, at the local level, that the hard work of reconciliation is to be
done. It is up to the communities and the families to make sense of
what happened and to find a way to live with one another again.
Reconciliation, as thus understood, does not require the dissolution
of ethnic identity, nor the embrace of former enemies, nOI" the for-
giveness of past wrongs, and it certainly does not demand amnesia, It
simply means that people learn to live with each other. In the Rwan-
dan context, therefore, it might be useful to adopt van Roennund's
minimal notion of reconciliation discussed above: "to defer the right
244 Mark Drumbl, supra note 226 at 1262.

245 In South Africa, this issue is more complicated because, as the above dis-
cussion of the TRC suggests, there are competing views on the nature of the harm
of apartheid. If the harm of apartheid is viewed as the extreme instances of gross
human rights abuses, then it may be possible to disentangle the material and the
psychological aspects of reconstruction; discrete reparations are due for those who
sustained gross human rights violations. This is the principal view of the TRC pro-
cess. If, however, the damage of apartheid is deemed to encompass economic op-
pression (limits on employment, property ownership, etc.), then the reconstructive
efforts must address not only the psychological harm wrought by the extreme
abuses but the material needs of the black majority of South Africans.
246 Moussalli 2000, supra note 242 at <j[ 189.

to retribution to the extent that retribution would obstruct peace.,,247

Given the unique nature of the Rwandan genocide, it is not ob-
vious that a TRC would achieve transformative goals in Rwanda.248
First, although there remains much that is ill- or mis-understood
about the genocide, the disclosure of additional facts and details may
make it more difficult for victims to defer the right to retribution:
knowledge may fuel rather than quell people's desire for retribution
and indeed vengeance. Furthermore, the intellectual truth uncovered
by a truth commission may not sit comfortably next to the profound
emotional experience of .survivors. If the official truth contradicts the
emotive truth, then it \ViII not be accepted, but if it merely corrobo-
rates it, then it \ViII not be useful. To the extent that Hutu and Tutsi
experienced the genocide in dramatically different ways,249 further-
more, the truth may be so excessively contested that its divisive ef-
fects would vastly outweigh its conciliatory power. Second, the
Rwandan government may be skeptical about its ability to produce
reconciliation. This may result from a realistic assessment of the
government's lack of connection with its constituency; certainly the
Rwandan government entirely lacks the moral authority over Rwan-
dans that the new Mandela-led government enjoyed with respect to
the vast majority of South Africans. Moreover, it may reflect the
247 Van Roermund, Rubbing Off and Rubbing On, in LETHE'S LAW: JUSTICE,
LAW AND ETHICS IN RECONCILIATION (Emilios Christodoloudidis and Scott Veitch,
eds., Hart Publishing 2001), at 180.
248 Indeed, the Rwandan government has rejected the efforts of South Africa
as well as donor nations to adopt a TRC approach. See Sarkin, TRC for Rwanda,
supra note 140 (noting that "The idea of having a truth commission has ... been
explored by the Rwandan Government" and describing an exchange of visits be-
tween the TRC Commissioners and the Rwandan government in 1996 and 1997).
Furthermore, the truth commission that had operated in Rwanda in 1992 had done
nothing to prevent the subsequent genocide.
249 Mark Drumbl reports that "the overwhelming majority of the detainees we
interviewed do not believe they did anything 'wrong', or that anything really
'wrong' happened in the summer of 1994 in Rwanda." Mark Drumbl, Sclerosis:
Retributive Justice and the Rwandan Genocide, 2 PUNISHMENT & SOC'Y 288, 289
(2000). Unlike the situation in South Africa, these detainees can not claim that they
did not "know" what happened; the disconnect here is in how the genocide was
experienced by the perpetrator class.

view that reconciliation may be nurtured, but may not be imposed by

law. 25o Third, and perhaps most significantly, a centralized, elite-
driven program like the TRC would not be nearly as effective in
Rwanda as it has been in South Africa because in Rwanda, the deep-
est need for reconciliation is in homes and in communities and vil-
lages. Indeed, there is no reason why the efforts must be uniform
throughout the nation. Communities may very well differ in what
they need in order to move forward and in what they are capable of.
2. Charting the Course of Rwanda's recovery.

The fact that the genocide was so pervasively and deeply expe-
rienced by most R wandans has enormous repercussions for
Rwanda's efforts to repair the damage. Given the extreme needs of
the local communities in R wanda, it is clear that transformation of
R wandan society is critical and that reconciliation must be its center-
piece. As discussed, community reconstruction must be a principal
feature. But the reconstructive program must also address other
needs. The psychological needs of Rwandans are extraordinary.P"
252
exacerbated by the extensive incidence of intra-family violence.
Material needs are also urgent. As the Rwandan National Unity and
Reconciliation Commission has said, "The issue of development is
crucial for the reinforcement of the reconciliation process. Without
the improvement of the living conditions, the Rwandan society \ViII
250 See National Unity and Reconciliation Commimssion,

<http://www.nurc.org>. See also du Bois, Nothing but Truth, in LETHE'S LAW,
supra note 247, at 110 (suggesting that reconciliation's subjective element makes it
resistant to law.)
251 The name of the Human Rights Watch report - Leave None To Tell The
Story - may have dual significance in Rwanda. The most obvious meaning refers
to the effort to eliminate the Tutsi population by killing every Tutsi. That was the
explicit aim of the genocide. However, to the extent that was not accomplished, the
result of the genocide may nonetheless have been to leave none psychologically
able to recount what happened - too emotionally scarred to verbalize what they
experienced.
252 See comments of Jean de Dieu Mucyo at "Genocide and the Rwandan Ex-
perience," supra note 233.

remain fragile and unstable. H253 Thus, the government's response(s)

to the genocide must address these needs. Furthermore, how-ever, the
program must be more efficient than national critninal prosecutions
but not be so expedient as to lack all legitimacy. 254
The reconstruction project must also address the needs of
R wandan w-omen. The experience of w-omen both during and since
the genocide is quite different from that of many men and the gov-
ernment's response should embrace both. 255 This is important for ob-
vious humanitarian reasons as w-ell as for pragmatic reasons. W omen
are likely to have been more profoundly traumatized than men both
because they may have stronger bonds to children and because rape
leaves survivors (w-hereas murder does not). Furthermore, w-omen are
likely to head households w-ith few-er material resources than men
and so their w-ellbeing for purposes of leading fatnilies is critical.
SOIne progress has been made along this front already. The govern-
ment recognized in its organic law- that rape w-as a w-idespread crime
253 <http://www.nurc.org>. See also Moussalli 2001, supra note 242 (noting
that land tenure "is a key issue, which needs to be resolved for reconciliation and
sustainable development. ")
254 Recent mass trials have raised questions about the availability of due pro-
cess in Rwanda's domestic criminal trials. See editorial, Rwandans on Trial, N.Y.
TIMES, May 1, 2001 at A26 (noting that "several thousand mostly low-level people
have been tried [in domestic courts in Rwanda] in proceedings that fall far short of
international due process standards.").
255 If the experience of the TRC is any guide, the involvement of women in
the transformative project is both critical and difficult. See TRC REpORT volume 4
for details of the special hearings that the TRC held in order to better understood
the experience of women in the apartheid years. As a general matter, the Commis-
sion found that although women participated significantly in the TRC process, they
testified about the experiences of their husbands, siblings, children, parents, but not
about their own experiences. To the extent that telling one's story was a critical
part of the healing process, women generally did not partake in that aspect. The
reasons for this are difficult to ascertain. One reason may be that the TRC's modus
operandi - talking as a curative - reflected men's needs but not women's needs.
For mamy women, talking about the experience of being raped is more likely to
feel like revictimization than therapy. The Rwandan government, and transitional
governments generally, need to ensure that the form of the transformative project is
one that will promote healing for women's ills as well as for men's ills.

of the genocide and classified it in Category 1, with the most serious

genocide related crimes, In addition, several of the individuals cur-
rently heading reconstructive projects are women: the Supreme Court
official who is responsible for the gacaca courts is female, as is the
head of the National Unity and Reconciliation Commission.f'"
With all these critical needs, it is important for the R wandan
government to define its goals clearly and pragmatically. It must de-
emphasize (or abandon) its program of prosecuting every last geno-
cide suspect as it lacks the resources and the country lacks the pa-
tience to pursue this goal to a successful conclusion.f" It must em-
phasize reconciliation and define it in a way that is feasible. It is not
obvious that the present course - of denying ethnicitiesf" - will be
successful given the strong ethnic bonds that many Rwandans cur-
rently feel. It might be more productive to allow people to feel ethnic
ties but to encourage a better understanding of the roles those ethnic
ties should play in society. 259
256 Some have suggested that women will playa more prominent role in post-
genocidal Rwanda. Aloisea Inyumba, who heads the National Unity and Recon-
ciliation Commission has said that "The heart of the gacaca will be
women... Traditionally, women were excluded from the local justice system, a male
preserve, but after the genocide women head many households and are playing an
important role in reconstruction." Jane Ciabattari, Rwanda Gambles on Renewal,
Not Revenge, October 9, 2000. <http://www.womensenews.org/>. In other areas,
there have also been signs of reform (see Moussalli 2000, supra note 242, de-
scribing reform in in-heritance, employment, and land tenure laws to the benefit of
women), although there is still a long way to go.
257 For instance, Mark Drumbl has suggested releasing all the category 4 sus-
pects. See Sclerosis, supra note 249.
258 The government of Rwanda's official position is that Rwandan identity is
more important than Hutu or Tutsi identity. See Government web site
<www.rwandal.gov>. See also OAU at <j[<j[ 2.6-2.8.
259 Although, at present, it may be possible to achieve only the most minimal
version of reconciliation, the Government might consider promoting the idea of
stages of reconciliation: It would now promote the importance of merely fore-
swearing vengeance or the right to retribution but in three years, for instance, it
could embark on a program of understanding and appreciating differences, and in
ten years it could promote a more aggressive program of meaningful social inte-
gration.

As noted, the Rwandan government has begun to recognize

these needs. In 1999, the National Unity and Reconciliation Com-
mission was established and in 200 1, the government embarks on an
innovative and controversial program of participatory retributive
justice using "gacaca" courts.
The Unity and Reconciliation Collllllission was required by the
terms of the 1992 Arusha Peace Accords.F'" which were intended to
end the war between the Tutsi exile army and the Hutu govern-
ment. 26 1 Although still young, the agency has made important strides
in the direction of placing reconciliation on the national agenda. Its
approach has been to listen 26 2 and learn from Rwandans and to en-
gage with the domestic and international public "in dialogue on how
to foster unity and reconciliation in Rwanda. ,,263
As the Collllllission itself has said,
"The Rwandan connnunities across the country constitute the
basis of the URC work and policies. In all its work, the URC
seeks to operate in a participatory way to permit Rwandans of
all walks of life to shape and influence the way[s] and rneans of
how unity and reconciliation is to be achieved. In this sense, the
role of the Unity and Reconciliation Commission (URC) is es-
sential that of providing a platform upon which Rwandans air
their vierw ]s on what has divided them in past, and how to build
a lasting united and reconciled Rwanda. The URC programs
draw from these exercises.t'r'"
The United Nations has seconded the Commissions optimism

and supports its work. One year after the Collllllission opened, Mi-
260 See NURC web site at <http://www.nurc.org.>

261 The Tutsi have consistently urged adherence to the Accords and, now that
they hold the balance of power, they have begun to implement some of its terms. In
fact, it is believed that President Habyarimana's commitment to honor the terms of
the Accords was his fatal error, as the Hutu extremists repudiated them. See
Gourevitch supra note 237 at 54-60 (discussing unity among Rwandans).
262 Moussalli 2000, supra note 242 <j[189.
263 Moussalli 2001, supra note 242 <][13, describing the first National Summit
on Unity and Reconciliation, held in September 2000.
264 URe website <http://www.nurc.org> (typos in original).

chel Moussalli, the United Nations' special representative to Rwanda

catalogued SOIne of the Commissions accomplishments:
"Besides completing the nationwide consultations, [the Corn-
mission] it has embarked on a large number of other activities. It
has produced promotional material; organized reconciliation
workshops and taken over the running of the solidarity camps,
including leadership training, reintegration of returnees, espe-
cially demobilized soldiers, development of youth programmes;
and supported initiatives of other partners, including the Catho-
lic Church and other Churches. It has organized many confer-
ences and seminars at the national and local levels and in
schools, and a nationwide art expressions competition on the
thetne of unity and reconciliation at the end of 1999. It has pro-
moted cooperation (jumelage) between conununes, established
regional offices with two regional officers in each of the pre-
fectures, formed partnerships with government departments,
United Nations agencies and other institutions of the interna-
tional conununity. It has organized visits to Rwandese conunu-
nities abroad and is planning a yearly National Summit with in-
ternational participation, the first of which is to be held in
September 2000. [<j[] Its plan for the second year is the follow-
ing: to build more effective grass-roots exercises in civic educa-
tion, conflict mediation, monitoring and local initiatives; con-
structing and equipping a National Peace and Reconciliation
Education Centre; strengthening the spirit for open discussion
and debate at the grass-roots level; renovating the conference fa-
cilities at its Kigali headquarters; promoting practical recon-
ciliation activities among communities; developing a profes-
sional media campaign promoting reconciliation; and organizing
the second National Summit. ,,265
Moussalli concluded his report on the Commission by "urg[ing]

the High CoII1II1issioner for Human Rights and members of the inter-
national community and partners of R "Wanda to extend their full sup-
port, both financial and technical, to NURC.,,266 From the perspec-
265 Moussalli 2000, supra note 242 at <j[<j[ 192 and 193. See also
<http://www.nurc.org>.
266 Moussalli 2000, supra note 242 at <j[ 195.
V olume 12, N umbers 1 & 2

tive of transformative justice, this support is warranted, The URC's

recognition that reconcihation is a long-term project that will entail
government leadership over time is an important one. Annual sum-
mits, for example, are a valuable approach to a problem whose na-
ture may change with time but that will remain critical for years to
come. 267 Furthermore, as discussed in greater detail below, the
URC's efforts to find solutions in the conununities rather than im-
posing them from above by a central and distant authority, should
Iikewise be conunended. Reconciliation efforts must, if they are to be
transformative, be concentrated where people live, since that is
where the hurt is and where reconciliation will take place. 26 8 Thus,
Rwanda is correct to reject a centralized TRC model and to embrace
a more rigorous, less centralized, and more pervasive approach to
reconciliation.
The second, and more controversial, prong of the Rwandas so-
cial reconstruction project is the gacaca program, The word "gacaca"
refers to the grass upon which village elders would sit to resolve civil
disputes, often involving land. 269 Thus, gacaca courts have tradition-
ally been used in Rwanda to decide matters of some significance to
local conununities. The current government has resurrected this idea
and adapted it to genocide-related crimes. This is both impressively
innovative and risky.
It is innovative because, like the TRC, the gacaca program is
site- and time-specific, formed by the unique conditions of R wandan
society. It therefore holds the promise of transformative justice be-
cause it can respond to the particular needs of post-genocidal
Rwanda. The gacaca courts will satisfy the need to produce retribu-
267 In South Africa, by contrast, it was hoped that a limited-term, intensive

focus on reconciliation would be sufficient to change the cultural climate which
would, in tum, permit the society at large to continue the reconciliation agenda.
While this expectation may have been justified in South Africa, it would be unre-
alistic to expect Rwandan society to change so dramatically in the immediate fu-
ture.
268
This illustrates the distinction that Jose Alvarez makes between Crimes of
State (as in apartheid, predominantly) and crimes of hate (as in Rwanda). See Alva-
rez, supra note 65.
269 Des Forges, supra note 225 at 761.

tive justice, "Which the Rwandan government says is essential for

promoting rule of law interests. But retributive justice in Rwanda is
neither feasible, nor sufficient. Although Rwandans, particularly
Tutsi, "Would "Want to see that some form of retributive justice "Was
done, retribution wi'll not rebuild a strong foundation for R wandan
society nor "Will it minimize the likelihood of a recurrence of the
genocide. In R "Wanda, justice must also encompass a conciliatory
component.
The gacaca tribunals have jurisdiction over intentional and un-
intentional honricides, other assaults against persons, and property
crimes committed between 1 October 1990 and 31 December 1994.
They do not have jurisdiction over crimes relating to organizing or
inciting the genocide, nor over sexual violence.r/" The tribunals are
organized, hierarchically, by region, "With each level encompassing a
larger region. The smallest level, called the "cellule," has jurisdiction
over property crimes, "While the next level has jurisdiction over as-
saults and other non-fatal bodily crimes, and the following level has
jurisdiction over honricides. Each superior level has appellate juris-
diction over the cases from the next level down, At each level, the
court has two components, A "general assembly' functions as prose-
cutor, identifying the crimes, the victims, and the alleged perpetra-
tors, and giving evidence to the court. The general assembly at the
most local level comprises all the adult inhabitants of that cellule. (At
the higher levels, the general assembly consists of representatives
270 The Organic Law of Rwanda, passed in August 1996, places genocide-
related offenses into 4 categories. Category 1 offenders are the planners, organiz-
ers, instigators, supervisors and leaders of the crime of genocide or of a crime
against humanity; Persons who acted in positions of authority at the national, Pre-
fectorial, Communal, Sector or Cell level, or in apolitical party, the army, relig-
ious organizations or in a militia and who perpetrated or fostered such crimes;
Notorious murderers who by virtue of the zeal or excessive malice with which they
committed atrocities, distinguished themselves in their areas of residence or where
they passed; and Persons who committed acts of sexual torture or violence."
<http://www.rwandal.gov>. "The density of the administrative and political hier-
archies [is] characteristic of Rwanda for many years." Human Rights Watch at 10.
Gacaca courts, as described in the text, will have jurisdiction over crimes in cate-
gories 2 (murder), 3 (non-lethal personal violence), and 4 (property crimes).
VoluIne 12, Numbers 1 & 2

from the Cellule General Assembly), The Court Council is the tribu-
nal responsible for trying cases and hearing appeals. A special de-
partment of the Supreme Court of Rwanda administers the program.
On October 4, 2001, the R wandan population elected 260,000
"respectable" adults to act as judges at the local level of the gacaca
courtS. 271 After a three- to six-month training period for the new
judges, the courts may begin operating in mid-2002. 272
If successful, gacaca's brand of retribution could maximize the
involvement of individuals at the community level. This would pro-
mote several goals. It would empower individuals by involving them
in an important process of national and historical significance. This
could counterbalance the disempowerment produced by victimiza-
tion and poverty.273 Gacaca could also strengthen community ties by
fostering mutual cooperation and an esprit de corps among the par-
ticipants, which is important because reconciliation in R wanda must
occur at the local level and can not be imposed by fiat; it must
emerge from the right conditions on the ground. Gacaca may also ef-
fectively decentralize power by locating decisionmaking authority in
the local communities rather than in the central government. 274 This
is necessary because of the widespread distrust of the central gov-
ernment by the population.Y'' A program is most likely to earn the
271 "The Judges of the Gacaca Courts will be respectable people of at least 21
years of age, and elected by people of voting age. They will take responsibility for
ensuring orderly and fair proceedings." <http://www.rwandal.gov >.
th
272 See Fondation Hirondelle, Gacaca Judges to be elected October 4 , at
www.hirondelle.org (noting that judicial elections are in October and trials are ex-
pected to start by May 2002).
273 Similarly, the South African process emphasized restoring personal dig-
nity to victims of apartheid. The need is much greater in Rwanda because of the
widespread involvement of people in all aspects of the genocide (victims, perpe-
trators, witnesses, escapees, orphans, etc.)
274 See Moussalli 2000, supra note 242, on decentralization generally.
275 Hutu distrust the Tutsi-Ied government; Tutsi victims distrust the elite-
refugee government. Twa (a perennially marginalized ethnic group who constitute
about 1 % of the Rwandan population) distrust the government because they are not
sufficiently numerous to wield political power. See Sarkin, The Tension between
Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and
the Role of the Gacaca Courts in Dealing With the Genocide (forthcoming; on file
VolUllle 12, Numbers 1 &2

respect of the citizens and thereby promote transformational goals if

it involves and is connected to the citizens. If they have the opportu-
nity to shape the program and influence the outcome of individual
decisions, they are more likely to trust it. This has a pragmatic ad-
vantage as "Well - there has been a tendency of acquitted prisoners to
face popular retribution when they return to their villages as a result
of a distant bureaucratic decision.v'" If the villagers themselves are
responsible for the release of a former suspect, retributive violence is
less likely.
In this "Way, the gacaca process achieves many of the goals that
criminal prosecution is said to promote and, in addition, many of the
transformational goals of the new order in R wanda, For instance, by
incorporating a judicial-type forum, gacaca consolidates the rule of
Iaw values of the new government, By defining justice as largely re-
tributive, gacaca promotes principles of individual responsibility fa-
vored by liberal democracies.v" In doing so in explicit and highly
visible ways, gacaca emphasizes the line drawn between the current
Rwandan government and its immediate predecessor which insti-
gated a rule of lawlessness. Furthermore, gacaca promotes the con-
ciliatory agenda of the new government by strengthening intra-
community ties and fostering a culture in which people from both
sides of the divide can live together. Finally, by depending on indi-
viduals within the community, for elections to gacaca posts and for
administering the tribunals and providing evidence, the gacaca proc-
ess fosters self-reliance.
Like the TRC, the gacaca system hastransfonnative potential in
large part because it responds to the particular deficiencies in
R wanda that allowed the 1994 genocide to happen. Whereas that so-
ciety was characterized by a highly centralized administration, the
gacaca process "Will be localized. La\V, which had essentially disap-
peared in R "Wanda, "Will make its comeback in a highly visible and
accessible way and in a way that is dependent for its success on the
with author).
276 See comments of Jean-Jacques Badibanga at "Genocide and the Rwandan
Experience" supra note 233.
277 See Teitel, TRANSITIONAL JUSTICE (Oxford U. Press 2001).

integrity of the people at all levels. Furthermore, to the extent that the
R wandan genocide resulted from the distortion of Belgian colonial
rule on traditional R wandan society, the gacaca tribunals could her-
ald the return of indigenous forms of justice and a familiar concep-
tion of law as a foruIn for resolving problems within the communi-
ties. In the gacaca tribunals, lawyers and professionalization \ViII be
absent; the people \ViII control the process and the outcome.
But all this is achieved at a great cost, particularly from a west-
ern perspective. These courts do not conform to many of the requi-
sites that many countries including R wanda would expect of their
courts in normal times, They do not provide a professional bench or
bar; they do not provide for decision according to precedent or other
components of due process; they do not envisage impartial justice,
just to name a few deficiencies. Furthermore, and particularly in the
context of the genocide, they run the risk of legitimating lTIob justice.
These are of course very serious concerns; the extent to which the
risks are realized \ViII not be known for a few years, as practice under
the gacaca system becomes operational and is evaluated. 278
278 These criticisms are significant and should be taken seriously. Organiza-
tions such as Amnesty International have emphasized the serious shortcomings of
gacaca. "Although the gacaca system of holding trials at the grassroots level could
encourage people to testify to events they witnessed personally during the geno-
cide, Amnesty International remains concerned that: the accused in the gacaca tri-
als will not be allowed representation by a defence lawyer; those judging these ex-
tremely complex and serious cases will have no legal training or may have a
personal interest in the verdict, thus potentially undermining the competence, inde-
pendence and impartiality of these courts; fundamental aspects of the gacaca pro-
posals do not conform to basic international standards for fair trials guaranteed in
international treaties which Rwanda has ratified ... " <http://www.amnesty.org> AI
INDEX: AFR 47/15/00.
These criticisms reflect in part a tension between the desire to mandate
international standards of due process and judicial legitimacy and the need for na-
tions with non-western traditions to develop their own solutions to local problems.
See Moussalli 2000, supra note 242, at 1 160, noting that "[t]ime and time again
[the UN special representative] was told that 'justice as it is practised in the West is
not working. We need to find an alternative.'" Without trivializing the concerns of
the west, Moussalli nonetheless "applaud[ed] the boldness of the gacaca pro-
posal," id., CJ[ 159, and "reiterate[d]his support for the courageous efforts of" the

Given the Rwandan governments commitment to gacaca de-

spite its shortconrings from the perspective of the international COIn-
murnty,
· 279 t h e Rwandan aovernment mig
wan an government mi h t b e open consi·d ermg
· ways
to retain the participatory aspect of the gacaca courts while elinri-
nating SOIne of their more problematic features. For instance, the ga-
caca tribunals could be empowered not to mete out punishment but
to grant amnesty. This might be conditioned on full disclosure (as
with the TRC Act), a showing of remorse, or the fulfillment of SOITle
sort of community service, or SOIne other value identified by the
R wandan people. This would promote the pragmatic purposes of the
gacaca system, \Vhich include alleviating the burden on the central
crinrinal justice system280 while promoting the retributive interests
the government is comnritted to pursuing.Y' This would in no way
detract from the strengths of gacaca as presently envisioned. In fact,
it would promote community reconstruction by fostering the "com-
mon humanity' of which Antjie Krog speaks in the context of the
TRC: neighbors would join together in acts of generosity and for-
giveness rather than in the spirit of retribution.Y''
Government to tackle the problem of justice, through the new justice system of ga-
caca." He further noted that, "After an initial hesitation on the part of the interna-
tional community on gacaca, there seems to be growing support for this policy,
particularly following recent successful pre-gacaca trials ... and given the unsus-
tainable and undesirable situation of overcrowded prisons and cachots." Moussalli
2001, supra note 242 at Cj[ 22 .
I do not wish to resolve this tension, and I remain agnostic as to the merits
or demerits of gacaca, as a matter of criminal law and procedure. I refer to gacaca
as an example of a program that is valuable in its transformative potential and re-
sponsiveness to the needs of Rwandan society and as a counterexample to the truth
commission model.
279 See Des Forges, supra note 225, generally for repeated examples of
Rwandan susceptibility to international pressure. Conversely, the failure of the in-
ternational community to intervene is a major contributing factor to the genocide.
280 In other words, it could function like some sort of mandatory dispute
resolution mechanism as is required in some jurisdictions in the United States to
weed out cases that can be resolved without trials.
281 This is the case in South Africa, those who do not get amnesty are still
subject to the normal course of criminal prosecution.
282 It may also be that as more time passes, the reliability of convictions di-

The Rwandan government recognized that, even in conjunction

with the international community, classical justice was impossible.
The solution was either to abdicate completely or to develop a pro-
gram that had advantages that could potentially offset at least some
of the disadvantages. The advantages of the gacaca system are that
the tribunals draw heavily on the community and family bonds, int~
grating them into the process of reconciliation and justice, and
thereby strengthening them. If the building blocks of the society -
community and family - are strengthened, then the society itself is
stronger and more amenable to reconciliation. Reconciliation can not
grow from a weakened or turbulent society.
Neither conventional prosecutions nor conventional amnesty
promote the transformation that is necessary for reconciliation and
for deterrence. If the fundamental aim of transitional governments is
that this type of atrocity should happen "never again," then radical
societal transformation is necessary in which the once-prevalent be-
comes unthinkable.
CONCLUSION: LOCALIZING SOLUTIONS

The South African TRC will not work in other nations, emerg-
ing from different histories and facing different challenges. But all of
these nations share SOIne common tasks. The institutions they de-
velop to deal with past abuses must come from their societies. While
any governmental body should conform to the relevant international
norms, it is nonetheless critical that they are as tailored to the spe-
cific challenges of their cultures as the TRC was to South Africa in
the wake of apartheid.
Certain features of the TRC can not be copied elsewhere: the
TRC was immeasurably assisted by two of the worlds most eminent
personalities - Nelson Mandela who supported and nurtured the TRC
and fellow Nobel Laureate Archbishop Desmond Tutu, who chaired
minishes, because of the availability of evidence, if for no other reason. Grants of

amnesty may for this additional reason become more acceptable than convictions.
It is instructive in this regard to remember that, even if the gacaca courts begin op-
erating as scheduled, the first trials will take place at least 7 or 8 years after the
events in question.

it and imbued it with moral authority and gravitas. It is unlikely that

the TRC would have weathered the many storms that beset it with as
much grace and rectitude had it not been for the faith that South Af-
ricans put in these two individuals. Unfortunately, other nations can
not expect to have leaders of such stature lending their names to tran-
sitional institutions.
There are other features that could be, but should not necessar-
ily be, copied elsewhere, The TRC was a national, centralized insti-
tution. This was appropriate in South Africa given the centralized
nature of apartheid and the need of the new government to replace
the perception that people had of the old government with faith in the
new, In other societies, however, where the harms are less bureau-
cratic and more widespread, for instance, the institutional response
might need to be decentralized. For instance, in R wanda, where the
new government itself does not garner much trust and where the
1994 genocide was the result of hundreds of thousands of people
acting in concert, a participatory and populist response might be
more effective at transfornring the culture than one that is centralized
and elite.
The TRC, as has been shown, straddled principles of law and of
justice. This was necessary in South Africa, where the two had been
disjointed by apartheid. It was possible in South Africa because the
TRC was part of a broader reconstructive program that included a
variety of mechanisms for ensuring that the rule of law \Vould be
thoroughly respected in post-apartheid South Africa.Therefore, one
institution that blurred the line between Iaw and justice did not
threaten the legal authority of the new state; rather, it proved its hu-
maneness. In many other transitional nations, the rule of law is suffi-
ciently tenuous that it may be inappropriate to empower a prominent
institution to depart from legal strictures.
The TRC's victim-orientation is another feature that many tran-
sitional nations may be tempted to copy. While, as a general matter,
this \ViII often be an important feature of a transfonnative institution,
the balance between excessive and insufficient attention to victims
should always be borne in mind, If the institution is excessively
sympathetic towards victims, it risks alienating members of the pre-

viously dominant class. This may interfere 'With the institution's

goals because it may be viewed as vengeful; to the extent that the
previously do:minant class continues to constitute an important con-
stituency, it may impede reconciliation between those 'Who are gain-
ing power and those \Vho are being asked to give it up.
Bearing in :mind that reconciliation is a long-term goal that the
transitional institution can only hope to begin, it 'Would generally be
illlportant that the institution create the terms for ongoing dialogue
and social transformation, Ho'W it does this, however, is as specific to
the society as the languages in which it operates.

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TRANSFORMATIVE JUSTICE:

CHARTING A PATH TO RECONCILIATION

INTRODUCTION: RECOGNIZING THE

* Associate Professor of Law, Widener University. I would like to thank

Electronic copy available at: http://ssrn.com/abstract=1562045

or actively promote them. If the new democratic governments aim to

Volume 12, Numbers 1 & 2

Electronic copy available at: http://ssrn.com/abstract=1562045

2 In South Africa, the Truth and Reconciliation Commission was viewed as

Volume 12, Numbers 1 & 2

the principle of universal jurisdiction for crimes against humanity" as

petrators, of human rights abuses would be punished for their crimes."

VolUllle 12, Numbers 1 & 2

8 The term is from Mark Drumbl, Punishment, Postgenocide: From Guilt

Volume 12, Numbers 1 & 2

Only institutional mechanisms that are tailored to the specific attrib-

10 Gacaca is pronounced ga-TCHA-tcha.

Volume 12, Numbers 1 & 2

cuses on these two institutional responses from the perspective of

I. THE TRANSFORMATIVE DIMENSION OF JUSTICE

A. The many faces of injustice

11 Retributive justice is analyzed further below in the context of institutions

Volume 12, Numbers 1 & 2

Volume 12, Numbers 1 & 2

of the level at "Which injustice occurred and must be redressed.

14 Most whites were implicated in the crime of apartheid by passively en-

Volume 12, Numbers 1 & 2

perhaps unwittingly (as in the case of perhaps well-intentioned par-

18 See generally BRINGING THEM HOME: REpORT OF THE NATIONAL INQUIRY

Volume 12, Numbers 1 & 2

society. Victims become survivors; perpetrators become good neigh-

21 Johnny De Lange, The Historical Context, Legal Origins and Philosophi-

"The main content of this programme is the transformation of the political,

Volum.e 12, Num.bers 1 &·2

The Truth and Reconciliation Connnission, then, emerged as the

B. The goals oftransforrnative justice: reconciliation and

Volume 12, Numbers 1 & 2

sist on a conciliatory component of the transitional agenda. (With re-

24 Jennifer Balint, Law's Constitutive Possibilities, supra note 23, at 141.

Volume 12, Numbers 1 & 2

Volume 12, Numbers 1 & 2

sizes that reconciliation entails a change in the victim in particular:

in post-apartheid South Africa. For an elaboration of the "bargain" nature of am-

TRC REpORT Vol. 5 ch. 9 <][33.

Volume 12, Numbers 1 & 2

retribution. What is achieved, then, may be described as "civil

ting used to living with each other again.,,34

Volume 12, Numbers 1 & 2

together to reach a common understanding of the event for which

36 See infra on the TRC's understanding of the importance of restoring per-

Volume 12, Numbers 1 & 2

Volume 12, Numbers 1 & 2

crnment such as the TRC or some other institution. Thus, it can be

43 Mahmood Mamdami, Truth and Reconciliation Commission Public Dis-

Volume 12, Numbers 1 & 2

work or established the preconditions by which reconciliation might

VolUllle 12, Numbers 1 & 2

49 International Panel of Eminent Personalities to Investigate the 1994 Geno-

VolulTIe 12, Numbers 1 & 2

52 CAPE TIMES, July 1,2001.