Garkawe, Sam --- "South African Truth and Reconciliation Commission: A Suitable Model to Enhance the Role and Rights of the Victims of Gross Violations of Human Rights?" [2003] MelbULawRw 14; (2003) 27(2) Melbourne University Law Review 334
[*] BSc, LLB (Monash), LLM (London); Associate Professor, School of Law and Justice, Southern Cross University. Much of the research for this article was undertaken in early 2001 when the author was a Research Fellow at the Institute for Human Rights and Criminal Justice Studies at Technikon SA, Johannesburg, South Africa. The author would like to thank the members of the Institute for their assistance and ideas, as well as members of the staff of the Centre for the Study of Violence and Reconciliation (in particular, Piers Pigou), a non-governmental organisation also based in Johannesburg, South Africa. Furthermore, the author would like to express his gratitude to the two anonymous referees for their valuable comments on an earlier draft of this article.
[1] This is a common expression now found in the literature to denote states that have changed regimes from one that regularly violated human rights to one that has at least attempted to institute the rule of law and respect for human rights. The expression also relates to the term ‘transitional justice’, which refers to the manner in which states in transition deal with their past, particularly with the perpetrators of human rights violations. There is a large amount of literature on these issues, and many now consider transitional justice to be an academic discipline in its own right.
[2] Although alternative terminology has often been used to describe similar bodies to ‘truth commissions’, including ‘investigatory commissions’ and ‘commissions of inquiry’, the term ‘truth commission’ will be used throughout this article for the sake of brevity. Priscilla Hayner sees the four defining characteristics of truth commissions as being that: they ‘focus on the past’; ‘they investigate a pattern of abuses over a period of time, rather than a specific event’; they are temporary bodies operating for a defined period; and they are sanctioned, empowered or authorised by the state and sometimes the opposition: Priscilla Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001) 14. Note that individual states have also adopted other types of accountability mechanisms, such as purges and ‘lustration’ measures (used mainly in Eastern Europe), immigration measures (such as denaturalisation and deportation proceedings, used mainly in the USA), and allowing civil suits by victims against perpetrators and those who aid them.
[3] These include whether the commission uncovered the ‘truth’ and thus produced an accurate historical record, whether it achieved reconciliation between previously warring factions within the particular society, whether ‘justice’ resulted from the commission’s work, and whether other communities in society were satisfied with its work.
[4] This is not to suggest that accountability mechanisms should only consider the perspective of victims; in particular, they must, at the very least, ensure that the rights of alleged perpetrators to due process are respected, and that the mechanism will not seriously threaten the future stability of the society.
[5] In national criminal justice systems in most Western countries (particularly those states with adversarial common law legal systems), there has been increasing attention to, and awareness of, the plight of crime victims, leading to moves to enhance their role and rights during the criminal justice process. The large body of literature that has developed around these issues has led to what many regard as a new academic discipline — ‘victimology’ — which had previously been seen as a sub-discipline of criminology: see Sam Garkawe, ‘Modern Victimology: Its Importance, Scope and Relationship with Criminology’ (2001) 14(2) Acta Criminologica 90.
[6] See Hayner, Unspeakable Truths, above n 2, 249–54. Graeme Simpson writes:
The growing global enthusiasm for truth commissions represents a reassertion of not merely the possibility, but also the profound political importance, of the idea of objective historical truth as a route to conflict resolution or restorative justice in societies emerging from authoritarian and violent pasts.
Graeme Simpson, Uncivil Society: Challenges for Reconciliation and Justice in South Africa after the Truth and Reconciliation Commission (2002) Centre for the Study of Violence and Reconciliation <http://www.csvr.org.za/papers/papsim16.htm> .
[7] See Priscilla Hayner, ‘Same Species, Different Animal: How South Africa Compares to Truth Commissions Worldwide’ in Charles Villa-Vicencio and Wilhelm Verwoerd (eds), Looking Back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (2000) 32.
[8] In relation to ‘victims of crime’, see Garkawe, ‘Modern Victimology’, above n 5. The word ‘victim’ used throughout this article is utilised in the same sense as it was used by the TRC. Under the legislation establishing the TRC, the Promotion of National Unity and Reconciliation Act 1995 (South Africa) (‘Reconciliation Act’), a ‘victim’ was defined as a person who suffered various types of harm ‘as a result of a gross violation of human rights’, or was a relative or dependant of such persons: Reconciliation Act s 1(xix). For an analysis of this term, see below nn 189–94 and accompanying text. The word ‘survivor’ used throughout this article is specifically meant to encompass only the close family members and loved ones of victims who were killed during the mandate period of the TRC. This is not intended to undermine the fact that many of those victimised but not killed during the apartheid era were in fact resilient survivors, but is rather an attempt to be consistent with the use of the word ‘victim’ by the TRC.
[9] See below Parts II and VII for further discussion of this issue. Of course, it is possible for these mechanisms to work simultaneously, and in some situations this might be the best solution. For example, Mendez has argued that
a truth commission could gather evidence and hear the victims while the judiciary is under reconstruction as an independent and impartial body; when the task of the [truth commission] is done, the material thus gathered can be used by courts and prosecutors to conduct trials under conditions of fairness, and with the benefit of having the evidence sorted out beforehand.
Juan Méndez, ‘Latin American Experiences of Accountability’ in Ifi Amadiume and Abdullahi An-Na’im (eds), The Politics of Memory: Truth, Healing and Social Justice (2000) 127, 139.
[10] Prior to the 1990s and the formation of the ad hoc International Criminal Tribunals (see below n 16 and accompanying text), the only international criminal courts were the Nuremberg and Tokyo International Military Tribunals established by the Allies shortly after World War II. Special Allied courts were also created in the various occupation zones of Germany utilising Control Council Law No 10 (1945), but these could be categorised as domestic courts applying international law.
[11] Countries such as Germany, France, Israel, Great Britain, Australia, Italy, Croatia and Canada have enacted domestic legislation that utilised international law principles to bring war crimes, crimes against humanity and genocide charges against former Nazi or pro-Nazi officials and armed forces personnel.
[12] ‘International crime’ has been defined by the International Law Commission in art 19(2) of the Draft Articles on State Responsibility (Report of the International Law Commission on the Work of Its Forty-Eighth Session: 6 May–26 July, UN GAOR, 51st sess, Supp No 10, 131, UN Doc A/51/10 (1996)) as ‘the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole’. The practical implication of this is that perpetrators may be subject to individual criminal liability under international law. Some of the most prominent and well-accepted international crimes are genocide, crimes against humanity, war crimes, torture and slavery.
[12] Sam Garkawe, ‘The Victim-Related Provisions of the Statute of the International Criminal Court — A Victimological Analysis’ (2001) 8 International Review of Victimology 269, 275.
[13] See above n 5 and accompanying text.
[14] This is best illustrated by recent moves to provide such victims with an entitlement to restitution and compensation: see United Nations Commission on Human Rights, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, UN Doc E/CN.4/Sub.2/1993/8 (1993); Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, contained in the annex to the Report of the United Nations Special Rapporteur, M Cherif Bassiouni, UN Doc E/CN.4/2000/62 (2000). See also Dinah Shelton, Remedies in International Human Rights Law (1999).
[15] These included the establishment of Victim Witness Units or Sections to assist victims and witnesses in their dealings with the Tribunals and special provisions regarding the protection of vulnerable witnesses. In relation to the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (‘ICTY’), see Statute of the International Tribunal for the Former Yugoslavia art 22 (Protection of Victims and Witnesses) in Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), annex, UN Doc S/25704 (1993); ICTY, Rules of Procedure and Evidence 1994 r 75 (Measures for the Protection of Victims and Witnesses). In relation to the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States (‘ICTR’), see art 21 (Protection of Victims and Witnesses) of the Statute of the International Criminal Tribunal for Rwanda, SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/Res/955 (1994); ICTR, Rules of Procedure and Evidence 1995 r 69 (Protection of Victims and Witnesses). Furthermore, in respect of the ICTY, there is also a provision that attempts to assist victims in receiving compensation from their national court system: ICTY, Rules of Procedure and Evidence 1994 r 106.
[16] Opened for signature 17 July 1998, [2002] ATS 15 (entered into force 1 July 2002) (‘Rome Statute’).
[17] For the first time in any international criminal court victims will, subject to the discretion of the Court, be able to have their own legal representation: Rome Statute, opened for signature 17 July 1998, [2002] ATS 15, art 68(3) (entered into force 1 July 2002). Also for the first time, an international court will be empowered to make a compensation order directly in favour of victims: arts 75, 79. See Theo van Boven, ‘The Position of the Victim in the Statute of the International Criminal Court’ in Herman von Hebel, Johan Lammers and Jolien Schukking (eds), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (1999) 77; Christopher Muttukumaru, ‘Reparation to Victims’ in Roy Lee (ed), The International Criminal Court: The Making of the Rome Statute — Issues, Negotiations, Results (1999) 262; Garkawe, ‘The Victim-Related Provisions of the Statute of the International Criminal Court’, above n 13, 284–5.
[18] Although the first truth commission was established in Uganda in 1974, it was widely acknowledged to have been a failure. In a comprehensive book about truth commissions, Hayner asserts that between 1980 and February 2000 there have been 20 truth commissions, most of which have been formed in Latin America and Africa: see Hayner, Unspeakable Truths, above n 2, 9, 291–7.
[19] These views are not uncontroversial. See below Part V for an analysis of these arguments.
[20] See especially the views of well-known human rights lawyer, Geoffrey Robertson QC, who is particularly critical of the amnesties that seem to result from truth commissions. In Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (2000) 263, he argues that
[t]he real purpose of an amnesty statute is not to promote ‘national reconciliation’ or to diminish in a new democratic society the debilitating desire for revenge, it is to enable government officials, and military and police officers, to escape responsibility for the crimes against humanity which they ordered or committed.
[21] See below Part II for a more detailed consideration of amnesty laws, particularly the issue of whether the granting of amnesty violates a state’s international legal obligations.
[22] See below Part IV for an analysis of these criteria for amnesty. According to Hayner, ‘[n]o other country has combined this quasi-judicial power [to grant amnesty to individual perpetrators] with the investigative tasks of an administrative truth-seeking body’: Hayner, ‘Same Species, Different Animal’, above n 7, 36.
[23] See below Part IV for an analysis of these arguments. The TRC itself referred to its amnesty as an ‘accountable amnesty’: Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report (1998) vol 1, 118 (‘TRC Report’).
[24] Other components of the TRC were the Investigations Unit and an even smaller Research Unit responsible for the drafting of the report. For a description and critical analysis of the work of these units, see respectively Piers Pigou, ‘False Promises and Wasted Opportunities? Inside South Africa’s Truth and Reconciliation Commission’ in Deborah Posel and Graeme Simpson (eds), Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission (2002) 37; Janet Cherry, John Daniel and Madeline Fullard, ‘Researching the “Truth”: A View from Inside the Truth and Reconciliation Commission’ in Deborah Posel and Graeme Simpson (eds), Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission (2002) 17.
[25] See, eg, Tom Campbell, Justice (1988) which sets out in a reasonably summarised form the main contending theories of justice by writers such as John Rawls, Richard Posner and Ronald Dworkin. See also the different layers of justice referred to in Charles Villa-Vicencio, ‘Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet’ (2000) 49 Emory Law Journal 205, 215.
[26] Diane Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal 2537.
[27] Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951).
[28] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
[29] These would include the four Geneva Conventions of 1949 and the two additional Optional Protocols of 1977: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978).
[30] Clearly, a state will be under a treaty obligation to prosecute only where it had ratified one of these treaties at the time of the alleged abuses. However, many states responsible for human rights violations (such as South Africa during the apartheid era) are unlikely to have ratified these types of treaties at the time of the abuses, with the possible exception of those relating to war crimes. For this reason, the state of customary international law, discussed below in this part, becomes important.
[31] Orentlicher, above n 27, 2542.
[32] Ibid.
[33] Ibid 2543.
[34] Ibid.
[35] This was the case with respect to the Nuremberg and Tokyo International Military Tribunals established by the Allies shortly after World War II.
[36] This is not to suggest, however, that a form of transitional justice is not necessary with respect to the manner in which some of the most developed nations have treated minorities within their own borders.
[37] See below nn 47–55 and accompanying text.
[38] See, eg, José Zalaquett, ‘Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations’ (1992) 43 Hastings Law Journal 1425; Paul van Zyl, ‘Justice without Punishment: Guaranteeing Human Rights in Transitional Societies’ in Charles Villa-Vicencio and Wilhelm Verwoerd (eds), Looking Back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (2000) 42, 43–4.
[39] See especially International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, art 4 (entered into force 23 March 1976).
[40] (1961) 1 Eur Court HR (ser A) 27.
[41] Ibid 56 (Cassin P, Maridakis, Rodenbourg, McGonigal, Balladore Pallien, Arnalds and Arik JJ).
[42] Orentlicher, above n 27, 2595.
[44] See below n 115 and accompanying text.
[45] Orentlicher, above n 27, 2596 fn 264.
[46] For a good overview of many of the issues, see Naomi Roht-Arriaza (ed), Impunity and Human Rights in International Law and Practice (1995); Naomi Roht-Arriaza and Lauren Gibson, ‘The Developing Jurisprudence on Amnesty’ (1998) 20 Human Rights Quarterly 843; Orentlicher, above n 27.
[47] See Velásquez Rodríguez Case (Judgment) [1988] Inter-Am Court HR (ser C) No 4, [174] (Nieto-Navia P, Gros Espiell VP, Piza, Buergenthal, Nikken, Fix-Zamudio and Espinal Iras JJ); Espinoza v Chile [1999] Inter-Am Comm HR 494, [63]–[107] (Chairman Goldman, First Vice-Chairman Bicudo, Members Ayala, Exumé and Mejía). For a more detailed account of the views of the inter-American system, including its change of approach over the years, see van Zyl, above n 39, 47–50.
[48] Vienna Declaration and Programme of Action: Report of the World Conference on Human Rights, [60], UN Doc A/CONF.157/23 (1993).
[49] Steven Ratner and Jason Abrams refer to amnesties enacted in Argentina, Uruguay, Chile, Brazil, Peru, Guatemala, El Salvador, Honduras, Nicaragua, Haiti, Ivory Coast, Angola and Togo: Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd ed, 2001) 153.
[50] ‘With the exception of [some] human rights monitoring bodies ... governments and international organizations have generally tolerated this practice, especially if the state is otherwise making a transition to civil peace or democratic rule and an improved human rights record’: ibid 154. However, there have been some exceptions, such as the United Nations in relation to Sierra Leone: see below n 124 and accompanying text.
[51] Ibid 153.
[52] (1996) 8 BCLR 1015 (‘AZAPO Case’).
[53] Mahomed DP (with whom the majority of the Constitutional Court agreed) found that the Epilogue to the Constitution of the Republic of South Africa 1993 (South Africa) (‘Interim Constitution’) justified the South African government’s decision to introduce amnesty laws in conjunction with a truth commission. The Court held that these laws in effect ‘trumped’ s 22 of the Interim Constitution that allowed people access to courts to redress any violation: AZAPO Case (1996) 8 BCLR 1015, [50].
[54] John Dugard, ‘Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered Question’ (1997) 13 South African Journal on Human Rights 258, 267.
[55] See below n 61 and accompanying text.
[56] TRC Report, above n 24, vol 1, 126.
[57] According to Simpson:
Ubuntu is the mainspring of the African humanist world-view, an attitude of tolerance and empathy grounded in the interdependence of the individual and the collective. It is conveyed in the expression: ‘Motho ke motho ka batho babang’ — ‘A person is a person through other people’.
Graeme Simpson, ‘“Tell No Lies, Claim No Easy Victories”: A Brief Evaluation of South Africa’s Truth and Reconciliation Commission’ in Deborah Posel and Graeme Simpson (eds), Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission (2002) 220, 248 fn 3.
[58] Its most prominent forms are victim–offender mediation, family conferencing and circle sentencing.
[59] For a further explanation and critical analysis of these arguments, see Sam Garkawe, ‘Restorative Justice from the Perspective of Crime Victims’ [1999] QUTLawJl 4; (1999) 15 Queensland University of Technology Law Journal 40.
[60] See TRC Report, above n 24, vol 1, 125–31 for a detailed discussion of how the TRC viewed its relationship to restorative justice.
[61] Paul Roberts, ‘Restoration and Retribution in International Criminal Justice: An Exploratory Analysis’ in Andrew von Hirsch, Julian Roberts and Anthony Bottoms (eds), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (2003) 115, 123.
[62] See, eg, Ratner and Abrams, above n 50, 154–5. See also van Zyl’s four requirements for states in transition: van Zyl, above n 39, 51–4.
[63] Simpson, ‘Tell No Lies, Claim No Easy Victories’, above n 58, 239–40.
[64] Although there were other parties to the negotiations, the parties that had the key political power were the National Party and the ANC.
[65] Other important elements were a power-sharing arrangement for the first five years and a provision that allowed senior public servants to retain their positions for this period. Also significant was the creation of a strong Bill of Rights (which would include a guarantee that there would be no appropriation of property without just and equitable compensation) that was to be interpreted by a new and separate Constitutional Court, and a number of other measures that inter alia would ensure the protection of minority group rights.
[66] For a brief political history of the establishment of the TRC, see Colin Bundy, ‘The Beast of the Past: History and the TRC’ in Wilmot James and Linda van de Vijver (eds), After the TRC: Reflections on Truth and Reconciliation in South Africa (2001) 9. A comprehensive history of the negotiations leading to the handover of power and the establishment of a democratic government is found in Allister Sparks, Tomorrow is Another Country (1996).
[67] This was later replaced by a final Constitution — the Constitution of the Republic of South Africa 1996 (South Africa).
[68] It was not entirely clear at the time when the Epilogue was agreed to that the amnesty would not be a ‘blanket’ one as it had been in previous truth commissions. Simpson has said that
[t]he newly elected government’s only constitutional obligation was to grant amnesty. Instead of settling for this, it arguably transformed a process geared to the interests of perpetrators into one that aimed to restore the dignity of those who had suffered, thereby demonstrating its commitment to fundamental rights and accountability.
Simpson, ‘Tell No Lies, Claim No Easy Victories’, above n 58, 223.
[69] For highly influential arguments that set out the case for the TRC, see Kader Asmal, Louise Asmal and Ronald Roberts, Reconciliation through Truth: A Reckoning of Apartheid’s Criminal Governance (2nd ed, 1997) 18–21.
[70] This can be seen to be an approach that is similar to that of many Latin American countries where, with or without a truth commission, blanket amnesties were often granted to perpetrators of human rights violations committed mainly by members and agents of former repressive regimes. Hayner associates this approach with one of ‘forgetting’ the past: see Hayner, Unspeakable Truths, above n 2, 1–9.
[71] For a detailed discussion of the merits of the criminal trial approach, see above Part II.
[72] See Hayner, ‘Same Species, Different Animal’, above n 7, 38–9.
[73] A broadly representative selection panel was established to consider about 300 nominations from different stakeholders. This panel conducted interviews and submitted a short list of 25 people to the South African President, who appointed 17 of these on 29 November 1995: see Hayner, Unspeakable Truths, above n 2, 216; Dorothy Shea, The South African Truth Commission: The Politics of Reconciliation (2000) 25.
[74] See Simpson, ‘Tell No Lies, Claim No Easy Victories’, above n 58, 240–1.
[75] This means ‘speak out’ in Zulu. Khulumani was formed to represent victims’ voices during the TRC’s development. Hayner argues that the group’s most important legacy is the support it offered to victims during and after the TRC process: Hayner, Unspeakable Truths, above n 2, 147–8.
[76] This constitutional attack on the TRC failed: see above nn 53–4 and accompanying text for a discussion of the reasons for this failure. The motivations behind this legal challenge are explained in Nkosinathi Biko, ‘Amnesty and Denial’ in Charles Villa-Vicencio and Wilhelm Verwoerd (eds), Looking Back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (2000) 193, 194.
[77] Piers Pigou asserts that ‘[t]he extent to which activists and others boycotted the TRC because they did not support it or did not feel the need to participate remains unclear’: Pigou, above n 25, 46.
[78] However, this argument assumes that provision for amnesty was critical to the handover of power by the former regime, and not the other matters that were part of the negotiated settlement (see above n 66 for a consideration of these other matters). This is a contested and interesting historical question, a discussion of which is beyond the scope of this article.
[79] Reconciliation Act ch 3.
[80] Reconciliation Act ch 5.
[81] Reconciliation Act s 3(c).
[82] This included the oft-quoted clause: ‘there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization’, which was repeated in the Preamble to the Reconciliation Act. For a definition of ubuntu, see above n 58.
[83] See above n 54 for an explanation of why the Epilogue was vital to the constitutional validity of the TRC’s amnesty provisions. For a detailed analysis of this case from the perspective of reparations to victims, see Catherine Jenkins, ‘After the Dry White Season: The Dilemmas of Reparation and Reconstruction in South Africa’ (2000) 16 South African Journal on Human Rights 415, 471–5.
[84] See above nn 56–61 and accompanying text.
[85] However, for a critique of the TRC’s use of restorative justice terminology, see Stuart Wilson, ‘The Myth of Restorative Justice: Truth, Reconciliation and the Ethics of Amnesty’ (2001) 17 South African Journal on Human Rights 531. Compare these views to the strong defence of restorative justice in relation to the TRC found in Elizabeth Kiss, ‘Moral Ambition within and beyond Political Constraints: Reflections on Restorative Justice’ in Robert Rotberg and Dennis Thompson (eds), Truth v Justice: The Morality of Truth Commissions (2000) 68.
[86] Simpson asserts that ‘truth recovery was viewed not so much as a trade for justice, but as an alternative restorative (rather than punitive) approach to justice’: Simpson, ‘Tell No Lies, Claim No Easy Victories’, above n 58, 223.
[87] See Brandon Hamber et al, Centre for the Study of Violence and Reconciliation and the Khulumani Support Group, Survivors’ Perceptions of the Truth and Reconciliation Commission and Suggestions for the Report (1998) Centre for the Study of Violence and Reconciliation <http://www.csvr.org.za/papers/papkhul.htm> . This paper was also submitted to the TRC.
[88] Established pursuant to ch 4 of the Reconciliation Act.
[89] For a comprehensive discussion of the moral and ethical issues, see Robert Rotberg and Dennis Thompson (eds), Truth v Justice: The Morality of Truth Commissions (2000). In respect of the legal questions, such as whether international law casts a duty on states to prosecute people accused of committing international crimes, see the detailed discussion of these issues in above Part II.
[90] As to the selection of the TRC Commissioners, see above n 74. Under s 17 of the Reconciliation Act, the South African President was to appoint both the Chairperson and the Vice-Chairperson of the AC, as well as one of the remaining three members. The other two members were also to be appointed by the President, although in consultation with the Commissioners of the TRC. Note that due to the large backlog of cases with which the AC had to deal, the government at various stages decided to increase its size from 5 to 7 members, then to 12, and finally to 19. It also added administrative staff, evidence analysts and leaders in order to speed up its work. Despite this, the work of the AC lasted right up until 2001, well after the publication of the first five volumes of the TRC Report in 1998 and the end of the Committee on Human Rights Violations hearings.
[91] Clearly, the AC was charged with making very important legal decisions from both perpetrators’ and victims’ perspectives (see below nn 106–9 and accompanying text) and thus it was structured so that it allowed for legal representation and cross-examination of those giving evidence. Under s 17(3) of the Reconciliation Act, the Chairperson was required to be a judge or former judge.
[92] Except for the first few years when some TRC Commissioners were also members of the AC. Mary Burton, a former TRC Commissioner, wrote that ‘[t]he considerable autonomy bestowed on the [AC] by the legislation, in retrospect, is a significant weakness in the legislation’: Mary Burton, ‘Making Moral Judgments’ in Charles Villa-Vicencio and Wilhelm Verwoerd (eds), Looking Back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (2000) 77, 78.
[93] The clearest example was the heavily criticised decision of the AC to grant a general amnesty to 37 leaders of the ANC who had made one joint application: see below n 104.
[94] This is a standard and limited right of appeal that is found in most common law legal systems (such as that of South Africa). The basis for this right of appeal from a decision of a non-judicial body (such as the AC) to a court is that the non-judicial body made an error of law in making its decision.
[95] A small number of victims and perpetrators did apply to the courts to have amnesty decisions overturned, but to the author’s knowledge none of these appeals were successful. One can only speculate that the South African courts were (perhaps understandably) reluctant to interfere with AC rulings.
[96] See below nn 106–8 and accompanying text.
[97] Although, as they would have to bear the costs of this appeal and their chances of succeeding would be likely to remain low, it is probable that few court appeals would be instituted.
[98] This was from the time of the promulgation of the Reconciliation Act (December 1995) until 10 May 1997: see Alex Boraine, ‘Truth and Reconciliation in South Africa: The Third Way’ in Robert Rotberg and Dennis Thompson (eds), Truth v Justice: The Morality of Truth Commissions (2000) 141, 148.
[99] The other criteria were that the applicant had complied with the technical requirements of the Reconciliation Act. These included that they had applied within the prescribed time period, in the prescribed manner, and that the act, omission or offence that was the subject of their application was in fact a ‘gross violation of human rights’ as defined in the Reconciliation Act: see below nn 189–90 and accompanying text.
[100] An example of a case where amnesty was denied because the AC found that there had not been a ‘full disclosure’ was Gerhardus Nieuwoudt: see Gerhardus Nieuwoudt, AC/97/068 (Unreported, South African Truth and Reconciliation Commission, Committee on Amnesty, Judge Mall, 20 November 1997) <http://www.doj.gov.za/trc/decisions/1997/971120Niewoudt.htm> . On the other hand, there were many instances of victims being dissatisfied with amnesty decisions because they did not believe that the applicant had satisfied the requirement of ‘full disclosure’. In such cases, there was little victims could do as they did not have direct appeal rights: see above n 96 and accompanying text.
[101] Section 20(3).
[102] These were drafted by Carl Norgaard, a former President of the European Human Rights Commission, and were founded upon a survey of state practice in defining and applying the ‘political offence’ exception to extradition law.
[103] See above nn 95–6 and accompanying text. The TRC did exercise this power on at least one well-known occasion. It successfully applied to the High Court to overturn a controversial and much criticised decision of the AC to grant a general amnesty to 37 leaders of the ANC who had made one joint application: see Truth and Reconciliation Commission v Coleman (Unreported, Cape Town High Court, Conradie and Foxcroft JJ, 8 May 1998). The AC granted the amnesty ‘in chambers’, without asking the applicants to specify the acts or offences they had committed for which they wanted amnesty. This seemed to be in violation of the Reconciliation Act that required individual applications with respect to specific acts. For a critical analysis of the decision of the AC, see Lorna McGregor, ‘Individual Accountability in South Africa: Cultural Optimum or Political Facade?’ (2001) 95 American Journal of International Law 32, 39–44.
[104] Reconciliation Act s 31(3). However, the fact that the applicant had applied for amnesty clearly would have the effect of alerting the prosecution authorities to the wrongdoing of the applicant, perhaps making it more likely that he or she would eventually be prosecuted.
[105] Perpetrators granted amnesty were also entitled to have any criminal or civil trial in which they were the defendant aborted if the trial was already in progress.
[106] Interestingly, however, where a victim had already obtained a civil judgment ¼ and so was not in the middle of proceedings ¼ the judgment would not be annulled due to the subsequent amnesty: Reconciliation Act s 20(9). It is difficult to imagine why this provision was included; perhaps there had been very few such judgments and the Parliament decided to protect the interests of those (probably very influential) victims who were able to obtain a civil judgment.
[107] If any civil or criminal proceedings had been suspended owing to an amnesty application, the court in question was required to be notified if the amnesty application was refused: Reconciliation Act s 21(2)(a). It appears that the case could be resumed at the discretion of the relevant court, but no adverse inference could be drawn by the court from the failure of the amnesty application: Reconciliation Act s 21(2)(b).
[108] The ‘carrot and stick’ terminology was used by the then Minister of Justice, Dullah Omar, who was responsible for the establishment of the TRC: see Hayner, Unspeakable Truths, above n 2, 99.
[109] This led some writers to assert that this aspect of the TRC’s work was a ‘restorative’ measure designed to aid victims: see above n 87 and accompanying text.
[110] The security forces, in order to cover up their own crimes, had in some cases claimed that the victim was a collaborator who had been killed by the liberation forces.
[111] TRC Report, above n 24, vol 1, 112–13. A number of writers have warned, however, that such assumptions are simplistic. For example, Simpson states that
there is a trite and convenient truth proffered by many observers of the TRC about the relationship between victim testimony and healing, which also demands greater critical scrutiny. It should be acknowledged that simply testifying or telling the story does not necessarily entail psychological healing or reconciliation ...
Simpson, ‘Tell No Lies, Claim No Easy Victories’, above n 58, 241. Even the TRC admitted that ‘[t]ruth may, in fact, cause further alienation’: TRC Report, above n 24, vol 1, 107. In relation to the assertion that there is a direct relationship between truth and reconciliation, the TRC argues that ‘[a]lthough truth does not necessarily lead to healing, it is often the first step towards reconciliation’: at 107. However, this is particularly controversial and problematic. Many argue that the ‘truth’, at least initially, might be a barrier to recovery and reconciliation, particularly when victims and survivors are confronted with the reality of what actually happened. This is especially true where victims felt that the perpetrator at an amnesty hearing had not told the full truth: see Pigou, above n 25, 39. For a critical analysis of the relationship between truth and reconciliation, see Frederick van zyl Slabbert, ‘Truth without Reconciliation, Reconciliation without Truth’ in Wilmot James and Linda van de Vijver (eds), After the TRC: Reflections on Truth and Reconciliation in South Africa (2001) 62.
[112] An entire chapter of the TRC Report is devoted to the destruction of documents: TRC Report, above n 24, vol 1, ch 8.
[113] See TRC Report, above n 24, vol 1, 122–3. Simpson asserts that ‘[t]he harsh reality is that the vast majority of apartheid’s victims probably stood to gain more from the opportunity to tell their stories (coupled with the meagre reparations promised by the TRC) than from the criminal justice system’: Simpson, ‘Tell No Lies, Claim No Easy Victories’, above n 58, 233.
[114] The trial concerned the alleged murder in 1987 of 13 friends and relatives of United Democratic Front activist Victor Ntuli in what was known as the ‘KwaMakutha massacre’. Another prominent trial that ended in a ‘not guilty’ verdict concerned the controversial head of the chemical weapons program during the apartheid era, Dr Wouter Basson: S v Basson [2003] All SA 54. At the date of writing, the only significant successful prosecution to the author’s knowledge was that of Colonel Eugene de Kock, the former commander of the infamous ‘Vlakplaas’ police death squad: S v De Kock [2016] ZAWCHC 50; [1997] 2 SACR 171.
[115] Generally all processes of the TRC were public, although under s 33 of the Reconciliation Act it did have the discretion to close its proceedings to the public if the interests of justice required this or if harm to any person may have resulted from a public hearing.
[116] ‘Four hours of hearings were broadcast live over national radio each day, and a Truth Commission Special Report television show on Sunday evenings quickly became the most-watched news show in the country’: Hayner, Unspeakable Truths, above n 2, 42. There is some anecdotal evidence to suggest that some perpetrators did not apply for amnesty due to the embarrassment of having to front up in this very public process.
[117] Anecdotal evidence suggests that in some instances perpetrators’ families learnt for the first time of the types of activities their loved ones had been engaged in during the apartheid era.
[118] McGregor, above n 104, 38.
[119] TRC Report, above n 24, vol 1, 118.
[120] See, eg, the fine collection of essays in Rotberg and Thompson, above n 90.
[121] AZAPO Case (1996) 8 BCLR 1015.
[122] See, eg, Department of Public Information, United Nations, The United Nations and Apartheid 1948–1994 (1994) vol 1.
[123] For example, the Special Representative of the Secretary-General of the United Nations in Sierra Leone ‘expressly rejected the validity of any amnesties to international crimes’: Ilias Banketas, Susan Nash and Mark Mackarel, International Criminal Law (2001) 115.
[124] Wilson, above n 86, 547.
[125] Since about the middle of the 19th century in most common law jurisdictions, the state has taken over the prosecution of accused persons from individual victims: see George Rudé, Criminal and Victim: Crime and Society in Early Nineteenth-Century England (1985) 89–90; Clive Emsley, Crime and Society in England 1750–1900 (1987) 162.
[126] For example, in Australia see Attorney-General’s Department, The Prosecution Policy of the Commonwealth, Commonwealth Director of Public Prosecutions [2.10] <http://
www.cdpp.gov.au/Prosecutions/Policy>. Given that the South African criminal justice system is very similar in structure to that of other common law systems, including that of Australia, the author believes that the state of the law would be very similar in the South African context.
[127] In such cases, many jurisdictions allow victims to launch a private prosecution of ‘their’ alleged perpetrator: see Richard Fox, Victorian Criminal Procedure: State and Federal Law (11th ed, 2002) 51. However, this possibility in Australia (and in other common law systems such as South Africa) is generally a limited one. For indictable (or more serious) offences, victims are generally only able to initiate the process and carry it through to the preliminary examination or committal hearing, and the Director of Public Prosecutions (or equivalent prosecution authority) may take over a private prosecution at any time: at 52–3. Furthermore, ‘[v]ictims are deterred from private prosecutions by reasons of cost, as legal aid is not available, inconvenience, the skill required to present a case in Court, the stringent burden of proof required for a conviction and the risk of having costs awarded against them’: Sam Garkawe, ‘The Role of the Victim during Criminal Court Proceedings’ [1994] UNSWLawJl 21; (1994) 17 University of New South Wales Law Journal 595, 598.
[128] The crucial factors are the nature of the crime, the nature of the offender and their response to the charges, and the effects of the proposed sanction, taking into account the various purposes and justifications for punishment and the principle of proportionality: see Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) ch 3. In most common law jurisdictions, victims are able to present a written (and sometimes an oral) ‘victim impact statement’ (‘VIS’) to the court, which describes the effects of the crime upon them. However, with the exception of a minority of states in the USA, these statements do not generally allow victims to include their opinion on what the offender’s sentence should be.
[129] As the author has written elsewhere,
increased levels of crime, particularly violent and organised crime have ‘overburdened the criminal justice system to the verge of collapse’. There are many large problems throughout the system’s constituent components, as well as many other social, technological and environmental factors impacting on the criminal justice system.
Sam Garkawe, ‘Enhancing the Role and Rights of Crime Victims in the South African Justice System — An Australian Perspective’ (2001) 14 South African Journal of Criminal Justice 131, 132–3 (citations omitted).
[130] See above n 115 and accompanying text.
[131] Reconciliation Act s 20(7)(a).
[132] See, eg, Simpson, ‘Tell No Lies, Claim No Easy Victories’, above n 58, 233.
[133] Jenkins characterises Mahomed DP’s view in the AZAPO Case as being that the reparation scheme contemplated under the Reconciliation Act ‘would allow the state’s funds to be distributed more widely, bringing effective relief to a larger number of victims based on their present needs, rather than limiting relief to a smaller number who had the good fortune to be able to prove delictual claims’: Jenkins, above n 84, 474.
[134] Victims did have a limited right to appeal to a court on the basis that the amnesty decision involved an error of law: see above n 96 and accompanying text. However, this potentially expensive and time-consuming option was rarely invoked by victims.
[135] This was a particular problem in relation to the joint application for amnesty by 37 ANC leaders: see above n 104 and accompanying text. Note that the courts were only able to overturn amnesty decisions on the limited grounds of an error in law.
[136] See above nn 97–8 and accompanying text.
[137] This also would have been more in line with the alleged ‘restorative justice’ dimensions of the TRC. Restorative justice generally encourages perpetrators of criminal offences to ‘make amends’ to their victims directly, or perhaps indirectly. However, under the TRC amnesty process, once a perpetrator had been granted amnesty, the only form of monetary reparations victims could obtain was from the South African government: see generally below Part VI(A), (C).
[138] This would have allowed for the approach commonly used in the transition of many Eastern European states — namely that of purges or ‘lustration’. For a detailed critical analysis of this form of accountability, see ‘Symposium: Law and Lustration: Righting the Wrongs of the Past’ (1995) 20 Law & Social Inquiry 1.
[139] In fact, one South African human rights organisation, ‘Lawyers for Human Rights’, unsuccessfully suggested this possibility during the public debate regarding the legislation that established the TRC: see N Kollapen, ‘Accountability: The Debate in South Africa’ (1993) Journal of African Law 1, 7–8.
[140] Another very important factor that added to victims’ sense of unfairness was that perpetrators had the benefit of amnesty as soon as the AC found in their favour, whereas victims have had to wait a long time for their reparations: see below Part VI.
[141] Alleged violations of due process caused much criticism of the Eastern European approaches to transitional justice: see generally ‘Symposium’, above n 139.
[142] This could be achieved through legislation allowing an amnesty committee or body the right to order that the applicant only pay the victim up to a specified percentage (such as five or 10 per cent) of the applicant’s total assets.
[143] A high percentage of Commissioners, including both the Chairperson (Archbishop Desmond Tutu) and its Vice-Chairperson (Alex Boraine), were from Christian backgrounds.
[144] He thus began emphasising that the TRC’s task was only to promote reconciliation, as the title of the Reconciliation Act suggested.
[145] See above n 127 and accompanying text.
[146] One controversial ruling that has frequently been commented upon is the granting of amnesty to the killers of Amy Biehl, a white American: Vusumzi Ntamo, AC/98/0030 (Unreported, South African Truth and Reconciliation Commission, Committee on Amnesty, Judges Mall, Wilson and Ngoepe, 28 July 1998) <http://www.doj.gov.za/trc/decisions/1998/
980728NtamoPenietc.htm>. Another controversial ruling was the refusal of amnesty to the killers of popular liberation hero Chris Hani: Janusz Walus, AC/99/0172 (Unreported, South African Truth and Reconciliation Commission, Committee on Amnesty, 7 April 1999) <http://
doj.gov.za/trc/decisions/1999/990307WalusDerby-Lewis.html>. Some have argued a racial bias; others have pointed to the technical legal ground that the actions of the killers of Chris Hani were against the policy of all political parties and thus they could not be said to have acted for a ‘political motive’. However, another highly plausible explanation is that, whereas the family of Amy Biehl supported her killers’ amnesty, the family of Chris Hani was adamant that his killers should not be granted amnesty.
[147] Reconciliation Act s 20(3)(f) (emphasis added).
[148] See above nn 92–5 and accompanying text.
[149] The AC interpreted s 11(d)(ii) of the Reconciliation Act to mean that victims would have the right to be legally represented during amnesty hearings. Anecdotal evidence suggests that during the initial stages of the AC, the TRC did not inform many victims of this right. However, this was said to have improved later in the life of the AC.
[150] See TRC Report, above n 24, vol 5, 117–18.
[151] One of the main principles of restorative justice is to ‘encourage victims [and] offenders ... to be directly involved in resolving conflict’: TRC Report, above n 24, vol 1, 126.
[152] For a definition of ubuntu, see above n 58.
[153] Of course, the notion of ‘truth’ is itself a complex issue, as there are various kinds of ‘truth’ — for example, factual or forensic truth, personal and narrative truth, social truth, and healing and restorative truth: TRC Report, above n 24, vol 1, 110–14. It is beyond the scope of this article to discuss these different concepts.
[154] See Benison Makele, ‘Suffer the Victims’, Sowetan Sunday World (Johannesburg, South Africa), 8 April 2000, 18.
[155] See above n 114 and accompanying text. In a sense, the truth of this statement was proven by the spate of amnesty applications quickly following the one prominent successful criminal prosecution of Colonel Eugene de Kock (see above n 115). Many perpetrators were obviously concerned that de Kock’s damaging testimony would implicate them and thus leave them open to prosecution. Simpson states that ‘[t]his suggests that the threat of prosecution, far from being incompatible with a truth-recovery process linked to a conditional amnesty, in fact contributed significantly to its eventual partial success’: Simpson, ‘Tell No Lies, Claim No Easy Victories’, above n 58, 228.
[156] Reconciliation Act ss 29, 31, 32.
[157] See Pigou, above n 25, 54–6.
[158] Ibid 49.
[159] See the earlier comments in this part regarding the issue of the larger TRC not being able to control the AC: see above nn 93–5 and accompanying text. Interestingly, the state seems to have a conflict of interest in selecting members of the AC. This is because s 20(7)(a) of the Reconciliation Act absolves the state from civil liability where amnesty is granted, meaning that selection of members who were more willing to agree to amnesty would decrease the state’s civil liability.
[161] Reconciliation Act s 3(1)(a).
[162] Hugo van der Merwe, ‘National Narrative versus Local Truths: The Truth and Reconciliation Commission’s Engagement with Duduza’ in Deborah Posel and Graeme Simpson (eds), Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission (2002) 204, 209–12.
[163] Ibid 211.
[164] Established pursuant to ch 3 of the Reconciliation Act. Unlike the AC, most members of the HRVC were also members of the larger TRC.
[165] The functions of the HRVC are set out in ss 14 and 15 of the Reconciliation Act. The reference to the restoration of the ‘human and civil dignity’ of victims is one of the objectives of the TRC in s 3(1)(c) of the Reconciliation Act, and adopted as a purpose of the HRVC in s 14(1) of the Reconciliation Act.
[166] See above n 8 and below nn 189–94 and accompanying text for how a ‘victim’ was defined under the Reconciliation Act. Working with this definition, the HRVC took a number of steps in order to establish whether a person was a ‘victim’ under the Reconciliation Act. According to Ntsebeza:
The process ... began with statement-taking and involved, among other processes, registration of statements, data processing, data capturing, verification and corroboration, an information management process that led to pre-findings on a regional basis ... and eventually findings on a national level.
Dumisa Ntsebeza, ‘The Struggle for Human Rights: From the UN Declaration to the Present’ in Charles Villa-Vicencio and Wilhelm Verwoerd (eds), Looking Back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (2000) 2, 6.
[167] The TRC decided to fund these other organisations to carry out this work as it had fallen behind in the statement-taking process: Desmond Tutu, ‘Launch of the TRC’s Designated Statement-Taking Programme’ (Press Release, 1 April 1997) <http://www.doj.gov.za/trc/media/
prindex.htm>.
[168] See Pigou, above n 25, 45.
[169] The TRC chose those victims ‘whose experiences represented the various forms of human rights abuse that had occurred in the area’ where the hearing was to take place; who represented ‘all sides of the conflict’; and who would be representative ‘in relation to gender, race, age and geographical location’: TRC Report, above n 24, vol 1, 145–6. For criticism of this approach, see below n 198 and accompanying text.
[170] (1997) 4 BCLR 531 (‘Du Preez’).
[171] TRC Report, above n 24, vol 1, 184–5.
[172] The TRC decided, in order to comply with the ruling, to provide 21 calendar days’ notice to alleged perpetrators before all HRVC hearings, AC hearings and ‘s 29 investigation’ hearings: ibid vol 1, 185.
[173] Ibid.
[174] The TRC employed enough translators so that all victims were able to testify in their own language.
[175] The TRC asserted that ‘[i]n many respects, the victim hearings constituted the core of the Commission’s work’: TRC Report, above n 24, vol 1, 147. Simpson argues that ‘[t]he operations of [the HRVC] ... proved to be the great strength of the TRC. ... The social impact of this public testimony was one of the greatest achievements of the TRC’: Simpson, ‘Tell No Lies, Claim No Easy Victories’, above n 58, 229.
[176] Yazir Henry, ‘Where Healing Begins’ in Charles Villa-Vicencio and Wilhelm Verwoerd (eds), Looking Back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (2000) 166, 168.
[177] Hayner states that:
There is a multitude of studies showing that repressing intense emotional pain leads to psychological trouble. ... one of the cornerstones of modern-day psychology is the belief that expressing one’s feelings, and especially talking out traumatic experiences, is necessary for recovery and for psychological health.
Hayner, Unspeakable Truths, above n 2, 134.
[178] Some argue, for example, that there is a strong danger of retraumatisation and, unless there are adequate support services available at the time and in the aftermath, finding out the ‘truth’ about what happened to their loved ones can be counter-therapeutic. See Hayner’s detailed discussion: ibid 141–4.
[179] Brandon Hamber, ‘The Burdens of Truth: An Evaluation of the Psychological Support Services and Initiatives Undertaken by the South African Truth and Reconciliation Commission’ (1998) 55 American Imago 9, 18.
[180] See Julie Mertus, ‘Truth in a Box: The Limits of Justice through Judicial Mechanisms’ in Ifi Amadiume and Abdullahi An-Na’im (eds), The Politics of Memory: Truth, Healing and Social Justice (2000) 142; Terese Henning and Simon Bronitt, ‘Rape Victims on Trial: Regulating the Use and Abuse of Sexual History Evidence’ in Patricia Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (1998) 76.
[181] In most cases where family members do not witness the homicide and have no information additional to that already possessed by the criminal court, their evidence is not sufficiently necessary or relevant to the trial. While in many jurisdictions they have a right to submit a VIS (see above n 129), some American courts have ruled that these violate constitutional standards of due process in death penalty cases: Booth v Maryland, [1987] USSC 153; 482 US 496 (1987); South Carolina v Gathers, [1989] USSC 159; 490 US 805 (1989). However, these cases were subsequently overruled in Payne v Tennessee, [1991] USSC 131; 501 US 808 (1991). In the Australian context some courts have ruled that VISs are not relevant to sentencing decisions: R v De Souza (Unreported, Supreme Court of New South Wales, Dunford J, 10 November 1995); R v Previtera (1997) 94 A Crim R 76 (where the New South Wales Supreme Court received the family’s VIS but regarded it as irrelevant to sentencing). See generally Tracey Booth, ‘The Dead Victim, the Family Victim and Victim Impact Statements in New South Wales’ (2000) 11 Current Issues in Criminal Justice 292.
[182] Du Preez (1997) 4 BCLR 531 (A).
[183] See TRC Report, above n 24, vol 4.
[184] The TRC also conducted some ‘event’ hearings (ibid vol 1, 147–8), political party hearings (ibid vol 1, 149) and some special investigations (ibid vol 1, 151).
[185] Ibid vol 4, ch 4.
[186] One notable exception to this is formed by coroners courts, which are generally charged with making recommendations that will prevent deaths from occurring in the future: see, eg, Coroners Act 1980 (NSW) s 22A.
[187] Reconciliation Act s 1(xix)(a).
[188] Reconciliation Act s 1(ix). These include any attempt, conspiracy, incitement, instigation, command or procurement to commit such an act.
[189] The first of two primary reasons for this interpretation was that the ejustem generis rule applied — that is, where general words follow particular words, the general words will be construed as being limited to the same kind as the particular words. This restricted the meaning of ‘severe ill-treatment’ to the types of violations that precede this phrase. As ‘killing, abduction and torture’ were violations of bodily integrity rights, ‘severe ill-treatment’ was also to be interpreted in the same manner and thus given this limited meaning. Secondly, from a practical perspective, the time and resources of the TRC would have been overwhelmed by the inclusion of this vast array of victims. See Burton, above n 93, 79–82 for a good brief analysis of these issues that confronted the TRC. For a strong criticism of the TRC’s approach, see Mahmood Mamdani, ‘A Diminished Truth’ in Wilmot James and Linda van de Vijver (eds), After the TRC: Reflections on Truth and Reconciliation in South Africa (2001) 58.
[190] Pass laws had a long history in South Africa as a means of controlling vagrancy and the flow of labour into urban areas. In 1952, these laws were consolidated when the apartheid government enacted the Black (Native) Laws Amendment Act 1952 (No 54) (South Africa) and the misnamed Blacks (Abolition of Passes and Coordination of Documents) Act 1952 (No 67) (South Africa). These Acts made it a criminal offence for any black person (but neither whites, nor coloured people, nor Asians) over 16 years of age not to have in their possession a ‘pass’ book or reference book that contained details of their identity, employment particulars and other information. See Christopher Weeramantry, Apartheid — The Closing Phases? (1980) 166–9.
[191] Clearly, from a practical point of view, the TRC would have been overwhelmed if its mandate was expanded to include all victims of racial discrimination during apartheid and, given its relatively limited resources and time limits, its approach was understandable. It would have also made its reparation policies too expensive and particularly problematic for the government. The other important argument was that the TRC was not established to cover and make amends for such issues. It was pointed out that there were other bodies — such as the Land Grants, Gender, Youth and Human Rights Commissions and the reconstruction and development policy of the government — that carried the primary responsibility for these crucial issues.
[192] This has also been suggested by Hayner: Hayner, Unspeakable Truths, above n 2, 74.
[193] For example, for the purposes of monetary compensation, a narrow definition of ‘victim’ could have been utilised; for the purposes of access to counselling and psychological services, a less narrow definition could have been used; and for the purposes of general acknowledgment, a far broader definition could have been used. This kind of contextual approach to the definition of ‘victim’ is often utilised in domestic criminal law.
[194] According to Pigou, ‘it is clear that many thousands of violations were not reported to the TRC’: Pigou, above n 25, 45.
[195] TRC Report, above n 24, vol 1, 144.
[196] See Jenkins, above n 84, 463.
[197] See above n 170 for the criteria that the TRC relied upon in order to determine who was to be invited to give evidence at a public hearing. Pigou has said that ‘[i]ronically, indigent black victims were under-represented and white victims over-represented in the name of impartiality’: Pigou, above n 25, 45.
[198] The TRC ‘went further than any other commission in incorporating psychological support into its operational structures’: Hayner, Unspeakable Truths, above n 2, 145.
[199] The TRC itself acknowledged it could have done more in this respect: TRC Report, above n 24, vol 1, 146.
[200] As to this lack of implementation, see below Part VI(A), (C).
[201] One victim, Yazir Henry, stated: ‘for a year and a half after my testimony, during which I had broken down physically, I had almost no contact with the Commission’: Henry, above n 177, 168–9.
[202] (1997) 4 BCLR 531. See above n 171 and accompanying text.
[203] See above nn 173–4 and accompanying text.
[204] Note that the decision of the Appellate Division of the Cape of Good Hope Division of the Supreme Court in Du Preez was based upon s 30 of the Reconciliation Act, and not on any constitutional requirements.
[205] Given that adverse ‘naming’ of alleged perpetrators in victim hearings may only result in a loss of reputation rather than any loss of liberty or direct monetary loss, it is asserted that constitutional requirements of due process will not generally be violated by implementation of this suggestion.
[206] Established pursuant to ch 5 of the Reconciliation Act. Again, like the HRVC, members of this Committee were also mainly members of the larger TRC.
[207] Reconciliation Act s 15(1).
[208] Reconciliation Act s 22(1).
[209] Under s 26 of the Reconciliation Act victims could apply directly to the CRR, but these applications were all immediately forwarded to the HRVC. Thus, in effect, the list of victims only came from the HRVC and the AC.
[210] This six-step process is explained in Brandon Hamber, ‘Dealing with the Difficulties of Granting Reparations in South Africa’ in Brandon Hamber and Tlhoki Mofokeng (eds), From Rhetoric to Responsibility: Making Reparations to the Survivors of Past Political Violence in South Africa (2000) 60, 66–7.
[211] This was achieved by analysing the answers given by victims during HRVC hearings and by examining the answers to questions concerning reparations on the forms that were completed by applicants claiming to be victims: Jenkins, above n 84, 465.
[212] TRC Report, above n 24, vol 5, 177a–8. For a good discussion of some of the major policy issues that faced the CRR, see Wendy Orr, ‘Reparation Delayed is Healing Retarded’ in Charles Villa-Vicencio and Wilhelm Verwoerd (eds), Looking Back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (2000) 239.
[213] The urgent needs the CRR identified in the TRC’s Interim Report to the President in June 1996 were the subsistence needs of survivors who had lost their breadwinner, counselling services, urgent medical needs, support for terminally ill victims and survivors, access to social welfare benefits, and the issuing of civil documents such as death certificates: Jenkins, above n 84, 466.
[214] See South African Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report (2003) vol 6, 97. These varied between 2000 and 5705 rands and were criticised both for their late delivery and for their small quantum: Orr, above n 213, 247; Jenkins, above n 84, 467. At the time of publication, five rands were worth approximately one Australian dollar.
[215] Jenkins, above n 84, 467. The exact amount varied depending upon whether the victim lived in an urban or rural area and how many people lived in the victim’s household: at 469.
[216] Ibid 470.
[217] For an analysis of the government’s reactions until May 2000, see ibid 475–8. The South African government defended its slow progress on the basis that it had to wait until the final volumes of the TRC Report were released to the public. These had been delayed for legal reasons and were not released until late April 2003. However, at various times, government spokespersons and ministers hinted that the government did not intend to pay individual reparations. They argued inter alia that ‘the struggle was not for money’, that ‘one cannot attach a monetary value to the suffering’ and that symbolic reparations in favour of communities and the nation may have been more appropriate (see below n 227 and accompanying text for a discussion of this issue): at 475–8; National Strategy Workshop on Reparations, Centre for the Study of Violence and Reconciliation, ‘Reparations: Three Years on and Victims Are Still Waiting’ (Press Release, 30 October 2001).
[218] Gershwin Wanneberg and Wambui Chege, ‘Apartheid Victims Will Get R30 000 Payment’, Independent Online (Cape Town, South Africa), 15 April 2003 <http://www.iol.co.za> . Note that this amount falls well short of the TRC’s recommendations.
[219] TRC Report, above n 24, vol 5, 188–94.
[220] Jenkins, above n 84, 477.
[221] See above nn 186–7 and accompanying text.
[223] See above Part VI(A).
[224] A good example of such a body was the National Corporation for Reparation and Reconciliation of Chile, created as the follow-up body to the National Commission on Truth and Reconciliation in Chile.
[225] The body could even include some sort of tribunal mechanism to determine doubtful claims.
[227] See above nn 8, 189–94 and accompanying text for a discussion of these issues.
[228] See above n 192 and accompanying text.
[229] See Simpson, ‘Tell No Lies, Claim No Easy Victories’, above n 58, 225.
[230] Hamber, ‘Dealing with the Difficulties of Granting Reparations in South Africa’, above n 211, 66.
[231] As Cherry, Daniel and Fullard point out, this included historical scholarship, political analysis, police-type investigation, legal findings, judicial decisions, and other types of decisions on reparations for victims: Cherry, Daniel and Fullard, above n 25, 18.
[232] It is acknowledged, however, that the TRC did have far more resources than any previous truth commission, although it is worthwhile pointing out that the TRC’s costs were not nearly as great as, for example, the costs of international criminal courts, such as the ICTY.
[233] For a detailed description of many of the problems and limitations in writing the TRC Report see, Cherry, Daniel and Fullard, above n 25.
[234] Some, however, have criticised the TRC Report as not being sufficiently based on the law and legal principles: see, eg, Anthea Jeffrey, The Truth about the Truth Commission (1999). Other writers have argued that it was too constrained by its legal framework and consequently paid insufficient attention to issues such as the identification of the structural causes of violence: see, eg, Richard Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State (2001).
[235] Ratner and Abrams, above n 50, 158.
[236] The International Criminal Court (‘ICC’) will have the power to ‘take over’ a prosecution if it has jurisdiction and if it judges that a state is ‘unwilling or unable genuinely to carry out the investigation or prosecution’ to prosecute: Rome Statute, opened for signature 17 July 1998, [2002] ATS 15, art 17(1)(a) (entered into force 1 July 2002). See also Michael Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’ (1999) 32 Cornell International Law Journal 507. Whether the ICC would prosecute someone who was granted amnesty of the type provided by the TRC will be an interesting question.
[237] In fact, it is possible to argue that the TRC worked best when the South African criminal courts made their most significant conviction, that of Colonel Eugene de Kock: see above n 156.