Institutions for Restorative Justice: The South African Truth and Reconciliation Commission

Document Type

Article

Publication Date

1999

Keywords

South African Truth and Reconciliation Commission, Restorative Justice, Alternative Dispute Resolution, Transitional Societies

Abstract

This essay suggests that much more careful examination of the truth commission alternative is needed to assess adequately the strengths and weaknesses of the mainstream approach of the international community to dealing with conflicts of the past in transitional societies. The major obstacle to such an examination and the reason the truth commission approach has figured so peripherally in the debate over the desirability of war crimes prosecutions are connected to the most controversial feature of the TRC - granting amnesty to perpetrators in return for disclosure of offences. Sophisticated observers are quick to concede the pragmatic political reasons behind such a choice, including the particular demands of a negotiated transition to majority rule. Justice, however, is often thought to necessitate punishment, not acknowledgement and dialogue. Thus, the TRC is seen, even by those sympathetic to South Africa's choices, as an uneasy compromise with justice.

In this essay, we propose a fundamentally different view of the TRC - one that suggests the possibility that this may be a first best solution, not an ineffective bromide where criminal prosecutions are inadequate, politically risky, or undesirable. This alternative view directly challenges the conception of justice that underlies criminal trials. It implies a radical reassessment of the means by which justice is done and the respective merits and drawbacks of the various techniques of dealing with the past.

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