Vol. 10 No. 12 (December 2000) pp. 652-654.

TRUTH V. JUSTICE: THE MORALITY OF TRUTH COMMISSIONS by Robert I. Rotberg and Dennis Thompson (Editors). Princeton: Princeton University Press, 2000. 309 pp. Cloth $55.00. ISBN 0-691-05071-6. Paper $18.95. ISBN 0-691-05072-4.

Reviewed by Judith L. Holmes, Department of Legal Studies, University of Massachusetts Amherst. Email: jholmes@legal.umass.edu.

The world owes a debt to South Africans for showing that it is possible to negotiate a peaceful transition from a repressive, authoritarian regime to an open, democratic civil society. Central to this process was a truth commission, and central to the truth commission was its controversial amnesty provision, a part of the negotiated settlement. Before the National Party would cede power to Black South Africans, it demanded a general amnesty for its military and paramilitary forces. This was unacceptable. Instead, the interim Parliament crafted a unique amnesty provision that permitted individuals to seek amnesty who were willing to publicly disclose details of gross violations of human rights they had committed. Over 7,000 amnesty petitions were filed with the Truth and Reconciliation Commission (TRC) revealing details of atrocities committed by the Apartheid regime and, to a lesser extent, by the African National Congress. Perpetrators of Apartheid's most publicized crimes, such as the murder of Steven Biko, applied for amnesty, testified before the TRC, and escaped criminal prosecution and punishment. Critics decried this "truth for justice" swap as unconscionable and immoral. The fourteen essays IN TRUTH V. JUSTICE tackle this moral dilemma. They ask: Can transitional justice be morally justified?

Like the TRC itself, drafting of these essays was an open, collaborative effort. Authors include academics from different countries and different disciplines as well as TRC commissioners and South African lawyers. In May 1998, the World Peace Foundation brought together the authors, TRC commissioners and staff, and invited South African lawyers and academics to consider drafts of the essays. The final product is informed by the ensuing dialogue and critique among conference participants.

The book's breadth of analysis and divergent voices is one of its great strengths. However, for the generalist reader, it is also a weakness because the authors often ask different questions, employ different analytic frameworks, and address different audiences. Thus, the density of the essays and their accessibility to a broader audience vary greatly. Nevertheless, certain themes emerge loud and clear. All authors agree that, although truth commissions have certain flaws, the TRC is the best one yet, and the amnesty provision is morally defensible. Indeed, the title of this book is a misnomer. It should be Truth AND Justice, not Truth V. Justice. In one way or another, all of the authors argue that the transition government was not forced to choose one and abandon the other and that the TRC successfully advanced both.

There are three interconnected themes recurring throughout the essays that

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characterize the TRC. The first is that the TRC was more than a second best alternative to criminal prosecution and punishment because it advanced a restorative form of justice that represented a "VIA MEDIA between blanket amnesty and the sledgehammer of retributive justice" (p. 165). Several authors comment that the TRC hearings were a superior form of justice because they elicited more truth telling from perpetrators than would occur in a traditional criminal trial. The potentiality of criminal prosecution was the stick and the need to satisfy the criteria for amnesty was the carrot that brought horrendous acts of violence into the light of day. Ronald Slye, a law professor, argues that amnesty "increases both the quality and quantity of information about past violations" (p. 170). In addition, TRC hearings centered on the victims and not on the perpetrators. Victims were invited to tell their stories before sympathetic commissioners and were not subjected to hostile cross-examination. A truth commission served to acknowledge and affirm the human and civil dignity of victims. More than 22,000 people submitted oral or written statements.

A second theme is that, despite its name and statutory charge, the TRC did not necessarily promote reconciliation. Although there were some stirring moments of individual reconciliation, most perpetrators expressed little remorse and most victims expressed little forgiveness. Rajev Bhargava argues that, although it "can create the conditions for reconciliation in the future" (p. 61), reconciliation should not be a primary objective of a truth commission. Amy Guttman and Dennis Thompson observe that reconciliation is a "utopian and illiberal goal" because "moral conflict in politics is a condition of a healthy democracy" (p. 32). Healing, however, is different. Andr‚ du Toit and Dumisa Ntsebeza, writing separately, argue that the process of truth telling carries restorative power for the victims (pp. 135, 160). Martha Minow finds a truth commission "more promising" than a criminal prosecution in helping individuals move through the stages of healing from the trauma of mass atrocity (p. 236).

The third theme is that the TRC modeled democratic principles and practices for the new society that had been so severely lacking under the Apartheid regime. This gave the TRC's activities great legitimacy, even though some Black and many White South Africans were very critical of them. The structure of the TRC was debated and adopted by the transitional, representative Parliament. Parliament solicited nominations for the TRC's commissioners from the public and President Mandela selected 17 from a list of 23 people submitted to him. Hearings were open and widely reported in the press and on television. The South African Constitutional Court considered and rejected a challenge to the constitutionality of the amnesty provisions from the Biko family. The TRC heard testimony about human rights violations from both sides of the former conflict and the final report condemned both. The final report named names and painstakingly documented both individual human rights abuses as well the social, legal, and political infrastructure of Apartheid which permitted these abuses to take place for so long.

The TRC ended decades of silence and denial by the white minority regime. In terms of ferreting out information and eliciting truths, it is the most successful of all the truth commissions. To provide a model for the future, however, the question that cannot be begged is whether the price was too high. Can the TRC's amnesty

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provision be morally justified? Gutmann and Thompson, academic ethicist, identify three criteria for justification of a truth commission: is it moral in principle, that is, does it promote moral goods that justify the sacrifice of retributive justice; is it moral in perspective by being accessible to all citizens with an interest in living together; and is it moral in practice. If a truth commission results in "democratic reciprocity" whereby citizens are able to justify their actions by "giving reasons that can be accepted by those who are bound by them," then it fulfills the requirements of a moral justification. Furthermore, if citizens strive to "justify their political positions by seeking rationale that minimizes rejection of positions they oppose," an exercise the authors call "economy of moral disagreement," then those political positions are morally justified. Bharava, another ethicist, argues that the "primary function of a truth commission is to help a barbaric society become "minimally decent." Pursuing decency, even minimal decency, is the type of moral good Gutmann and Thompson identify as their first criterion.

Other authors have a different, perhaps more concrete, approach to answering the question. Alex Boraine, President of the Methodist Church of Southern Africa and Deputy Chairperson of the TRC, argues that there was "a compelling need to restore the moral order" (p. 142). He concludes that amnesty brought about a peaceful transition, advanced the search for truth, and created the conditions for free and fair elections. Elizabeth Kiss finds the amnesty provision "morally innovative" because it promoted individual moral responsibility for past offenses, resulted in violators being tried in the "court of public opinion," and provided incentives for truth telling. Further, she argues that the testimony of survivors in a victim-centered proceeding is a means of "doing justice" not likely to be realized in a criminal proceeding. This, she finds, is a worthy moral goal to pursue. Kent Greenwalt, a law professor, argues that doing an injustice (granting amnesty) may be necessary to achieve desirable consequences. He analogizes the amnesty provision to plea bargaining and other forms of prosecutorial discretion and finds that there is "broad acceptance of the idea some injustice OF THIS SORT are warranted to prevent other injustices" (p. 194). Dumisa Ntsebeza, a human rights lawyer and head of the TRC's Investigative Unit, finds that "the TRC process was the only one possible in the conditions of transition in 1994" (p. 160). This does not negate a moral justification of the TRC because it was structured so as to place a high price on the granting of amnesty that resulted in better information than a criminal proceeding would have produced. Other authors find moral justification of the TRC in its modeling of democratic practices.

The enabling act of the TRC required it to conduct investigations and produce a Final Report that would be "a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, irrespective of colour, race, belief or sex." The TRC has completed its work more successfully than another other truth commission because of, in part, its unique amnesty provision. This collection of essays helps clarify the moral justification of that choice.