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

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

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

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

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

DEALING WITH THE PAST

Why Amnesty?

The manner in which a successor government chooses to deal with those who have committed gross violations of human rights, during the tenure of a previous repressive regime is profoundly influenced by the balance of power between the old and new orders at the time of transition. The Nuremberg tr...

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