Testifying before the Truth and Reconciliation Commission (TRC) in South Africa, the family of Sicelo Mhlawuli, a murdered political activist, tell how they retrieved his body from the police station and found that his hands had been cut off. Another activist, detained at the same time, reports that the police showed him a hand in a bottle, telling him first that it was a baboon hand, then later that it was the hand of a "communist." He wonders now if it was the hand of his comrade. There are no recriminations from the family. They are not interested in revenge. But they are still grieving their loss, and they would like to have the hand back, for a proper burial.
This simple and righteous request has no place in the ordinary procedures of justice. But ordinary procedures fail when whole populations have been the victims of political crimes. New and extraordinary procedures of justice must be invented, and this creates an opportunity to consider the wishes of victims in a new light. What might justice look like if victims really mattered? How might the most serious crimes--murder, rape, torture--be resolved differently if the victims, rather than the offenders, were the center of attention? What if the courtroom drama were a dialogue between the victim and the community about restitution, rather than a duel between prosecution and defense about punishment? What do victims really want?
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It is often assumed, to their discredit, that victims want revenge. Society views them warily, expecting explosions of toxic rage. Many victims do legitimately want to see their abusers punished. They find it galling that criminals can enjoy life untroubled by the wreckage they have caused, and the thought of retribution brings some bitter satisfaction. But for a surprising number of victims, punishment is beside the point. They just don't care that much about what happens to the offender. They care a lot more about what might be done to aid their own recovery.
First and foremost, most victims want decisive action taken to ensure their protection and safety. They also want reasonable assurances that the offender will no longer be permitted to abuse other people or to profit from his crimes. In addition, they often want some material restitution for the harm done to them. But beyond these concrete and practical measures, what victims most commonly seek is vindication. They want public acknowledgment that what happened to them was wrong. They want the burden of shame lifted from their shoulders and placed where it belongs. They want the offender exposed, so that he loses the cover of secrecy or status or legitimacy that enabled him to get away with his crimes in the first place. They want recognition for their own endurance and dignity. They want an apology.
The formal structures of justice are not generally kind to crime victims. Their wishes and interests are of little consequence in an adversarial contest where aggressive argument, selective presentation of the facts, and psychological attack are routine practice. Victims fear the indifference or scorn of the community and dread the challenge to their credibility at trial. They know how ordinary and respectable perpetrators often appear to the outside world, and how persuasive the perpetrators' denials or excuses will sound to others. In addition, many victims have well-founded fears of retaliation, should they dare to come forward. They know the character of powerful men accustomed to impunity: their endless lies, their casual menace, their arrogance, their inexhaustible self-pity. And they understand that such men react with implacable fury when faced with the prospect of being held accountable. For all of these reasons, even in stable countries with judicial systems that function reasonably well, most victims never seek justice in a court of law. Most offenders get away with their crimes.
Impunity causes deep resentment. In this country, the accurate perception that most offenders suffer no consequences fuels the apparently insatiable public demand for aggressive law enforcement and harsh criminal penalties. In countries emerging from dictatorship or civil war, the problem of impunity is even more serious. It carries the potential to destroy a fragile social peace and undermine the foundations of government. When people have endured massive abuses, restoration of a political community demands a reckoning. Yet the ordinary procedures of justice lack both the credibility and the enforcement powers required for this enormous task. Perpetrators of political violence generally consider themselves above the law. Even supposing that they can be forced or persuaded to submit to a judicial process (which is supposing a great deal), their sheer number confounds the system. What is to be done with them? One cannot simply lock them all up or line them up in front of a firing squad, without creating another murderous police state. Most victims of political crimes have had quite enough of that.
Bringing the most notorious offenders to trial can provide an important cathartic ritual. But too often, the resources of the recovering society are stretched to exhaustion by the enormous effort required to hold a few deposed leaders responsible for their crimes, and the vision of justice goes no further than this. While punishment of former political leaders does create a symbolic break with the past regime, it does nothing to promote any positive vision of social reconstruction. It does nothing directly to restore the dignity of victims or to address the deeper corruption of relationships that permeates the society.
In recent years, the restorative justice movement has developed as a radical alternative to conventional criminal law. The movement often makes explicit claims of social "heal-ing," for both victims and offenders. Rooted in communitarian religious principles as developed by Mennonites, Quakers, and indigenous peoples in Australia, New Zealand, and North America, restorative justice focuses on the interpersonal harm of the crime rather than the laws that have been broken. (To understand the difference, consider the cry of one exasperated victim: "I'm the one who got raped, not the state of Virginia!")
Restorative justice interventions seek to fulfill apparently contradictory goals: uplifting the status of the victim and restoring trust between the victim and the community, while rejecting the idea of punishing the offender. These objectives are accomplished by making the victim the center of attention. In a formal hearing, the victim is allowed to tell his story in his own way, without being subjected to the ordeal of an adversarial process. The offender is then encouraged voluntarily to acknowledge his guilt. Of course, the offender may be motivated by fear of conviction and the punishment that might await him should he choose instead to take his chances at trial. Thus, the efficacy of any restorative justice program depends on the credible threat of prosecution in the conventional justice system. But once the offender commits to the restorative justice alternative, he is expected not only to admit the facts of the case, but also, more importantly, to recognize the impact of his behavior on others and do what he can to atone for his crime. He is expected to apologize and make amends. Though most offenders detest these obligations and actively resist them, the point of requiring apology and restitution is not to punish offenders, but rather to reconnect them with a moral community. John Braithwaite, a theoretician of restorative justice, speaks of "reintegrative shaming."
Restorative justice concepts were intentionally put into practice in South Africa's extraordinary experiment in social healing, the TRC. In the negotiated settlement that ended apartheid, the African National Congress (ANC) sought a judicial reckoning for years of massive, state-sponsored human rights violations. The ruling Nationalist Party insisted on a blanket amnesty for political crimes. This impasse, which threatened to jeopardize the entire settlement, was resolved by a compromise: Amnesty would be granted, but only to individuals. Those seeking amnesty for political crimes would be required to make a full public confession before an independent tribunal created especially for the occasion. Those who failed to apply for amnesty, or who were judged to have made incomplete disclosures, would still be liable to criminal prosecution.
Parliamentary leaders in the new government studied the example of other countries emerging from tyranny, from the Tokyo and Nuremberg trials at the end of World War II through the more recent models of Eastern Europe and Latin America. They reviewed the possible options of war crimes tribunals, truth commissions, and reparations agencies, considering the advantages and disadvantages of each. In the end, they borrowed from all three models. The TRC, constituted by act of parliament in 1994, was organized into three parts: one to hear amnesty applications, a second to develop a reparations policy, and a third to conduct hearings that would establish a public record of the atrocities of the apartheid era.
Under the leadership of its chairman, Archbishop Desmond Tutu, the TRC took as its mission to foster the widest possible participation. Unlike truth commissions in many other countries, which met behind closed doors, the TRC reached out to the people. Commissioners traveled throughout the country, holding over 50 public hearings and taking statements from over 20,000 survivors of political violence. The hearings were broadcast daily on radio, and highlights were shown weekly on national television. Though some people, particularly in the white Afrikaner minority, pointedly refused to watch what they called the "Lying and Crying" hearings, the majority were riveted by the sincerity and dignity of ordinary people who came forward to tell horrendous stories of persecution, torture, and murder.
The result was unprecedented. Not only did victims testify in great numbers, but, faced with the enormity of the accumulating evidence, many perpetrators also broke their silence. The amnesty committee originally expected to receive something on the order of 200 applications; by the time their deadline arrived, they had received over 7,000. Detailed information provided by the perpetrators allowed the TRC to form a coherent picture of organized death squads and to solve a number of infamous political murders. In its final report to the government in 1998, the TRC found that the apartheid government had carried out a "systematic policy of criminal misconduct," authorized at the highest levels. Former heads of state were named as directly responsible for murder and other gross violations of human rights.
But so, too, were veteran leaders of the liberation movement. The TRC's determination to investigate atrocities committed by all sides came as a shock to many within the ANC, who believed that the justice of their cause should immunize them from responsibility for its excesses. In a defining moment of confrontation, Tutu threatened to resign from the commission if the ruling ANC granted amnesty to itself. He insisted that "a gross violation is a gross violation, whoever commits it and for whatever reason. There is thus legal equivalence between all perpetrators. Their political affiliation is irrelevant." By rejecting the proposition that ideology could serve as an excuse for crime, Tutu affirmed his alliance with victims and established their claims as the moral center of justice.
The final report noted that while many perpetrators had been forthcoming in their amnesty applications, political leaders at the highest levels had uniformly failed to acknowledge their responsibility. On the contrary, the performance of leaders had been characterized by bullying, self-righteousness, and contempt for the truth. Based on the evidence they had compiled, the TRC recommended that criminal proceedings be brought against some of the most powerful political figures in the country, including former President P.W. Botha, Inkatha Freedom Party President Mangosuthu Buthelezi (who had been given a cabinet post in the new government), and Winnie Mandela, known to many as "mother of the nation." The report infuriated the entire spectrum of political leadership. Perhaps this was one measure of its success.
Now that the work of the TRC is largely completed, the question of its success is widely debated. Three recent books, all sympathetic to the TRC, contribute to the discussion from very different perspectives. Martha Minow, a professor at Harvard Law School, reviews the theoretical and practical considerations that must be taken into account by any enterprise of this kind and makes a strong case for the South African model. Martin Meredith, a biographer of Nelson Mandela, tells the story of the TRC as a heroic narrative. And Antjie Krog, a South African journalist who covered the truth commission hearings day by day, chronicles the struggle of ordinary people, including herself, to come to terms with an atrocious past.
Minow's treatise could serve as a basic primer for any new democratic government attempting to overcome the legacy of past political crimes [see Nicholas Confessore, "Rwanda, Kosovo, and the Limits of Justice," TAP, July- August 1999]. Her approach is organized, workmanlike, abstract. As a jurist, she is used to balancing competing arguments. She begins with polarities--vengeance or forgiveness, truth or justice--and finds her way to a reasonable middle ground. She warns equally against cynicism and exaggerated hope. She makes it clear that no one model fits all circumstances or satisfies all expectations. All approaches to mass atrocities are bound to be inadequate, she argues, yet all have value, and she carefully details both the strengths and the limitations of each. She is particularly persuasive in her argument that a truth commission is not a "second best" option, compared to a criminal tribunal.
Minow is weakest in her discussion of reparations. She reviews models of governmental reparations, such as the German payments to survivors of the Nazi holocaust, or the U.S. payments and apologies (long after the fact) to the Japanese-American survivors of internment during World War II. However, she does not envisage any mechanism by which individual perpetrators might be held accountable for making restitution to those they have harmed.
One useful model, overlooked in Minow's review, is the U.S. Victims of Crime Act (VOCA). This federal statute levies fines on offenders convicted of certain crimes; the monies are used to fund victim support services and compensate individual victims for medical expenses, missed wages, or other losses sustained as a result of crime. Besides the concrete help that VOCA payments afford, victims derive moral satisfaction from knowing that, for once, offenders have been made to serve them. Although this model was developed to deal with ordinary crimes, it could apply in principle to war crimes and human rights violations as well.
Minow's limited vision of the possibilities of reparation seems to parallel that of the TRC. The fundamental compromise of the TRC was an exchange of amnesty for truth-telling. This bargain made it possible to establish a broad factual record of the crimes of the apartheid state, an unparalleled feat that no tribunal could have accomplished. On the other hand, the bargain left untouched the whole realm of reparations. The perpetrators were not required to give anything back. They did not even have to apologize. (Probably just as well, since most were not sorry.)
Meredith's book tells the story of the TRC as a political thriller. Imagine a Costa-Gavras film. In the opening scene, the women come forward to testify: children, widows, and mothers of the missing and the dead. "I would love to know who killed my father," says 19-year-old Babulwa Mhlawuli. "It is hard to forget and forgive if we don't know who to forgive." Though the victims' voices are heard at the start of the book, thereafter they all but disappear. The protagonists are the prosecutors and the TRC investigators, a cold-case squad armed with subpoena power, moral authority, and determination. Following the evidence, the plot unfolds, gathering excitement as the disclosures reach further and further up the chain of command. Lower-ranking operatives in the secret police break their code of silence to apply for amnesty, implicating colonels, captains, then brigadiers, then generals in their gruesome, matter-of-fact confessions. One by one, untouchable government figures are called to account: the national police commissioner, the minister of law and order, and finally the former president, P.W. Botha, "the great crocodile" himself.
The climax of the story is the confrontation between Tutu and Botha. The TRC calls Botha to testify. He refuses. Tutu offers numerous concessions to accommodate the old man. The offers are rejected. Subpoenas are issued once, twice, a third time. Botha ignores them. Finally, criminal charges are filed, and Botha is brought into the dock before a black magistrate, raging and shouting. Tutu, who must testify against Botha, calls him his "brother," reminds him of the historic importance of the occasion, coaxes him at least to admit that his government might have unintentionally caused pain and suffering to many people, begs him to apologize. Botha is silent. To be compelled to answer for his conduct before his enemies is a mortal insult. He has no intention of apologizing for anything. He is found in contempt of court. A fine is levied; later the judgment is voided on a technicality.
This is the trouble with the conventional narrative. Compelling as it is, it ends with the void. The perpetrator's unfathomable silence is like a moral vacuum, sucking energy and life into itself. The story is still all about him.
In Antjie Krog's kaleidoscopic rendition, by contrast, no one story dominates. There are many stories, told in many languages: English, Zulu, Xhosa, Afrikaans. Krog herself is an Afrikaner, writing in English, caught between her boer family sympathies and her horror at facing what her own people have done. One begins to grasp the breadth and complexity of this sprawling, conflicted country in the process of creating a democracy. By staying close to the testimony of victims, witnesses, bystanders, Krog manages to wrest the center of the story away from the offenders. Disgraced, the offenders suddenly seem smaller, less important. As Botha is led away from the court, Krog pronounces her judgment on him: "I look back into the flat, mud-colored surfaces of his eyes ... and I know that this man ... is dom ... he is a fool. And we have been governed by this stupidity for decades."
A reporter for national radio, Krog records the daily procession of witnesses before the truth commission. "Week after week, voice after voice, account after account. It is not so much the deaths, and the names of the dead, but the web of infinite sorrow woven around them. It keeps on coming and coming... . And this is how we often end up at the daily press conferences--bewildered and close to tears." White people are shocked by these tales of callousness, cruelty, relentless violence. Black people, for the most part, are not surprised; the testimony before the truth commission simply confirms and validates their own experience. But no one remains unmoved by the daily recitation of outrageous suffering patiently borne. Krog soon discards the pretentions of "objective" journalism and begins to ally herself with the victims. She takes it as her mission to break through the pleasant media conventions that render the victims anonymous. "We've done it! The voice of an ordinary cleaning woman is the headline on the one o'clock news!"
Krog shares the victims' bafflement: "What kind of person, what kind of human being, keeps another's hand in a fruit jar on his desk?" She knows part of the answer: He is an ordinary man, of a type familiar to her. She recognizes "that specific salacious laughter, that brotherly slap on the hairy shoulder... . Those who call their sons 'pa se ou rammetjie' or 'my ou bul' ('Dad's little ram' or 'my old bull'). The nightmare of my youth." In her news broadcasts, she begins to address her own Afrikaner community, raising the issue of shared responsibility. Along with the predictable hate mail, she receives many thoughtful letters from people who have been forced to question their most basic beliefs. The truth can no longer be evaded. The crimes of apartheid are exposed. There is no possible justification, no explanation, no excuse. There is only anguish and remorse.
Vindication occurs when legitimacy passes from the offender to the victim, and shame passes from the victim to the offender. When in the eyes of the world, it is the victim, not the offender, who holds her head high. This, finally, is the victim's most enduring triumph. ¤
