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Truth Without Justice

Thursday, February 1, 2001

Robert I. Rotberg & Dennis Thompson, editors.
Truth v. Justice: The Morality of Truth Commissions.
Princeton University Press.
296 pages. $55.00 cloth, $18.95 paper

The wave of democracy sweeping across the globe during the past 20 years has extended from the Iron Curtain countries to Latin America to Africa, and it has produced an enormous problem in dealing with the experience of dictatorship. "The past is never dead. It’s not even past," William Faulkner wrote. Then how is it to be handled, as a nation emerges into some form of democracy? Shall the former rulers be tried and jailed, or even shot? Shall Nuremberg tribunals be established? Or shall the officials of the former regime be amnestied, as if some form of collective amnesia had overtaken the people?

In roughly 15 countries, another alternative has been tried: the truth commission. Although most examples are found in Latin America, the most sophisticated truth commission was established in South Africa. Its record was the subject of a conference held in Cape Province, South Africa in May 1998, and Truth v. Justice includes versions of the papers delivered there. The papers presented are extraordinarily intelligent, and the collection is adequately balanced: Critics and defenders of the truth commission are here, and it is difficult to think of an argument that is not raised, debated, and fairly examined. While there are more pro than con chapters, the critics are given a fair shot and, in my view, win the argument.

What is the argument? The truth commission is a deviation from the expected outcome when power changes hands in an internal conflict. Typically throughout history, winners take power and then take revenge. The former rulers are punished for real or imagined crimes, their period of rule is denounced as criminal, and history is rewritten. This "format" is still reasonable when the past consists of what Rajeev Bhargava of Jawaharlal Nehru University in New Delhi here calls "asymmetric barbarism": where there are clear divisions between perpetrators and victims, such as in Nazi Germany or perhaps in apartheid South Africa. In these cases, one side violates norms of justice while the other seeks only to enforce them. Andre du Toit of the University of Cape Town calls this case the "regime of criminals," and the idea is that they should be punished through the criminal justice system when the opportunity presents itself.

More difficult are the cases of "symmetric barbarism," where "all hell has broken loose" and both sides are guilty of violating behavioral norms. Muslim/Hindu violence in India is the example given by Bhargava. Du Toit calls this the "criminal regime" case where, as he puts it, "the distinctions between perpetrators, victims, and beneficiaries are unclear and problematic and collaborators have a larger role." This is the Eastern European communist case as well, and Vaclav Havel is quoted as explaining that "all of us are responsible, each to a different degree . . . none of us is merely a victim."

Whatever the distinctions among the varieties of human rights abuses and undemocratic systems, the proponents of truth commissions argue that simple criminal trials are inadequate to do justice. Or rather, "doing justice" is an inapposite concept; and for the nation as a whole, finding the truth about the past is a more important goal than meting out punishment to the guilty. The truth lays a sounder foundation for future democracy. The search for truth is a search for a common understanding of the past, a new history of the nation. It is a mechanism that, "privileging reconciliation over retribution," focuses on permitting victims to tell their stories and regain their dignity rather than on punishing perpetrators’ actions.

Defenders compare the truth commission favorably to criminal trials, and the argument is powerful. The goal of a trial, as Ronald Slye of Seattle University (and a former consultant to South Africa’s Truth and Reconciliation Commission) explains, is to determine that "we have sufficiently minimized the possibility that we may be about to punish an innocent person," while the goal of commission amnesty hearings is to extract as much information as possible. Slye concludes: "there is no doubt that the quantity, and probably also the quality, of the information elicited from the amnesty hearings [conducted by the South African commission] was higher than what would have been elicited from criminal trials." Victims’ stories are treated with great suspicion by defense attorneys and even by the court at trials, whereas the truth commission gives victims the chance to deliver their narratives to a sympathetic audience. The goal of the South African commission is suggested by its name, the Truth and Reconciliation Commission; not only vengeance but even justice was made a subordinate goal. As Slye puts it, "reconciliation requires that the goals of both law and history be met — that some form of accountability (legal judgment) and understanding (historical judgment) be combined. An amnesty process like South Africa’s is the closest thing we have yet seen to achieve the goals of both disciplines." For the South Africans learned from the Latin experiences in places like Argentina, Guatemala, and Chile, and understood that a process utterly without accountability was unsound — even as a tool for reconciliation. They therefore added to the mere historical functions of the commission — developing a narrative explanation of the past, including individual cases of abuse, murder, or disappearance — a means of dealing with individual perpetrators. The Truth and Reconciliation Commission was empowered to grant amnesty, but never en bloc, never to classes of people or for all acts committed during a particular time period (as had been done in Latin America). There would be no amnesia, no immunity. Instead, the commission could grant amnesty to individuals in exchange for their full and candid testimony. Robert Rotberg of the Kennedy School at Harvard describes this as "forgiveness and reconciliation preceded by an accounting of violations, a confronting of perpetrators by victims."

This mechanism worked pretty well. If there were individuals who lied to the commission, there were many others in important cases, including such high ranking officials as former Defense Minister Magnus Malan, who ultimately came forward and spoke — and spoke far more openly than it can be imagined they would have in a criminal trial. There was testimony about some of the most famous cases in the history of the South African struggle, such as the murder of Steve Biko, and the testimony, especially the words of the white former security officials, presented an account that could not otherwise have been compiled. The needs of history were served.

But whether those of justice were served remains the true debate. As is made very clear in the chapters by Amy Gutmann, Dennis Thompson, and Kent Greenawalt, there is a moral cost when justice is subordinated to "truth," "history," "reconciliation," or any other goal. Gutmann and Thompson quote the brother of Griffiths Mxenge, a human rights lawyer who had been murdered by the police, after hearing the confession that gained the perpetrator amnesty: "once you know who did it, you want the next thing — you want justice." They also note these lines from Alex Boraine, a contributor here and deputy chairman of the South African commission, about a woman listening to testimony by the killer of her husband:

After learning for the first time how her husband has died, she was asked if she could forgive the man who did it. Speaking slowly, in one of the native languages, her message came back through the interpreters: "No government can forgive." Pause. "No commission can forgive." Pause. "Only I can forgive." Pause. "And I am not ready to forgive."

Here is the deep moral problem of the truth commission as a substitute for the criminal justice system: It short-circuits the mechanisms most societies have established to right wrongs by punishing wrongdoers. And if the South African commission was to compensate victims with money (money which has never been delivered, one must add), who can say that money substitutes for justice? Why does anyone have the right to tell that woman, or Griffiths Mxenge’s family, that the murderers of their loved ones must go free?

There are at least two reasonable answers proposed in this volume: realism and democracy. The realist argument begins by noting that criminal trials are easy to imagine but difficult to pull off. Often, evidence is not available, witnesses will not appear, and convictions are impossible to obtain; this happened in some of the famous South African cases. This is the worst of all worlds, as the crimes of the past are exposed, nerves are rubbed raw, and yet justice and national reconciliation seem farther away than ever. Moreover, the heart of the realist argument is that truth commissions come into existence when one side in a conflict has not entirely vanquished the other, and a bargain of some sort is necessary. The truth commission, in Bhargava’s view, is part of the transitional settlements "in which former oppressors refuse to share power unless guaranteed that they will escape the criminal justice system characteristic of a minimally decent society. Alternatively . . . former victims do not fully control the new order they have set up and lack the power to implement their own conception of justice." And this bargain isn’t an entirely bad thing, either, as it avoids the temptation of "victims’ justice," wherein the new rulers simply take revenge against the old and a new round of abuses occurs.

As Alex Boraine argues here, the outcome in South Africa was "a negotiated settlement, a political compromise," and it was "the only one possible in the conditions of transition in 1994." It was, he believes, "morally defensible to argue that amnesty was the price South Africa had to pay for peace and stability." This justification has been widely heard in Latin America as well, even from those who believe it will be possible a decade later to change the nature of the bargain. In Chile and Argentina, for example, prosecutions that would have been impossible as part of a transition have been undertaken years after the return to democracy. So the realist argument may be defended not as a sacrifice of justice in return for truth, reconciliation, and a transition to democracy, but as a postponement of justice until conditions are safer.

A criticalally of the realist argument in defense of truth commissions is democracy, or the argument that the people have the right to choose truth and democracy over justice. Martha Minow of Harvard Law School makes this argument in her chapter:

When a democratic process selects a truth commission, a people summon the strength and vision to say to one another: focus on victims and try to restore their dignity; focus on truth and try to tell it whole. Redefine the victims as the entire society, and redefine justice as accountability. Seek repair, not revenge; reconciliation, not recrimination. Honor and attend in public to the process of remembering.

Whether the people, through democratic processes, have the right to replace criminal justice with this kind of verbiage can be debated; at least Minow is right in suggesting that no procedure other than a democratic vote could possibly do so. One principle that does emerge in this volume is the importance of getting a majority behind the truth commission — through a plebiscite or a parliamentary vote — rather than imposing it through a back-room deal.

Minow’s words do reveal one of the worst aspects of the truth commission phenomenon, well illustrated here: the tendency to move from a hard-thinking realist defense of truth commissions as a necessary evil to a celebration of them in slippery moralistic language. Truth commissions move us from justice to "future-oriented societal moral considerations." They promote "healing." They avoid vengeance and bring us "justice as recognition" and "restorative justice." I do not find these poetic renditions very powerful, while the realist defenses are quite persuasive. Though she argues that truth commissions "are not just second-best responses," Minow herself acknowledges that even the best defenses of truth commissions "cannot deny the legitimacy of a demand for punishment," and she is right. Some have even criticized the approach (with its emphasis on forgiveness rather than justice) as excessively Christian, noting for example that while the South African Truth and Reconciliation Commission’s chairman was Bishop Tutu, not all of South Africa’s people are in fact Christians.

Is there anything for Americans to do? This volume provides a useful discussion of the possible international role, in a chapter by David Crocker of the University of Maryland. Clearly money and information can be helpful, so that new truth commissions can work decently well and learn from the achievements and mistakes of their predecessors. The need to avoid wholesale amnesties, for example, was a key lesson son South Africa learned from watching Latin America. But Crocker is careful to note how international "friends" can hurt as well. International "civil society" can also "weaken or prevent a society from effectively meeting the challenges of transitional justice." "Intemperate appeals" to universal human rights can give some factions, such as the military, an excuse to complain about "outsiders" imposing foreign norms on the society. Moreover, aid that is too large and too loud

instead of nurturing robust domestic civil societies . . . in fact may insulate governmental efforts from domestic criticism. In turn this insulation may cause reduction of public deliberation, the narrowing of the national consensus, and, thereby, the loss of popular support for the government’s efforts. For example, instead of trying to address the objections of some of its most trenchant critics, South Africa’s TRC sometimes took refuge in the consolation offered by its many international supporters.

Doing justice during a transition from dictatorship to democracy requires an exceptional grasp of the particular society and its history, as well as a careful balancing of realism about the current correlation of forces against the desire for the punishment of wrongdoers from the ancien régime. The moral and factual debates are engrossing when at their best, as they are in this volume. Perhaps the greatest contribution outsiders can make is to think clearly about previous cases, and then write clearly about their own debates. Truth v. Justice easily meets that test.