Dilemmas of Transitional Justice: The Case of South Africa's Truth and Reconciliation Commission

By van Zyl, Paul | Journal of International Affairs, Spring 1999 | Go to article overview

Dilemmas of Transitional Justice: The Case of South Africa's Truth and Reconciliation Commission


van Zyl, Paul, Journal of International Affairs


After almost three years of work, South Africa's Truth and Reconciliation Commission (TRC) delivered its final report to President Nelson Mandela on 29 October 1998. The delivery occurred amid considerable controversy as both former President F.W. de Klerk and South Africa's current ruling party, the African National Congress (ANC), launched last-minute legal proceedings in an attempt to block the publication of the report. The TRC agreed to temporarily excise a small section of the report, which implicated de Klerk in gross violations of human rights, pending final legal settlement of the matter in early 1999.

The ANC's court application, in which it argued that the TRC had failed to properly consider its objections to the TRC's findings regarding the party's responsibility for human rights abuse, was rejected only hours before the report was scheduled for public release. The fact that both former and current rulers were distressed by aspects of the TRC's final report is perhaps the strongest evidence that the TRC fulfilled its mandate in a fair and impartial manner. It also demonstrates that any attempt to deal with past human rights abuse is likely to be both complex and contested.

The TRC can be characterized as representing a "third way" in dealing with a legacy of human rights abuse and attempting to institutionalize justice. This is because it steered a middle path between an uncompromising insistence on prosecution on the one hand, and a defeatist acceptance of amnesty(1) and impunity on the other. This article will examine the structure and mandate of the TRC and assess its contribution to an evolving discussion about the nature of international justice and the institutional mechanisms best suited to achieving it.

Drawing on the TRC experience, this article argues that new democracies emerging from periods of massive and/or systematic violations of human rights are unable, for a combination of practical and political reasons, to prosecute more than a tiny percentage of those responsible for human rights abuse. For this reason, strategies for dealing with the past must not become narrowly focused on attempts to prosecute. Rather, more expansive and creative strategies should be considered and employed in order to address the rights of victims and the needs of society as a whole.

DEALING WITH THE PAST

Why Amnesty?

The manner in which a successor government chooses to deal with those who have committed gross violations of human rights, during the tenure of a previous repressive regime is profoundly influenced by the balance of power between the old and new orders at the time of transition. The Nuremberg trials were possible in postwar Germany only because the Allies had militarily defeated the Nazi regime and therefore possessed sufficient power to ensure the prosecution of the leaders of the Third Reich.(2) Conversely, when the transition to democracy occurred in Chile, the newly established government was unable to prosecute those who had committed gross violations of human rights during military rule(3) because the military still commanded considerable authority--so much so that former Chilean dictator General Augusto Pinochet was able to remain in office as head of the armed forces.

The contrast between the postwar German and the Chilean approaches to those who have committed gross human rights violations indicates that a country's choice of policy has as much to do with power as it does with principle. The approach to amnesty adopted in South Africa confirms this fact: the transition from a nondemocratic to an elected government occurred in circumstances similar to those of the Chilean transition in which the former government maintained considerable power during the regime change. The South African liberation movements did not succeed in removing the apartheid government from office by military means. In fact, throughout the negotiation process, which resulted in South Africa's first democratic elections, the former government retained control over a formidable military and police force. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Dilemmas of Transitional Justice: The Case of South Africa's Truth and Reconciliation Commission
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.