To punish or pardon: A comparison of the international criminal tribunal for Rwanda and the South...

To Punish or Pardon: A Comparison of the International Criminal Tribunal for Rwanda and the South African Truth and

Reconciliation Commission

Lyn Graybill

Two Models

How do governments choose to deal with human rights abuses committed under former regimes? Two African countries, South Africa and Rwanda, rep- resent distinct models and provide a useful comparison for human rights ac- tivists, lawyers, scholars, and practitioners interested in the issue of transitional justice.

The route Rwanda has chosen is the International Criminal Tribunal (ICTR) which was set up on November 8, 1994 by Security Council resolution 955 to prosecute acts of genocide, crimes against humanity, and violations of the Geneva Conventions that were committed during the four-month genocide spree spearheaded after the airplane death of Hutu president Juvenal Habyarimana in April 1994.

South Africa embraced a different process through its Truth and Reconcili- ation Commission (TRC) which was authorized to look at human rights violations committed between March 1, 1960 through May 10, 1994 and grant amnesty in exchange for full disclosure of politically motivated acts. Its man- date was to give as complete a picture as possible of the violations of human rights which took place during the period, focusing on "gross human rights violations"defined as"killing, abduction, torture, or severe ill treatment. "1

Which of the two processes holds the most promise for other countries moving through democratic transitions and the aftermath of ethnic bloodlet- ting? There are advocates for both models--the so-called"pardon"and"punishment'options. Human rights organizations have favored the latter approach (tribunals), saying that without punishing human rights violations, impunity would reign, making impossible the establishment of rule of law, the consoli- dation of democracy, and the flourishing of a human rights culture. 2 The other

4 Human Rights Review, July-September 2001

group--typically politicians, psychologists, and theologians--have supported the first approach (truth commissions). They argue for looking beyond"abso- lute"justice to other values which may be at times more important. 3

Pragmatic Politicians

For the politicians, that superior value may be peace or order. 4 Without a minimal peace, no other values can exist2 The call for a truth commission in South Africa that granted pardon not punishment was based on a pragmatic realism. The ANC did not win on the battlefield; its victory was the result of a negotiated settlement. The National Party demanded that its supporters be indemnified from criminal prosecutions through an amnesty agreement. Dullah Omar, one of the ANC negotiators, explained:"The amnesty clause in our interim constitution is the result of political negotiations...without that amnesty provision, there would have been no political settlement. It was the one issue that stood in the way of democratic elections "6 Without the compromise on amnesty, the bitter conflict between the government and the resistance movements undoubtedly would have continued with many more human rights violations and the deaths of thousands more. 7 Since the ANC did not win militarily but had to negotiate a settlement, so-called"victor's justice"was not possible.

In Rwanda, on the other hand, the Rwandan Patriotic Front (RPF) came to power in 1994, routed the remnant of the Hutu government, and supported the establishment of a Nuremberg-style tribunal in Arusha, Tanzania to try those who had fled into exile, and local courts for those detained in jails inside the country. (The ICTR is going after the planners of the genocide, while Rwanda passed legislation in August 1996 authorizing prosecutions in state courts of those who followed orders.)

Another pragmatic reason for choosing a commission over a tribunal has to do with evidence. Hard evidence would be necessary to convict, whereas in South Africa much evidence of apartheid era crimes spanning 34 years--the review period of theTRC was 1990-1994--had been destroyed. The burden of proof in a criminal trial is beyond reasonable doubt; inevitably, many perpetrators would have gotten off scot-free while maintaining their innocence. Richard Goldstone, a South African Constitutional judge and former prosecutor of the Rwandan and Bosnian war crime tribunals, argues: "If we had to bring to court all the perpetrators of human rights abuses during the last forty years, there just would not be enough courts to deal with it. "8

Empathetic Healers

Psychologists who supported the TRC (a third of commissioners came from the mental health profession) point to individual healing as an important goal. They point to the need for victims to relive the past in order to come to

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terms with it. They insist on the benefit of speaking out. Repressing painful memories results in stress, anxiety, and depression, while sharing stories in a supportive setting leads to healing. Storytelling can allow victims to reshape the traumatic event and reintegrate it into the matrix of their lives. 9

In a court setting witnesses do not have the advantage of telling their stories in their own way, but are required to answer hostile cross-examinations posed by the defendant's attorney, which Julie Mertus found to be the case when she covered the ICTR prosecutions. It is an adversarial situation for them, leaving victims wounded and re-traumatized. She argues: "Law does not permit a single witness to tell ... her own coherent narrative; it chops the stories into digestible parts, selects a handful of these parts, and sorts and refines them to create a new narrative--the legal anti-narrative. "1~ In many ways, the TRC route ensures respecting the human dignity of the victim witnesses, which is often absent in court proceedings.

In Rwanda, victims are often afraid to testify because they fear reprisals if they point the finger, since the perpetrators live in the same neighborhood. (The Tribunal can provide protection in Arusha but not when witnesses return to Rwanda.) In South Africa, on the other hand, since amnesty would be granted to perpetrators, victims needed not fear reprisal from speaking out. Because amnesty was granted for full disclosure, there was the possibility of a full accounting of what happened, which is often what the victims want most anyway. The need to know the truth is seen as paramount by supporters of the TRC.

Religious Leaders

For theologians, it is often reconciliation that is the higher value. Forgive- n e s s - n o t punishment-- is necessary to bring about the reconciliation that God has already wrought through Christ's work on the cross. God's children are urged to forgive their enemies and to reintegrate sinners back into the family of God. n In this view, the victim initiates the process. Charles Villa- Vicencio argues,"Correctly understood it is a cycle that begins with forgiveness. "12 We forgive because we are forgiven by God. There are no conditions for forgiveness. The Biblical injunction is not to forgive seven times but seven times seven, or infinitely.

For their different reasons, politicians, psychologists, and theologians supported the idea of a truth commission in South Africa, which was mainly con- demned by human rights organizations. As envisioned by its proponents, a truth commission would offer amnesty in exchange for truth with the goals, first, of ensuring that the National Party proceeded with elections (which would have been impossible without the assurance of no reprisals when the ANC came to power), and secondly, to reintegrate perpetrators into society and in- clude them in the business of nation-building.


Mahmood Mamdani explains the difference between truth commission and tribunal this way: "If South Africa exemplifies the dilemma involved in the pursuit of reconciliation without justice, Rwanda exemplifies the opposite: the pursuit of justice without reconciliation. "13

What circumstances led to the choice of privileging one value over the other? Why was the pardon route possible in South Africa but not in Rwanda? Was it the result of political necessity alone in South Africa? Tma Rosenberg believes that the Mandela government was so popular that it probably could have reversed the constitutional provision of amnesty but chose not to because its leaders genuinely believed in reconciliation, a4

Mandela's Moral Leadership

This suggests that the reconciliation route was possible in South Africa because of the moral example of Mandela. An exceptional moral leader as well as political one, Nelson Mandela is revered as a great reconciler who set an example to his countrymen to follow. He amazed the world at his apparent lack of bitterness against his former oppressors despite a 27-year imprisonment. The jailer assigned to him for most of his imprisonment on Robben Island was transformed by knowing Mandela and wrote a book about their relationship, which became a national bestseUer. This white Afrikaner was gra- ciously invited to sit in theVIP section for Mandela's inauguration. Mandela set the tone for the incoming government that day: "Let us stretch out our hands to those who have beaten us and say to them that we are all South Africans .... Now is the time to heal the old wounds and to build a new South Africa. "15

Another anecdote involves a luncheon he held for the wives of former South African prime ministers, presidents, and liberation movements leaders. Mandela again played the role of reconciler. Along with the expected invita- tions to Albertina Sisulu and Adelaide Tambo wives of Affican National Con- gress (ANC) luminaries Walter Sisulu and Oliver Tambo--Mandela included Tiene Vorster and Elize Botha, wives of former prime ministers John Vorster and P.W. Botha. And when Betsie Woerwoerd, widow of Hendrik Verwoerd, the so-called architect of apartheid, politely declined to join the spouses of the other heads of state at the luncheon, South Africa's first black president quickly responded to the pro forma"drop-in-for tea -when-you're-in-the neighborhood" invitation she offered, traveling to the white enclave of Orania in the isolated Karoo region to pay his respects to the 94-year-old grande dame whom he proceeded to disarm with his charm? 6

Mandela also demonstrated his willingness to reconcile with former enemies by his handling of the Rugby World Cup games held in South Africa in 1995. Rugby in South Africa had been considered a white man's sport and a symbol of white Afrikaner unity and pride. Like most black South Africans, the president had always supported any team opposing the South African

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Springboks. In a magnanimous gesture, Mandela presented the two opposing teams to the visiting dignitaries wearing the Number 6 rugby jersey of the once despised Springboks, referring to them as"my sons." The mostly white crowd went wild at this magnanimous gesture on the part of their new president. Africans too accepted this reidentification of the team, and when the Springboks beat the"All Blacks"in overtime, The Sowetan, a popular black newspaper, ran the headlines"Amabokoboko,'Zulu for"Our Springboks," the following day. 17 By example, Mandela was able"to teach a new way of thinking and behaving to his people, especially to black South Africans. "18 Truly, Mandela is an icon, a veritable symbol of forgiveness and reconciliation to his people and the world's most admired and revered (now former) head of state.

What great leaders can be found in Rwanda, or for that matter anywhere in the world, that can inspire people to follow by example? If a successful truth commission depends on this caliber of leadership, does this limit its use- fulness as a workable model elsewhere? (Few nations are capable of produc- ing as has South Africa four Nobel Peace Laureates.) Is there something unique about that country? When observers write about the"miracle"of South Africa, perhaps it is no hyperbole and therefore its solutions not replicable.

Apartheid and Genocide

Does the severity of the crimes--the genocide of 800,000 to i million Tutsis (1/10 of the population of Rwanda)--make forgiveness leading to reconciliation between Hutus and Tutsis unthinkable? Although there were killings, detentions, and torture in South Africa, there was nothing comparable to the Hutu attempt to eliminate an entire people. Apartheid depended on the labor of the African population, and subjugation (not elimination) of the majority population in South Africa was the National Party's objective. Should one ever be reconciled with genocidaires? Is punishment perhaps the only appro- priate response to genocide? Stephan Landsman argues that certain sorts of human rights violations demand prosecution:"First and foremost among these is genocide. "19 When Desmond Tutu, the former Archbishop of Cape Town, visited Rwanda a year after the genocide, warning that retributive justice would lead to a vicious cycle of reprisals and counter-reprisals and urged Rwandans to move toward restorative justice, the Rwandan president responded that'even Jesus had declared that the devil could not be forgiven. "2~ His point is well taken (even if his theology is faulty): Are some crimes so heinous, some people so evil, that they remain beyond the pale of forgiveness and reconciliation?

Cultural Resources for Reconciliation: Christianity

What makes the reconciliation model workable in South Africa is that the message of the church on truth, forgiveness, repentance, and reconciliation was embraced in post-apartheid South Africa. Ideally, perpetrators repented


their sins and victims offered forgiveness, leading to reconciliation between individuals and ultimately the nation at large. Dressed in ecclesiastical garb, Tutu officiated at the hearings as if at a sacred service, opening with prayer, leading hymns, lighting holy candies in memory of those who had fallen. The TRC's enabling legislation had not been framed in religious terms, but Tutu and his co-chair Alex Boraine, a former president of the Methodist Church, certainly set the religious tone. Tutu's theological views in particular under- pinned the TRC's workings.

The Christian framework under which it operated was widely accepted by South Africans because of the importance of Christianity in that country (72.6% of South Africans identify themselves as Christians including no less than 76 % of the African population).21 Christian thought had always had an impact on public discourse. According to Elphick,"Christian doctrine, language, and sen- timent are ... interwoven in the social and cultural history of South Africa. "22 The Dutch Reformed Church had espoused a form of Calvinism that sancti- fied apartheid based on a contorted exegesis of bibical texts---especially the Tower of Babel and the Curse of Ham stories--and had bragged that it was their church and not the National Party that first laid down the principles and framework of apartheid (literally"apartness" of the races). 23 Because of its theological justification for apartheid and close ties to the government, the DRC was refered to as"the National Party at prayer."

But Christianity was not monolithic; counter theologies arose that chal- lenged these assumptions. All the resistance movements were influenced by Christian ideals. 24 PeterWalshe argues that a"prophetic'Christianity endured during the apartheid era which supported the notions of unity, nonracialism, and a commitment to justice. 2s Although the churches were in many ways captive to culture,"trapped in apartheid, "26 and their response often timid and "phlegmatic,'27--synodical pronouncements denounced apartheid but offered little action28--a prophetic witness condemning apartheid nonetheless survived not only through individual clerics such as Huddleston, Scott, Hurley, Reeves, Naude, Chikane, and Tutu, but also through ecumenical organizations, such as the black-consciousness oriented Christian Institute and, after its ban- ning, the South Africa Council of Churches. 29 The teachings on the church survived and continue to resonate, making a public confession/forgiveness/ absolution model possible.

However, even in South Africa, some were turned off by the particularly Christian atmosphere and discourse of the hearings. Marius Schoon, whose wife and daughter were murdered by a parcel bomb sent to them by government agents, complained about"the imposition of a Christian morality of forgiveness. "3~ One letter writer to the weekly newspaper, the Mail & Guardian, expressed this common complaint:"I understand how Desmond Tutu identifies reconciliation with forgiveness. I don't, because I'm not a Christian and I think it's grossly immoral to forgive that which is unforgivable. "31 In multi-

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religious societies, truth commissions that rely heavily on Christian theology may not work.

Rwanda is also a country that is predominantly Christian with 90 percent of the population claiming membership in Christian churches. 32 As in South Africa, the Church has a long history of accommodation with the state. (In colonial times, the Catholic church propagated the superiority of the Tutsi, but switched its allegiance from the Tutsi ruling class to the Hutu regime at independence.) The Catholic Church was the most influential and powerful insti- tution in Rwanda apart from the state itself, and the Protestant churches though numerically smaller had a disproportionate influence right up to the office of the president. 33 Catholic and Protestant church leaders alike received patron- age and lavish gifts (including cars, televisions, guaranteed places in the school system for their children) from the ruling party. Co-opted by the government, they remained silent in the face of injustice, leaving a moral vacuum during the last years of Habyarimana's rule. The result of the integration of the churches into the power structure meant that the independence of the churches was sacrificed.

As the Hutu extremists were planning the genocide, they took advantage of the state owned radio stations to orchestrate a campaign of ethnic hatred. According to Hugh McCollum,"...no church leader ever spoke out [against these broadcasts], and some could be heard broadcasting"moments of medi- tation" over these airwaves prior to April 6. 34 The church's teachings helped prepare parishioners to join in the directives to attack Tutsis. Longrnan notes that church officials in Rwanda "often emphasized theological principles of obedience"and ordinary people engaged in the massacres because the teachings of the church convinced them it was their duty to follow their leaders. 3s While violence erupted throughout the country for four months, both Protes- tant and Catholic leaders remained silent. The people interpreted the silence as endorsements of the killings. 36

Some clergy and many other church employees and lay leaders took important roles in organizing the genocide, often using their familiarity with the population to help locate the homes of Tutsi. Longrnan describes one such case. Amani, an employee of the Presbyterian Church in Kirinda, used his church connections to become a local political leader. When the genocide began, Amani went through the community encouraging Tutsi to assemble at the local nursing school run by the church, promising them,"We will protect you." A few nights later, Amani personally led the gang that slaughtered the assembled Tutsi, according to the lone survivor who witnessed Amani at the head of the death squad. 37

In May 1999, Roman Catholic bishop Augustin Misago was arrested. He was charged with refusing church shelter to Tutsis, and in one case he was responsible for sending 19 schoolgirls to their deaths. 38 The highest ranking Catholic cleric among more than twenty priests and nuns accused of partici-


pating in the genocide, he was acquitted in state court, a verdict that met with cries of outrage from surviving victims.

A former president of the Seventh Day Adventist Church, who fled to the United States and unsuccessfully fought to block his extradition to the ICTR, will stand trial. Elizaphan Ntakirutimana lured hundreds of civilians into a church compound at Mugenero. He then led armed Hutu extremists to the site. According to court papers,"They separated the Hutus from the Tutsis and encouraged the Hutus to leave. Ntakirutimana then raised an armed mob of Hutus, led them to the complex, and directed the slaughter of Tutsis." He is also charged with leading a unit of Hutu soldiers on a hunt for survivors of the massacre. 39

There were, of course, examples of priests and pastors who risked their lives trying to protect Tutsi in their parish buildings during the genocide, but there were more stories of pastors who cooperated with death squads--either out of fear, or because they were integrated into the structures of power that the genocide was intended to defend. 4~ Priests encouraged Hutu parishioners to hack to death with machetes Tutsi believers in the same parish. 4~ The church leadership was so aligned with the government that it lost its independent voice, and legitimacy. The church mirrored society instead of opposing evil and standing for justice. "For this silent acquiescence and lack of courage, the churches as institutions paid dearly. They will continue to live under a cloud of suspicion for years to come. "42 The teaching of the church on forgiveness and reconciliation are discredited. WhenTutu traveled to Rwanda urging them to forgive, his words fell on deaf ears. Can the model of pardon only succeed in a country with a majority Christian population where discourse by religious leaders on public policy is taken seriously, and where a prophetic voice proclaiming justice endures?

A dominant Christian population is not essential; as Daan Bronkhorst points out, truth and confession as precursors to reconciliation is a recurring theme in all the great religions, not limiting this solution to Christian countries. Fur- thermore, most religious traditions place reconciliation above justice. 43 How- ever, for religion to play a positive role in reconciliation, it must stand independent of the state, ready and willing to critique power when necessary.

Cultural Resources for Reconciliation: Ubuntu

Tutu's expectation that former enemies can be reintegrated into the community is based not only on his expectation that Christians would forgive as their religion teaches them but also on his understanding of the African philosophy of ubuntu. In African traditional thought, for instance, the emphasis is on restoring evildoers back into the community rather than punishing them. There is no precise definition for ubuntu, but it connotes humaneness, caring, and community. Ubuntu derives from the Xhosa express ion"Umuntu

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ngumuntu ngabanye bantu'(People are people through other people). It con- veys the view that an environment of fight relationships is one in which people are able to recognize that their humanity is inextricably bound up in others' humanity. For Tutu, a person who lives in ubuntu is"more willing to make excuses for others. "44

Tutu's description of ubuntu is enlightening: "Ubuntu says I am human only because you are human. If I undermine your humanity, I dehumanise myself. You must do what you can to maintain this great harmony, which is perpetually undermined by resentment, anger, desire for vengeance. That's why African jurisprudence is restorative rather than retributive. "45

Archbishop Tutu would have us believe that ubuntu, a non-Christian basis for the TRC that seeks to integrate the evildoer back into the community rather than to punish him, is universal in African societies. To what extent does ubuntu exist in African traditional culture? Is it a construct of Tutu's alone? Certainly, finding justification for the process in indigenous African thought gives legitimacy to the process, which otherwise has been accused of being both too"Christian" and too "Western." If real, ubuntu would provide an African source for making reconciliation intelligible.

Does the notion of ubuntu actually exist in all African cultures? Political scientist Tom Lodge discusses the validity of ubuntu in precolonial African societies. According to Lodge, ubuntu was first given systematic written ex- position in the novels of Jordan Ngubane, a founder of the ANCYouth League, member of the Liberal Party, and president of Howard University. 46 For Ngubane, ubuntu was the common foundation of all African cultures and involved"a consciousness of belonging together. "47

John Pobee says,"It is often said that where Descartes said,'I think, therefore I am,' the African would say,'I am related, therefore we are. ''48 This as- pect of African culture underscores a concern for the well-being of the other. Muendanyi Mahamba describes someone with ubuntu as someone who cares about the deepest needs of others and who adheres to all social obligations to the community. 49 The importance of community is something shared by all Africans, writes the scholar of African religions, John Mbiti: "Whatever happens to the individual happens to the whole group, and whatever happens to the whole group happens to the individual. The individual can only say:'I am because we are, and since we are, therefore I am.' This is a cardinal point in the understanding of the African view of man. "5~ Emphasizing the communal over the individual, ubuntu emphasizes the importance of reintegrating the individual into the group.

Njongonkulu Winston Ndungane writes,"Once an African detects that a person means well, and that there is a readiness to move away from the wrong of the past, there is a willingness to move forward to a future that seeks to enhance the wellbeing of humanity. "sl (One could argue, however, that very few perpetrators or beneficiaries of apartheid were willing to move away from


the past, as evidenced by the few numbers of amnesty applicants from the National Party, a lack of remorse on the part of many perpetrators, and a luke- warm commitment on the part of white beneficiaries of apartheid to provide substantial reparations. If true contrition--and a concomitant desire to repair the damage--is a precondition for offering of ubuntu, then that condition was not met in South Africa.)

Ubuntu also figures in the final clause of the interim constitution/'postamble" entitled"On National Unity and Reconciliation,'which laid the guidelines for a truth commission. It states: "... there is a need for understanding but not for revenge, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation."52 Interestingly, the call for amnesty originally came not from the churches, which had little input in the negotiations that led to the adoption of the interim constitution. It was political negotiators rather than church leaders who hammered out the unique concept of a truth commission in which truth would be traded for punishment. Thus, the idea of offering amnesty was mainly a political necessity to bring the National Party on board, and secondly, indebted more to the notion of ubuntu embedded in African tradition than to the Christian ideas on repentance and forgiveness. As Carl Niehaus remarks,"There was very little, if indeed, any theological input. "s3

Constitutional court judgeYvonne Mokgoro argues that ubuntu principles such as collectivity, unity, and group solidarity could promote harmony between society's members rather than the desire for retribution, embodied in the adversarial approach in litigation. In a society founded on ubuntu principles, individual duty trumps individual rights. In such an order, then, group interests should prevail over individual rights, s4

While there is nothing wrong with ubuntu--Lodge points out that the concept expresses a compassionate social etiquette which if everybody adhered to it would make life most agreeable--it 5s the danger arises when a social order around collective solidarity rather than civil liberties is enshrined. In the con- text of the TRC, people were asked to compromise their rights and face up to the duties that ubuntu required. The individual's right to prosecution was superceded by society's right to live in peace. Taken a step further, victims are expected to forgive and accept into the fold the perpetrator in the interests of traditional African values, and may feel guilty if they cannot.

However, it has been suggested that it is a"current invention. "s6 Does ubuntu hearken to an idyllic pre-colonial idealized view of a past that may not have actually existed and cannot be resurrected? Though its meaning is hazy, the notion off ubuntu is not limited to Tutu and academic scholars of African traditions. Cynthia Ngeweu, mother of Christopher Piet--one of the Giguletu 7 who was killed by government agents--understands ubuntu this way:"This thing called reconciliation.., if I am understanding it correctly.., if it means the perpetrator, the man who has killed Christopher Piet, if it means he

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becomes human again, thus man. So that I, so that all of us, get our humanity back ... then I agree, then I support it all. "s7

Gunnar Theissen believes that ubuntu may be exploited by politicians,"nation builders," and intellectuals to sell political compromise as an indigenous virtue, but that it actually does exist in African political culture. "The fact that the African non-metropolitan poor are [the] most willing [of all population groups] to grant amnesty [according to polls] supports this interpretation. "5~

If real and not an invention, could it form a basis for the reconciliation between Hutus andTutsis in Rwanda? If Christianity is useless in some places in providing a basis for a reconciliation process, what about resources from traditional African culture? Speaking of the genocide in Rwanda, Tutu asks,"Where was ubuntu then? "s9 He admits,"I don't really know except to say it clearly is not a mechanical, automatic, and inevitable process. "6~ A recent innovation in Rwanda's Ministry of Justice that relies on the ubuntu principle is the proposal for a Gacaca tribunal. Gacaca is a system of justice based on traditional justice models that encourage reconciliation within the community along with punishment of perpetrators. It is hoped that some of the 125,000 genocide cases waiting to be heard in the state courts will be expedited in this forum.

Assessing "Justice" and "Reconciliation"

In Tutu's recent book, he attempts to demonstrate the superiority of the pardon process. He has lectured the Rwandans:"We must break the spiral of reprisal and counter-reprisal. I said to them in Kigali unless you move beyond justice in the form of a tribunal, there is no hope for Rwanda "61 For Tutu, Nuremburg and all that represents--retribution and punishment--is inferior to his vision of ubuntu--forgiveness and the reintegration of the evildoer into the community. "Justice with ashes"is how he describes the ICTR. 62

How does one judge the success of the two institutions, even on their own terms? Did the ICTR afford justice? Did the TRC bring about reconciliation? These are difficult questions to address in a quantitative way. In the six years since the genocide, 2,500 people have been tried in the state courts for genocide and crimes against humanity with some 125,000 individuals detained in prisons awaiting trial. 63 At this rate, to bring to trial all those accused of genocide would take 200 years. At best, the kind of justice the courts can render will be"justice delayed." The ICTR reached no convictions for three years and to date has indicted only 46 suspected war criminals and handed down just nine verdicts (with eight trials u n d e r w a y ) . . 64 Furthermore, one leading suspect, CDR (Coalition for the Defense of the Republic) leader Jean-Bosco Barayagwiza, was set free on a technicality. The ICTR's prosecuting office had failed to present him to the ICTR within the specified time. This is just one of many examples of "bumblings and delays"of the poorly funded prosecutor's office that has hampered the cause of justice. 6s Furthermore, because of con-


current jurisdictions, the followers of the genocide prosecuted in state courts may get the death penalty, while the planners, the "masterminds," convicted by the ICTR face a maximum life sentence. Lighter sentences, better prison conditions, and guarantees of due process result in substantial advantages going to those tried in the international tribunal. "This surely is an unintended and an unjust outcome,'writes Madeline Morris. 66 And to expedite the handling of thousands of cases in the state courts, the local courts permit plea bargaining of defendants in exchange for greatly reduced sentences. Accord- ing to Morris,"If the leaders are always receiving'international justice'which is perceived as lenient, and the followers are at home getting 'bargains' in the national justice system, then no one is punished fully and severely, relative to national standards, for the horrors that were committed. "67 Even judged by its own criteria, promoting justice, there's been very little bit of it.

What about South Africa? Tutu and the commissioners have been quick to point out that theTRC was but one contribution, that reconciliation is a long- term process, and it cannot be achieved overnight. 68 Some polls in South Africa indicate that when asked, for instance, if the TRC helped or hurt relationships between the races, the majority of respondents said it hurt them. 69 Does that indicate that reconciliation did not result from the two-and-a-half- year experiment in national group therapy? Obviously, healing of traumatized people will take time. Anecdotal evidence suggests that the cathartic value of testifying in a safe place and having offenses acknowledged was momentarily helpful, but feelings of depression and anxiety returned months later. 7~ Is long-term psychological healing possible with a quick fix? And does individual healing lead to the"healing of a nation'(title of a recent book on the TRC)? Or were individuals sacrificed for the greater good of national reconciliation?

If reintegrating perpetrators back into the fold was one of the goals, the TRC was less than successful. I have already referred to the small numbers of amnesty applicants from the white community--ostensibly those most in need of acknowledging their deeds and being restored. In addition, only about 10 percent Of those who did apply for amnesty were granted immunity. 71 We have very few perpetrators being reintegrated back into the community.

But, the TRC did achieve more modest goals. Villa-Vicencio argues that there are three stages in political transitions from repressive rule: peaceful co- existence; national reconciliation, which is more difficult to achieve; and forgiveness,"a coveted ideal" to be gently pursued and not imposed. 72 If not forgiveness, nor reconciliation, then perhaps peaceful co-existence has been achieved through the TRC, 73 arguably because quite a bit of truth about the past was revealed. Timothy Garton Ash identifies three ways of dealing with the past--trials, purges, and history lessons--and finds the third path, history lessons the most fruitful. TM Truth commissions--but not criminal courts--are particularly good at getting the broad sweep of events. Minow asserts that

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trials"following mass atrocities can never establish a complete historical record, despite all hopes. "7s Tina Rosenberg adds:"Trials, in the end, are ill suited to deal with the subtleties of facing the past. "76

For some modicum level of peaceful co-existence to take place, there must be some general agreement about what happened and why. "Former enemies are unlikely to be reconciled if what count as lies for one side are verities for the other. "77 A truth commission that endeavored to get at the"causes, mo- tives, and perspectives"of perpetrators will provide a better understanding of the past and a more comprehensive history than prosecutions can provide. The very fact of asking perpetrators for their insights into their behavior may lead to a better understanding between members of society. Without public awareness of what really happened, there is the danger that revisionist thinking would surface that denies the realities of the apartheid era. (There is evidence that this is happening in Rwanda; the displaced Hutu leadership is circulating propaganda that denies the genocide, places the blame for the past violence on the part of the victims, and suggests they (Hutus) were engaged in a civil war in which they were acting in self-defense. 78)

The International Criminal Court

Finally, what policy implications arise from a comparative study of the TRC and ICTR? On the African continent, other countries including Sierra Leone and Nigeria are looking at the two models for direction as they move from authoritarianism to democratic rule. But, the proposal for the establishment of an International Criminal Court in which countries would be required to prosecute violations of gross human rights abuses would most likely eliminate the TRC experiment as a model for other countries. Villa-Vicencio says this prospect is"a little frightening,"and recommends that some international mechanism be developed to assess all truth commissions' initiatives and to decide whether to let a country proceed along the truth commiss ion- -amnesty route. 79 In fashioning an international criminal court, the pros and cons of truth commissions and tribunals need to be studied fur ther- -and for traumatized nations, the relative value of reconciliation and justice assessed.

Notes

1. Promotion of National Unity and Reconciliation Act (Number 34 of 1995). 2. Diane Orentlicher,"Settling Accounts: The Duty to Prosecute Human RightsViolations of

Previous Re~me, 'Yale Law Journal, 100 (1991), p. 2537. See also N. Roht-Ariaza, editor, Impunity and Human Rights in International law and Practice (NewYork: Clarendon, 1995).

3. See the essays in H. Russel Botman and Robin Petersen, editors, To Remember and To Heal: Theological and Psychological Reflections on Truth and Reconciliation (Cape Town: Human and Rousseau, 1996).

4. See Sachs in Alex Boraine and Janet Levy, editors, The Healing of a Nation? (Cape Town: Justice inTransition, 1995), p. 105; (MP) Willie Hofmeyr cited in Mark Gevisser,"Truth and Reconciliation: Can South Africa Face Its Past?" The Nation, 260, 25 (June 26, 1995), pp.


920-21; and Kader Asmal, Louise AsmaL and Ronald Suresh Roberts, Reconciliation Through Truth: A Reckoning of Apartheid's Criminal Governance (Cape Town and Johannesburg; David Philip Publishers, 1996).

5. For an excellent discussion of the compatibility of order and justice, see Hedley Bull, The Anarchical Society: A Study of World Politics (NewYork: Columbia, 1977), pp.77-98.

6. Dullah Omar,"Opening Address," reporting to the Truth Commission conference, Johannesburg: March 1-2, 1996.

7. Alex Boraine,"Alternatives and Adjuncts to Criminal Prosecutions,'paper delivered at the conference,"Justice in Cataclysm: Criminal Tribunals in the Wake of MassViolence,'Brus- sels (July 20-21, 1996).

8. South African Press Association (SAPA),"Failure to Deal with the Dark Past Spells Disas- ter: Goldstone" (August 14, 1997).

9. Terry Dowdall,"Psychological Aspects of the Truth and Reconciliation Commission,"in H. Russel Botman and Robin Petersen, editors, To Remember and To Heal: Theological and Psy- chological Reflections on Truth and Reconciliation, pp. 27-36. See also Brandon Hamber, "The Burdens of Truth: An Evaluation of the Psychological Support Services and Initia- tives Undertaken by the South African Truth and Reconciliation Commission,'American Imago 1, 55 (1998), pp. 9-28.

10. Julie Mertus, "The War Crimes Tribunal: Triumph of the'International Community,' Pain of the Survivors," Mind and Human Interaction, 8, 1 (Winter/Spring, 1997), p. 51.

11. Kistner, Wolfram,"The Biblical Understanding of Reconciliation.." in H. Russel Botman and Robin Petersen, editors, To Remember and To Heal: Theological and Psychological Reflec- tions on Truth and Reconciliation, pp. 79-95; Peter Storey,"A Different Kind of Justice: Truth and Reconciliation in South Africa," The Christian Century (September 10-17, 1997); Desmond Tutu, No Future Without Forgiveness (NewYork: Doubleday, 1999).

12. He adds: "It could be argued in the secular world of politics it does not really matter at which point one enter the cycle--as long as one stays on board for the entire journey." CharlesVilla-Vicencio,"A Cycle of Healing," Sojourners (July/August 1996), p. 11.

13. Mamdani, Mahmood, "Reconciliation Without Justice," South African Review of Books, 46, (1996), pp. 3-5.

14. Tina Rosenberg, "Recovering From Apartheid,'New Yorker, 72 (November 18, 1996), p. 95. 15. John Battersby,"South Africa Takes Final Steps Toward Long-Sought Democracy," Chris-

tian Science Monitor (May 4, 1994). 16. "Guess Who Won't Be Coming to Lunch," Mail & Guardian (July 28, 1995) and"Guess

Who's Coming to Tea,'Mail & Guardian (August 18, 1995). 17. E.M. Swift,"Bok to the Future," Sports Illustrated, 83, 1 (July 3, 1995), p. 32. 18. VamikVolkan,"The Power to Heal or Poison: Methods of Teaching Through Transference

Used By Political Leaders,'paper presented atVienna Inter-Regional Conference on"Trans- ference and its Impact on Education" (November 6-8, 1998),Vienna.

19. Stephan Landsman,"Alternative Responses to Serious Human Rights Abuses--Of Pros- ecutions and Truth Commissions," Law and Contemporary Problems 59, 4 (1996), p. 90.

20. Desmond Tutu, No Future Without Forgiveness, p. 260. 21. Richard Elphick,"Introduction: Christianity in South African History,'in Richard Elphick

and Rodney Davenport, editors, Christianity in South Africa: A Political, Social, and Cultural History (Berkeley and Los Angeles: University of California Press, 1997), p. 1

22. Richard Elphick, p. 1. 23. For studies on the influence of the Dutch Reformed Church on the National Party's poli-

tics, see T. Dunbar Moodie, The Rise of Afrikanerdom: Pow~ Apartheid, and the Afrikaner Civil Religion (Berkeley: University of California Press, 1975); William A. De Klerk, The Puritans in Africa: The History of Afrikanerdom (London: Rex Collings, 1975); J. Alton Templin, Ideology on a Frontier: The Theological Foundations of Afrikaner Nationalism, 1652-1910 (Westport, Corm: Greenwood Press, 1984); and Tracey Kuperus, State, Civil Society and Apartheid in South Africa: An Examination of Dutch Reformed Church-State Relations (New York: St. Martin's Press, 1999).

24. See Lyn Graybill, Religion and Resistance Politics in South Africa (Westport, Conn: Praeger, 1995).

Graybill 17

25. Peter Walshe, Prophetic Christianity and the Liberation Movement in South Africa (Pietermaritzburg: Cluster, 1995.

26. CharlesVilla-Vicencio, Trapped In Apartheid (Maryknoll, N.Y.: Orbis, 1988). 27. Peter Walshe,"The Role of Christianity in the Transition to Majority Rule in South Africa,"

in Lyn Graybill and Kenneth Thompson, editors, Africa's Second Wave of Freedom: Develop- ment, Democracy, and Rights (Lanham, MD: University Press of America, 1998), p. 181.

28. In November 1997 in a special hearing for the faith community, confessions came from Christian denominations who in varying degrees apologized for not having done enough to oppose the government's policies. No group apologized for active complicity with the state but admitted to supporting chaplains and contributing to the conflict as a"holy war."

29. See Peter Walshe, Church versus State in South Africa: The Case of the Christian Institute (Maryknoll, NY: Orbis, 1983) and Peter Walshe, South Africa: Prophetic Christianity and the Liberation Movement.

30. Cited by CharlesVilla-Vicencio,"The Road to Reconciliation,'Sojourners, 26, 3 (May-June 1997), p. 36.

31. Harold Strachan, Letter to editor, Mail & Guardian (July 25, 1997). 32. 62.6% Catholic, 18.8 Protestant, 8.4 Seventh Day Adventist. 33. Hugh McCullum, The Angels Have Left Us: The Rwanda Tragedy and the Churches (Geneva:

World Council of Churches Publications, [nd], p. 65. 34. Hugh McCullum, p.18. 35. Timothy Longman,"Empowering the Weak and Protecting the Powerful: The Contradic-

tory Nature of Christian Churches in Central Africa,'African Studies Review, 41, 1 (April 1998), p. 57.

36. Timothy Longman, p. 59 37. Timothy Longman, p. 64. 38. "Bishop Arrested on Genocide Charges," Christian Century (May 19-26, 1999), p. 562. 39. Colum Lynch,"High Court Rejects Rwandan's Appeal," Washington Post (January 25, 2000) 40. ~mothy Longrnan, pp. 61-62. 41. Alison des Forges, Alison, Leave None to Tell the Story: Genocide in Rwanda (NewYork:

Human Rights Watch, 1999). 42. Hugh McCullom, p. 65. 43. Daan Bronkhorst, Truth and Reconciliation: Obstacles and Opportunities for Human Rights

(Amsterdam: Amnesty International Dutch Section, 1995), p. 38. 44. DesmondTutu,"The Nature andValue of Theology,'undated, cited by Michael Battle,"The

Ubuntu Theology of Desmond Tutu, in Leonard Hulley, Louise Kretzschmar, and Luke Lungile Pato, editors, Archbishop Tutu: Prophetic Witness in South Africa (Cape Town: Hu- man & Rousseau, 1996), p. 104.

45. Mark Gevisser,"The Ultimate Test of Faith," Mail & Guardian (April 12, 1996). 46. Tom Lodge, South African Politics Since 1994 (Cape Town and Johannesburg; David Philip

Publishers, 1999). 47. Jordan K. Ngubane, Ushaba: A Zulu Umlando, Three Continents Press, Washington, D.C.,

1975, cited byTom Lodge, South African Politics Since 1994. 48. Cited by Njongonkulu Winston Ndungane,"UTutu: Ngumntu lowo,'in Leonard Hulley,

Louise Kretzschmar, and Luke Lungile Pato, eds., Archbishop Tutu: Prophetic Witness in South Africa, p. 78.

49. Muendanyi Mahamba,"Ubuntu and Democracy,'ChaUenge, 16 (June/July 1993), p. 7. 50. J.S. Mbiti, African Religions and Philosophy (London: Heinemann, 1969), pp.108-109. 51. Njongonkulu Winston Ndungane,"Ututu: Ngumntu lowo," in Leonard Hulley, Louise

Kretzschmar and Luke Lungile Pato, Archbishop Tutu: Prophetic Witness in South Africa, p. 79. 52. Postamble to the 1993 Interim Constitution. 53. Carl Niehaus,"Reconciliation in South Africa: Is Religion Relevant?" in Facing the Truth:

South African Faith Communities and the Truth and Reconciliation Commission (Cape Town: David Philip Publishers and Athens: Ohio University Press, 1999), p. 87.

54. Yvonne Mokgoro, Ubuntu and the law in Africa,"Konrad-Adenaur-Stiftung, Occasional Pa- pers: The African Renaissance, Johannesburg (May 1998), cited byTom Lodge, South African Politics Since 1994, p. 52.

55. Tom Lodge, South Afncan Politics Since 1994, p. 103.


56. Richard A.Wilson,"The Sizwe Will Not Go Away: The Truth and Reconciliation Commis- sion, Human Rights and Nation-Building in South Africa, African Studies, 55,2 (1996), pp. 1-20.

57. Antjie Krog` Country of My Skull (Johannesburg: Random House, 1998), p. 109. 58. Gunnar Theissen,"Common Past, Divided Truth: The Truth and Reconciliation Commis-

sion in South African Public Opinion," paper presented at"The Truth and Reconciliation Commission: Commissioning the Past" Conference, University of Witwatersrand, Johannesburg, June 11-14, 1999, p. 24.

59. DesmondTutu, No Future Without Forgiveness, p. 32. 60. Desmond Tutu, No Future Without Forgiveness, p. 35. 61. Truth and Reconciliation Commission of South Africa Report (Cape Town: Juta, 1998),Vol. 5,

Ch. 9,"Reconciliation,'p. 351. 62. Cited by Mark Gevisser,"The Ultimate Test of Faith,'Mail & Guardian (April 12, 1996). 63. John Prendergast and David Smock, David,"Building Peace in Rwanda and Burundi,'(Sep-

tember 15, 1999), USIP Special Report. 64. "A Lifetime to Pay for Sins,'Mail & Guardian (December 10-16, 1999). 65. Press release, Human Rights Watch,"Rwanda Genocide Suspect Freed,"November 8,1999. 66. Madeline Morris,"The Trials of Concurrent Jurisdiction: The Case of Rwanda," Duke Jour-

nal of Comparative & International Law 7, 2 (Spring 1997), p. 371. 67. Madeline Morris,"The Trials of Concurrent Jurisdiction: The Case of Rwanda,'p. 364. 68. Truth and Reconciliation Commission of South Africa Report, Vol. 5, Ch. 9,"Reconciliation,"p.

435. 69. Business Day (July 27, 1998), 70. Brandon Hamber, "The Burdens of Truth: An Evaluation of the Psychological Support

Services and Initiatives Undertaken by the South African Truth and Reconciliation Com- mission."American Imago 1, 55 (1998), pp. 9-28.

71. According to a TRC Press Release on December 9, 1999, as of November 15, 1999, 568 amnesty applicants had been granted amnesty, and 5287 applicants had been refused.

72. CharlesVilla-Vicencio,"The Truth and Reconciliation Commission: Amnesty, Prosecution, and Reconciliation,"unpublished paper (1999).

73. Speaking on peaceful co-existence as a worthy outcome, CharlesVilla-Vicencio says that even if at the end of the TRC process we are"not fully reconciled to one another,'then at least"we do not kill each other." Cited in Jean Bethke Elshtain,"True Confesisons," The New Republic, 217, 19 (November 10, 1997), p. 12. Martha Minow also points to peaceful co-existence, the point"between vengeance and forgiveness,'as a laudable achievement of truth commissions. See Martha Minow, Between Vengeance and Forgiveness (Boston: Bea- con Press, 1998).

74. Timothy Garton Ash,"The Truth About Dictatorship," The New York Review of Books, No- vember 19, 1998, p. 40.

75. Martha Minow, Between Vengeance and Forgiveness, p. 47. 76. Tina Rosenberg, The Haunted Land: Facing Europe's Ghosts after Communism (New York:

Vintage, 1995), p. 351. 77. David A. Crocker,"ReckoningWith Past Wrongs: A Normative Framework,"Ethics & Inter-

national Affairs, 13 (1999), p. 50. 78. Jeremy Sarkin,"The Necessity and Challenges of Establishing a Truth and Reconcilialtion

Commission in Rwanda,'Human Rights Quarterly, 21, 3 (August 1999), p. 772. 79. CharlesVilla-Vicencio,"The Truth and Reconciliation Commission: Amnesty, Prosecution,

and Reconciliation."

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