Truth and Consequences:
Confronting Perpetrators of Political Repression and Enabling Reconciliation
- by Robin Collins -

“Crimes against international law are committed by men,
not by abstract entities and only by punishing individuals who
commit such crimes can the provisions of international law be enforced.”

International Military Tribunal at Nuremberg,
Judgement, 1 October, 1946

_________________

“In any case, even if feasible, the political consequences of Nuremberg-type
trials could have had calamitous consequences for peace in our country.”

“The challenge was how to achieve both justice and reconciliation -- not just one or the other.”

Johnny de Lange,
ANC Member of Parliament, South Africa

Several strategies exist that confront perpetrators of political repression in the post-conflict period, and in the wake of severe human rights violations (ethnic cleansing, genocide, disappearances, political killings and torture). The range of options available includes international tribunals and courts, national criminal proceedings and truth and reconciliation commissions. Policy-makers have to consider the dilemma of punishment of perpetrators being perceived as victors’ justice, and the subsequent or concurrent difficulties of bringing communities that have been in conflict back together again.

Long term solutions must address the effect of reconciliation if it is not accompanied by punitive measures too. This latter consideration has implications for the rule of law in the area of impunity, obligations for reparations, future deterrence of crimes against humanity, and recovery by those who have personally suffered and who have lost family members.

Is a confession, forgiveness and healing approach (the restorative justice model) effective, and when might it be appropriate? Or is a juridical model (retributive justice) likely to be more successful in serving justice and in resolving post-conflict antagonisms? This paper reviews two key approaches -- the South African Truth and Reconciliation Commission and the Nuremberg Tribunal -- and reflects on these questions. It briefly evaluates the attention given by the two models to the outcomes of reconciliation, reparation, the rule of law, peace and truth. The paper concludes that justice and reconciliation are equally important objectives, and therefore societies climbing out from the horror of severe human rights violations need to consider activating at least courts and truth commissions if they are to increase their chances of success.

South Africa’s Truth and Reonciliation Commission

The current South African constitution¹ no longer contains reference or gives legitimacy to the Truth and Reconciliation Commission (TRC). However, the Act and interim constitution that established the TRC, (the Promotion of National Unity and Reconciliation Act² of 1995), allowed that in order to advance reconciliation and reconstruction, “amnesty shall be granted in respect of acts, omissions and offences associated with political objectives committed in the course of the conflicts of the past”.
Truth and reconciliation commissions are temporary measures. They are not designed to permanently replace the rule of law or to deliver judicial verdicts. Much of the controversy surrounding them is concerned with their “delineation (and defense) of quasi-justice forms and entities³ ... most of which aim, in the end, to move away from criminal verdicts -- retributive justice -- and toward ‘truth-seeking’ and reconciliation.” (Avruch and Vejarano:39)

Reconciliation

The South African Truth and Reconciliation Commission (TRC) was set up by the Government of National Unity to help deal with what happened under apartheid. The conflict during this period resulted in violence and human rights abuses from all sides. No section of society escaped these abuses.

Therefore reconciliation (not punishment) was the dominant theme of the TRC. Many have noted that Archbishop Desmond Tutu’s influence was substantial in the decision to focus on bringing South African society together and in finding ways to “heal the wounds” caused by decades of apartheid, repression and minority rule. His religious contribution cannot be ignored either. Archbishop Tutu’s

personal perspective, priorities, personality and moral authority created an emphaiss on reconciliation heavily influenced by Christian values, an impression perhaps strengthened by the religious background of the Deputy Chair, Alex Boraine, and made explicit in the various church services that welcomed the Commission around the country. (Hayner:41)

Rooted in religious belief or not, the South African approach did appear to have wide public support. Polls suggested, and the re-election of Nelson Mandela and the ANC implied, that the majority within South Africa were likely in support of some kind of historic compromise such as was offered by the TRC⁵. The South African Communist Party, a significant and militant force in the anti-apartheid struggle, (and certainly not likely dissuaded by religious convictions) firmly supported the TRC.⁶ In a 1997 statement, “Support the TRC Process”, the SACP offered its

whole hearted support for the work of the Truth and Reconciliation Commission. We call on all south Africans to back the work of the Commission, it is in our common collective interest to do so. The TRC is a crucial component of building the fabric of a new south Africa, a south Africa in which we shall all be able to find a home across the boundaries of colour and ideology. Our whole-hearted support does not mean everything said or done by the TRC and its councillors meets with our unqualified approval. But the difficult task of repairing our country calls for maturity on all sides, not least from those political parties that were active combatants in the struggle of our past...

Can a truth and reconciliation approach guarantee that victims and their families are indeed reconciled with former perpetrators -- and to the extent that victims are not tempted to become perpetrators themselves in the new society?⁷ It is not assured that conflicts and resentments have evaporated, but in any case acts of post-TRC revenge will now be dealt with through the current South African (retributive) justice system, and not through a truth commission.

Rajeev Bhargava (Bhargava:60-67) considers that while the TRC can move a society away from barbarism and towards “minimally decent conditions, primarily by the confidence they build in norms of procedural justice”, its primary objective was the successful rehabilitation of victims. That can happen, Bhargava argues, where victims can offer forgiveness in exchange for a sincere admission of wrongdoing by perpetrators. Not everyone, however, is inclined to be forgiving in the circumstances. Yazir Henry (Henry:166-171) argues that while the TRC “provided a space where people could face, however painfully, the atrocities and abuse of their past”, he resolved to avoid further proceedings after his initial participation because he felt “the amnesty process was hampering [his] own efforts to deal with the trauma of capture, detention and the obligation to watch a comrade and friend die in front of [him] as a result of the people opening fire with guns and hand grenades.” Others found the TRC process provided a unique opportunity to face their demons, for healing and for putting the past behind.⁸ Some believe that the practice of punishing crimes by retributive justice is entirely incompatible with the restorative justice framework.⁹ Johnny de Lange describes the culture of trial and punishment as “narrow” and less effective, while a more ambitious justice is:

collective justice, social justice, a restorative justice that seeks to address and deliver to the collective -- that is aimed at nation-building and reconciliation. It is a justice that focuses on the future, rather than the past; on understanding, rather than vengeance; on reparation, rather than retaliation; on ubuntu, rather than victimisation. (de Lange: 23-24)

Truth commissions are not always bereft of any inclination towards punitive options as some supporters may imply.¹⁰ Where truth was incomplete or withheld by suspected perpetrators, the TRC in South Africa took recourse in standard juridical processes. The punishment for not revealing truth was the resort to courtroom law, prosecutors and imprisonment. In that sense truth was coerced -- not volunteered -- because the penalty for witholding it was prosecution.

But is punishment always at odds with reconciliation? Is it possible to advocate for restorative justice without trading away the right to a fair trial? Holding perpetrators accountable does not imply that the guilty must always be executed nor even imprisoned. Similarly, it can be argued that public humiliation (one result, if not the main object of a community TRC process) does not automatically elicit remorse from perpetrators, nor is it intended to do so. However, in many countries, except in the instance of a life sentence, incarceration is intended to be suitable punishment for past offences but also part of a process to prepare the guilty for re-entry into society through rehabilitation. As suggests Charles Villa-Vicencio, “reintegration into society of perpetrators as a basis for [their] contributing to the restoration of society as a whole” needs to be the goal of the punishment process. (Villa-Vicencio:72)

Reparation

The loss of loved ones, violation of rights, and decades of humiliation are difficult if not impossible to rectify. Yet the agreement to trade amnesty for truth and reconciliation implied there would also be compensation for victims and their families. Desmond Tutu writes that the Commission assumed from its inception that “without adequate reparation and rehabilitation measures, there can be no healing and reconciliation, either at an individual or a community level...In addition...reparation is essential to counterbalance amnesty. The granting of amnesty denies victims the right to institute civil claims against perpetrators. The Government should thus accept responsibilty for reparation.” (Tutu:57-61)

If reparation was needed for healing, and sufficient funds were not available for prosecutions, would funds be available for adequate (and not just symbolic) reparations? Financial limitations perhaps should not have prevented South Africa from proceeding with the reconciliation-reparation framework but the evidence suggests that it was known in advance that promised reparations would not be forthcoming¹¹.

Desmond Tutu agrees that “part of the price for getting us to this point would be to expunge the right of the victims not only to press criminal charges but to claim civil damages in compensation for their loss”. He argues that compromising victims’ access to legal recourse may have been a heavy price to pay, yet in the absence of an offer for amnesty “it is highly unlikely that [perpetrators] would have come forward at all”. Reparations were nominally available by the route of state compensation, yet in the post-conflict period (and as Tutu admits) compensation could not be anything but token: “A sum of money reasonably significant in amount would be paid to those designated as victims, but [...] it would be acknowledged that it was really meant to be symbolic rather than substantial.”

Perhaps to deflect criticism of inadequate compensation, Tutu asks: “can a monetary value be given to suffering? Can the country afford to pay even this amount taking into account the various competing demands being placed on an exchequer strapped for cash?” That explanation was likely unconvincing for many, but symbolic reparation and national reconciliation was the only offer: “[A]s a nation we are saying, we are sorry, we have opened the wounds of your suffering and sought to cleanse them; this reparation is as balm, an ointment, being poured over the wounds to assist in their healing.”

Amnesty and International Law

Amnesties have controversial international legal standing. The former executive director of Human Rights Watch, Aryeh Neier, notes that they are “invalid where they conflict with international treaties that obligate states to prosecute and punish. The Geneva Conventions require states to seek out those who have committed grave breaches, the Genocide Convention demands that genocide be punished, and the Convention Against Torture mandates that cases of torture be prosecuted.” (Neier:97-99)

The Organization of American States adopted its own Convention on Human Rights in 1969. It entered into force in 1978, and in 1988 determined in a case against the Honduran government that the state was in breach of its obligations if it acted “in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible.” While the Honduran case was brought before the OAS, it was not the first nor last instance where amnesty was pursued in Latin America -- other examples include Chile in 1978, Brazil in 1979, Guatemala in 1982, Argentina in 1983, Uruguay in 1986, Nicaragua in 1987 and 1990, Peru in 1995 and Guatemala (again) in 1996.

The Inter-American Commission in its 1986/87 annual report supported amnesties where democratic institutions made some effort to divulge the truth about past human rights violations. The Inter-American Court of Human Rights in the Velasquez Rodriquez case (the subject being a Honduran activist who had been disappeared) in 1988 referred to the state’s obligation to implement “appropriate punishment” and that victims be ensured “adequate compensation” [Van Zyl:47-48], but it did not specifically require that governments mandate prosecutions and internment of those found guilty of crimes, in order to achieve those goals.

However, by 1997 the Inter-American Commission showed signs of change in emphasis. It recommended that for two decisions in which the military granted amnesty to itself, the Chilean government should conduct new investigations to “identify the guilty parties, establishing their responsibilities and effectively prosecuting, thereby guaranteeing to the victims and their families the rights to that justice that pertains to them.” Van Zyl concludes that this evolution of policy reflected a pragmatism which allowed prosecutions when states were in a position to carry them out (Van Zyl:49). Suspending obligations held under international law is appropriate, he believes, where there is a “grave threat to the life of the nation and impossibility of performance”. But Van Zyl argues that such derogation is acceptable when only four conditions are met: 1. there is an inability to prosecute those responsible; 2. a majority of citizens endorse the transitional justice policy that the state has adopted; 3. other obligations, such as discovering the truth about victims, must be complied with; and 4. amnesty must be conditional on achieving those other objectives (and thus amnesty should not be blanket).

These four criteria offer an argument for proceeding, as in the South African case, towards a process of nation building that includes truth and reconciliation elements. It also suggests that the first of the proposed conditions -- inability to prosecute those responsible because of financial cost, juridical weakness, threat of civil war or other reasons -- is the core condition upon which the others hinge.

If South Africa was not able to proceed to prosecutions on its own, could there have been innovative ways to resolve the problems of finances, courts, and the threat of a prolonged conflict? In this regard, Van Zyl argues that states need not grant amnesties if they can wait until their criminal justice systems are “sufficiently equipped” before proceeding with prosecutions.

The great risk of amnesties is that violators everywhere believe they will never be held accountable for their actions. The practice of amnesty confirms that the rule of law does not extend into the post-conflict period and human rights violators who expected impunity were right to think they would not be punished. As notes Neier, “the more countries that adopt amnesties and allow them to stand unchallenged, the more difficult it is to end the practice. Haitian military officers were well aware that their Latin American countertparts were amnestied just before civilian governments took over. Under the circumstances, the difficulty of denying them exemption from prosecution and punishment for thousands of killings became all the greater.” (Neier:104) While Neier argues that “standing up to demands for an amnesty” is a painful and necessary exercise, he still suggests that in the case of South Africa, an exception might have been appropriate: “Elsewhere, amnesties granted to all without the requirement of individual disclosure impeded the discovery of truth; in South Africa, the process encouraged truth”. (Neier:105) Truth perhaps, but justice?

Exchanging Peace for Justice

There are many arguments given in defence of the TRC amnesty clause. However, the central justification for its inclusion was not a facility to reveal truth about persecutions, nor reconciliation between defenders and opponents of apartheid, nor healing the wounds suffered by victims and their families (Desmond Tutu’s therapeutic “salve”). It cannot be denied that amnesty was primarily offered as the purchase price for peace:¹²

The provision of amnesty, however unfair it seems to some victims, was the product of a political deal. Had a vengeful victor overthrown apartheid, the perpetrators indeed might have been tried and punished. [But] the country’s interim constitution which guarantees amnesty for political acts, was really a peace treaty. Amnesty was the price of securing the peace and cooperation in the negotiated collapse of white rule. As it is, the guilty will have to pay something; the humiliation of a public confession.
(in Christie: 140)

A frank defence of the amnesty provision is given by Richard Lyster, a supporter and former commissioner of the TRC. He suggests that the best response to criticism is “to accept the common definition of criminal justice and to acknowledge openly that amnesty is unjust ... it can then be made clear that the Truth Commission was not trying to achieve justice, and that guaranteeing amnesty is the painful price that the country has to pay for peace, for the negotiated settlement in 1994 that led to the country’s first democratic elections.”

The National Party refused to relinquish its powers without the promise of amnesty, and it threatened to prolong the civil war until amnesty was guaranteed. The deputy chair of the TRC, Alex Boraine suggests that there was no choice but to trade amnesty for peaceful transition: “Whether in fact a military coup was a reality or not, one thing is certain. If negotiation politics had not succeeded, the bitter conflict would have continued and many more human rights violations would have occurred and hundreds, and possibly thousands would have been killed.” (Christie: 45)
Supporting peace over justice is an ethical position to take, Lyster argues, because the imprisonment of perpetrators does little to advance the reconciliation process, and only vindicates “those who promote revenge and violence as the answer to human conflict” (Lyster:186). The argument for reconciliation through amnesty assumes that in a time of post-conflict tensions, legal recourse is interpreted by members of the former regime as victors’ justice and therefore a mechanism for settling old scores. In any case those associated with the apartheid system (the political leadership, its military and police infrastructure, and public servants who may have enabled the smooth running of the system) would not have peacefully negotiated the end of apartheid without the promise of amnesty. That may well have been true, but was South African unique in that sense. And if not unique, is the South African model therefore universally applicable?

The systemic reform of “post-communist” societies in the Soviet Union and Soviet Bloc were examples of what South Africa might have had to endure without implementation of the amnesty option of the TRC¹⁴. As it turns out, the end of the Cold War probably played as much a role in the willingness of apartheid’s supporters to seek dissolution or reform of their state, as did the offer of amnesty under very desirable conditions¹⁵. It is therefore not clear that reform that was accelerated because of a changing international context, could not also have excluded amnesty provisions.

African Exceptionalism

Archbishop Tutu believes that cultural preference for restorative justice, “was characteristic of traditional African jurisprudence” (Tutu:54). That outlook, ubuntu (meaning a tendency for compassion and forgiveness), according to Tutu explains the willingness of black South Africans to accept reconciliation over justice.¹⁶ However he recognizes that the TRC’s “amnesty provision is an ad hoc arrangement [and] is not how justice is to be administered in South Africa forever. It is for a limited and definite period and purpose...” It was also entered into by the African National Congress (ANC), in spite of objections from younger “hotheaded” members, in part because of allegations that atrocities were committed by the ANC in its camps outside South Africa , and by the Pan Africanist Congress (Tutu:45,19).

It is neither clear that the South African model was really a reflection of a uniquely African culture of forgiveness, nor that other models were less likely to succeed. Was amnesty only a pragmatic compromise forced upon black South Africans in the circumstances of a prolonged and violent civil war (as suggested above)? The TRC is not always sold as a model superceding European retributive justice. For some it was a “one-off window of opportunity”. The Western justice system in South Africa did not disappear and was not permanently replaced by an ubuntu-based restorative model. Despite the Commission, “the role of our courts and the prosecuting authority within the criminal justice system remains firmly in place.” Indeed, part of the compromise made by the liberation movement was to accept the existing South African legal framework “despite the fact that it had always regarded the apartheid regime and its ‘legal order’ as illegitimate.” (De Lange:20-28)

There may not have been many options available at the time. However, the negotiations between the ANC and National Party began in the 1980s and considered plans for a process by which power would pass from the apartheid regime to a new democratic South Africa, ultimately based on one-person one-vote. South Africa was an isolated pariah state, was under a severe and very high profile international sanctions regime, and was the subject of a 1973 denunciatory United Nations resolution condemning apartheid as a crime against humanity (UNGA resolution 3068).¹⁷

The Justice Model and Nuremberg

Those who defend criminal tribunals that try suspected perpetrators argue that due process is important in itself, but it also enables access to the truth and makes the truth better known. A retributive justice system punishes the guilty and advocates in favour of a culture that embraces the rule of law. It helps deter future atrocities and addresses the grievances of victims. It promotes reconciliation (Fletcher and Weinstein:586). While not all these objectives are always achieved, or achieved in equal measure, the expectation remains that the juridical process is not about retribution for the sake of vengeance. It is not without healing measures either, but it assumes that punishment of crimes is a precondition for reconciliation.
Jules Deschenes writes that “retribution and deterrence -- those should indeed be the controlling elements [of justice]. Which one of the two, if any, should be accorded precedence is a matter for future jurisprudence.”

In sentencing Jean Kambanda, the former Prime Minister of Rwanda in 1998, it was made clear that severe penalties are issued both as retribution against the accused “who must see their crimes punished”, and as deterrence -- “dissuading for good those who will attempt in future to perpetrate such atrocities by showing them that the international community was not ready to tolerate the serious violations of international humanitarian law and human rights.” (Deschenes:161)

Truth from Justice

Diane Orentlicher (in Fletcher:587), a scholar in the field of international law, underlines the role of criminal trials as vehicles for determining truth. She suggests that “the most authoritative rendering of truth is possible only as a result of judicial inquiry, and major prosecutions can generate a comprehensive record of past violations [emphasis added].” This occurs if the acquisition and recording of evidence is perceived as impartial and legitimate -- attributes associated with capable international legal institutions, but more problematic for societies in transition. Others have suggested that the testimony offered voluntarily in truth commissions, particularly in exchange for amnesty (as in the South African case), is more comprehensive -- even if (or because) it is not accompanied by repentence. Peter Storey suggests that legislation that would have required repentence “would devalue those moments when apparently genuine repentence is volunteered.”¹⁸

Truth commissions have focussed on documenting evidence of abuses, with the assumption that detailed evidence affords a carthartic effect upon victims and towards “healing” of the society. Judicial trials also accumulate documented evidence, and arguably do so as -- or more -- comprehensively. The Nuremberg Trial recorded over a ten month period the enormity of crimes of the Nazi period. Without Nuremberg, argues Neave, “the nature of Hitlerism and its effect on the German people would have been more difficult to record. Through the overwhelming mass of vebal and documentary evidence introduced at the trial, we get a clearer picture of the sort of men and women who served Hitler. [But Nuremberg] was a patient inquiry by a world that had just experienced the immensity of total war¹⁹ ” (Neave:320-3) The transcripts of testimony filled forty-two thick volumes and comprise the most thorough proof of the extent of Nazi horrors, the Holocaust, and German war crimes and atrocities.

To those old enough to remember personally the first horrifying film images of piles of pallid corpses being bulldozed into mass graves, it is hard to believe that this evidence of our eyes would ever be challenged... Not a single defendant at Nuremberg ever denied that the mass killing had taken place, only that he had lacked personal knowledge and responsibility. (Persico:441)

Retributive justice acknowledges that crimes are committed by individuals, that victimization occurs and that punishment of the guilty through incarceration and reparations is partial compensation for injuries incurred. There is also a widespread belief held by supporters of the justice model that the process “makes a unique contribution to the alleviation of the pain victims experience” (Fletcher:590). Others such as Karl Jaspers have noted that trials are important in distinguishing the “definite crimes of the leaders” from “the people as a whole”, and in that sense they also make an important contribution towards reconciliation (Fletcher:598). The international tribunal process has aimed at averting the aggravation of conflict and tension by connecting military and civil leaders and authorities with responsibility for crimes, thereby contributing, albeit gradually, to a lasting peace.
Writes Antonio Cassese, President of the International Criminal Tribunal for the former Yugoslavia (ICTY):

Far from being a vehicle for revenge, [the ICTY] is a tool for promoting reconciliation and restoring true peace. If responsibility for the appalling crimes perpetrated in the former Yugoslavia is not attributed to individuals, then whole ethnic and religious groups will be held accountable for these crimes and branded as criminals. In other words, "collective responsibility" - a primitive and archaic concept - will gain the upper hand; eventually whole groups will be held guilty of massacres, torture, rape, ethnic cleansing, the wanton destruction of cities and villages. The history of the region clearly shows that clinging to feelings of "collective responsibility" easily degenerates into resentment, hatred and frustration and inevitably leads to further violence and new crimes.²¹

Former ICTY Justice Louise Arbour believes that tribunals cannot expect to bring all those guilty of crimes to justice. In many cases the leaders are “abstractions” in the eyes of communities whose victims were killed by low-ranking individuals carrying out the actions called for by authorities. The ICTY “is not a commission for missing persons”, she agrees, “so in the sense that we cannot attend to every victim, the perpetrators have won.” However, the alternative TRC approach as advocated by Desmond Tutu, according to Arbour, is premature, at least in the case of former Yugoslavia. And yet the choices remain difficult ones:

I understand the concept of rejecting collective guilt. It is a rejection that is at the core of what we do here: by personalizing individual responsibility, we help diffuse the stigma on a whole nation or ethnic group. But I don’t think it is as straightforward as I did before I started this work. I think that having a clear demarcation between the individual and the collective, or the group, works reasonably well when the perpetrators who are being tried in court are somewhat distinct from the group, and the group can distance itself from that person ... [yet] as we move higher up the chain, there is more and more resistance, because the people we are calling war criminals are still heroes to their community, and the personal guilt of such people may be perceived as an expression of collective guilt. (Paris:418-9)

Fletcher and Weinstein’s research focuses primarily on the recovery process in Bosnia and the progression from society breakdown to foreign intervention to reconstruction. They found that legal professionals that were surveyed, rather than recognizing a broad distribution of guilt, generally sought from the tribunal prosecutions and documentation a confirmation that crimes were committed by others. “None advanced the view that trials were necessary to learn what crimes ‘their’ forces had committed.”²³ Fletcher and Weinstein concluded that “international criminal trials, by themselves, are not able to inculcate citizens with a particular understanding of the past.” The shortcomings of the tribunal system were not sufficient reason to oppose criminal trials, in their view, but are evidence that “alternative interventions must be considered in synergy” with them. They suggest the most productive course is to orchestrate a combination of state-level interventions, national and international criminal trials, truth commissions, psycho-social support and community interventions.

The Rule of Law

Because institutions authorize the punishment of crimes, we are reminded of the norm-setting role taken on by the rule of international law. Legal guidelines both frame and are framed by societal norms, in a continually-accumulating case law process. Norms are expected to deter easy resort to atrocities, and there is plenty of evidence that international humanitarian law works. Nonetheless, and as many social experimenters have suggested, group dynamics and obedience to authority still play a disturbing role where gross violations of human rights are in evidence, particularly over a long period of time (including in the case of apartheid in South Africa).²⁴ Those factors don’t absolve individuals from criminal culpability, but they do suggest that criminal prosecutions may not be sufficient in addressing underlying collective motivations and responsibilities.
Diane Orentlicher accepts that truth commissions, where they provide an avenue for reconciliation and conflict resolution, are a legitimate alternative to prosecutions. However she notes that accessing the truth about violations is not a sufficient alternative to prosecuting perpetrators, and she insists that there needs to be established a “hierarchy of crimes so that some of the most serious such as torture, extrajudicial killings and disappearances among others do not go unpunished.” (Christie: 63)

Paul Van Zyl, former executive secretary of the TRC, also believes that the threat of the return to conflict or military rule, or an outbreak of hostilities threatenening further (or continued) killings and economic ruin, are good enough reasons to suspend prosecutions. While he believes that the establishment of the International Criminal Court is “indicative of the world’s determination to deal justly with the past”, and a cause for celebration, “there is a hidden danger too [which is that prosecution should not be seen as] the only, or even the most important, means to end impunity. If we confine to courts the struggle to guarantee human rights, we ignore many other important initiatives designed to assist victims, rebuild societies and defend democracies”. Punishment, he argues is “not always possible or prudent”, and while important, is not an “indispensable strategy, in dealing with the past”. (Van Zyl:42, 57)

In addition to the threat of retaliatory violence by those being prosecuted, Van Zyl argues that practical difficulties can also justify avoiding the courtroom route -- if the existing legal system is looked at with suspicion or the new legal system is incompetently staffed. The costs of prosecution might be prohibitive to a society coming out of conflict during the transition years. And the scale of the criminal problem being investigated may be so large, and the evidence for crimes so inaccessible, that legal obligations become impossible to fulfil.²⁵

Victors’ Justice

Victors of the Second World War (Britain, USA, the Soviet Union and France) established the International Military Tribunal at Nuremberg in 1945-6 to try 22 leading and surviving Nazis suspected of having been responsible for authorizing many of the crimes of the Nazi period²⁶. The reach of the trials was significant, in no small part because their jurisdiction was international and not bounded by national sovereignty, although certainly delineated by who won and who lost the war. They were limited in other ways too, as Samantha Power notes: “[I]f the Nazis had exterminated the entire German Jewish population but never invaded Poland, they would not have been liable at Nuremberg. States and individuals who did not cross an international frontier were still free under international law to commit genocide. Thus, although the court did a fine job building a case against Hitler and his associates [critics] felt it would do little to deter future Hitlers.” (Power:49) Nonetheless other Germans were tried in subsequent civil trials, including two of the three who had been released at Nuremberg.²⁷

Reference to the legacy of Nuremberg for the most part remains a touchstone for international law, and in its role as a precedent-setting court of justice it has not been diminished.The tribunal was an ad hoc (temporary) court designed to consider crimes against the peace (planning and waging an aggressive war), war crimes (defined in existing international agreements), and crimes against humanity (a not entirely new charge). Crimes against humanity at Nuremberg were based on concepts established during World War 1, in response to the Turkish genocide against the Armenians. Within the limits of its mandate (the prosecution of Germans), Airey Neave argues that the trials were as objective as could be expected²⁸. The defendants were provided with defence counsel, translators and access to documentation and office services. There is disagreement over the wisdom of some of the indictments, but there is little doubt or debate as to the culpability of those found guilty. “All the men who went to prison or mounted the gallows were willing, knowing, and energetic accomplices in a vast and a malignant enterprise. They were all there for valid moral, if not technically perfect legal, reasons; but then, the murderer who gets off on a technicality has experienced law, not justice.” (Persico: 440)

Initially, Britain and the U.S.A. preferred summary executions of Nazi war criminals, while France and the Soviet Union pressed for “show trials”. Nuremberg was eventually agreed to in order to avoid the appearance of revenge killings that military court firing squads might have produced. As notes Ernas Paris, the Allies thought it best “not to follow the example of Hitler in denying the protection of the law to their enemies”. International military tribunals may be evidence of victors’ justice, yes, but they can also be respectful of due process. The American Justice, Robert Jackson, in opening the Nuremberg proceedings in November of 1945 argued that by their participation at Nuremberg

[F]our great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgement of the law. [This] is one of the most significant tributes that Power has ever paid to reason. (Paris:405)

Aside from issues related to even-handedness in the choice of who was selected for prosecution, controversy also arose over the Tribunal’s decision to invoke the death sentence (and in particular, the choice of death by hanging). Several states, including Uruguay, Cuba, Colombia, Ireland objected on principle to capital punishment.³¹ The Former Yugoslavia Tribunal (ICTY), the Rwanda Tribunal (ICTR) and the International Criminal Court (ICC), more in tune with current sensitivities, do not have powers to impose the death penalty.

Legacies of Nuremberg

The South African Truth and Reconciliation Commission model, for the purpose of this paper, is one of the most accessible truth commissions for contrast with the Nuremberg tribunal model. Other truth commissions were developed in parallel with tribunal processes. Truth commissions generally are established in the transition period that follows on the heels of authoritarian regimes. This was the case in eleven Latin American countries between 1979 and 1993 (Christie:41). In not every case do the new governments exhibit the attributes of full-fledged democracies, unemcumbered by coercive pressures from the military. The new societies were all vulnerable to social upheaval, and often faced economic and social crises, exacerbated by inexperienced public servants entering bureaucracies either recently cleansed or still infested with the old regime.

However, the failure of Cold War protagonists to enable tribunals for decades after 1946³² -- and to thereby prove the tribunals’ usefulness as an effective response to, if not deterrent of, gross human rights violations -- was a failure of the powers involved, not of the legacy defined by Nuremberg itself. This was ample proof that superpower rivalry (and equivalent divisions in the United Nations Security Council, the legitimizing body which could establish international tribunals) was a serious impediment to the practice of international justice. If not to prove the point, international tribunals were established almost immediately after the end of the Cold War. In 1989, Trinidad and Tobago proposed that a court be established to prosecute international drug traffickers. The horrific events in Bosnia and in Rwanda led to the establishement of ad hoc international tribunals mandated to assess crimes committed by all sides in the specified conflicts. Because military tribunals have so often been seen as a means by which victors bring the vanquished to trial, this new objectivity was a welcome advance over the triumphalist tribunals held at Nuremberg and Tokyo.

In the context of these developments, the United Nations General Assembly proposed in 1992³³ that a draft convention be drawn up by the International Law Commission for a permanent International Criminal Court. In 1998 the Rome Statute was opened for signature. The court came into force in 2002 after 60 ratifications had been deposited at the U.N. and as of December 2002, the ICC had 139 signatory states onside, 87 of which had ratified. While the details of the Court’s mandate and structure are not the subject of this paper, it is relevant to note that the Court’s jurisdiction includes crimes committed in wartime, but also in peacetime when crimes against humanity are committed. Apartheid is listed as one of several crimes against humanity³⁴.

The ICC is brand new, and at the time of this writing, it has not heard its first case. As a result, its significance may not be fully realized for some years. The ICC option holds promise, and as Darryl Robinson in Human Security and the New Diplomacy notes, because the international community in the past has reacted to atrocities with indifference or inaction,

the resulting climate of impunity has encouraged other extremists to commit greater violations. If human security³⁵ is to be safeguarded, this culture of impunity must be replaced by a culture of accountability. This is the aim of the [International Criminal Court]. Supporters of the ICC believe that where national judicial systems fail to investigate or prosecute persons responsible for genocide, crimes against humanity, or war crimes, then an independent ICC should stand ready to bring those persons to justice. (Robinson:170-1)

The Nuremberg and Tokyo tribunals did not prosecute war crimes committed by the Allies; perceptions of pro-NATO bias persist in criticisms of the ICTY, which has jurisdiction over Former Yugoslavia. Justified or not, the neutrality of ad hoc courts is forever under suspicion. And yet the legacy of the Nuremberg Tribunal as an international instrument of justice has inspired the development of a new and more robust International Criminal Court. In South Africa, financial cost, fear that the peace process would be derailed, and a national judicial system in disrepute convinced many that nothing but the TRC could successfully address decades of rights violations under apartheid. That alternative was a bargain to establish peace through a transfer of power, in exchange for amnesty. Efforts at reconciliation have shown limited success for many South Africans, although it is not certain that the significant achievements are sustainable. Promised compensation for victims has met shortfalls and there is no legal recourse for those who have been disappointed.

It is not expected that courts should resolve all the problems of post-conflict reintegration; nor can truth commissions respond to demands for retributive justice. There are benefits that flow from both reparative and retributive justice systems, and therefore merit to Fletcher and Weinstein’s proposal for coordinating different intervention approaches in the transition period. This recognizes that separate streams of intervention bring unique social, legal and financial resources to recovering societies. Justice need not be sacrificed for reconciliation, and vice versa.

Diane Orentlicher argues that a hierarchy of crimes exists and therefore those in leadership or with authority should be held proportionately accountable. Perpetrators of the worst human rights violations must to be brought to justice if others are to be deterred in the future. Where wide participation in the violation of human rights occurs, and where numerous “bystanders” share some level of guilt, truth commissions and other psychological and community support systems are almost certainly appropriate.

The launch of the International Criminal Court means that truth commissions can now be formally linked to courts of law, instead of being substituted for them. However, the international community will have to contribute sufficient and sustaining resources in support of this effort if we are to achieve peaceful transitions and fewer apartheids,without compromising the rule of law.

NOTES

¹ http://www.polity.org.za/html/govdocs/constitution/

² http://www.doj.gov.za/trc/legal/act9534.htm

³ Among the equivalent terms used are ‘transitional justice’, ‘restorative justice’, or ‘retroactive justice’.

⁴ Some may object that this implies that a “moral equivalence” exists between those who supported and those who opposed apartheid. It is less controversial to admit that violations of human rights are unacceptable in any context.

⁵ It is not clear from the materials collected for this paper that the elections and polls referred to by Desmond Tutu are irrefutable proof of overwhelming support for the TRC option.

⁶ For the SACP statement, see: http://www.sacp.org.za/pr/1997/pr0516.html

⁷ Robert Mugabe’s Zimbabwe deserves some consideration when reflecting on this point.

⁸ See several examples in Villa-Vicencio and Verwoerd:199-250

⁹ Generally speaking, advocates of restorative (also known as reparative and transitional) justice believe that their approach brings communities together, and that retributive justice (traditional jurisprudence, prosecution and punishment) encourages a culture of vengeance and retaliation by the practice of punishment. It needs to be pointed out that supporters of the retributive approach do not agree with some of these assumptions, nor do they necessarily believe the different approaches are incompatible.

¹⁰ When human rights violators were prosecuted in transitional Argentina, several army rebellions resulted, and the democratization effort took a tumble into crisis. Raoul Alfonsin assumed the presidency in 1983 and put into place a truth commission which had a mandate to bring forward information to the courts, but having no power to prosecute. The Peronist opposition insisted that trials take place. Alfonsin assured naysayers that the new Argentinian judicial codes would punish both state and insurgent abuses. A truth commission was established in Chile in 1990 and was given the authority to investigate abuses over a seventeen year period (from the coup d’etat in 1973). The subsequent 1800 page report was delivered to the Chilean President who presented its major findings publicly in 1991. While the President apologized to the victims and their families, and though the army was “requested to acknowledge the pain it had inflicted” there was no real condemnation of General Pinochet who was allowed to continue as titular head of the armed forces. Culpable individuals were not named in the Chilean instance, although reparations and compensation for victims was recommended. As Priscilla Hayner notes, the Guatemalan Historical Clarification Commission, which looked at the conditions that resulted in the killing or disappearance of between 150,000 and 200,000 people over 36 years, was very different from the South African TRC. The Guatemalan model did not offer any amnesty recommendations, but neither was it given any subpeona or search and seizure powers. It was dependent upon voluntary testimony and cooperation, and was not permitted to “individualise responsibility” -- it could not link specific individuals to specific crimes.

¹¹ The TRC option was primarily intended to achieve peace, but possibly could not be broadly sold on that basis alone. This subject is explored below under “Exchanging peace for justice”.

¹² At the same time, amnesty was not automatic. Of 7,124 applications for amnesty (as of December 1998), 5,111 were dealt with. Of these, 2,686 were refused (no political objective); amnesty was granted in 216 cases; amnesty not applicable in 565 cases (past cut-off date); refused, personal gain (45 cases); refused, denied guilt (160 cases); refused, no full disclosure (91 cases)... (The table can be found in Christie:130, and also at: www.truth.org.za)

¹³ De Lange:28

¹⁴ Some have noted the relatively peaceful transition of Soviet Bloc states following the close of the Cold War.

¹⁵ That view may be shared by Desmond Tutu (Tutu:36). The fall of the Berlin Wall “was one of the pieces that helped to bring about the changes in South Africa.”

¹⁶ Ironically Tutu refers to the experience of Robert Mugabe in Zimbabwe as an example of a statesman bent on “reconciliation, rehabilitation and reconstruction”, in effect “ubuntu at work” (Tutu:32).

¹⁷ See: http://www.unhchr.ch/html/menu3/b/11.htm

¹⁸ See: http://gbgm-umc.org/nwo/99ja/different.html

¹⁹The US lost 259,000 soldiers, Great Britain 386,000 (including 60,000 victims of air raids), Germany over 7 million, including 4.2 million soldiers. The Soviet Union lost 20 million, including 13.6 million soldiers. (Neave:319)

²⁰ Another view is that the prosecution of only leading Nazis at Nuremberg enabled the German people to get on with their lives because the focus of the international military tribunal was not to expose the culpability of all Germans in the Nazi atrocities. However, several recent controversial studies, such as Goldhagen’s Germany’s Willing Executioners, emphasize the collective guilt of Germans for what happened, and suggest that Germans have not yet come to terms with their past.

²¹ See: http://www.un.org/icty/rappannu-e/1994/:

²² At the ICTY, there are fewer than 80 individuals who were listed as having been detained. See: http://www.un.org/icty/glance/index.htm; There had been 64 suspects arrested at the request of the ICTR (Rwanda), as of the end of November 2002.

²³ Fletcher and Weinstein determined that legal professionals in Bosnia did not “explicitly [connect] ICTY trials with the establishment of the rule of law domestically”. (Fletcher:597)

²⁴ See my article: http://www3.sympatico.ca/lothcol/collins/coercion_and_obedience.htm

²⁵ See also Tutu:22-23 and De Lange:29 in defence of this argument.

²⁶ Nineteen were found guilty and three were acquitted.

²⁷Schacht and Papen, following their acquittals at Nuremberg, were subsequently sentenced as “major offenders”, but eventually were cleared of all charges and released, (Tusa:477).

²⁸ On “fairness”: Neier does question the legitimacy of charging Julius Streicher with incitement (Neier:192-4).

²⁹Arguably “the proletarian” Fritz Saukel, who operated the slave labour programme, was handed a disproportionate indictment (hanging) than was his master Albert Speer (20 years imprisonment) who was Armaments Minister and in charge of policy (Neave:313). See also Persico:438-9. Neave also questions the imprisonment of Rudolf Hess (considered by many to be insane), which he described as “a blot on the record of the trial and a lasting disgrace to international justice.” (Neave:316) Persico (page 439), suggests that Hess’ hundreds of letters indicate “a clear mind at work”.

³⁰ There was also Soviet dissent over the final findings of the Court based on the Soviet belief that there should have been no acquittals, that Hess should have been hanged, and that prosecutions should have been processed against the Reich Cabinet, General Staff and High Command (Tusa and Tusa:466).

³¹ Capital punishment, it should be noted, is not accepted in all jurisdictions as an appropriate measure of punishment (an issue that defenders of the TRC and Nuremberg approaches are quick to point out).

³² “Until 1993, no international instrument has been convened to try any aggressor or any perpetrator of war crimes” in any of the 117 conflicts between 1945 and 1992 that cost an estimated twenty-one million lives (Persico:442)

³³ See http://daccessods.un.org/access.nsf/Get?OpenAgent&DS=A/RES/49/53&Lang=E

³⁴ Article 7: 1J

³⁵ Human security is sometime defined as “freedom from pervasive threats to people's rights, their safety or even their lives” and is distinguished from state security. See http://www.humansecuirtynetwork.org

³⁶ http://www.worldfederalistscanada.org//QA.htm

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