Ius Gentium Volume 8.1 Fall 2002 - School of Law - …3/29/05 8:39 AM> IUS GENTIUM · Fall 2002 Chair Mortimer N.S. Sellers University of Baltimore Board of Editors Myroslava Antonovych

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Truth CommissionsF A L L 2 0 0 2

V O L U M E 8.1

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IUS GENTIUMJournal of the University of Baltimore

Center for International and Comparative Law

Fall 2002Volume 8.1

Copyright 2002ISSN: 1534-6781

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IUS GENTIUM · Fall 2002

Chair

Mortimer N.S. SellersUniversity of Baltimore

Board of Editors

Myroslava Antonovych Nadia de AraujoKyiv-Mohyla Academy Pontifícia Universidade Católica

do Rio de Janeiro

Jasna Bak_i�-Mufti� Loussia P. Musse FelixUniversity of Sarajevo Universidade de Brasília

Emanuel Gross Jan KlabbersUniversity of Haifa University of Helsinki

Claudia Mina Marques Eric MillardUniversdade Federal do Insitut Universitaire de FranceRio Grande do Sol

David L. Carey Miller Gabriël MoensUniversity of Aberdeen The University of Queensland

Raul C. Pangalangan Ricardo Leite PintoUniversity of the Philippines Universidade Lusíada

Mizanur Rahman Keita SatoUniversity of Dhaka Chuo University

Poonam Saxena Gerry SimpsonUniversity of New Delhi London School of Economics

Eduard Somers Xinqiang SunUniversiteit Gent Shandong University

Jaap W. de Zwaan

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IUS GENTIUM · Volume 8.1

Erasmus Universiteit Rotterdam

Student Editors

Stephanie HunterUniversity of Baltimore

T. Brendan KennedyUniversity of Baltimore

Administrator

Joyce BauguessUniversity of Baltimore

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IUS GENTIUMCONTENTS

ARTICLE:

Truth, Justice, and Amnesty in South Africa: Sins fromthe Past and Lessons for the Futureby the Honorable S. Sandile Ngcobo

COMMENTS:

Commissioning the Truthby Jan Klabbers……………….…....…..…

National Norms Prevailingby David L. Carey Miller…………………

Insights in the Workingby Eduard Somers………………………...

(Title)by (Author)………………………..……...….

(Title)by (Author)……………………........……….

(Title)by (Author)...………………..……….……

(Title)by (Author)…………………..…..…...….…

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IUS GENTIUM · Volume 8.1 [1]

ARTICLE

TRUTH, JUSTICE ANDAMNESTY IN SOUTH

AFRICA: SINS FROM THEPAST AND LESSONS FOR

THE FUTURE

The Honorable S. Sandile Ngcobo

(Affiliation)

Recent years have seen the collapse of repres-sive regimes and the emergence of democracies inSouthern Africa, Eastern Europe and South America.These new democracies and the international com-munity immediately faced the question of how to dealwith the human rights violations committed by theirpredecessor regimes. There are three possibilities:first, to ignore the violations, forget about the pastand enter into a period of amnesia; second, to prose-cute the perpetrators; and third, to establish a truthcommission, which is really a compromise betweenprosecution and doing nothing at all.'

Prosecution is the most obvious solution, mostrecently implemented by the United Nations to ad-dress the horrors of Rwanda2 and Bosnia3, followingthe examples of the Nuremberg and Tokyo trials.The Rome Statute now offers the prospect of a per-

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manent International Criminal Court of Justice to dealwith these violations. However, other nations - in-cluding Argentina, Chile, Guatemala, Honduras, ElSalvador, and South Africa - have demonstrated thatprosecution is not the only way to confront humanrights violations. These nations have created TruthCommissions that supplement (or supplant) ordinarycriminal prosecution.

Truth Commissions do not prosecute but seekrather to compile a complete record of what happenedin the past, who was responsible, and with what mo-tivation. This record is intended to provide a guidefor the government in developing measures to preventthe future violations of human rights. Some countrieshave made their Truth Commissions the exclusiveforum for addressing past human right violations. InSouth Africa, the Truth Commission was given thepower to grant amnesty to those who come forward toprovide a full disclosure of their misdeeds.

International law scholars disagree about thepropriety of Truth Commissions. Under internationallaw, states have a duty not only to protect the humanrights of all individuals within their jurisdiction, butalso to investigate past violations and to prevent fu-ture abuses. All accept the necessity of investigatingpast human rights violations, but some would say thatthey must also be punished.4 Truth Commissionssometimes act as a substitute for prosecution.5 Thisraises the question of when (if ever) this substitutionwould be just.6

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Truth, Justice and Amnesty in South Africa


3

The South African experience furnishes two an-swers: first, that proper solutions depend on the cir-cumstances; and second, that the relevant circum-stances include not only legal, but also practical andpolitical considerations. While prosecution mayseem obviously more just, sometimes political reali-ties and other practical considerations make prosecu-tion inappropriate. These realities may justify estab-lishing a Truth Commission as the exclusive forumfor addressing past human rights violations, or callfor a combination of a Truth Commission, amnestyand prosecution,

depending on the circumstances. The best solution toprevious human rights violations will be revealed bya case-by-case examination of the circumstances, in-cluding political realities and other practical consid-erations in the country concerned. South Africa pro-vides a useful illustration of this approach.

The South African example leads to three con-

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clusions: first, that although the ultimate goal of pre-venting violations of human rights may require theprosecution of past violations, prosecutions havecertain limitations; second, that Truth Commissionsare particularly useful in the context of transitionfrom a repressive regime to an emerging democracy;and third, that prosecutions, whether national or in-ternational, may be combined with truth commis-sions, when the situation warrants it. In South Africathe coexistence of prosecutions and amnesty throughthe Truth and Reconciliation Commission processwas essential to the transition from the apartheid re-gime to democratic governance.7

PROSECUTION IS GENERALLY THEAPPROPRIATE RESPONSE

It seems to be self-evident that perpetrators ofgross human rights violations must be punished.Prosecution of human rights violations offers numer-ous significant benefits: first, in breaking down thedifferences between those who had control over otherpersons’ lives and those who were once at theirmercy; second, in bolstering the legitimacy of thenew government by showing justice to be done forall, without exception; and third, in diminishing theperception that certain individuals are above the law.This transformation in perception is necessary to es-tablish public support for democratic institutions.

The message that no one is above the law iscrucial where violations were perpetrated under the

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color of law. It removes the perception that thoseindividuals who are charged with the duty to upholdthe law are themselves free to break the law. Byholding violators accountable for their violations, thenew government sends the signal that the authority ofthe law is superior to that of the individual. This isessential to the restoration of the rule of law. Theprosecution of perpetrators distinguishes the emerg-ing democratic governmentfrom its predecessor. This helps new governments toestablish their commitment to the rule of law, and torestore the people’s faith in law where its authorityhas been undermined by the abuse of human rights.8

Prosecutions have other benefits, if the perpe-trators and their accomplices are prepared to talk.This educates the public about what happened in thepast. The present trial of Dr. Basson, the apartheidhead of the South African chemical and biologicalweapons programme, has revealed gruesome andsometimes bizarre details of the apartheid govern-ment’s attempts to eliminate or to neutralize its op-

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ponents. These include testing poisoned beer on un-suspecting black taxi drivers, poisoning chocolate andclothes, and releasing cholera to the water supply at arefuge camp. A bacteriologist testified that he hadfreeze-dried HIV-infected blood for use against ene-mies of apartheid.9

Prosecutions can also serve as deterrents to fu-ture violations. The record of what happened mayhelp the development of protective measures. Prose-cutions provide retributive justice: the offender issent to jail and the victim can receive compensationfor the wrong that was done. This may satisfy thevictim’s desire for vengeance. However, critics ofprosecutions remind us that new democracies arefragile and that they are vulnerable to social animosi-ties created by legal action. For example, prosecu-tions that begin as well-intentioned efforts to bringthe most flagrant violations of human rights to justicemay deteriorate into witch-hunts and create a perva-sive atmosphere of recrimination, destroying the de-veloping social fabric.

In addition, there may simply be too many vio-lations to prosecute. In, South Africa alone, 21,000victims of serious crimes committed in the name ofapartheid came forward to report what happened. Inthese situations, the emerging democracy may find itimpossible to prosecute all the violations and mayhave to decide to prosecute only the most seriousviolations. This may lead to charges of selectiveprosecution and the appearance of "victors’ justice",

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which undermine the new democracy, particularlywhen it has not prosecuted those within its own rankswho may have committed violations.

But prosecutions have other limitations too.Most violations occur in secrecy, with only the victimand the perpetrator present. The victims are oftenkilled, leaving the perpetrators as the only source ofinformation. Unless the perpetrators are prepared totalk, the evidence necessary for a conviction may notbe forthcoming. And unless they obtain the guaran-tee that they will not be prosecuted, the perpetratorsmay not be willing to talk. In these circumstances itmay be difficult to obtain evidence that is sufficientfor conviction.

Even more importantly, many transitional gov-ernments do not represent a complete break with thepast. In some cases, members of the police force andthe security forces that were responsible for heinousacts under the old regime remain in influential posi-tions. Their numbers and their continued control of

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deadly weapons provide them with the capability toundermine the peaceful transition. Their continuedinfluence, may threaten the new democratic order,making prosecutions both undesirable and impracti-cal. Given these realities, the emerging democracymay be compelled to look for alternative approaches.At this point, a Truth Commission may become anattractive option.

TRUTH COMMISSIONS

Truth commissions have emerged as an alterna-tive to the prosecution of human rights violations.They are really a compromise between prosecutionand doing nothing. If prosecution is impossible, truthcommissions may be the best alternative.10

Truth commissions typically serve three func-tions that are vital to the successful transition fromcivil strife to sustainable democracy: first, they havea cathartic effect on a population that has sufferedfrom human rights abuses; second, they demonstratethe new government’s break with the past; third,they demonstrate the new government’s commit-ment to human rights. The motive behind truthcommissions is not revenge, but simply to uncoverthe truth. They bring perpetrators of war into thelight of history and an outraged world, when ordi-nary courts cannot.

WHY THE TRUTH COMMISSION INSOUTH AFRICA?

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For decades South African history was domi-nated by a deep conflict between a minority that re-served for itself all control over political and eco-nomic power and a majority that sought to resist thisdomination. Fundamental human rights were sup-pressed to silence individuals who tried to protest thisstate of affairs. As the conflict deepened, the assaulton human rights escalated. The legitimacy of the lawwas deeply wounded when it became the instrumentof oppression.

Political intolerance grew, even among thosewho fought to resist white minority rule, and this re-sulted in further violations of human rights. As theliberation movements became increasingly infiltratedby outsiders who wanted to spy on their activities,those who were suspected of being spies were dealtwith brutally. The ethos of the liberation movementsthemselves became severely compromised.

The period from 1960 through the 1980s was

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marked by civil unrest and political violence. Anoutraged international community made known itsdisapproval of apartheid with the 1973 InternationalConvention on the Suppression and Punishment ofthe Crime of Apartheid. As the internal and interna-tional pressure grew, apartheid became costly botheconomically and politically. Civil and political vio-lence was no longer confined to black neighborhoods- it also spread to white neighborhoods and to thecities. White neighborhoods were no longer as safeas they had been, and South African whites began tofeel the economic impact of apartheid.

A combination of all these factors led to thedramatic February 1990 announcement by formerPresident de Klerk, the last South African leader topreside over the apartheid regime. Taking the worldby surprise, De Klerk declared that he was embarkingupon a program of political reform that would see therelease of all political prisoners, the unbanning of allpolitical parties, and the commencement of negotia-tions that would pave the way to majority rule. Thisled to a negotiated pace settlement and in effect to anegotiated “revolution”. This peace settlement wasembodied in an Interim Constitution, that providedthe framework for a second (“final”) revised consti-tution for South Africa.

President De Klerk could not make this com-mitment wholly on his own. Transferring power tothe black majority required the support not only of

the ruling elite but also of the police and army gen-

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erals. If he had told his cabinet and the generals thatthey must not only surrender political power to theblack majority, but also be subjected to Nuremberg-style trials and that many would end up in prison, hewould not have received their support. There wouldhave been no negotiated settlement if the leaders ofapartheid thought that they would be put on trial. It isvery probable that de Klerk promised his colleaguesthat they would not be prosecuted.

THE BIRTH OF THE TRUTH COMMISSION

The origins of the truth commission in SouthAfrica may probably be traced to the meeting of theNational Executive Committee of the African Na-tional Congress that was held in August 1993." Thismeeting had been called to discuss the recommenda-tions of the Motsunyane Commission's report. TheMotsunyane Commission was set up by the ANC toinvestigate allegations that captives held by the ANCin its camps in Angola, Zambia, Uganda and Tanza-nia had been subjected to human right abuses and

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that some had been killed. The Commission foundthat human rights abuses had indeed occurred in thesecamps, particularly in the form of gross mistreatmentof captives at the hands of the camp guards. TheCommission recommended that the ANC take someappropriate action, including the setting up of an in-dependent commission to explore the allegations ofdisappearance and murder, and to bring those respon-sible to justice.

After intense debate, the ANC accepted theproposal that a Truth Commission had to be estab-lished to address the issues raised by the MotsunyaneCommission report. This Truth Commission was toinvestigate all human rights violations regardless ofwho had committed them. What is significant here isthat the idea of the Truth Commission did not emergebecause someone said: "Wouldn't it be wonderful tohave a Truth Commission in South Africa to dealwith the transition in a way that has been done inother countries?" Rather, as Albie Sachs observed: "Itcame out of a very specific debate and an intenselyfelt need. It was rooted in our experience. It helpedto solve one of the great dilemmas that sometimesface liberation movements: How does a liberationmovement deal with violations of its own ethos, val-ues and principles by its own members? So this wasthe first pillar, the essential ingredient of our truthcommission." 12

THE CALL FOR AMNESTY

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The concept of the Truth Commission becamelinked with the idea of granting amnesty to those whoconfessed in response to concerns of the apartheid-erapolice and security forces. Many felt that they mightbe subject to prosecution for human rights violationscommitted under the old regime. Their concern aroseprimarily from three factors: first, on the eve of thenew democratic government, President De Klerk'sFurther Indemnity Act - an amnesty statute he forcedthrough Parliament on November 9, 199213 - had beenmet with opposition, not only within the segregatedparliament but also from outside government, and theleaders of the liberation movement and other civicorganization. The Indemnity Act gave the Presidentthe authority to grant amnesty to those who advised,directed, commissioned, ordered, or performed anyact with a political objective. It proscribed bothcriminal and civil proceedings. The applicationswould be made to the National Council on Indemnity,whose deliberations were to take place in secret.Second, the Interim Constitution said nothing aboutamnesty; and third, as South Africa began to emerge

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from apartheid, the public became interested in howto respond to past human rights abuses. Two impor-tant conferences were held in Cape Town to discussthe issue. At these conferences, victims of humanrights abuses related their stories14 and while it wasclear that while there was support for a truth commis-sion, most opposed any blanket amnesty.

It was against this background that the generalsraised their concerns about their future in the newSouth Africa. The security forces were claiming thatthey had loyally defended the negotiation process,that they would loyally protect the first democraticelections, that they knew of a right-wing bombingcampaign that threatened the whole process, and thatthey would do everything in their power to stop thatcampaign. They pointed out that they were riskingtheir lives to save the elections and had cooperatedwith the liberation movements in protecting the ne-gotiations, but that to ask them to submit to prosecu-tion and jail afterwards would be asking too much.

The ANC and the other liberation movementswere not in a position to defend the elections. Theydid not have informers to infiltrate the extremistright-wing groups. Yet to grant a blanket amnestywithout accountability seemed unjust, because itwould suppress the truth. This presented a dilemma.The security forces were still in control of deadlyweapons and fully capable of undermining the peaceprocess. They were needed to protect the first elec-

tions and to help to pave the difficult road ahead.

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Their cooperation was therefore crucial to the transi-tion to democracy, and yet many were guilty of terri-ble crimes.

The solution was to reconcile amnesty with ac-countability. There must be full disclosure of whathappened in the past. To uncover the truth, thosewho knew the truth had to come forward. To gettheir cooperation, there would need to be some in-centive. Amnesty became the incentive for cooper-ating with the Truth Commission. People would getamnesty only if they were willing to come forwardand fully disclose their past misdeeds. As a conse-quence, the draft constitution was amended to reflectthis understanding and an epilogue was added to theInterim Constitution to incorporate the provision forthe establishment of the Truth Commission with thepower to grant amnesty.15

The acceptance of this link between amnesty andthe Truth Commission reflected a deep appreciationof the difficulty and complexity of the task of

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building the new democratic order. Most South Afri-cans understood that the new order could not beachieved without a firm and general commitment toreconciliation and to national unity. Rebuilding thenation required the inclusion of all elements of soci-ety, including those who might otherwise have been athreat to democracy. The unjust consequences of thepast could not every be fully reversed, but they couldbe recognized, to prevent their repetition.

This was the principle that informed the transitionfrom South Africa's divided past to a promisedunited and democratic future. It is eloquently cap-tured in the epilogue to the Interim Constitution,added after the acceptance of the idea that amnestyhad to be linked to the Truth Commission. Theepilogue declared that:

This Constitution provides a historic bridgebetween the past of a deeply divided societycharacterized by strife, conflict, untoldsuffering and injustice, and a futurefounded on the recognition of humanrights, democracy and peaceful co-existence and development opportuni-ties for all South Africans, irrespectiveof color, race, class, belief or sex.

The pursuit of national unity, thewell-being of all South African citizensand peace require reconciliation be-tween the people of South Africa and

the reconstruction of society.

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The adoption of this Constitutionlays the secure foundation for the peo-ple of South Africa to transcend the di-visions and strife of the past, whichgenerated gross violations of humanrights, the transgression of humanitar-ian principles in violent conflicts and alegacy of hatred, fear, guilt and re-venge.

These can now be addressed on thebasis that there is a need for under-standing but not for vengeance, a needfor reparation but not retaliation, aneed for ubuntu but not for victimiza-tion.

In order to advance such reconcilia-tion and reconstruction, amnesty shallbe granted in respect of acts, omissionsand offences associated with political objec-

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tives and committed in the course ofthe conflicts of the past. To this end,Parliament under this Constitution shalladopt a law determining a firm cut-offdate, which shall be a date after 8 Oc-tober 1990 and before 6 December1993, and providing for the mecha-nisms, criteria and procedures, includ-ing tribunals, if any, through whichsuch amnesty shall be dealt with at anytime after the law has been passed.

With this Constitution and thesecommitments we, the people of SouthAfrica, open a new chapter in the his-tory of our country.16

This epilogue created the constitutional founda-tion for the Truth Commission in South Africa.

THE TRUTH AND RECONCILIATIONCOMMISSION

In 1995, the new democratic parliament of SouthAfrica implemented this epilogue by passing thePromotion of National United and Reconciliation Act.This statute established the Truth and ReconciliationCommission and defined its objectives. Its main goalwas to promote national unity and reconciliation “in aspirit of understanding which transcends the conflictsand division of the past” by “establishing as complete

a picture as possible of the causes, nature and extent

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of gross violations of human rights.” Three commit-tees were established for the purposes of achievingthe objectives of the Truth Commission.

A. The Committee On Human Rights Violations

The first committee was the Committee on Hu-man Rights Violations, which conducted publichearings pertaining to gross human rights violationsand gave the victims of human rights abuses the op-portunity to tell their stories. Its mandate was to in-quire into systematic patterns of abuse; to identifytheir motives; to find out whether violations were theresult of deliberate planning on the part of the Stateor the liberation movements; and to designate ac-countability, political or otherwise, for gross humanrights violations.17

B. The Committee On Reparations And Re-habilitation

The second committee was the Committee

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on Reparations and Rehabilitation, whose primarytask was to identify the victims of human rights abuseand their relatives, and to recommend suitable repa-ration for them to the President.

The granting of reparation to the victims was away of acknowledging the harm that they had suf-fered. There was recognition that the compensationthey would receive would not be full compensation.It was intended to be no more than symbolic ac-knowledgment of their pain. What was contemplatedby reparation was something more than monetarycompensation, as the responsibilities of this commit-tee indicate. It had the responsibility to developmeasures for reparation and rehabilitation of victimsand measures to be taken to restore the human andcivil dignity of the victims. It also had to recommendto the government the essential services that wereneeded for the rehabilitation of the victims.

C. The Committee On Amnesty

The third committee was the committee on am-nesty. This committee had the power to grant am-nesty to persons who made a full disclosure of theirmisdeeds, but these misdeeds must have been com-mitted with a political motive as opposed to personalgain. The Committee sat in panels of either three orfive but always chaired by a judge.

THE POWERS OF THE TRUTH COMMISSION

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The committees of the Truth Commission weregiven extensive powers to gather evidence, includingthe power to subpoena individuals who were believedto possess information crucial to the investigation.Refusal to comply with the subpoena was a criminaloffense as was evidenced by the case of former SouthAfrican President P.W. Botha, the predecessor toPresident De Klerk. Botha was put on trial becausehe refused to answer the call of the Truth Commis-sion's subpoena and testify before the Commission.

The sittings of the committees were widelypublicized to ensure maximum attendance by the per-petrators and the victims. The victims or their rela-tives were given the opportunity not only to opposeamnesty but also to put questions to the perpetra-tors.18 There were many cases in which the victimsor their relatives opposed the granting of amnesty.Their rate of success varied widely. And there werecases where the victims did not oppose amnesty.19

THE CONSTITUTIONAL CHALLENGE TO

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AMNESTY

The legislative decision to grant amnesty toperpetrators was not without controversy. It came asno surprise when two families challenged the consti-tutional validity of the statutory provision for am-nesty. The Constitutional Court however upheld theconstitutionality of the amnesty provisions of thestatute. It did so primarily because this had beenprovided for in the epilogue of the interim constitu-tion.

The concerns of the victims who challenged theamnesty provisions were understandable. It is an af-front to one's sense of justice to see perpetrators ofheinous crimes walking the streets with impunity.There is an understandable discomfort that decenthuman beings feel when perpetrators are protected intheir freedom by an amnesty immune from a consti-tutional attack. But the circumstances that lead tothis course must be fully appreciated. As the Con-stitutional Court explained:

The Act seeks to address this mas-sive problem by encouraging these sur-vivors and the dependents of the tor-tured and the wounded, the maimedand the dead to unburden their griefpublicly, to receive the collective rec-ognition of a new nation that they werewronged, and, crucially, to help them

to discover what did in truth happen to their

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loved ones, where and under what cir-cumstances it did happen, and who wasresponsible. That truth, which the vic-tims of repression seek so desperatelyto know is, in the circumstances, muchmore likely to be forthcoming if thoseresponsible for such monstrous mis-deeds are encouraged to disclose thewhole truth with the incentives thatthey will not receive the punishmentwhich they undoubtedly deserve if theydo. Without that incentive there isnothing to encourage such persons inthe positions of the applicants so des-perately desire. With that incentive,what might unfold are objectives fun-damental to the ethos of a new consti-tutional order. The families of thoseunlawfully tortured, maimed or trau-matized become more empowered todiscover the truth, the perpetrators be-come exposed to opportunities to obtain re-

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lief from the burden of a guilt or ananxiety they might be living with formany long years, the country beginsthe long and necessary process ofhealing the wounds of the past, trans-forming anger and grief into a matureunderstanding and creating the emo-tional and structural climate essentialfor the ‘reconciliation and reconstruc-tion’ which informs the very difficultand sometimes painful objectives ofthe amnesty articulated in the epi-logue.20

Amnesty was not the only option available toSouth Africans, but in the circumstances, it was thebest. Maintaining the right to prosecute while disre-garding tlle difficulty of gathering the evidenceneeded to sustain a successful prosecution wouldhave kept the victims and their dependents substan-tially ignorant about what precisely happened to theirloved ones. This would have perpetuated their le-gitimate sense of resentment and grief without in factpunishing the perpetrators, because of lack of evi-dence. The peace process would not have been ableto continue.

The Interim Constitution provided a historicbridge - both the victims and the perpetrators had towalk on this historic bridge to the new society prom-ised at the end of the bridge - a society founded on

the recognition of human rights, democracy and

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peaceful coexistence and development of opportuni-ties for all South Africans without regard to race, col-our, class, belief or sex. Without amnesty, the his-toric bridge itself might not have been erected. Theconcerns raised by the security forces bear testimonyto this reality.

For a successful negotiated transition, the termsof the transition required not only the agreement ofthe victims but also the agreement of those who arethreatened by the transition to a democratic society.If the threat of prosecution, retaliation and revengehad been kept alive, the agreement of those threat-ened by change might not have been forthcoming.And if it had, the bridge itself would have remainedinsecure, endangered by fear and anger. It was inthese circumstances that those who negotiated thetransition to democracy deliberately chose under-standing over vengeance, reparation over retaliation,ubuntu (basic humanity) over victimization.

WHAT DID THE COMMISSION ACHIEVE?

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It will take years to fully assess the work andachievements of the Truth Commission in South Af-rica. After all, its success and failure can only bemeaningfully judged in the context of long-term de-velopments in that country. At this point therefore, itis not possible to do more than offer some very tenta-tive observations concerning its contribution to theSouth African peace process, democracy, and the ruleof law.

THE COMMISSION CONFIRMED THEVIOLATIONS AND REVEALED THEPERPETRATORS

The commission revealed many terrible truths:people who had been reported by the police as hav-ing escaped from police custody but suspected dead,turned out indeed to have died in custody. The caseof Steve Bopape, a Pretoria activist who was ar-rested by the police in 1988 is a case in point. Sub-sequent to his arrest, he was reported by the policeto have escaped from their custody during an inves-tigation. Implicit in the police report was that hehad escaped into exile. The former minister of po-lice confirmed this version of events to the parlia-ment.

But in an amnesty hearing, we were told bypolice officers that in fact, they had tortured Bopapeto death using electric shocks. Thereafter, they hadembarked upon an elaborate scheme to cover up his

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death. This scheme included faking evidence of anescape by getting one of the police officers to wearhis sneakers and to run across the yard. In thismanner they could point out the marks made by thesneakers on the yard as proof of the directionBopape took when escaping. Afterwards, theydrove for miles to dispose of Bopape's body in acrocodile-infested river. In case his relatives did nothear from him in exile, they would have to assumethat he tried to cross the river but was attacked bycrocodiles.

But the commission hearings revealed more.The apartheid government, unable to maintain controlthrough the use of legal means, resorted to increas-ingly ruthless measures against its opponents. In theinterest of its security, the government avoided thejudicial process and instead turned to a pattern ofkidnapping, torture, extra-judicial executions and dis-appearances to combat any perceived subversion.The enemy became anyone who was not on the list ofits friends. The victims included union leaders, re-

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ligious leaders, people who assisted the poor andvirtually anyone who threatened the status quo.

A regime of draconian laws was deployed toachieve the government’s ends. Laws permitted de-tentions without trials. People could be held forlengthy periods in detention and in solitary confine-ment without access to lawyers or relatives. Theseconditions created an atmosphere where gross humanrights violations could be perpetrated with immunity.

One commonly used method was disappear-ance. Victims were kidnapped or arrested, held incommunicado in clandestine prisons or farms used forthis purpose, without access to lawyers or relatives,and subjected to torture to force them to incriminatethemselves. If they were not prepared to confess orprovide the information that the police wanted, theywould be either tortured to death or secretly executedwithout trial. The bodies of the victims were eitherburied in unmarked graves or burnt to ashes or, as theBopape story indicates, thrown into crocodile-infested rivers. The South African public was toldhow the security police would enjoy a barbecue whilethe body of the victim was burning nearby.

Some of these revelations led to the exhumationof the bodies of the victims, and this allowed therelatives to give their loved ones decent burials. Theremains of the loved ones meant a lot to families ofthe victims as illustrated by a mother at one of the

hearings who cried: “Please can’t you bring back

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even just a bone of my child so that I can bury him”.But the remains of the victims told shocking storiesof cruelty. A perpetrator pointed out the unmarkedgrave of a woman who had been unwilling to cooper-ate with her torturers and had paid the ultimate pen-alty. Her remains were found - but they told a storyof what she had gone through. The skull had a bullethole right on top, indicating that she had been shotwhile kneeling. A blue plastic bag around the pelvistold another story. She had been kept naked by hertorturers for ten days and had made herself underwearfrom a plastic bag.

These revelations were painful. They requiredthe victims and their relatives to re-live the traumaof the disappearance of their loved ones and face thereality of what they had hoped would not be con-firmed - that their loved ones had been killed.However these revelations were significant: first,they put an end to the uncertainty of what had hap-pened to the people who had disappeared; second,they refuted the apartheid government’s as to what

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had happened to the victims - they did not disappearinto exile as the apartheid government sought tosuggest; and third, most importantly, the search forthe truth and its public inscription served an impor-tant public interest. They refuted denial that wouldhave distorted our history.

Without these revelations our country would havehad at least two histories, one remembered by thevictims of apartheid and another by their former op-pressors. The denials issued by the apartheid gov-ernment would have been believed by some, espe-cially those who wanted to alleviate their guilt in re-spect of what they knew or did not know, what theycould have done but did not do.21

These stories were told in public, and werebroadcast live on national television and on nationalradio. In addition, the Truth Committee's proceed-ings were held either in the areas where the violationswere committed or where the victims came from andthe proceedings were translated into the primary locallanguages. This helped to carry the commission andits work into every corner of South Africa. The spe-cial radio broadcast in all official languages, to makesure that even the illiterate did not miss out.

RECONCILIATION

These revelations did not necessarily produceimmediate reconciliation. Reconciliation, like the

healing of a wound, is a process. It is not a destina-

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tion. It cannot be achieved overnight. Apartheid leftdeep wounds in South Africa and these wounds willnaturally take time to heal. If reconciliation is de-fined as forgiveness on a massive scale, that did nothappen.

There were dramatic moments when perpetra-tors and victims came face to face, with the perpe-trators asking for forgiveness and the victims ex-pressing their willingness to forgive. On these occa-sions, and they were not many, the victims expressedan understanding of why the perpetrators committedthe atrocities against them. Victims were being testedin their capacity to love and forgive their enemy. Butfor some, it was asking too much of human nature toforgive someone who maimed you or who executedyour loved one.

The importance of allowing the victims to telltheir stories, of listening to them and giving them theopportunity to confront the perpetrators cannot beunderestimated. It had a cathartic effect. Of the

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Truth Commission in Chile, Jose Zalaquett, one ofthe commissioners, remarked:

The contact with so many familiesof victims convinced me of the para-mount importance and the catharticpower of seeking to establish the truth.The families had refused to allow theprevious government authorities to seethem cry as they searched for theirloved ones. But now they were beingreceived with respect and offered a seatand cup of coffee. At first, we did notrealize that the very process of seekingthe truth was thus also a patient processof cleansing wounds, one by one.22

These remarks echo the sentiment of a SouthAfrican widow whose husband, a lawyer, had beenkilled by apartheid agents. Remarking on the im-pact of having told her story to a conference re-garding the Truth Commission, she said, “You knowlast night is the first night that I’ve been able tosleep through since I heard about my husband’sdeath”. When asked how she accounted for this, sheresponded, “I don’t know, but I can only put it downto the fact that so many important people fromSouth Africa and from abroad were interested inhearing my story.”23 This illustrates the importanceof acknowledgment to the victims.

In the short term, the success of the commissiondoes not lie in its ability to bring about reconcilia-

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tion, but rests in its ability to pave the way for na-tional reconciliation and nation building. Indeed, itssuccess must be judged by its ability to put the nationon the road to the healing of the emotional woundsthat had continued to divide our nation. The TruthCommission told the truth in a nation that was notaccustomed to hearing the truth. The lies and decep-tion were at the heart of apartheid - which were in-deed its very essence - were frequently laid bare. Wenow know what happened to Steve Bopape.

The healing process begins with the knowl-edge of the truth and acknowledging it. This allowsthe nation to focus on the future rather than on thecruel and divisive past. It removes one of the biggestobstacles on the road to reconciliation - the denial ofthe truth that divided the nation and haunted its con-science. By uncovering the truth to the extent that itdid, the Truth Commission turned the narrow road toreconciliation into a highway.

JUSTICE

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But what of justice? The problem of satisfy-ing the demands of Justice in a nation that is goingthrough a transition is a difficult task. A nation intransition, searching for justice in a society dividedby its past, and seeking to move forward, is likely toperceive justice differently than a stable nationwould. Incomplete justice may be enough. As onehuman rights lawyer in South Africa has put it, it maycome down to a choice “between the silence of theperpetrators without justice being done and learningthe truth without perfect justice having been done.”24

The perpetrators had to pay a price for theirmisdeeds. First, they had to admit full responsibilityfor the misdeeds for which they sought amnesty.Therefore, there was no question of immunity. Sec-ond, they had to confess their guilt in public in thefull view of national television cameras, national ra-dio and the public, including the victims and theirrelatives. People who had been considered decenthuman beings by their families and members of theircommunity were revealed as callous torturers, ruth-less murderers and members of death squads. Somewere shown to be so callous that they could enjoy abarbecue while the body of a victim that they had justmurdered was burning in the fire nearby. These pub-lic disclosures led to public shaming. Perpetrators ofhuman rights violations were confronted by their liesin public.

Men who had considered themselves to be

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above the law were shown to be below the law.Abandoned by the people who had sent them to thetrenches, they suddenly discovered that what they hadbeen rewarded for, given medals for, and promotedfor, were terrible and cruel actions. In one of theTruth Commission hearings, I asked a police sergeantwho was seeking amnesty whether he had anythingthat he wanted to add to his testimony. He looked atme and said, “Judge I do not know why I am here.” Ireplied: “But you are here to ask for amnesty”. Hesaid, “Yes I know. The people that I had committedthese things in order to protect have now abandonedme. Yet everything I did was to protect them, now Istand alone. I look like a fool who just did thesethings for no reason.” This captures the sense of al-ienation and abandonment that some perpetrators felt.

Of course the shame does not end with the pub-lic hearings. The perpetrators had to return to theirfamilies, wives, children, relatives and neighbors,who may not have previously known about theatrocities, and heard about them for the first time on

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public radio or television. How do the perpetratorsbegin to explain these atrocities to their wives, chil-dren, relatives and friends? How do they begin toexplain the lies they may have told, how do they ex-plain the fact that they are murderers, assassins, mon-sters who could enjoy a barbecue while the body of aperson they had just murdered was burning? Thepublic shame and the sense of abandonment whichthese killers feel may be a form of punishment thatmay satisfy the demands of justice in a country intransition, though it may not be perfect justice.

Of course the Truth Commission was concernedwith another kind of justice - restorative justice whichis concerned not so much with punishment as withcorrecting imbalances, restoring broken relationships- with healing, harmony and reconciliation. Such jus-tice focuses on the experience of victims hence theimportance of reparation. The victims of humanrights abuses were entitled to reparation. Reparationin this context must be something more than mone-tary compensation - it must include measures to re-store the human and civil dignity of the victims, byrecognizing that they have been wronged.

The Truth Commission could also recognizethose instances where victims of apartheid were con-victed of criminal offenses on the basis of confes-sions obtained by torture, despite their innocence, orby other illegitimate means.

Three ANC members who were convicted and

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sentenced to death illustrate the problem. During theapartheid era, three members of the ANC were triedfor a murder that the state alleged had been commit-ted in the course of the ANC's armed struggle. De-spite their protestations of innocence and allegationsthat the evidence against them had been obtainedthrough torture, they were convicted and sentenced todeath. Prior to their execution, the government im-posed a moratorium on executions. After the newdemocratic government had come to power and theTruth and Reconciliation Commission had been es-tablished, members of the Pan African Congresscame forward and admitted that they had carried outthe attack for which the ANC members had beenconvicted and condemned to death.

Others who claimed that they had been wronglyconvicted were not as lucky. They came to theCommission and declared their innocence. Theyclaimed that their convictions were wrongful andsought to have their names cleansed. But the amnestycommittee was only concerned with the guilty. The

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Committee could take no action, for example, whentwo men sought amnesty for their conviction andsentence in respect of the Boipatong massacre. InJune 1992, at the Boipatong township, some 60 milessouth of Johannesburg, approximately 45 people werekilled, including women and children. Scores of oth-ers were injured and a number of homes were de-stroyed when supporters of the Inkatha FreedomParty attacked supporters of the ANC. The attackwas carried out by some 300-500 armed men from thenearby men’s hostel. Subsequently, approximately80 men were charged with various counts of murderand other related offenses. About 18 were eventuallyconvicted. They later appeared before the AmnestyCommittee of the TRC to apply for amnesty.

Among the applicants were two men whoclaimed that they had not been present during the at-tack. Their evidence before the committee was cor-roborated by those who were present during the at-tack and who testified that the two men had indeedbeen nowhere near Boipatong the day of the attack.

Members of the Amnesty Committee had noreason to disbelieve them. In fact, it appeared to thecommittee highly improbable that these two menwould come to the committee and lie about their in-nocence, since all they had to do to go free was toconfess to being involved in the attack and be grantedamnesty. But to them, the truth was that they had nottaken part in the massacre and there was nothing to

confess.

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Even though they had not motive to lie beforethe committee and members of the committee (in-cluding myself) had no reason to disbelieve them, andhad on the contrary corroborating evidence of theirinnocence from men who admittedly took part in theattack, we had no authority to grant them amnesty.We could only grant amnesty to the guilty, not to theinnocent. The truth in this case did not set them freebut instead sent them back to prison.

THE RESTORATION OF THE RULE OF LAW

One of the consequences of the abuse of hu-man rights carried out under the colour of the lawwas that the legitimacy of the law was deeplywounded. Certain individuals, in particular thosewho were entrusted with the duty to uphold the law,were perceived as being above the law. What isunique about the Truth Commission in South Africais that prosecutions were not abandoned: they existedside by side with amnesty. There was amnesty for

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those who confessed fully. Those who did not comeforward, like Dr. Basson, were indeed prosecuted.The prosecution of a high-ranking apartheid spy is initself the vindication of the rule of law.

Perhaps the authority of the law in the newSouth Africa was demonstrated most vividly in thetrial of former President P.W. Botha for failure toobey a commission subpoena. The Commission hadbroad powers to gather evidence and to receive in-formation. They could subpoena anyone who wasbelieved to have information in connection with theviolation of human rights. When Botha refused toobey the Truth Commission’s subpoena, he wasprosecuted. What is more, he was tried by a blackmagistrate. This was a symbol of how things hadchanged. People who had thought of themselves asbeyond the reach of law were shown to be fully sub-ject to the legal process.

WHAT DO WE LEARN FROM THISEXPERIENCE?

The manner in which political change comesabout in emerging democracies determines how bestto respond to human right abuses. In a majority ofcountries that have had to confront this problem, po-litical change did not come about by overthrowing theold regime but emerged instead from a peaceful evo-lution. In almost all the countries where change cameabout through a negotiated peace settlement, Truth

Commissions have been adopted as appropriate re-

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sponses to past violations. The Truth Commissionemerged from political necessity, respecting existingpolitical realities.

South Africa is no exception. In South Africa,political change came about as a result of a peaceprocess - it was a negotiated political change. It oc-curred with the agreement of those who were impli-cated in the violation of human rights. Their supportwas crucial to the peace process. South Africanswere confronted with the reality that the human rightscriminals were fellow citizens, and were livingamong us.

The army and the police, some of whosemembers were implicated in human rights abuses,were powerful and remained a threat to peaceful tran-sition to the promised democratic future. They hadprotected the peace negotiations, and they were will-ing to protect the first democratic elections. But ifthere was a continued threat of going to jail withoutan alternative to avoid prosecution in the new South

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Africa, their cooperation may not have been forth-coming. They had already voiced their concerns inthis regard. Judge Marvin Frankel explained the di-lemma well in his book, Out of the Shadows of theNight: The Struggle for International Human Rights,when he wrote that:

The call to punish human rightscriminal can present complex and ago-nizing problems that have no single orsimple solution....

A nation divided during a repres-sive regime does not emerge suddenlyunited when the time of repression haspassed. The human rights criminalsare fellow citizens, living alongsideeveryone else, and they may be verypowerful and dangerous. If the armyand police have been the agencies ofterror, the soldiers and the cops aren’tgoing to turn into paragons of respectfor human rights. Their numbers andtheir expert management of deadlyweapons remain significant facts oflife... The soldiers and police may bebiding their time, waiting and conspir-ing to return to power. They may beseeking to keep or win sympathizers inthe population at large. If they aretreated too harshly - or the net of pun-ishment is cast too widely - there may

be backlash that plays into their hands. But

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their victims cannot simply forgive andforget.

These problems are not abstractgeneralities. They describe tough re-alities in more than a dozen countries.

Yet, the past cannot be ignored. Unconfrontedwrongs repeat themselves. Victims of human rightsabuses were yearning for the truth. But that truth layburied with the victims in unmarked graves or washidden in the consciences of the perpetrators. Am-nesty was a price worth paying, to learn the truth.The denials issued by the apartheid regime had to berefuted by truths outside the old judicial machinery,which was tainted by the apartheid regime.

The pursuit of national unity, the well being ofall South Africans and everlasting peace requiredreconciliation between the people of South Africa andthe reconstruction of society. The task of rebuildingthe nation required the participation of all South

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Africans. Truth and amnesty helped to lay a securefoundation on which the people of South Africa couldtranscend the divisions of the past that generated somany gross violations of human rights.

South Africa had to begin the long and neces-sary process of healing the wounds of the past, trans-forming grief and anger into mature understandingand creating the emotional and structural climate es-sential for national unity and reconstruction of a di-vided nation.

These realities supported the decision to set upa Truth Commission with the authority to grant am-nesty to those who would come forward to confessfully, while reserving the right to prosecute those whowere not willing to come forward. This was a politi-cal compromise. The decision to link amnesty to theTruth Commission was informed by history, experi-ence, and above all the prevailing political realities.

CONCLUSION

Three things stand out about the Truth and Rec-onciliation Commission in South Africa: first, thepublic nature of its hearings. This served to educatethe public directly about what had happened in thepast. They did not have to wait for a report thatwould not have conveyed the truth in the dramaticfashion that the public hearings did; second amnestywas granted to those who disclosed fully in public

what they had done; and third, prosecutions were

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not completely abandoned. There was always a threatof prosecution for the perpetrators who did not comeforward and confess in public. Without the threat ofprosecution, few would have come forward. Thepublic disclosure of misdeeds forced many perpetra-tors who would not have come forward to cooperate.Those who did not come forward were prosecuted.The South African experience demonstrates thatprosecutions and amnesty through the Truth and Rec-onciliation Commission can coexist.

Our experience shows that neither prosecutionnor amnesty through the Truth Commission is theonly answer to the problem of dealing with past vio-lations of human rights in a country in political tran-sition. But they go well together. Each reinforces theother.

Professor Charles Villa Vinceio, former Direc-tor of Research in the South African Truth and Rec-onciliation Commission has observed, that “the inex-actitude of peaceful coexistence and national recon-

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ciliation are most likely to be born where legal, po-litical and moral absolutes are decalcified under thespotlight of rigorous enquiry and a creative responseto political realities. Principled compromise that ig-nores neither the realities of political context nor thewisdom of judicial insight captured in internationalhuman rights law can create a sustainable break-through toward achieving peace and reconciliation.”

The South African experiment in truth and rec-onciliation has bequeathed at least three lessons to theinternational community: first, that there is no singleor simple solution to the complex and agonizingproblem of how to deal with past human rights viola-tions; second, while prosecution is usually most ap-propriate, the prevailing political realities and otherpractical considerations may militate against prose-cution; and third, the coexistence of prosecution andthe offer of amnesty through the Truth and Recon-ciliation Commission may become an essential ingre-dient to the process of transition.

The concept of the Truth Commission has manyvariables. South Africa's Truth Commission played auseful role in moving from a divided and violent pasttowards a more united and democratic future. Theproblem of how best to deal with past human rightsviolations can most effectively be determined by thenation itself. The choice must be informed by thehistory, culture and above all the prevailing politicalrealities in the country concerned.

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ENDNOTES

1 Richard Goldstone, “Past Human Right Violations: TruthCommissions and Amnesties or Prosecutions”, 51 NorthernIreland Royal Quarterly, No. 1 p. 164-165.

2 U.N. Doc. Security Council Resolution 995 (1994), whichapproved the Statute for Rwanda Tribunal.3 U.N. Doc. G Resolution 827 (1993), approving the Statute for

Yugoslavia Tribunal.4 Diana F. Orentlicher, “Settling Accounts: the Duty to Prose-

cute Human Rights Violations of Prior Regime”, 100 YaleLaw Journal, 2537, 2541 (1991).

5 Jo M. Pasqualucci, “The Whole Truth and Nothing but theTruth: Truth Commissions, Impunity and the

Inter-American Human Rights System”, 12 Boston Uni-versity International Law Journal, 321, 323-4.

6 S. Landsman, “Alternative Responses to Serious Hu-

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man Rights Abuses: Prosecutions and Truth Commissions”,59 AUT Law & Contemporary Problems, 81, 82 and 92;Martha Minow, “Between Vengeance and Forgiveness”, 71(1992); Charles Villa-Vicencio, “Why Perpetrators Should notAlways be Prosecuted: Where the International CriminalCourt and Truth Commission Meet”, 49 Emory Law Journal205. Supporters of Truth Commissions argue that althoughthey are not directly sanctioned by international law, their ex-istence is nevertheless consistent with international law be-cause, through their investigation and dissemination of thetruth about past human rights violations, they inform the gov-ernment on how to implement deterrent measures that willprevent similar abuses from reoccurring. Indeed, part of themandate of the Truth Commissions is to make recommenda-tions to the government on what measures are necessary toprevent recurrence of human rights abuses.

7 Villa, p. 209.8 Landsman, p. 83.9 BBC News - Africa, “S.A.’s ‘Dr. Death’ gives evi-

dence”, 23 July 2001,http://news6.thdo.bbc.co.uk/hi/eng…frica/newsid%5fl452000/14525.

10 Goldstone, p. 165.11 Albie Sachs, “Truth and Reconciliation” 52 SMU Law

Review, 1563.12 Sachs, p. 3.13 This was at about the same time that the Goldstone

Commission, which had been set up to investigate politicalviolence, was hearing testimony that police were involved in

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the violence. Of course President De Klerk denied that thepurpose of the bill providing for amnesty was intended togrant amnesty to government perpetrators. There was opposi-tion to this bill inside and outside of the racially segregatedparliament from which Africans were excluded and at first itfailed to pass into law. Then De Klerk resorted to a parlia-mentary device for breaking a deadlock that had not been usedfor a long time. In terms of this device, the bill was referredto the President’s Council where the Nationalist party enjoyeda majority.

14 Goldstone, p. 167.15 Constitution of South Africa 1993.16 Azapo & Others v. President of the Republic of South

Africa, 1996 (4) S.A. at 676-677.17 This committee gave the victims of human rights viola-

tions the opportunity to come forward and tell their stories --stories of pain from physical harm, stories of emotional painfor the loss of loved ones, stories of the pain of living in theuncertainty of not knowing whether their loved ones weredead or still alive. Ordinary people who had never had the

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opportunity to speak, spoke for the first time in public. It wasknown that people had been killed while in detention, it wasknown that people had been tortured by the police, it wasknown that people had disappeared from the camps in exileand indeed it was known that many people had lost their livesin the political conflict that engulfed the country, that pittedfriends against friends, father against son, where the enemywas defined in terms of where one lived. But what was notknown was the pain of the individuals who had suffered as aresult of these atrocities. Their pain had not been acknowl-edged. But now they were being listened to, they were be-lieved, and their pain was being acknowledged in public.

18 Such opposition was limited to showing either that theperpetrator had not disclosed all the material facts relating towhat he did or that the misdeeds in respect of which amnestywas sought had not been politically motivated. This was notan easy burden to discharge.

19 Opposition to amnesty turned amnesty hearings into fullblown trials with all their adversarial features. The victim hadthe right to legal representation just as the perpetrators had.This led to the hearings taking much longer to finish. How-ever, it was crucial to the process to afford the victims of theviolations or their relatives the opportunity to oppose amnestyas the decision to grant amnesty had the effect not only ofpreventing a criminal prosecution but also preventing a claimfor damages. In addition, persons who were to be implicatedin the course of the hearings had to be given notice and be af-forded the opportunity to challenge the evidence implicatingthem. This procedure was essential to allow the individuals

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who were implicated the opportunity to challenge the evi-dence associating them with the violation of human rights.

20 Azapo & Others v. President of the Republic of SouthAfrica, 1996 (4) S.A. at 684.

21 Goldstone, p. 168.22 Interviews with Bizos cited in Villa, p. 221.23 The very act of compelling perpetrators to come for-

ward under the pain of prosecution is in itself a demonstrationthat no one is above the law in the new South Africa. Seniorpolice officers of the apartheid government, who were oncethought to be above the law, were being compelled by the laweither to come forward or face prosecution. Once the footsoldiers came forward to tell of their role, the generals had tocome forward too, otherwise they risked prosecution.24 Botha is the same official who in the late 1980s or early 1990s

reprimanded his foreign minister for suggesting that there might bea black majority rule in South Africa. He was considered untouch-able under the apartheid regime. In the course of itshearings, the committee on human right violations ob-tained documents from the apatheid state security

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commission, one of which bore his signature. He wassubpoenaed to come and explain the meaning of certaindocuments by the State Security Council, a panel wasprosecuted for contempt. What he never thought wouldhappen in his lifetime was about to happen: an Africanmagistrate tried him. He was duly convicted and heappealed.

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IUS GENTIUM · Volume 8.1 [58]

Commissioning the Truth

Jan Klabbers

University of Helsinki

The truth, so my basic encyclopedia1 suggests, is a bitof a fickle thing. The encyclopedia lists there to be variousapproaches about possibly establishing the truth, whichsuggests that truth itself is dependent on the approachchosen. And if that is so, then we're only a short step awayfrom conceding that there is no such thing as "the truth";instead, there may be more truths than one, and we justmay end up with the relative rather than the absolute truth,in MacCormick's memorable phrase.2

With this in mind, the establishment of truthcommissions during or after a period of politicaltransition comes across, at first sight, as a curiousenterprise: if the absolute truth is out of reach, then what

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1The New American Desk Encyclopedia (New York:Signet, 1993), at 1231.

2See Neil MacCormick, Legal Reasoning and LegalTheory (Oxford: Clarendon Press, rev. edn, 1994), at 271.

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is the point of establishing a commission to find it? Iftruth is relative, then which truth, or whose truth, is beingestablished by a truth commission? And if truth isunknowable, what interest is being served by the searchfor such an elusive thing?

One of the more curious aspects about JusticeNgcobo's contribution on South Africa's Truth andReconciliation Commission elsewhere in this issue is itsalmost apologetic tone.3 For Justice Ngcobo, the SouthAfrican Truth and Reconciliation Commission seems torepresent a second-best solution: "While prosecution mayseem obviously more just, sometimes political realitiesand other practical considerations make prosecution

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3S. Sandille Ngcobo, "Truth, Justice and Amnesty inSouth Africa: Sins from the Past and Lessons for the Fu-ture", elsewhere in this issue.

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inappropriate."4 And elsewhere: "If prosecution isimpossible, truth commissions may be the bestalternative."5

This apologetic tone seriously underestimates thevalue of truth commissions. While establishing the truth ismost likely impossible for any commission (this owessomething not just to the elusive nature of truth, but alsoto the impossibility of achieving much of substance bymeans of a commission), the value of truth commissionsresides elsewhere. Truth commissions are at their mostinstrumental in prescribing which truth will prevail for theforeseeable future.

II

Prosecution of human rights violators during or afterpolitical transition, and the establishment of a truthcommission to come to terms with human rights violationscommitted by a past regime, both presuppose that truth issomething different from mere opinion, or idea, or belief.Truth, its relativity aside, is something that precludesdebate. A truth claim is a claim that something eitherexists or it does not; that someone either committed

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4Ibid., at 3.

5Ibid., at 7.

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something or did not; that something is either true or not.Faced with a truth claim, debate is no longer possible,except on whether the claim itself is true or false. But thatdebate differs fundamentally from debates about beliefs,ideas or opinions.

In being so uncompromising, truth is highlyambivalent: as Hannah Arendt puts it, as a political mattertruth has a despotic character, and is therefore hated bytyrants and dictators, as long at least as they have nomonopoly on truth.6 Indeed, much of the attraction oftrying to find the truth after a nasty regime has come to anend is precisely to demonstrate the falsehood of the past.Yet, by being so categorical, truth itself precludes politics:"The trouble is that factual truth", Arendt wrote, "like all

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6See Hannah Arendt, "Truth and Politics", reproducedin her Between Past and Future (New York: Penguin,1977), 227-264, at 241.

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other truth, peremptorily claims to be acknowledged andprecludes public debate, and debate constitutes the veryessence of politics."7

Both prosecution and truth commission hearingsaim to establish the truth (or at least a version of thetruth), but given the dual nature of truth in politics (hatedby tyrants but itself having tyrannical potential), it couldwell be argued that truth commissions are superior totransitional trials, at least in the sense that the truthcommission represents a more overt recognition of thepolitical nature of truth.

Transitional trials, after a regime has been oustedand has been replaced by a new regime, work on thecuriously ambivalent presumption that truth is non-polit-ical and highly political at the same time.8 Truth isdeemed to be non-political in that faith is placed in therule of law; closing the book of the past is left to thearguments of lawyers, legal rhetorics, and the neutralwisdom of judges. This may or may not be very

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7Ibid., at 241. Arendt distinguished between factualtruth and philosophical truth.

8See generally also Ruti Teitel, "TransitionalJurisprudence: The Role of Law in PoliticalTransformation", 106 Yale Law Journal (1997), 2009-2080.

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convincing, but at least it is worth pointing out thatprosecution usually purports to effectuate the neutral ruleof law by putting entire regimes on trial, as has often beennoted.9

At the same time, prosecutions are intenselypolitical, in the candid recognition that a new truth shouldreplace the previous truth combined with the perhaps notso candid sentiment that this transition should be given theimprimatur of legitimacy by reference to the rule of law.Indeed, in its most cynical form, prosecution results inshow trials, in which the rule of law is used as the thin

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9See, e.g., Hannah Arendt, Eichmann in Jerusalem: AReport on the Banality of Evil (New York: Penguin 1977,first published 1963); see also Guyora Binder,"Representing Nazism: Advocacy and Identity at the Trialof Klaus Barbie", 98 Yale Law Journal (1989), 1321-1383.

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veneer over the exercise of raw power.10

Given this ambivalence of prosecution, the netresult is that trials may not be the best possible way toestablish the truth (any truth), except for signalling that anew regime is in power and that therewith the truth is nolonger what is used to be. That is not to say that trials maynot serve other purposes11, most predominant among themperhaps the public cleansing of the national soul, thepurging of the past12; it is merely to say that the truth-

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10On the political nature of the rule of law, see MartinLoughlin, Sword & Scales: An Examination of theRelationship between Law and Politics (Oxford: HartPublishing, 2000). See also Judith N. Shklar, Legalism:Law, Morals, and Political Trials (Cambridge MA:Harvard University Press, 1986, 2d edn.).

11Elsewhere I argue that the argument of deterrence isnot very plausible when political acts are involved. SeeJan Klabbers, "Just Revenge? The Deterrence Argumentin International Criminal Law", 12 Finnish Yearbook ofInternational Law (2001, forthcoming).

12The ambivalence also finds its way into thevocabulary. Terms such as cleansing, purging, orpurification are all very capable of transmitting highlynegative connotations as well: cleansing of the soul maybe close to ethnic cleansing.

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generating capacities of transitional trials need not beoverestimated. By contrast, the truth commission maybe far better suited for the purpose of coming to termswith the past. The phenomenon of the truth commissionrecognizes that truth and politics are intimately connected,and that there is no a-political realm where the law reignssupreme, free from all things political. Indeed, JusticeNgcobo highlights as much when hypothesizing that SouthAfrica could have had at least two histories, oneremembered by apartheid's victims, and one rememberedby their former oppressors.13 On the other hand, he alsosuggests that truth commissions may help restore the rule

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13See Justice Ngcobo, note 4 above, at 25. On SouthAfrica's truth commission more generally, see TapioPuurunen, The Committee on Amnesty of the Truth andReconciliation Commission of South Africa (Helsinki: ErikCastrén Institute, 2000).

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of law, which would seem to represent a return to the a-political realm somewhere above and beyond politics.14

Again, then, ambivalence reigns: the pull of thedesire to turn to normalcy and establish a society on thebasis of the rule of law and democracy is met by the pullof the desire to somehow rewrite, or at least re-touch,history. The problem then is, of course, that the two seemto be incompatible: rewriting history is the very antithesisof the rule of law and democracy, however preciselydefined. Or is it?

III

In western style democracies one would be hard put tofind truth commissions of the sort that have dominated thepolitical landscape in parts of Africa and Latin Americaduring the last few decades. Yet, on a smaller scalewestern style democracies may possess similar institutionsor possibilities in the form of parliamentary enquirycommittees: truth commissions writ small. If anything,these suggest that the re-touching of history is notaltogether unfamiliar to well-established democracieseither.

In a country such as the Netherlands, parliament hasthe power to instigate a parliamentary enquiry whenever itis of the opinion that something not quite warranted has

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14Justice Ngcobo, note 4 above, at 4.

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occurred. While historically this power may haveoriginated merely as a tool to aid in the provision ofinformation for purposes of current or future decision-making, in practice it has turned into an instrument tocome to terms with the past.

A good example of this use is that, at the time ofwriting, Dutch parliament is reported to be contemplatingthe establishment of an enquiry committee to investigatethe Srebrenica disaster. As is well known, thousands ofBosnian muslims were slaughtered in 1995 in the villageof Srebrenica while Dutch peace-keeping forces stood byidly, clinging to their instructions and taking thecommandment of using force only in self-defence veryseriously indeed. The incident took place in 1995, andwhile it led to some high-level political rumblings, noimmediate political consequences followed: parliamentdid not, e.g., force any members of the government toabdicate. A Dutch research institute was subsequentlycharged with the task of analyzing what went wrong, andfollowing publication of its report in the spring of

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200215, the Dutch government collectively resigned andparliament was said to be discussing the possibilities of aformal enquiry.

The interesting thing is twofold. First, there is fairlylittle of immediate substance to gain for parliament: thegovernment has already resigned and accepted all sorts ofpolitical responsibility. Second, and related, there is fairlylittle left to find out by an enquiry: there is a hefty reportwhich took some seven years to prepare, the governmenthas accepted responsibility, what more could possibly beestablished?

The one thing left perhaps is an enquiry intoparliament's own role in the matter: why did it not takecontrol in 1995 and sent the then-government home? Whydid it not conduct serious debates inside and outside TheHague? Why did it not assume responsibility for its ownfailure to properly oversee the activities of the governmentand the military? Whereas in constitutional theory if notalways in practice, parliament does have a important sayin Dutch political life, it is more than likely thatparliament's own role will not be highlighted by anyparliamentary enquiry: instead, the parliamentary enquiryserves as the symbolic gesture reassurance to the Dutch

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15For further information concerning the report, seehttp://www.srebrenica.nl/en/index.htm (last visited 18June 2002).

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populace that nothing slips by it unnoticed, if necessarymany years after the fact.

While parliament may have been caught napping, ormay have been too caught up in partisan considerations totake much action when Srebrenica actually took place, thevery purpose of the parliamentary enquiry is to tell theworld at large that Dutch parliament never sleeps and isvigorous when it comes to defending the values ofdemocracy and the rule of law, if necessary byinvestigating the past.

IV

If this is plausible, then an uncomfortable analogypresents itself: if Dutch parliament uses the right toestablish a parliamentary enquiry to wash its own hands ininnocence, to what extent are truth commissions and post-transition prosecutions engaged in whitewashing, engagedin re-touching the past so as to minimize the possiblecontributions of the present regime to the misdeeds of

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the past? To ask the question presupposes, of course, animportant given: it presupposes that there is indeedsomething to whitewash, that indeed it is not impossiblefor the new regime to have somehow, howeverinadvertently, contributed to the misdeeds of the previousregime. Perhaps the most pointed example (becauseintentionally hidden behind the public facade of aprosecution) was the role of the Vichy regime, and thegeneral attitude amongst the French, during the SecondWorld War. As Binder has observed, the trial of KlausBarbie became in part a conscious attempt to rewrite someof the darker pages in French history.16

The more interesting example however is the onemade famous by Hannah Arendt's report on the Eichmanntrial: the role of the Jewish leadership in Nazi Germany.17

The example is interesting because it highlights thecomplex nature of the relationship between truth andpolitics, more so then the Vichy example which can beseen, in part, as a relatively simple case of opportunisticcollaboration in which the Vichy government joined thebad guys.

_________________________________________________________

16See Binder, note 10 above. Something similar hasbeen noted from a less theoretical vantage point by aDutch journalist covering the trial. See Max Nord, KlausBarbie: Een van ons (Utrecht: Kwadraat, 1989).

17See generally Hannah Arendt, note 10 above.

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Clearly though, that does not apply to the JewishCouncils who, while opposing Nazism, did what theythought was best in the circumstances, with the purest ofintentions. Their actions backfired, but is that as suchreprehensible? In those circumstances, who is to arguethat what they did was right or wrong? The very storm ofemotions released by Arendt's depiction suggests a moraluniverse in which various shades of grey struggle forprominence, indicating that the truth is a complicatedthing indeed, and that it is even more complicated torashly attach any consequences to whatever truth happensto be found.18 Perhaps for purposes of organizing thefuture, there may be advantages in having less shades of

_________________________________________________________

18For a brief discussion, see Richard I. Cohen, "AGeneration's Response to Eichmann in Jerusalem", inStephen E. Ascheim (ed.), Hannah Arendt in Jerusalem(Berkeley: University of California Press, 2001), 253-277.

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grey in our moral universe; this prevents all sorts ofconfused and possibly counterproductive debate. Perhaps,if the function is to pave the way for a new order, blackand white are about the only workable alternatives.

VIn the American television show Cheaters, men or

women who suspect their partners of cheating may call onthe show to investigate. If cheating is established, theshow will confront the cheater and will do so in absoluteterms: the cheater is wrong and must be castigated, whilethe cheated one is someone to sympathize with. There isno room for doubt or for nuance: a fleeting suggestion inone episode that a woman first endured years of abusebefore turning her back on her husband was simplyignored. The moral universe of Cheaters is flat, and theonly shades it recognizes are evil black and saintlikewhite. That may be deplorable, but also makes sense fromat least one perspective: the cheated one comes out on top,and may be far better capable of redirecting her or his lifethen without the televised confrontation.

To some extent, both transitional prosecution andtruth commissions share some of the characteristics ofCheaters. Issues are typically analyzed without too muchnuance; there are difficulties recognizing colours otherthan black or white, and the moral premises are again, flat:the chance that someone will found to have donesomething wrong but for all the right reasons seems

minimal.

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And perhaps this is how it should be: if prosecutionor truth commissions are supposed to assist in paving theway for the future, then nuance is perhaps a stillunaffordable luxury. It may well be that their greatestinstrumental value resides not so much in finding thetruth, but in prescribing a new, uncompromising versionof the truth, in much the same way as the cheated husbandcan simply proclaim, with the tape of the broadcast in hishand, that he was a victim entirely without blame, thusdoing away with years of abuse in one fell swoop.

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[74] IUS GENTIUM · Fall 2001

COMMENTSNational Norms Prevailing

David L. Carey MillerUniversity of Aberdeen

From one perspective the South African Truthand Reconciliation legislation reflects the im-potence of international legal norms in a contextin which national norms are manifestly in con-trol. It may seem trite to observe that the Pro-motion of National Unity and ReconciliationAct 34 of 1995, which in section 2 created a ju-ristic person to be known as the Truth and Rec-onciliation Commission (TRC), is a South Afri-can solution to a South African problem. How-ever, at the same time, it is important to recog-nise the phenomenon of a domestic grundnormfirmly in control to the extent that the norms ofinternational law have no more role and rele-vance than those of natural law. In terms of Kel-sen’s classic positivist model this is unexcep-tionable. Thinking in these terms, any notionthat crimes against humanity should be prose-cuted under international law simply does notenter the equation. Rather, indeed, internationalthinking marvels and applauds the wonder of

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what South Africa is seen to have achieved. As areflection of this overriding perception - but ar-guably only to that extent - the following quota-tion from Hassen Ebrahim, a South African De-partment of Justice officer, rings true: ‘SouthAfrica’s transformation captured the imagina-tion of the world. It was a model of a peacefulalternative to a bloody revolution - a miracle ofmodern political history. At the heart of thistransformation lies the South African Constitu-tion.’ (‘The Making of the South African Con-stitution: Some Influences’ in Penelope An-drews and Stephen Ellmann (eds) The Post-Apartheid Constitutions, 85, WUP/OUP(2001)).

The TRC process described and justified in Con-stitutional Court Judge Sandile Ngcobo’s thoughtprovoking article is, of course, part of the major

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process of constitutional transformation, its particularrole simply being the need to deal with the past in amanner unprejudicial to the future. Seeing it as partof a much bigger picture, one may observe, perhapstritely, that domestic solutions, primarily concernedwith the future rather than the past, feature in SouthAfrica’s long and troubled colonial and post-colonialhistory which, of course, endured up to the 1990s re-form era. The eventual solution to the late nineteenthcentury conflict which led to the Anglo-Boer Warwas the 1910 Union of South Africa. One perspectiveon the 1910 Constitution was that it sought to providea new starting point freed from and absolved of theburden of culpability for the past. To this extent theNational Convention of 1908 and the Convention fora Democratic South Africa of 1991/2 may be seen tohave something in common. Of course, the essentialsubstance of what South Africa’s early and latetwentieth century constitutional conventions wereconcerned with is entirely different. In the former theprimary concern was the co-existence and mutual in-terest of the minority Afrikaans and English speakinggroups; J C Smuts, principal architect of the 1910constitution, speaks to this: ‘The political status ofthe natives is no doubt a very important matter, butvastly more important to me is the Union of SouthAfrica...’ (quoted in W K Hancock, Smuts, Vol I, 256,CUP (1962)). In 1991/2 the focus was on saving

South Africa by a root-and-branch shift to democ-

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racy.

From a lawyer’s point of view the difficulty withthe TRC process is that it involves a suspension ofthe principle that serious criminal conduct should beprosecuted. The article deals with this dilemma underthe heading of ‘justice’. In this regard the truth seemsto be that the process forsakes justice in seeking clo-sure in the interests of reconciliation. This is a likelyif not inevitable position in circumstances in whichagreement is reached between the leaders of an out-going regime, retaining residual power but bereft ofauthority, and the legitimate government in waiting -wanting to build a new democratic and inclusive na-tion. It is unfortunate that there is not more generalopen acknowledgement of this underlying truth as thedriving force behind the TRC process; rather, the fo-cus tends to be upon perceived moral justification.That said, it should be noted that the article does ac-knowledge the fundamental motivating basis of po-

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litical reality in its concluding paragraph.

While Judge Ngcobo’s article is a model of clearand honest thinking - as it were from the bench - un-fortunately, certain other writings obfuscate. A chap-ter by South African Human Rights Commissionmember Leon Wessels (Deputy Minister for Law andOrder in the old regime) in Andrews and Ellmann(above, 22) illustrates this problem. Explaining hisposition in the pre-reform government, Wessels(above, 44) - under the heading of ‘Amnesty and theRule of Law’ - comments: ‘In the inner circles of thegovernment I cautioned urgently, but diplomatically,that violations had not been committed only by theopposition, but that I also had strong suspicions aboutinstitutionalised violence. Reaction to such rumourswas very hostile, to say the least. It appeared thatsome in the establishment simply turned a deaf ear.They heard the protestations out politely, but theywould not listen.’ The writer goes on to note that‘many of us gave a sigh of relief’ when the amnestyprinciple was adopted, observing that ‘[t]he relief wefelt was for the fact that we could have the full truthout in the open without vengeance.’

But, vengeance? While one would not questionthe honesty of these comments the stated basis forrelief is simply untenable. The relief was surely to do

with the concession - made before the new gov-

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ernment assumed power - that there would be a gen-eral amnesty from prosecution. To ascribe as the ac-tual basis for relief the perception of the whole truthemerging in an atmosphere unsullied by motives ofrevenge is simply disingenuous. In a compelling re-cent study of ‘states of denial’ (subtitled ‘knowingabout atrocities and suffering’) Wessels’s explanationof his position is considered and classified as the ‘nothaving an inquiring mind’ form of denial, preferableto the more prevalent denial of responsibility or de-nial of knowledge forms: ‘[his] admission of badfaith - whether this came from remorse or furtherposturing - makes all the difference. His muted un-derstatement - even irony, if this is possible - conveysthe essence of not-knowing: “the Nationalist Partydid not have an enquiring mind about these matters”.’(Stanley Cohen, States of Denial, 129, Polity (2001)).

The characterisation of the TRC process as amoral solution - on the basis of restorative justice -

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has been effectively demolished in a South AfricanJournal of Human Rights article which is recom-mended reading as a matter of contrasting perspectiveto Judge Ngcobo’s piece. Quoting a single sentenceshows this but also indicates common ground in therecognition of a political compromise basis: ‘The ideathat provision for a conditional amnesty was madebecause of a desire to promote a set of moral valueswhich were incompatible with retribution is wildlyunconvincing.’ (Stuart Wilson, ‘The Myth of Re-storative Justice: Truth, Reconciliation and the Ethicsof Amnesty’ 17 SAJHR 531 (2001).) A more positiveassessment - arguably more of an endorsement of theNgcobo position - is made in a comprehensive articlewhich commences with an evaluation of Nurembergand proceeds to consider forms applied in LatinAmerica and Central and Eastern Europe before pro-ceeding to a detailed critique of the TRC model (seeWinston P Nagan and Lucie Atkins ‘Conflict Resolu-tion and Democratic Transformation: Confronting theShameful Past - Prescribing a Humane Future’ 119SALJ 174 (2002)).

How does the TRC process fit from a ‘rule of law’perspective? Judge Ngcobo cites the prosecution offormer President P W Botha for failure to obey a sub-poena to present himself at a hearing as a demonstra-tion of the authority of the law. A different view of

this episode is that it shows the futility of a notion

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of the rule of law with its primary focus on proce-dural rather than substantive justice. A distinguishedSouth African judge, noted for his liberal views in theworst days of apartheid, presented the concept in thispositivist way in the 1967 Hamlyn Lectures. (O DSchreiner, The Contribution of English Law to SouthAfrican Law; and the Rule of Law in South Africa,Stevens/Juta (1967)). A leading South African liberallegal scholar of the apartheid era showed the dangerof this approach which allowed infringements of therule of law to be characterised as political rather thanlegal (Anthony S Mathews, Freedom State Securityand the Rule of Law, xxviii-xxix, Juta (1986)). Ar-guably, however, the TRC process is consistent witha notion of the rule of law as procedural justice ratherthan as a concept concerned with justice in the sub-stantive sense, this latter interpretation having cometo be associated with an emphasis on human rights(see Mathews, 11). The general high prominence ofhuman right’s norms as controlling law in the new

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South Africa underlines the TRC’s orientation as theproduct of political reality and compromise ratherthan as a manifestation of alignment with the coun-try’s new legal ethos.

In the last decade of the twentieth century SouthAfrica addressed her complex national life in a dra-matic and comprehensive process of reform. Theradical changes have swept away discrimination andintroduced a rights’ culture founded on a far-reachingBill of Rights (the volume of case law is such that abill of rights textbook is already in its fourth edition:see Johan de Waal, Iain Currie and Gerhard Erasmus,The Bill of Rights Handbook (2001)).Few areas ofSouth African law are unaffected and in some exten-sive change has occurred. Land reform has changedthe land law scene (see D L Carey Miller and AnnePope, Land Title in South Africa, Juta (2000)). Butthe reform development has occurred on the basis ofselective continuity with the past; in private law theRoman-Dutch based ‘mixed system’ remains promi-nent (see my chapter ‘South Africa: a World in oneCountry on the Long Road to Reality’ in AndrewHarding and Esin Örücü (eds) Comparative Law inthe 21st Century, Kluwer (2002)). This continuityaspect is the key to understanding and evaluating theTRC process. Justice, in a pure sense, may seem tohave been forsaken in the generous provision of am-

nesty; on the other hand the process was probably a

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necessary one in achieving a transition in which thepast has a role in securing the interests of the future.

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Insights in the Working

Eduard SomersErasmus University

This article is a commendable attempt to givesome insights in the working of the Truth and Reconcilia-tion Commission in South Africa, established after thecollapse of the Apartheid regime. The ultimate objectiveof this Commission was to provide a way out in dealingwith crimes and violations of human rights in South Af-rica during that period and to facilitate the change to amore democratic society.

Although the article remains rather general in itsapproach it provides nevertheless a solid contribution tothe theme involved. However, some of the aspects dealtwith do not necessarily add very much to the already wellknown situation of apartheid or the pre-democratic condi-tions before 1990. On the other hand the position taken byseveral of the victims and their family pro or contra am-nesty could have been elaborated more in detail particu-larly in the light of the question of constitutionality ofamnesty. This might have added some more profoundcontribution to the doctrine on truth commissions in gen-eral. Moreover, I think that it is of course important andinteresting to deal with the results of the Truth and Recon-ciliation Commission but what could have been muchmore interesting for an international audience, i.e. the ac-

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tual work of the commission, remains too much in thedark. The article seems to rely heavily on the experienceof the authr whilst it could gain substantially by relyingmore on international doctrine in the field. Finally thearticle could have gained an added value if some morespecified conclusions would be included which might bevaluable also for dealing with similar situations in LatinAmerica or in Central Europe.

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(TITLE)

(AUTHOR)(Affiliation)

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(TITLE)

(Author)(Affiliation)

Ius Gentium (ISSN 1534-6781) is the journal of the Uni-versity of Baltimore Center for International and Compara-tive Law. Ius Gentium facilitates discussion and the ex-change of ideas about contemporary legal issues, from a va-

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riety of national perspectives. Each issue contains one leadarticle and several comments, discussing the same specificlegal question, as applied to different legal systems and na-tional traditions.

Submissions of lead articles or comments to Ius Gentiumshould be sent to:

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The deadlines for submission are March 15 (Spring) andSeptember 15 (Fall) each year.

The lead article for Ius Gentium 8 (Summer 2002) will be:“Truth, Justice and Amnesty in South Africa: Sins from thePast and Lessons for the Future” by The Honorable S.Sandile Ngcobo, Constitutional Court of South Africa.

The views expressed in the Ius Gentium are those of theauthors and should not be attributed to the Center for Inter-national and Comparative Law, the institutions with whichthe authors are affiliated, or the editors.

Except as otherwise expressly indicated, the author of eacharticle in this issue of Ius Gentium has granted permission forcopies to be made for classroom or other educational use solong as (1) copies are distributed at or below cost, (2) theauthor and Ius Gentium are identified, and (3) proper noticeof the Center’s copyright is affixed.

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IUS GENTIUM · Volume 7 [91]

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IUS GENTIUMJournal of the University of Baltimore

Center for International and Comparative Law

Fall 2002Volume 8.1

Copyright 2002ISSN: 1534-6781

Documents

Ius Gentium Volume 8.1 Fall 2002 - School of Law - …3/29/05 8:39 AM> IUS GENTIUM · Fall 2002 Chair Mortimer N.S. Sellers University of Baltimore Board of Editors Myroslava Antonovych