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The Era of Transitional Justice

The Era of Transitional Justice: The Aftermath of the Truth and Reconciliation Commissionin South Africa and Beyond explores a broad set of issues raised by politicaltransition and transitional justice through the prism of the South African TRC.South Africa constitutes a powerful case study of the enduring structural legaciesof a troubled past, and of both the potential and limitations of transitional justiceand human rights as agents of transformation in the contemporary era. SouthAfricas story has wider relevance because it helped to launch constitutionalhuman rights and transitional justice as global discourses; as such, its own legacyis to some extent writ large in post-authoritarian and post-conict contexts acrossthe world. Based on a decade of research, and in an analysis that is both com-parative and interdisciplinary, Paul Gready maintains that transitional justiceneeds to do more to address structural violence and in particular poverty,inequality and social and criminal violence as these have emerged as stubbornlegacies from an oppressive or war-torn past in many parts of the world.Organised around four central themes new keyword conceptualisation(truth, justice, reconciliation); re-imagining human rights; engaging with the pastand present; remaking the public sphere it is an argument that will be of con-siderable relevance to those interested in the law and politics of transitionalsocieties.

Paul Gready is Professor of Applied Human Rights and Director of the Centrefor Applied Human Rights at the University of York (UK).

Transit ional Just iceSer ies Editor : K ieran McEvoyQueen s Un ivers i t y Be l fas t

The study of justice in transition has emerged as one of the most diverse andintellectually exciting developments in the social sciences. From its origins inhuman rights activism and comparative political science, the eld is increasinglycharacterised by its geographic and disciplinary breadth. This series aims topublish the most innovative scholarship from a range of disciplines workingon transitional justice related topics, including law, sociology, criminology, psy-chology, anthropology, political science, development studies and internationalrelations.

Titles in this series:

Transitional Justice, Judicial Accountability and theRule of LawHakeem O. Yusuf (2010)

The Era of Transitional Justice: The Aftermath of theTruth and Reconciliation Commission in South Africaand beyondPaul Gready (2010)

The Era of Transitional Justice

The Aftermath of the Truth andReconciliation Commission inSouth Africa and beyond

Paul Gready

First published 2011by Routledge2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN

Simultaneously published in the USA and Canadaby Routledge270 Madison Avenue, New York, NY 10016

A GlassHouse book

Routledge is an imprint of the Taylor & Francis Group, an informa business

2011 Paul Gready

All rights reserved. No part of this book may be reprinted or reproduced orutilised in any form or by any electronic, mechanical, or other means, nowknown or hereafter invented, including photocopying and recording, or in anyinformation storage or retrieval system, without permission in writing fromthe publishers.

British Library Cataloguing in Publication DataA catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication DataGready, Paul.The era of transitional justice : the aftermath of the truth and reconciliationcommission in South Africa and beyond / Paul Gready.p. cm.

Includes bibliographical references.1. South Africa. Truth and Reconciliation Commission.2. Truth commissionsSouth AfricaEvaluation. 3.ApartheidSouth Africa. 4. Human rightsSouth Africa.5. South AfricaPolitics and government. I. Title.DT1974.2.G74 2011968.06dc22 2010013550

ISBN13: 978-0-415-58116-5 (hbk)ISBN13: 978-0-203-84193-8 (ebk)

This edition published in the Taylor & Francis e-Library, 2010.

To purchase your own copy of this or any of Taylor & Francis or Routledgescollection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.

ISBN 0-203-84193-X Master e-book ISBN

Contents

Acknowledgements vi

Introduction 1

1 Truth as genre 20

2 From social truth to rights-based participation 61

3 Justice past 93

4 Justice present 117

5 Speaking truth to reconciliation 156

6 Reconciliation, relationships and the everyday 195

Conclusion 231

Interviewees 240Bibliography 242Index 266

Acknowledgements

This book has been a long time coming. The rst interviews for it, or moreaccurately for a rather dierent book, were conducted in 1998. As usual, overtime I have incurred four kinds of debt, from respectively: those who gave memoney, those who talked to me, those who read and discussed what I wrote, andthose who kept me sane.In the rst category, a Leverhulme Research Fellowship in 20045 allowed

me to dedicate the best part of a year to researching and writing the book.Earlier awards from the Nueld Foundations Social Science Small GrantScheme (for an initial set of interviews about the TRC) and Economic andSocial Research Council (for work on magistrates) were also invaluable. Twogrants from the University of Londons Central Research Fund helped me tokeep going back to South Africa.In the second category I have incurred many debts and made many friends.

Rather than single out individuals, I will simply refer you to the list ofinterviewees that appears at the end of the book (with the caveat that the listdoes not feature all those interviewed; in all I conducted well over 70 interviewsduring the decade in which I researched the book). My thanks also go to thevarious organisations with which I have worked and come into contact overthe years.Third, I owe a debt of gratitude to those who read and commented on parts

or all of the book. My biggest debts in this regard are to Ron Dudai and BrianPhillips, fellow transitional justice addicts, who read the whole manuscriptand commented with great critical insight and care. They made the book betterthan it would otherwise have been. I would like to thank sta and studentsat my current workplace, the Centre for Applied Human Rights at theUniversity of York (UK), and my previous home, the Centre for InternationalHuman Rights at the Institute of Commonwealth Studies, University ofLondon, for shaping my ideas and arguments over the years. A particular vote ofthanks is due to my colleague at both institutions, Lars Waldorf, another transi-tional justice specialist, with whom I have shared many valuable discussions.I am also grateful to Lucy Harding for her meticulous work on the manuscriptproofs.

Finally, those who kept me sane. Anashri Pillay read and commented onchapters, but also accompanied me on much of the journey. I would not havehad it any other way.Versions or sections of several chapters have previously appeared in journals

or edited books, and reappear here with the requisite permissions:Telling Truth? The Methodological Challenges of Truth Commissions, in

F. Coomans, F. Gnfeld and M. Kamminga (eds) Methods of Human RightsResearch, Maastricht Series in Human Rights, Intersentia: Antwerp, 2009,15985 (Chapter 1).Novel Truths: Literature and Truth Commissions, Comparative Literature Studies

46 (1), 2009: 15676 (Chapters 2 and 5).The Public Life of Narratives: Ethics, Politics, Methods, in M. Andrews,

C. Squire and M. Tamboukou (eds) Doing Narrative Research, Sage: London, 2008,13750 (Chapter 2).Culture, Testimony and the Toolbox of Transitional Justice, Peace Review

20 (1), 2008: 4148 (Chapters 2 and 5).My nephews Joshua, Simeon and Reuben have been lobbying me for

years to dedicate a book to them. The deal was that I would do so whenthey expressed a bursting desire to actually read the book. I would be lying ifI claimed they were spending sleepless nights waiting for this book, but I havecapitulated. This book is for them. It is also for my mother who, with my father,taught me about human rights without ever using the term.

Acknowledgements vii

Introduction

South Africa is at a crossroads. Its post-apartheid achievements have been extra-ordinary (democracy, peace), but on the dark side of transition lies a more proble-matic reality, partly informed by the legacy of apartheid: poverty and inequality,social and criminal violence, an HIV/AIDS pandemic, and xenophobia. As such,South Africa constitutes a powerful case study of the enduring structural legacies ofa troubled past, and of both the potential and limitations of transitional justice andhuman rights as agents of transformation in the contemporary era. South Africasstory has broader relevance because it helped to launch constitutional humanrights and transitional justice as global discourses; its own legacy is to some extentwrit large in post-authoritarian and post-conict contexts across the world.Transitional justice, a set of tools designed to address the legacies of a troubled

past, is a creature of compromise; as such, truth commissions are its emblematicintervention. The ideal makes way for the possible, although it never stops askingthe possible for more. In South Africa the compromises were of a kind familiarto peace processes in many parts of the world, as it became the exemplar of anew global compact that both facilitates and places constraints upon the changesassociated with political transition. A negotiated settlement paved the way formajoritarian democracy and elections; a truth commission and an amnesty pro-vision eased the passage; past gross violations of human rights received attentionwhile enduring structural violence (poverty and inequality, violent crime) becamethe most enduring legacy of the past; and neo-liberalism trumped more redis-tributive economic policies. These compromises can be defended as necessaryand midwives to the birth of something verging on the miraculous, or as mid-wives to a still-birth, as majority hopes for a better future were betrayed and theextraordinary all too swiftly became ordinary. Compromises have to be made,but which compromises, who is compromised, and what is the role of transitionaljustice and human rights in facilitating or contesting compromise?

Beginnings

This book started out as an inquiry into the keywords of the South Africantransition (truth, justice, reconciliation) as the main body of the Truth and

Reconciliation Commissions (TRCs) work came to a close in 1998. The TRCwas the rst truth commission to make a signicant contribution to under-standings of these terms, but their conceptual insights were post-hoc rationalisa-tions for a politically informed mandate and working methods often devised onthe hoof.1 To provide just one example, the Commissions fourfold categori-sation of truth factual or forensic truth, personal and narrative truth, social ordialogue truth, and healing and restorative truth (TRC 1998, Vol. 1: 11014) was ground-breaking, but was not coherently reected in its work and report.The conceptual schema arose out of the hearings and research rather thaninforming them. Put simply, this is bad social science. The lesson is: consideryour objectives, dene your keywords, then design your institution accordingly.Alongside the lack of conceptual clarity, and the generally under-theorisednature of much work on transitional justice, I was also struck at the outset by thealmost complete absence of evaluations of transitional justice mechanisms. Why,for example, were truth commissions being rolled out across the world, oftenciting the South African experience as inspiration, when there was so little senseof their impacts, what constituted success and how success should be measured?So this is where I began, intending to write a book which would explore three

central concerns. (1) Truth commissions are based on weak conceptual founda-tions, informed by an inadequate understanding of their foundational key-words truth, justice, reconciliation and the relationships between thesekeywords. (2) They have become a core component within the growing reper-toire of transitional justice mechanisms with relatively little evaluation of theirsuccess, or clarity about what might constitute success. (3) Without greater con-ceptual clarity and rigorous evaluation there is a danger that the role andimpacts of truth commissions will be exaggerated, misidentied or even negative.Much to my chagrin, important work has been done on these issues as I toiledon the book. In the South African setting, empirical research has mapped theimpacts of the TRC (Chapman and van der Merwe 2008; Gibson 2004; Sarkin2004).2 On a broader canvas, keywords have been subjected to wide-rangingcritique, chiey on the grounds of the excessive claims made in their name(on truth, Mendelo 2004; on justice/trials, Fletcher and Weinstein 2002), whileresearch has also charted public and victim/survivor attitudes towards varioustransitional justice keywords and interventions.3

Tentative forays into evaluation have occurred. Recent how to guidesfor truth commissions from Amnesty International (2007) and the Oce ofthe United Nations High Commissioner for Human Rights (OHCHR 2006)provide relevant benchmarks such as the need for consultation, politicalindependence, procedural fairness and adequate powers (subpoena, search andseizure, witness protection, etc.) which constitute the minimum preconditionsfor eectiveness. Hayner (2002: 252) identies three criteria for evaluationrelating to process (participation, engagement); product (the quality of the reportand its recommendations); and impact (ocial and perpetrator response,report dissemination and acceptance, the implementation of recommendations).

2 Introduction

Commissions can also be evaluated against their ownmandates, against the fullmentof certain human rights (rights to truth, justice, reparations), and/or on their victim-centred credentials. Nevertheless, while there have been evaluations of the TRC,and evaluation is an emerging frontier in transitional justice work more generally,evaluations remain an endangered species, and there is still little agreementabout how to measure impacts (on who or what?) or on what constitutes success.4

So as the literature evolved and my focus followed suit, what, in the end, is thisbook about? It is not primarily a book about the TRC itself the literature on thework of the Commission is extensive (Boraine 2000; Posel and Simpson 2002;Ross 2003; R. Wilson 2001). It is also not an impact assessment or evaluation,nor does it develop a tool for such endeavours. Two-by-two the chapters of thebook retain the keywords format as an organising principle, and as a means ofentering the arc of transitional justice debates, in the belief that the theorisation ofthese foundational terms remains both weak and crucial. The South African TRCis used as an entry-point to illuminate keywords of relevance to all transitionalcontexts and more recent turns in transitional justice debates (e.g. towardsvictim-centred approaches, reparations and restorative processes; towards localjustice mechanisms). My analysis is both more interdisciplinary (chiey exploringthe interface between cultural studies and politics) and more comparative than othercommentaries. The former allows the inuence of the TRC to be traced beyondwell-trodden paths, in literature and public culture as well as in legislation, forexample; while the latter situates the TRC in global patterns of inuence (the liberalpeace; response templates to transitional crime). Based on an extensive literaturereview, a decade of research on the TRC, and well over 70 qualitative interviews,an interdisciplinary and comparative analysis helps to support the assertion thattransitional justice and human rights need to do more to address structural vio-lence, and in particular poverty/inequality and social and criminal violence, asthese have emerged as stubborn legacies from an oppressive or war-torn past inmany parts of the world. The key questions, of course, are: How? What levels ofambition, and indeed humility, are needed? And to what extent does South Africaoer an entry-point to generalisable challenges and solutions? Before outliningmy arguments in response to these questions, more background is required.What, for starters, is an ocial truth commission? (Unocial truth projects

(Bickford 2004) are also discussed in the analysis that follows, but their ocialcounterparts have largely set the terms of debate). It is possible to distil the corecharacteristics of ocial commission down to (1) a focus on the past; (2) theirorigins at the point of transition away from war or authoritarian rule; (3) theinvestigation of patterns of abuses and specic violations committed over a periodof time, rather than a single event; (4) a focus on violations of human rights, andsometimes of humanitarian norms as well; (5) a temporary, short-term life-span,usually culminating in the production of a report with recommendations;(6) ocial status, as commissions are sanctioned, authorised or empowered bythe state (and sometimes by armed opposition groups, in the context of a peaceaccord); and (7) a victim-centred approach (Hayner 2002: 14, 17, see 1423;

Introduction 3

Quinn and Freeman 2003: 1119). The clean lines of this ambition are troubledby the political, economic and moral compromises inherent in transitionalcontexts. Commissions navigate the fault-line between the possible and the ideal,politics and human rights, between their own soft power and the hard(er) powerof the state, and between their twin tasks of documenting the past and trans-forming the future.More detailed background on the workings of the TRC will be provided in

the chapters that follow; here a briefer introduction is sucient. The Promotionof National Unity and Reconciliation Act (No. 34 of 1995), the TRCs foundingAct, provided it with its primary tasks which were, in short, (1) establishing ascomplete a picture as possible of the gross violations of human rights in the pastthrough investigations and hearings, (2) facilitating the granting of amnesty tothose who met the relevant legal requirements, (3) establishing the fate orwhereabouts of victims, restoring dignity by giving victims the opportunity torelate their own accounts, and recommending reparations, and (4) compiling acomprehensive report with ndings and recommendations (Section 3:1 (ad)).The promotion of national unity and reconciliation were broader objectives.Three committees the Amnesty Committee, Human Rights Violations Com-mittee (HRVC) and Reparation and Rehabilitation Committee structured theTRC and underscored its priorities. The Commission focused on gross violationsof human rights, dened as bodily integrity rights (killing, abduction/disappearance, torture or severe ill-treatment) (see TRC 1998, Vol. 1: 6065,which outlines both the legislative basis for this emphasis and the TRCs ownnarrow interpretation of severe ill-treatment). Among its most important inno-vations were a unique, individualised amnesty provision, in which amnesty forspecic acts was made conditional on full disclosure and political motive, andsector hearings focusing on institutions and social groups.The main portion of the Commissions work began in 1996 and was com-

pleted in 1998, with the nalisation of the rst ve volumes of its report (TRC1998, Vols 15). Two further contributions followed: a special volume dedicatedto victims (TRC 2002, Vol. 7), and a codicil report which documented materialfrom the late-nishing amnesty process (TRC 2003, Vol. 6). The TRC gainedunprecedented international attention through the place of apartheid inthe international political imagination, high-prole commissioners (such asArchbishop Desmond Tutu, the TRCs chairperson), public victim and amnestyhearings, innovative institutional arrangements, widespread media coverage andexcellent access to materials on the worldwide web.5

Truth commissions have gone global in the aftermath of the TRC. Oneestimate suggests that by mid-2004, 35 truth commissions had been establishedworldwide, and that momentum is building around this particular trend inpolitical globalisation (Sikkink and Booth Walling 2006: 30810). The SouthAfrican TRC, its (former) sta and its philosophy occupy a particular placein this proliferation. The TRC is repeatedly acknowledged as source andinspiration in the transitional justice and truth commission literature. Quinn and

4 Introduction

Freeman (2003: 1121), for example, note that it marked a turning point inglobal awareness about truth commissions no commission is today betterknown around the world. This is not to say that there is no competition in thetransitional justice agenda-setting stakes. Sikkink and Booth Walling (2006) makea persuasive case for Argentina as the initiator of a justice cascade. It has beenhome, over time, to the rst important truth commission, initial trials of mem-bers of the military juntas, the overturning of amnesty provisions and, therefore,the idea that multiple transitional justice mechanisms can cohabit in productiveways. Nevertheless, few would contest the claim that the South African TRCremains the rst among equals in the truth commission collective, and one of thekey engines for what might be called the era of transitional justice.

Contexts

The era of transitional justice has three core characteristics: transitional justice(1) as an industry; (2) as marked by a shift in ethos from substitution (choosingone mechanism rather than another, say truth commissions rather than trials) tocomplementarity (best captured by holistic approaches to the eld), and thestrategic challenge of intervention prioritisation and/or indivisibility; and (3) as acase study of the ambiguities of contemporary globalisation.To say that transitional justice has become an industry is both a compliment

and a warning. Cycles of boom and bust, as new ideas inspire hope, excessiveambition and then disappointment, are all too familiar in the annals of non-governmental organisations (NGOs), intergovernmental agencies such as theUnited Nations (UN) and bilateral donors. In the case of transitional justice andtruth commissions, it is time to pause for thought. When countries in the newmillennium throw o the shackles of authoritarian rule or conict, the market-place of options is crowded with the wares of transitional justice. How to guidesboth restate ideals and draw on the lessons of past experience. Within the UNthere has been a recent urry of activity, providing overview guidance for tran-sitional justice and truth commissions,6 and related normative clarication.7 Alsoon the market are more specic guides on aspects of transitional justice work,from archives (Peterson 2005) to memorialisation (Barsalou and Baxter 2007;Brett et al. 2008; Naidu 2004, 2004a). The key agents of dissemination havebeen a number of powerful Northern NGOs and academic centres,8 oftenworking with local and regional partners.9 A proliferation of academic initiativesdedicated to the subjects study, training courses, e-mail listservs, a blizzard ofcommentary of various kinds, and a recently launched academic journal focusingon the topic (the International Journal of Transitional Justice) complete the picture.Transitional justice has well and truly arrived. Its success raises questions such

as whether eectiveness claims are backed up by evidence, and about whethertransitional justice is now led by an epistemic community (an international,knowledge-based, elite professional and donor network) rather than locallyrooted victimsurvivor or social movements. Repeated calls for local control and

Introduction 5

adaptation should not overlook the power that an industry such as this has onthe repertoire of options imagined and on donor purse strings. Some observersare sanguine about this reality:

Although there had been some discussion within Sierra Leone about theimportance of a truth commission prior to its establishment, the idea wasobviously borrowed from elsewhere. It seems open to question whetherSierra Leone would have organised a truth commission had this not beenprompted and encouraged by the international community.

(Schabas 2006: 39)

Maturation into an industry has been accompanied by a growing tendency toadopt holistic understandings of transitional justice. First, it is common practicenow to dene transitional justice extremely broadly, to include some or all of thefollowing: criminal prosecutions, truth-telling, reparations, and institutionalreform as core interventions; but also commemorative practices, educationalreform, reconciliation initiatives, and more. Second, keywords are also viewedthrough the holistic prism. For example, much recent commentary on the peaceversus justice debate prioritising an end to violence versus prosecutions and therule of law seeks to move beyond a stando between the two. It does so byarguing that justice and accountability should include judicial and non-judicialmeasures, and look to the future as well as to the past (criminal accountability;truth commissions; reparations; reform of the security and judicial sectors;demobilisation and integration of ex-combatants; and indigenous or communitybased-justice) (Hayner 2009). Similarly, peace is understood to span both nega-tive peace (prioritising an end to violence) and positive peace (addressing theunderlying causes of violence). The danger is that denitions become too broadto be meaningful. Third, in the shift from substitution to complementarity,interventions are seen in both/and more, rather than either/or, terms. While inthe past it was often assumed that truth commissions would be a compromisewhere trials could not take place, now it is argued that the two can, and should,coexist (Roht-Arriaza and Mariezcurrena 2006). One inuential framing of suchholism is the ecology model of social reconstruction (Fletcher and Weinstein2002; Stover and Weinstein 2004). This approach suggests interventions atmultiple levels of society state, community, individual and spanning eldsas diverse as the rule of law and justice, security, education for democracy,economic development and reconciliation.Such denitions usefully move beyond legal responses to include wider political

and social processes, and can serve to integrate ocial, top-down mechanismsand unocial, local, community or grassroots initiatives. That trade-os arenot always inherent in decision-making processes and more than one inter-vention can be required in circumstances where none standing alone wouldsucceed (interventions may be mutually constitutive) are useful ways of reshuf-ing the transitional justice pack. Yet transitional justice is the art of imperfect

6 Introduction

solutions and dicult choices, in the context of competition for nite resourcesand delicate political dynamics. While we now know more about what shouldbe done, we still know relatively little about how these objectives might beachieved. If necessary, how should interventions be prioritised so thatthey are sequenced over time, rather than traded o against one another in azero-sum scenario?Bosire (2006) in a piece with the suggestive title Overpromised, Underdelivered:

Transitional Justice in Sub-Saharan Africa, argues that strengthening stateinstitutions should be seen as a precondition or entry-point for successful transi-tional justice measures in this part of the world. Without functioning institutionslittle will be achieved. In transitional justice circles this domain is normally con-signed to the wish-list of potential outcomes (via truth commission recom-mendations, for example), rather than as a necessary enabling condition. Otherfamiliar sequencing cum trade-o challenges include the fact that perpetratorsoften receive benets (amnesty; demobilisation, disarmament and reintegra-ion programmes) before victims, or in circumstances where victims receivenothing (prosecutions, reparations); the complex question of whether transfor-mation precedes reconciliation or vice versa; and the role of unocial, localinterventions vis--vis ocial, top-down counterparts (laying foundations, com-plementing, substituting, critical engagement).To this reservation I would add another: Should transitional justice be taking

on more when it is far from clear that it can successfully achieve its original, farmore modest, remit (truth, justice)? Holism both is a reaction to past short-comings and runs the risk of reproducing them on a broader canvas. Keywordconceptualisation, for example, remains weak. While it is important to interrogatelinkages between keywords, many analyses slide into a mire where justice, forexample, entails pretty much everything. It is a sleight of hand to overcome whatwere previously seen as tensions truth versus justice, peace versus justice by dening the terms indistinguishably. Finally, holism is characteristic of the eraof transitional justice in that while it is not unreective, its criticisms are of themore work variety; they anticipate the industry doing more, not less. In sum,the embrace of holism means that contemporary transitional justice encompassesan array of interventions (bringing in constituencies and skills beyond main-stream transitional justice and human rights); and is grappling with questions oftiming, prioritisation, sequencing and interrelationships.Finally, to understand the era of transitional justice we also need to interrogate

transitional justice as a case study of the fault-lines within globalisation. Globa-lisation inuences the manner in which ideas travel. In truth, the reach of theindustry is uneven, with the majority of truth commissions having taken place inthe Americas and Africa. Only one has set up shop in North Africa or theMiddle East (Morocco, 2004). Recent analyses of the spread of transitionaljustice discourse have drawn on the boomerang pattern (Keck and Sikkink1998: 1213) and spiral model (Risse et al. 1999) as a feature of transnationaladvocacy network operations. Both models link the local and the global, with

Introduction 7

actors as diverse as NGOs, supportive states and international institutionsputting pressure on recalcitrant states, notably in relation to human rights con-cerns. Civil society organisations and NGOs within and outside a given countryare thereby instrumental in changing state behaviour and in the spread ofinternational norms. Three examples illustrate ways in which these ideas havegained a hold in transitional justice debates.First, the notion of the justice cascade (Sikkink and Booth Walling 2006;

also see Lutz and Sikkink 2001) makes the case that accountability for pasthuman rights abuses is spreading through the increased use of trials and truthcommissions. Powerful insideroutsider coalitions in Argentina have been at theforefront of innovation within this cascade. Similar processes are at work in thesecond example, Roht-Arriazas (2005: 20824) Pinochet eect. The Pinochetcase brought to the fore the role of diasporas and lawyers as transnationalactors, and the fact that processes of accountability have been both domesticatedin Chile and spiralled on in the external states from where pressure came forchange (for example, raising the question of Spains own past). A third exampleexplores the inuence of the South African TRC on the Greensboro TRC in theUnited States. Tarrow (2005: 183200) argues that such transmission requiresdiusion, brokerage, mobilisation and certication (by authorities). Brokerage which acts as a transnational hinge that communicates and adapts an externalpractice to new sites and situations (190) is highlighted as of particularimportance to the spread of transitional justice norms (a specic broker citedis the International Center for Transitional Justice [ICTJ]). In all theseexamples, processes of political globalisation are cast in a positive light.My argument about globalisation is of a dierent order. To be sure, transi-

tional justice and truth commissions are now a strand characterising politicalglobalisation, an inevitable part of the international call and response char-acterising conict and authoritarian aftermaths. The more troubling dynamic ishow they are interwoven with other strands of globalisation. Globalisation as awhole is forging transitions and democracies characterised by continuity as wellas change, by structures of inequality and patterns of conict that are recon-gured rather than brought to an end. Little wonder that there is now recognitionthat many transitions are stalled and without a clearly dened end-point(Carothers 2002). By focusing on political violence, civilpolitical rights abusesand the past to a greater extent than criminal or social violence, socio-economicrights and the present, the transitional justice tool-kit does little to challenge, forexample, the impacts of neo-liberal economics and/or rising levels of violentcrime and punitive responses to such crime. Limits are placed on structuralchange in new democracies, and within these limits the danger is that the mar-ginalised are remarginalised. Holistic understandings of transitional justice toorarely extend to a critique of these other facets of globalisation that profoundlyshape transitional realities. The question ultimately is whether transitional justicehas become the conscience of transitional globalisation without troubling itsessential characteristics.

8 Introduction

Arguments

Four main arguments anchor the chapters that follow. They are rooted in butseek to extend beyond the South African experience, and suggest ways in whichtransitional justice and truth commissions can make a stronger contribution tostructural transformation.

Conceptualising keywords

To recap, time and again for the TRC, conceptualisation was a post-hocattempt to rationalise an existing mandate and manner of working. Weak con-ceptualisation of truth, justice and reconciliation still bedevils transitional justicedebates. The current trend for holistic denitions often renders the terms vir-tually identical in their scope and interventionary ambition. This book uses theTRC as a prism through which to oer fresh, and transferable, insights into themeaning of each keyword. Coherent conceptualisation of keywords needs toinform the design of interventions, rather than following in their wake.In the truth camp two claims are made. First, truth needs to be linked to genre,

and in particular attempts to combine the genres of state inquiry, human rightsreport and ocial history in truth commission work and reporting. Second,there is a need to go beyond social or dialogue truth and a focus on proceduralliberalism to rights-based participation (Friedman 2006). Developed in, butenduring beyond, the transitional context, a culture of rights-based participationis the only way to ensure that a once-articulated voice will be twice and threetimes heard. The main justice-related argument is that the transitional momentneeds an integrated justice agenda, in which backward-looking transitionaljustice measures mesh with criminal justice interventions focusing on the presentand future. Social and criminal violence, and repressive responses to suchviolence, are currently relatively untroubled by transitional justice interventions.This moment is characterised by contradictions and mixed messages (amnestyfor the apartheid-era killer; harsh punitive responses for the car hijacker) whichundermine attempts to build respect for the rule of law. Drawing on Das andKleinman (2002: 34), the chapters on reconciliation argue that this term entails,on the one hand, acts of public voicing from the previously marginalised andviolated, folding into the broader demand for political recognition and a reneg-otiated citizenship. This strand of reconciliation is inextricably linked to rights-based participation. On the other hand, reconciliation requires the repair ofrelationships in the deep recesses of family, neighbourhood, and community.Reconciliation is the work of (re)constructing relationships through enlightenedprocesses, and is therefore embedded in everyday life.

Reimagining human rights

Here three main claims are made, each illustrating that transitional justice is, orcould be, at the forefront of reimagining how we think about human rights.

Introduction 9

First, truth commissions need to work with a broader denition of human rights.The TRC worked with a narrow, impoverished conceptualisation of humanrights, thereby sidelining the dierent reality that could have been discovered byhighlighting economic, social and cultural rights abuses and the indivisibilitybetween these and civilpolitical rights. While some subsequent commissionshave adopted a more inclusive approach (Peru, Sierra Leone, Timor Leste,Liberia, Kenya) much more work needs to be done on operationalising thisagenda. The TRC also overlooked the range of identity positions made availableby human rights discourse. It is, and has always been, a dual discourse of vio-lence and violations (victims, perpetrators), and of idealism and just resistance(dating back to the natural rights tradition). While this second tradition wasoverlooked by the TRC, and is often neglected even in mainstream humanrights, an armation of collective self-reliance, resistance and the role of therighteous would tell a fuller account of the past and provide suggestive identitycoordinates for reconciliation and a more unied future.Second, hybridity in forms of analysis, design of interventions, etc. is a

dening characteristic of more holistic transitional justice work, and is increas-ingly a feature of human rights practice in general as it moves into adjacentelds such as development, public health and environmental protection. As such,human rights must nd productive ways to cohabit with other moral vocabulariesand ways of working. Transitional justice, in forms as diverse as truth commis-sions and memorialisation, is informed but not completely monopolised byhuman rights, and as such is a driving force behind an important contemporaryshift in the human rights movement.The third way in which human rights needs to be reimagined also represents a

new wave of thinking: human rights is a way of balancing law and politics,and balancing interests and weighing values, as well as making absoluteclaims and right-versus-wrong adjudications. Human rights provide a vocabularyfor articulating, and then prioritising, the principles and demands at stake.Because of the context of compromise, transitional justice is one of the mainelds in which this vision of rights is taking shape. The importance of victimsrights has come to the fore, for example, contesting a perceived emphasis on therights of perpetrators (due process, etc.). A similar rebalancing has occurred totackle non-state actors as human rights violators, as well as the state. While suchprocesses are essential to a rebalancing and new politics of human rights, they donot require the abandonment of principle (for example, dealing with both sidesdoes not mean morally equating both sides). Ignatie (2001: 910) captures thebalancing act:

Human rights activism means taking sides, mobilizing constituencies pow-erful enough to force abusers to stop. As a consequence, eective humanrights activism is bound to be partial and political. But at the same time,human rights politics is disciplined or constrained by moral universals. Therole of moral universalism is not to take activists out of politics but to get

10 Introduction

activists to discipline their partiality their conviction that one side is right with an equal commitment to the rights of the other side.

Engaging the past and present

Truth commissions require a more sophisticated understanding of the relation-ship between the past and present, continuity and change. First, governmentpriorities quickly shift from redressing the past to building the future, andtherefore a failure to engage with political concerns and volatile new policyagendas in the present (for example, relating to violent crime, poverty, race andxenophobia in South Africa) can result in instant obsolescence. Second, there is aneed to more clearly link challenges in the present to structural continuities withthe past. Finally, an anticipatory faculty is important because the past oftenaects the present not as straightforward repetition as suggested by the crynever again but in modied, evolving ways, through complex processes ofcontinuity and change. For example, violence in South Africa was localised,privatised and depoliticised, rather than brought to an end. In a pattern dupli-cated in other transitional contexts, it is clear that as political violence folds intocriminal and social violence, embedded authoritarian responses from the stateand society can easily become a backlash against human rights which targetscriminals and the marginal poor rather than, or as well as, political opponents.More success is likely if the pasts impact on the present is conceptualised beyondprevailing clichs such as drawing a line under the past.If truth commissions are to more fully describe the human rights legacies of

the past, and full their prevention ambitions, they need to engage with the pastand the present, and to be more critical of the pasts ongoing presence in thepresent. For practitioners, the pastpresent, continuitychange continuum requiresthat attention be paid to prioritising, sequencing and integrating interventions; toevolving relationships with the government; shifting patterns of violence andviolation; support for and backlashes against human rights; and more.

Remaking the public sphere

This book argues that truth commissions are most importantly acts of publicdescription (reports, public hearings) and constituency-building (through rights-based participation). It is in these two areas that commissions can have theirmost signicant and wide-ranging inuence. While remaining attentive to indi-viduals, commissions should map the past with broad brush strokes, therebyholding up a mirror to the many and not the few and to structures of violenceand not simply symptoms. Entry-points will have to be found to highlightmore general patterns, but reecting the indivisibility of rights is imperative.Documentation needs to be accompanied by dissemination. The TRC, largelythrough its public hearings, provides an opportunity to examine the ripple eects

Introduction 11

of a commission in the public sphere and civil society, beyond the rareedcirculations and fetishisation of (often not widely read) reports (Cohen 1995)and (invariably very unevenly implemented) recommendations.10 While publichearings may not always be possible, for example because of security concerns, aportfolio of ways is being developed by truth commissions to enhance theimpacts of their public description work (ranging from popular summaries ofreports to accompanying photographic exhibitions).Moving on to participation and constituency-building, the TRC inspired a

range of civil society initiatives and cultural production that mimicked, reworkedand contested its methods and ethos. And yet this book argues that to reallyremake the public sphere, and facilitate political recognition and citizenship,requires a move beyond debate or dialogue truth to rights-based participation.Such participation ideally needs to be enshrined in constitutional law, as it is inSouth Africa, and to extend to sensitive issues about which new dispensations arelikely to remain ambiguous (human rights, economic redistribution, the rules ofthe political game). The TRC largely failed to create links between democraticprinciples and participation on the one hand and the legacies and contingenciesof power on the other, in such a way that the former became an enduringchallenge to the latter. A sustainable platform for marginalised voices in publicdecision-making constitutes the true meaning of democratic consolidation. Whiletruth commissions alone cannot deliver this outcome, they can identify it as apriority and make a contribution to its realisation to do so they need to rethinktheir interactions with civil society.

Contents

The rst two chapters of the book unpack the keyword truth. Beyond thefamiliar strands of truth inquiry truth as acknowledgement, truth as justice, namingnames, patterns versus individuals, amnesty for truth the rst chapter maps a newconceptual understanding of truth: truth as genre. Many of the strengths andweaknesses of truth commissions can be traced to the fact that they constitute animperfectly realised hybrid genre, comprising the state inquiry, human rightsreport and ocial history. I argue that each of the three genres carries a dier-ent objective, namely speaking truth to reconciliation (state inquiry), to power(human rights report), and to context and meta-narrative ([ocial] history).Which genre comes to the fore, where, when and how, matters profoundly.

State inquiries, for example, seek to legitimise the state and governmentalagendas, while for the human rights report it is international human rights lawthat is the source of legitimacy. Which genre prevailed had implications for thedegree to which the TRC critiqued the past actions of the ANC, or underminedthe fragile early post-1994 consensus around political reconciliation and theGovernment of National Unity by critiquing all relevant parties. Further, theTRC was aected by micro dynamics within genres. An uneasy relationshipbetween ocial history, academic history and public history concerning

12 Introduction

interpretation and ownership of the past, for example, shaped its work: to repair,establish and/or democratise the past?Ultimately, the TRC failed to achieve a hybrid or synthetic coherence.

Rather, genre status changed over time and through dierent sections of theorganisation and report. An initial focus, at least within sections of the TRC, onnarrative and history was overtaken midstream by an emphasis on quantitativemethodology and making ndings, by the investigative repertoires of the stateinquiry and, in particular, human rights. The outcome of this act of colonisationby human rights, narrowly conceived (both substantively, as civilpolitical rights,and methodologically, as quantitative analysis), was that a decontextualised truthprovided a partial critique of power. In particular, it highlighted what hadalready changed most (gross civil and political abuses) and not what had chan-ged least (economic and social rights concerns). It is argued that this was not justan act of colonisation by human rights, but also an act of colonisation withinhuman rights. Other ways of understanding human rights are available. Thechallenge, therefore, is how to render truth commissions generically coherent.Nevertheless, the TRCs fourfold denition of truth and unique engagement

with national and international publics (public hearings, media coverage) didchallenge report and recommendation fetishisation within human rightsdiscourse. It provided possibilities for future truth conceptualisations to explorethe intersection of processes, products and impacts. Given these arguments,the TRCs inuence on social or dialogue truth deserves special attention.Chapter 2 examines the signicant degree of civil society participation in, andtransparency surrounding, the work of the TRC (examples include the draftingof and lobbying around its founding legislation, the selection of commissioners,victim/survivor and mental health support structures, and policy on genderissues), but also important and revealing exceptions to this rule (policies govern-ing amnesty, prosecutions and reparations). It suggests that the TRC provides anemblematic case study of the opportunities and challenges associated withreworking relationships between civil society and a new democratic state, withinthe new political culture of transition.The TRC inuenced the public sphere by shaping the values and discourse of

democratic debate, thereby making a contribution to procedural liberalism. Butthe public sphere construed in this way should not be idealised. Signicantdeliberative and material inequalities remain, for example, while the inuence ofthe media is widely recognised as a double-edged sword. The need for publicitythat is both comprehensive and balanced can be a challenge, with the mediaoften proving a dicult partner in the quest for truth, justice and reconciliation.The chapter concludes with a case study of the mixed potential of social truth,exemplied by the power and vulnerability of testimony in a globalised publicsphere. Oral testimony, in an era in which media coverage is increasingly globalin reach, moves between the private and the public, the personal and the poli-tical, and between South and North. With voice comes power; the loss of controlover representations in human rights reports, books, the media or elsewhere, can

Introduction 13

mark a return to powerlessness. The chapter examines TRC testimoniesthat took on an unanticipated and often uncomfortable public life, and responsesby actors, such as victim/survivor organisations, reasserting control over theirlives and stories by complementing the subaltern voice with a subalternmethod.11 Such initiatives epitomise attempts to forge a sustainable rights-basedparticipation.The argument, in a nutshell, is that for voice to really matter requires

(1) control over voice, and its representation, interpretation and dissemination,and (2) rights-based participation. Such participation oers a means of linkingocial, top-down interventions with unocial, local, community or grassrootscounterparts, truth commissions and processes of democratisation, and powerfularticulatory moments with more enduring forms of public decision-making.Scaling up interventions and sustainability usually requires a combination of top-down and bottom-up approaches. By not taking this route, the TRC imperilledits symbolic and procedural impacts. To take this route, participation, and thepreconditions for participation, need to be prioritised in both truth commissionactivities and their recommendations.Debates about transitional justice are dominated by past legacies. Chapters 3

and 4 argue that policies for, and understandings of, justice in the transitionalera must engage with both the past and the present, transitional justice andcriminal justice.Chapter 3 examines two facets of the TRCs interaction with justice. First,

it explores the TRCs complex relations with the criminal justice system(the theory and practice of the amnesty provision and prosecutions; day-to-dayoperations; mutual critique and competition as well as cooperation and support).Second, it analyses the TRCs own conceptualisations and reconceptualisationsof justice. The TRC sought to address the critique that the amnesty provision,although individualised and conditional, still sanctioned impunity, largely byproposing social and restorative justice as alternatives to retributive justice. But,again, these were post-hoc rationalisations for an amnesty provision forgedas part of a negotiated, political compromise, rather than forms of justice thatseriously informed the amnesty policy and design of the TRC. A window ofopportunity for rethinking understandings of justice during the transitionalmoment was not exploited to the full as the components of the TRCs con-versation with justice failed to achieve conceptual coherence or any real weight.Debates about justice have proliferated, but with the TRC as a minor voice onthe margins. A further reason for this is that the past as past has been over-whelmed by the past in the present, and in particular rising levels of criminaland social violence.Chapter 4 moves from a consideration of justice past to engage with justice

present. Both violence itself and responses to it are heavily informed by the past.In a South African context, Simpson (2001, 2002, 2004) has most cogentlyargued that the evaluation of transitional justice mechanisms such as the TRCmust be placed in the context of the linked challenges posed by justice in

14 Introduction

transition and violence in transition. Patterns of violence and social conict arerecongured rather than being brought to an end. Violent crime that mayappear new is often in reality rooted in ongoing experiences of social margin-alisation, political exclusion and economic exploitation. By focusing on politicalviolence the TRC cleansed the past, on both sides of the political divide, of anti-social elements; overlooked the criminalisation of politics and a politicisation ofcrime under apartheid; and dramatically reduced its potential impact on thepresent and ongoing violence and human rights concerns. Separating crime andpolitics requires the ability, beyond crime and violence, to secure inuence,access status, derive subsistence and resolve disputes in civil society, public insti-tutions and political processes. Truth commissions need to contribute to thisparting of the ways rather than assume or celebrate its completion.The chapter identies patterns of continuity and change in transitional

violence in South Africa (organised crime, vigilantism, warlords, ex-combatants,taxi violence), drawing on rich empirical research conducted by the Centre forthe Study of Violence and Reconciliation (CSVR); and similar patterns in pro-gressive and more repressive state and public responses to crime (instrumentalauthoritarianism, legal fetishism, paralegality, restorative justice), drawing on thework of the International Council on Human Rights Policy (2003) and Panizza(1995). Crime during transition assumes importance as a genuine problem,through public perceptions of crime and criminality, and in a symbolic ormetaphorical guise. It becomes a key indicator of political dissatisfaction that canthreaten the deepening of democracy and the entrenchment of human rightsprotections. Often, resorting to hard-line measures not only harks back to thepast but also takes the form of a state and societal backlash against human rights.Such policies sit uneasily with amnesty provisions for past human rights abuses.In many countries, including South Africa, policies addressing transitional crimecombine more liberal measures involving state and civil society collaboration(community policing, police training, external oversight mechanisms, restorativejustice projects) and hard-line, non-consultative measures. This again suggestsnew opportunities and challenges for civil societystate relations, as roles arerenegotiated in a dynamic policy environment. A key tension during transitions,therefore, is a struggle over the balance between more authoritarian and moreprogressive responses to crime and violence. Truth commissions must enter thisdebate. The argument of the two justice-based chapters, in short, is that acoherent approach to justice, past and present, is needed to reduce policy con-tradictions and perceptions of injustice, and rebuild faith in the rule of law whiledeepening democracy.Chapters 5 and 6 focus on the last of the keyword triumvirate: reconciliation.

None of the other keywords has been the subject of quite so much undeservedhype or castigation as reconciliation. It has a role to play, but a modest one. Therst of these chapters explores the links between truth-telling and reconciliation.It analyses the TRCs conceptualisation of reconciliation (privileging individualor interpersonal and national reconciliation), and assumptions underpinning,

Introduction 15

as well as criticisms of, the speaking truth to reconciliation paradigm. Thechapter argues that a truth template shaped the debates launched by the TRCin this arena. The truth template framed a debate, consisting of ve interrelatedstrands. (1) Life stories were structured around instances of, and responses to,violence, but with diverging denitions and understandings of violence and vio-lation (gross human rights abuse or structural violence, focusing on the apartheidera or a longer history of colonisation and dispossession?). (2) Past and presentcoexisted; and (3) the private, secret and censored, and the public, similarly,were characterised by a troubled coexistence rather than the new sweeping awaythe old. (4) The new orders speaking truth to reconciliation cohabited with amore contestual paradigm of speaking truth to power. Both voices are essentialto longer-term demands for political recognition and citizenship from themarginalised. (5) Contests emerged over post-apartheid and post-TRC identitiesand self-identication (victim or survivor; singular or multiple identities; thedirection and dynamics of identity transformation). A privileging of the victimwithin truth-telling, and the rise of cultures of victimhood, are analysed as anexample of a truth template debate.Drawing on this conceptual framework, the chapter documents the many sites

of truth-telling that have engaged with the truth template, in turn appropriating,modifying and critiquing the notion of speaking truth to reconciliation. Supportgroups, memorialisation and public culture in the form of novels are marshalledas case studies and explored in depth. The TRCs success has been to inspireand legitimise these sites that have the potential to assist the TRC in achievingsome of its goals, but also to nurture counter-discourses.Chapter 6 moves on to the second component of reconciliation: relationships.

The rst section of the chapter formulates a denition of reconciliation as thework of (re)constructing relationships through enlightened processes. The ultimategoal is a series of reorientations that can only be achieved in the thick textures ofeveryday life: reorientations from the extraordinary, spectacular and individual tothe ordinary and social process; from binary to multidimensional identities andways of viewing the world; from suering to living; from the past (rediscovery)to the present and future (creation); and, nally, towards a preparedness toembrace risk. The often overlooked risk of reconciliation is premised on costlysignalling between parties, embracing openings on to an unpredictable future, andthe necessity of transformative change. Apology and forgiveness are discussed asone example of the risk hypothesis.The second half of the chapter applies this theory of reconciliation to two case

studies, selected to explore structural relationships at community and economiclevels, i.e. levels largely neglected by the TRC. Community reconciliation isinvestigated through the case study of a restorative justice mediation projectundertaken by CSVR in Bonteheuwel, Cape Town. This is of interest because itilluminates the potential of interventions focusing on process, relationships and theeveryday, highlights the still fractured nature of many post-apartheid communities(notably due to allegations of informing, poverty and crime), and both adopts

16 Introduction

and critiques the restorative justice agenda of the TRC. Enforced coexistence isnot a characteristic of the nal case study, economic reconciliation, and as suchit poses particular challenges for relational reconciliation. Even here I argue thatif the necessary will exists, an innovative mapping of relationships, responsibilitiesand appropriate channels of redress have a contribution to make to economicreconciliation and redistribution. Ultimately, this requires acknowledgement ofbroad-based responsibility and similarly framed redistribution and redress. Eco-nomic reconciliation faces formidable obstacles: the global meta-discourses thatshape post-conict continuity and change (neo-liberalism, a focus on civil andpolitical rights, the liberal peace); the ANCs market-led economic policiesand the inequalities still scarring South Africa; and the TRCs neglect of socio-economic rights alongside its troubled reparations policy. The chapter suggestsboth why and how economic and social rights should be addressed in transi-tional contexts, specically by truth commissions. Land reform and separationpolicies are explored to chart the dangers and opportunities in more detail.The warning, ultimately, is a stark one: either poverty is relational, a sharedresponsibility, or it will become the subject of political struggles and adversarialrelationships.By way of conclusion, I return to the main arguments developed in the book

by posing four questions for the era of transitional justice and human rights. Thequestions are: (1) Do human rights occupy the eld of emancipatory possibility(Kennedy 2002: 108)? (2) Is there a danger of co-option, and if so by what orwhom? (3) Is too much or too little being attempted? And (4) Can the prior-itisation/sequencing and interlinking of interventions be mapped on to patternsof continuity and change in transitional societies?

Notes1 Insights into the extent to which the TRCs methodology was improvised are not hardto nd. For example, references are made to numerous changes to the statement formor protocol for victims (TRC 1998, Vol. 1: 13839), and to slowly emerging andchanging denitions, for example as to what constituted a gross violation of humanrights or who would be classied as a victim (Buur 2001: 16667; 2003: 15153).International lessons-learning processes mean there is less reason now for truth com-missions to falter in this way, or at least to quite this extent.

2 The volume edited by Chapman and van der Merwe uses a range of qualitative andquantitative methodologies, including transcript analysis from hearings, to evaluatethe TRC process and specically its impact on victims and survivors. Gibson draws onpublic opinion surveys, exploring the TRCs impact on all South Africans, to test thehypothesis that truth leads to reconciliation, with the latter dened as interracialreconciliation, political tolerance, support for the principles of human rights and thelegitimacy of political institutions. The former study is signicantly more critical thanthe latter. Sarkins work constitutes the most comprehensive available analysis of theTRCs amnesty process and transcripts. Two shorter evaluations are worth mention-ing, Simpson (2002) and Stanley (2001), as they situate their assessments of the TRC ina wider context, notably the high levels of social and criminal violence and enduringpoverty and inequality of the transitional present.

Introduction 17

3 The International Center for Transitional Justice (ICTJ), often in collaboration withthe Human Rights Center at the University of California, Berkeley, has been involved ina number of such surveys: Iraq 2004; Northern Uganda 2005 and 2007; Aceh, Indonesia2008; Nepal 2008; Eastern Democratic Republic of Congo 2008 and the resultingpublications are available on its website: www.ictj.org. Also see the Afghanistan Inde-pendent Human Rights Commission (2005); Lundy and McGovern (2006), onNorthern Ireland; Oce of the United Nations High Commissioner of Human Rights(OHCHR) (2007), on Northern Uganda; and Stover and Weinstein (2004), on Rwandaand the former Yugoslavia. Snapshots of public attitudes are useful but also, given thevolatility of political circumstances and attitudes in transitional contexts, somewhat limited.Among the most compelling research in this eld is Penal Reform Internationals(PRIs) longitudinal research on the gacaca courts in Rwanda (gacaca courts are a sig-nicantly modied, local conict resolution mechanism mobilised by the Rwandangovernment to help process the enormous number of post-1994 genocide suspects). Since2002, this research has provided insights into the evolution of a unique transitional justiceintervention, and public attitudes to the intervention; see www.penalreform.org/

4 Fletcher et al. (2009: 169) write: Certainly, the claims by advocates that transitionaljustice responses lead to peace and reconciliation appear at this point to representhopes for a happy ending and not evidence-based policies on which the internationalcommunity can count. Four further points about the dark art of evaluation requireattention. First, evaluation tools are likely to draw on, but modify, established modelsin elds like development, where monitoring and evaluation methodologies are farmore advanced than they are in human rights. Second, evaluation raises its own chal-lenges, from the danger of it becoming a technical, quantitative checklist rather than amore qualitative and political engagement with process and context, to whether toprioritise process or outcomes. Third, timing matters. Certain impacts register quickly,while others emerge slowly over time. Snapshot evaluations, like snapshot analyses ofpublic attitudes, are only a rst step; longitudinal surveys are needed. Finally, theempirically grounded transitional justice research agenda is currently damaginglyskewed; people are much more likely to be asked what they would like from transitionaljustice than what they have received from it. This imbalance needs to be rectied.

5 The TRC website is now housed on the website of the Department of Justice andConstitutional Development: www.doj.gov.za/trc

6 The Rule of Law and Transitional Justice in Conict and Post-Conict Societies,Report of the Secretary General, UN Doc. S/2004/616, August 2004; and theOHCHR has produced a series of rule-of-law tools for post-conict states, coveringinterventions such as truth commissions, prosecution initiatives, vetting and reparations.These are available at www.ohchr.org. Also see Amnesty Internationals Truth, Justiceand Reparation: Establishing an Eective Truth Commission (Amnesty International 2007).

7 Including, notably, the Updated Set of Principles for the Protection and Promotion ofHuman Rights through Action to Combat Impunity, UN Doc. E/CN.4/2005/102/Add.1, February 2005; and the Basic Principles and Guidelines on the Right to aRemedy and Reparation for Victims of Gross Violations of International HumanRights Law and Serious Violations of International Humanitarian Law, adoptedand proclaimed by UN General Assembly resolution 60/147 of 16 December 2005,UN Doc. A/RES/60/147.

8 The international hub for such actors is the United States, with the InternationalCenter for Transitional Justice (ICTJ), the Human Rights Center at the University ofCalifornia, Berkeley, the United States Institute of Peace (USIP) and the AmericanAssociation for the Advancement of Science (AAAS) to the fore. ICTJ, for example,provided organisational support to, and the sta who wrote, several of the OHCHRrule-of-law tools, and have themselves produced many similar guides.

18 Introduction

9 Such as the Centre for the Study of Violence and Reconciliation (CSVR) inSouth Africa.

10 Recommendations are often hastily conceived, address a buet of concerns basedon very uneven expertise, and struggle to insert themselves into a rapidly changingpolicy environment. The challenges facing recommendations are likely to increase iftruth commissions expand their remit into economic, social and cultural rights. As aresult, recommendations should (1) secure the truth commissions own legacy(archives, etc.); (2) restate broad human rights and social justice principles at a timewhen they may be under siege; and (3) anticipate the challenges of the future and theways in which the past will endure into the medium- and long-term future. Cross-referencing the recommendations of others should also be emphasised, as truth com-missions are one voice in the chorus of transitional human rights debates (UN treatybodies, regional human rights courts, local and international NGOs) and shouldposition themselves as such.

11 By using the term subaltern I mean to prioritise the agency of the oppressed andmarginalised, notably as makers and recorders of history.

Introduction 19

Chapter 1

Truth as genre

Transitional truths

Truth commissions contain various dierent but interlinking strands of truthinquiry, with similarly congured implications for methods, objectives andprioritised interests. Several of these strands are briey detailed in the rstsection of this chapter truth as acknowledgement, truth as justice, naming names, patternsvs individuals, amnesty for truth. Others are dealt with in later chapters (truth andreconciliation in Chapter 5; apology as truth in Chapter 6). The main subject of thischapter, however, is an attempt to go beyond these insights by mapping a newconceptual understanding of truth truth as genre. Truth as genre provides ameans of acknowledging and interrogating truth commission work across diversemethods, objectives and interests. Many of the strengths and weaknesses of o-cial truth commissions can be traced to the fact that they constitute an imper-fectly realised hybrid genre, spanning the state inquiry, human rights report andocial history.One of the most frequently cited conceptualisations of truth is truth as

acknowledgement. The important distinction between knowledge (factual truth) andacknowledgement, attributed to Thomas Nagel (Aspen Institute 1989), is basedon the premise that although certain truths may already be widely known theyhave often previously been ocially denied or rationalised. There is value,therefore, both in establishing factual knowledge and in having knowledgesanctioned as ocial truth. Such acknowledgement arms the reality of painfulexperience. It also recongures unequal and unaccountable relations of poweras the state owns responsibility for its actions (albeit often under a dierentgovernment), thereby healing the rift between private and social memory on theone hand and ocial denial and lies on the other.A distinction can usefully be made between ocial acknowledgement (by the

government of the day) and public acknowledgement (the formation of a moreshared collective or societal memory of the past). To the extent that the TRChelped forge a greater consensus about certain broad truths apartheid was acrime against humanity; both the apartheid state and its opponents committedabuses it can be argued that it also helped to create a stronger collective

memory and public acknowledgement of the past (Gibson 2004: 68116, 15666).Asking rather more of acknowledgement, Cohen (1995: 3956) argues that humanrights information-work has been more geared to transforming ignorance intoknowledge than to thinking about transforming knowledge into acknowledgement.The desired response is surely for knowledge to be publicly acknowledged and actedupon (also see Cohen 2001: 22277). The TRC was less successful in achievingacknowledgement in this fuller sense.While truth commissions are often understood to sacrice justice for truth,

there are also a plethora of claims that truth, as acknowledgement or otherwise,constitutes (1) a stepping-stone towards greater justice, and (2) a form of justice(truth as justice).Truth commissions can facilitate justice and help build the rule of law in

various ways. Commissions have forwarded case les to prosecutors or the courtsand provided evidence to support court proceedings (notably in the trialsof leaders of the former military juntas in Argentina, to establish the identity ofperpetrators through investigations in Chile, and at the international level in thecharges brought against General Pinochet).1 In 1998, the TRC handed a list ofmore than 300 names to the National Prosecuting Authority (NPA), requestingfurther investigations with a view to prosecution. Commissions have also inves-tigated judicial complicity in abuse, and recommended sanctions against perpe-trators (including prosecutions), reparations for victims/survivors and judicialreform (Hayner 2002: 86106). Public truth-telling in hearings and reports canmarshal the naming of perpetrators as a modest form of censure and as the basisof further possible judicial and non-judicial action. Truth in these guises can beconstrued as countering injustice, if in somewhat hushed tones.A second argument is that truth intersects with justice most powerfully

in transitional contexts by contributing to a public debate about the nature ofjustice, moving thinking out of the criminal justice/retributive trenches and on tosuggestive, new terrain (see Chapters 3 and 4). Phelps writes of the TRC:

the hearings were a public enactment of a radical kind of justice, justice thatreturns dignity to those who have been victimized; justice that gives back thepower to speak in ones own words and to shape the experience of violenceinto a coherent story of ones own, thereby allowing for a renewed (or new)sense of autonomy and sense of control; justice that allows victims, inhearing stories from other victims, to locate their personal stories in a largercultural story; justice that corrects the erroneous message communicated bythe system of apartheid that these people of color are unworthy themessage corrected not in the ocial language and setting of the legalsystem, but in public space that belongs to the people.

(Phelps 2004: 111, see 52128)

More concretely, consider the following quote about truth and justice from IreneMxinwa, mother of one of the Guguletu Seven, who were killed in a police

Truth as genre 21

ambush in Guguletu, Cape Town, in March 1986. Here she is talking about herexperience of testifying at a Human Rights Violations (HRV) hearing:

[The TRC] created a safe environment where we can actually feel that weare human beings and we have dignity, we have a name, we have a face The kind of questions they put to us were really helpful and helpingquestions, so that we can be able to remember our story and if we make amistake they wouldnt become impatient with you [T]he way the hear-ings were conducted and the way that the truth came out, you couldactually see and feel justice.

(Interview 30/7/1998)

Justice can be forged in properly constituted processes of change; in this casetruth-telling, in and of itself, constituted a form of justice. This lesson needs to bewrit large in transitional justice handbooks: how things are done (processes)matters as much as more conventional objectives (outcomes). Further, victim/survivor conceptualisations of keywords can resonate with the holistic denitionsoutlined in the introduction.A further window on the truth as justice paradigm is naming names (Hayner

2002: 10732). Truth commissions have adopted dierent, and often highly con-tested, policies on naming perpetrators, with some choosing to name (El Salvador,South Africa, Sierra Leone) but the majority not. The issue raises questions aboutwhat kind of procedures and methodologies truth commissions should adopt.Formal naming, usually in reports, constitutes a nding of moral or political

responsibility, not a legal judgment of guilt, and it is generally agreed that thelesser punishment of naming, possibly bringing with it a degree of public sham-ing and stigma, requires fewer due process protections. Nevertheless, naming pitsthe due process rights of alleged perpetrators against the right to truth of victimsand survivors. How can the correct rights balance be struck? Other factors,of course, inuence policies on naming, including mandate specications;political pressures and possible impacts on a fragile peace; security and witness/perpetrator safety considerations; and the fact that the prole of those namedcan appear arbitrary. The outcome of naming can be negative, as in El Salvadorwhere a blanket amnesty followed swiftly in the wake of the commissions report.Naming, in short, entails a balancing of, but not a moral equivalence between,victim/survivor and perpetrator rights, and needs to be a politically informed,strategic decision (is it likely to be eective?) as well as a moral one (is it the rightthing to do?).The South African TRC took the already complex issue of naming into new

territory (du Toit 1999; Sarkin 1996, 2004: 9297; TRC 1998, Vol. 1: 9092),partly because hearings, crucially its victim hearings, were public and widelycovered by the media, but also because it combined hearings with both themaking of ndings in its report and an amnesty process.2 Names were cited in allthese settings. Several court cases claried the due process or procedural rules of

22 Truth as genre

the TRC (and specically the meaning of Section 30 of the Promotion ofNational Unity and Reconciliation Act [No. 34 of 1995]), ultimately ensuringthat the hearings and the nal report became bogged down in a hugely time-and resource-intensive exercise of providing those to be named with reasonableprior notice and sucient information to enable them to make representationsand respond. In both arenas naming was curtailed as a result. Caught betweencompeting demands victim/survivor versus perpetrator rights; due processrequirements, a mandate to make ndings, reporting functions and therapeuticgoals the TRC struggled to nd a coherent policy response to this issue thatadequately respected the centrality of victims/survivors in its work.Before leaving the issue of naming, one nal, often overlooked point needs to

be made. That is the importance of naming both victims/survivors and perpe-trators in human rights documentation, where information and security concernsallow. While neither form of naming is done widely or consistently, as Bronkhorst(1998) notes, the potential implications of rectifying this situation are signicant:

If human rights organisations produce extensive or exhaustive lists of victimsfor each situation, they stress the principle that each individual victim isa life as valuable as that of any other person. In naming the names ofperpetrators, they render individuals accountable for crimes committed,instead of sketching only the more elusive patterns of violations.

(Bronkhorst 1998: 472)

The TRC reports incomplete list of victim names (TRC 1998, Vol. 5: 26107)and scattered, disconnected references to victims in its various volumes werelater complemented by a special volume dedicated to victims (TRC 2002,Vol. 7). This volume names and features short summary ndings for the 22,025people classied as victims by the TRC. Despite multiple challenges (omissions,truncation, formalisation) the naming of victims and the reclamation of a spacefor their stories can be seen as a form of acknowledgement even if its impactwas diminished by the fact that plans to send each named victim a copy of thisreport have not been realised. Victim recognition and self-recognition, facilitatedby naming, direct quotations and life summaries, holds out the powerful promisethat some at least will be mended by the mention (Weschler 1990: 74).The privileging of individual names and stories can clash with an emphasis

on investigating patterns of abuse (patterns vs individuals). It is the highlighting ofpatterns, providing an authoritative account of the abuses of a particular era orregime (also called the global truth), that is widely seen as a key role of truthcommissions, and one that sets commissions apart from trials.An article by Chapman and Ball (2001) takes a strong position on where truth

commission priorities should lie (also see Chapman and Ball 2008). They state:

it is our view that truth commissions are far better suited to pursue what wehave termed macro-truth, the assessment of contexts, causes, and patterns

Truth as genre 23

of human rights violations, than micro-truth dealing with the specics ofparticular events, cases, and people.

(Chapman and Ball 2001: 41)

The authors are critical of the TRC for focusing too much on the latter and toolittle on the former. They, and others, applaud the Guatemalan Commission forHistorical Clarication (CEH) for its greater success at establishing macro-truths,even arguing that a mandate prohibiting it from naming perpetrators, althoughwidely criticised, became a strength because it encouraged the CEH to examinebroader issues such as the institutions and social structures that fosteredviolence (13). A number of claims are made by Chapman and Ball to supporttheir argument: it is the big picture that is often most incomplete and victimsalso want systemic truths; commissions are not particularly good at investigatingindividual cases; micro-truths should mainly be left to the courts; commissionsshould prioritise the objective over the subjective dimensions of truth, outcomes(reports) over process (hearings); and responsibility should be attributed at themacro level too, focusing on institutions, parties, structures, policies, ideologiesand patterns of abuse (4143).It is the case, as the TRC illustrated, that truth commissions are ill equipped

to investigate potentially thousands of individual victim/survivor or perpetratorcases. The TRCs investigation unit, for example, predominantly provided cor-roboration rather than new information for victims/survivors. Pigou (2002: 37)states that probably over 90 per cent of people who appeared before the TRCdid not receive meaningful new information about their cases. This was notsimply a resource question: greater priority was given to making perpetratorndings and to the amnesty process. If investigations and reports may well in themain have to resort to illustrative or representative examples window cases inthe TRCs jargon to highlight patterns or important events, ways can also befound to name names, and summarise and acknowledge each and everyindividual victim/survivor story (see TRC 2002, Vol. 7).The focus on patterns of abuse clearly matters, but it is also important to be

honest about what a privileging of patterns means. To leave individual cases tothe courts means that for the overwhelming majority nothing further willhappen. To conclude, after outlining the argument detailed above, that ndingsshould be victim-centered, telling the story from their point of view and validat-ing their experiences (Chapman and Ball 2001: 43) is somewhat disingenuous.Many victims/survivors want information about or acknowledgement of theirparticular experiences; their truths are particular truths. Others yearn to getbeyond bad apple exculpations to situate their experiences within broaderpolicies of abuse. Both levels of analysis, in short, are necessary. The methodo-logical challenge of synthesis spans the genres that are the subject of analysisin this chapter state inquiry, human rights report, ocial history and indeedthe social sciences as a whole: how to integrate, while giving appropriate atten-tion to, individual experiences and broader patterns alongside structural concern?

24 Truth as genre

One of the unique features of the TRC was that it placed an amnesty processwithin the remit of a truth commission, and sought to link amnesty to the widerproject of truth-telling and truth-gathering by making full disclosure one of theconditions for amnesty (amnesty for truth). Truth commissions, and other mechan-isms, set up after the TRC have also experimented with amnesty for truth pro-visions. In Timor Leste, the CAVR (Commission for Reception, Truth andReconciliation), through its Community Reconciliation Process, included a pro-cedure enabling immunity from criminal and civil liability for less serious crimes,contingent upon factors such as full disclosure, a public apology, and fulllingthe terms of a Community Reconciliation Agreement (Burgess 2006). TheLiberian TRC could recommend amnesty for perpetrators of, and accomplicesin, less serious crimes if certain conditions were met, including full disclosure andremorse, while in Colombia under the Justice and Peace Law members of illegalarmed groups who agree to demobilise are oered reduced sentences inexchange for confessions about human rights violations and reparations for theirvictims (Colombias law is not linked to a truth commission). The Kenyan TruthJustice and Reconciliation Commission can also recommend amnesty for thosewho make a full disclosure about less serious and economic crimes.A common problem for truth commissions, and truth generation, is the lack of

cooperation from perpetrators (Hayner 2002: 39, 11314). The participation ofperpetrators in the South African TRCs truth-gathering was encouraged by a twinstrategy, the carrot of amnesty for truth and the stick of potential prosecutionsand civil claims (Sarkin 2004).3 Given the impossibility of comprehensive prose-cutions, such an amnesty provision may well have been the only available route totruth for many. Amnesty applications provided insights into particular events, andthe roles, structures, modes of operation and links between key perpetrator groupsand institutions, as well as perpetrator perspectives and motives, thereby helping toframe preventive recommendations. They were at the forefront of resolving killingsand disappearance cases and, therefore, exhumations; and even cracked complexkillings resulting from security force inltration of the liberation movements.4

However, the amnesty for truth equation also faced a range of challenges,which can be summarised as institutional problems, procedural shortcomings andthe partiality of amnestys truth.5 Institutional problems arose from the fact thatthe Amnesty Committee was within but also one step removed from the TRC insisting on an arms length relationship (TRC 2003, Vol. 6: 85) composedof lawyers, and dominated by a legal ethos, a narrow, legal approach to truthand a less overt focus on victims/survivors. Institutional schisms, which inu-enced the methodology and goals of truth collection, and poor information owsbetween dierent parts of the Commission, hampered coherent truth collection.The truth dividend was also diminished by a range of procedural issues

(Sarkin 2004; interview 11/4/2005). The designated track of decision-making (themore numerous and cursory in chambers or administrative decisions dismissingcases that did not meet the formal conditions for amnesty and granting amnestyin less serious cases; or public amnesty hearings in cases involving gross violations

Truth as genre 25

of human rights); weak investigative capacity; uneven legal representation; thepresence or otherwise of victims at the hearings; a narrow focus on incidentsrather than contexts, on direct perpetration rather than its indirect counterpart(giving orders, devising policy); and decisions generally lacking explanation andrationale all go to the heart of truth concerns, in particular the extent to whichapplicants versions of events were eshed out and adequately tested.Finally, and partly as a result of institutional and procedural shortcomings,

amnestys truth was profoundly partial. Most crucially, the number of realamnesty applications was in fact very small indeed (1,646). The TRC in its nal,codicil report miscalculates the total number of amnesty applications (as 7,115,whereas the gure more usually cited now is 7,116), and fails to provide a com-prehensive table of data (for useful tables see Coetzee 2003: 19394; Foster et al.2005: 14, 21; and Sarkin 2004: 126). A total of 293 members of the apartheid-erasecurity forces applied for amnesty; most of these were from members of thesecurity branch, while very few indeed (31 in total) were South African DefenceForce (SADF) members (TRC 2003, Vol. 6: 18283). Similarly, there were only109 applications from Inkatha Freedom Party (IFP) supporters and members theIFP is a Zulu-based party which with the support of the apartheid governmentfought a war against the ANC and its allies in the 1980s and into the 1990s (TRC2003, Vol. 6: 340). Most amnesty applicants were black; the majority came fromcriminals in prison trying to depict their crimes as political, rather than realapplicants; among political protagonists, African National Congress (ANC)-alignedapplicants dominated. At face value, this is a very bizarre picture of apartheid eraviolence and perpetration.Three further examples are illustrative of the contours of partiality. First, few

leaders applied for amnesty; foot-soldier truths predominated. Reasons forthis include the impact of previous indemnity and related provisions, a mis-understanding of and political party opposition to the amnesty provision, and asimple disbelief that criminal or civil cases would ensue (see Chapter 3). Second,amnesty truth coverage was uneven, not only within and across the main playersand over time, but certain abuses were virtually untouched by the amnestyprocess (torture, sexual abuse, apartheid state violations committed outsideSouth Africa in neighbouring states, the disclosure of informers). The latter wasdealt with on the basis of secrecy, and the condential submission of lists ofinformers by the state and the ANC. Finally, applicants unsurprisingly toldstrategic truths, adapting their applications to meet the conditions for amnesty byprivileging formal organisations rather than more informal features of violence,and political