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
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. …