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The Quest for Justice

A Country Unmasked

by Alex Boraine
Oxford University Press, 466 pp., $29.95

Unspeakable Truths: Confronting State Terror and Atrocity

by Priscilla B. Hayner, with a preface by Timothy Garton Ash
Routledge, 340 pp. $27.50

Stay the Hand of Vengeance: The Politics of War Crimes Tribunals

by Gary Jonathan Bass
Princeton University Press, 402 pp., $29.95

Crimes Against Humanity: The Struggle for Global Justice

by Geoffrey Robertson, with an introduction by Kenneth Roth
New Press, 554 pp., $30.00

Kosovo Report: Conflict, International Response, Lessons Learned

a report from the Independent International Commission on Kosovo, with an address by Nelson Mandela
Oxford University Press, 372 pp., $49.95; $15.95 (paper)

For Humanity: Reflections of a War Crimes Investigator

by Richard J. Goldstone, with a foreword by Sandra Day O’Connor
Yale University Press, 152 pp., $18.50

1.

In an interview with Le Figaro in December Vojislav Kostunica, the president of Yugoslavia, objected once again to the International Criminal Tribunal for the former Yugoslavia. Among other failings, he said, it was biased against Serbs. Yet he apparently felt he could not rule out every attempt to confront the crimes of the past. As an alternative to sending his predecessor, Slobodan Milosevic, to The Hague, Kostunica said he supported a Yugoslav inquiry modeled on South Africa’s Truth and Reconciliation Commission (TRC).1

The TRC has aroused interest in many places, though not everyone sees such a commission as a substitute for trials. In Yugoslavia, the man who has done most to make people aware of the TRC has been Veran Matic, the country’s best-known independent journalist. His Radio B92 was outspoken and irreverent throughout the years of Milosevic in the face of constant harassment, and the station continues in its independent and critical ways since his ouster. At Matic’s initiative, Alex Boraine, deputy chairman of the South African Truth Commission, visited Belgrade in October 1999, nearly a year before the elections that brought Milosevic down, to talk about what happened in South Africa. Matic also arranged the publication in Serbian translation of Country of My Skull, a beautifully written and emotionally intense book about the TRC by Antjie Krog, an Afrikaans poet who reported on it as a radio journalist for the South African Broadcasting Company.2 It is one of a se-ries of translations published by Matic that examine accountability for crimes against humanity, including such classics as Karl Jaspers’s The Question of German Guilt and Hannah Arendt’s Eichmann in Jerusalem.

Veran Matic is trying to make Serbs think about their responsibility for what happened in the countries of the former Yugoslavia in the 1990s. So far there is little indication that they have begun that process. President Kostunica, for his part, seems mainly intent on arguing that only Serbs should sit in judgment of their fellow Serbs. He criticizes the Hague tribunal, claiming that it is a tool of the US and that its chief prosecutor, Carla del Ponte of Switzerland, does not respect the presumption of innocence. (When he saw her in Belgrade on January 23, their meeting ended in an impasse. Del Ponte says that the new Yugoslav president refused to acknowledge that Serbs committed any war crimes whatever, and that he portrayed Serbs exclusively as victims.) Kostunica has also talked about the possibility that a Serbian court might try Milosevic for corruption. Serbia’s new prime minister, Zoran Djindjic, has said that Milosevic “will first have to answer in Serbia for all the terrible things he has done—starting from corruption, crime, election fraud, and ordering murders,” apparently referring to a number of gangland-style shootings of former Milosevic associates.3

What both men fail to acknowledge is that Milosevic’s crimes against Serbs are dwarfed by what he did to non-Serbs. The Hague tribunal has publicly indicted him for several massacres in Kosovo. Its prosecutor may also have secretly indicted him for organizing the forcible expulsion from their homes and communities of three million people in Croatia, Bosnia, and Kosovo and for more than 200,000 deaths in the wars that he started between 1991 and 1999. His responsibility for those crimes may be shared with others, since he did not act alone; but it is not thereby diminished.

A truth commission in Serbia would be no substitute for an international criminal tribunal that could hear testimony from all the lands in which Milosevic and his allies committed crimes and could then impose punishment. But it could still serve a useful purpose. Indeed, the experience of the TRC in South Africa has inspired interest in many parts of the world in creating similar commissions. A hastily established panel is conducting public hearings in Nigeria on the crimes of the past. The newly elected president of Ghana, John Kufuor, is calling for such a group in his country, and Indonesia, East Timor, and Sierra Leone are setting up truth commissions. In the last of these, the panel would hold hearings alongside a criminal tribunal jointly sponsored by the United Nations and the government of Sierra Leone. If it were possible both to establish the truth and to do justice, a moral climate might be restored in a country ravaged by incomprehensible cruelty committed with impunity.

The worldwide surge of interest in ways to hold accountable people who have committed great crimes has been accompanied by the publication of a large number of books on the subject.4 Alex Boraine’s A Country Unmasked is one of several in the past three years to examine the TRC in South Africa. Boraine, an Afrikaner who was formerly the head of the Methodist Church of Southern Africa, had been a longstanding opponent of apartheid. He had more than anyone else to do with creating the TRC and working out its distinctive methods as well as its day-to-day procedures of taking testimony of both victims and people who acted criminally. He provides unique insights and information about the dilemmas it confronted and how it resolved them. (The commission’s chairman, Archbishop Desmond Tutu, was its eloquent public voice and indispensable moral champion, but was being treated for cancer during much of the time the commission was in session.)

Boraine describes how the TRC in South Africa drew on the work of commissions in other countries, mainly in Latin America, that had gotten rid of repressive regimes well before the South African commission was set up in 1995. The first of these was established in Argentina in 1983 by President Raul Alfonsin immediately after he took office following seven and a half years of murderous military rule. Its principal aim was to investigate “disappearances,” crimes that were frequently committed by the military authorities. Though the commission that Alfonsin established did not have “truth” in its title, it became known as a truth commission because the essence of disappearances was that they were designed to be deniable. Just before they left power, the military authorities issued a “Final Document” claiming that they had not engaged in such crimes; the families of the disappeared demanded the truth about their missing relatives. Most Argentines knew that the men in unmarked cars wearing civilian clothes who came at night to carry out abductions were military; but they wanted an end to the lies that the regime had used to maintain a pretense of legality. The commission was established to penetrate the falsehoods. Alfonsin also ordered that prosecutions take place for the crimes that the commission revealed. The commission was to establish truth and trials would then do justice.

Although several military leaders, including two former presidents of Argentina, were convicted and sentenced to prison, attempts to do justice soon ran into trouble. Plans to prosecute lower-ranking officers provoked several military rebellions, leading Alfonsin to call off the trials. His successor, President Carlos Saul Menem, completed the dismantling of the justice process by pardoning the convicted officials. For several years it was widely believed in Latin America and elsewhere that prosecution was too risky. Truth commissions were established in Chile and El Salvador but both countries ruled out current trials. In Uruguay, an amnesty for military officers who committed human rights abuses was upheld in a popular referendum by voters fearful that prosecutions would destabilize democratic government and lead to a return to military rule.

The South African Truth and Reconciliation Commission differed from its Latin American predecessors in two crucial respects. First, it heard the testimony not only of victims but also of the officials responsible for killing and torture. They testified in exchange for amnesty, which was provided only to those who acknowledged and fully disclosed their crimes. Those who did not acknowledge and disclose wrongdoing left themselves open to prosecutions; several have been tried and convicted for killing ANC activists. Second, the TRC’s hearings were public and were broadcast, greatly heightening the impact of testimony by both victims and perpetrators.

Another main feature of the TRC was that it considered abuses committed by those on all sides of the struggle over apartheid. In this, it resembled its Latin American counterparts, which considered guerrilla crimes as well as those committed by the state. Yet because those who committed crimes were required to testify in exchange for amnesty and had to do so publicly, the significance of the TRC’s evenhandedness was also magnified. South Africans witnessed the spectacle of a defiant Thabo Mbeki, then deputy president and slated to become president, applying for amnesty. He reluctantly conceded crimes by the African National Congress, particularly its torture and killing of alleged traitors in its camps outside South Africa. He eventually went to court in a vain attempt to block publication of the TRC’s report. By its willingness to confront the country’s new leader, the TRC strengthened its moral and political authority in condemning the crimes of South Africa’s former rulers.

One criticism often made of the TRC is that though it revealed the truth, it did little for reconciliation. Perhaps, however, reconciliation should not be the goal of a truth commission. Reconciliation may imply forgetting or at least forgiving crimes of the sort committed in South Africa. In my view, it seems more important to promote awareness and acknowledgment of responsibility not only by people who committed crimes but also by bystanders who abetted criminality by passive acquiescence. Such recognition seems essential if a society is to reconstitute itself morally. In his book Boraine advocates reconciliation but acknowledges that the truth does not always promote it:

The only claim I am making is that without this truth, it would have been less likely that reconciliation would have been accepted than was the case; the exposure of the truth dealt a body blow to denial and gave encouragement to victims and survivors to put the past behind them and reclaim their lives without the constant shadow of loss of dignity and recognition…. I believe the TRC contributed to a national process of acknowledgment, accountability and responsibility which have unlocked the greater possibility of a measure of reconciliation, not only for individuals, but also for the nation.

According to this definition, reconciliation goes beyond maudlin scenes of victims and former officials embracing one another, as sometimes happened at hearings of the TRC. It also means that an entire nation was able to observe a close examination of the country’s past, helping to make it possible for South Africans to share an understanding of who was responsible for killing and torture. It is reconciliation with the country’s history.

2.

Priscilla Hayner is the closest student of truth commissions globally. During the past decade, she has followed the work of more than a score of such bodies worldwide and currently is advising a number of the governments that are considering their establishment. Her book Unspeakable Truths is an insightful guide to the work that has been done by these groups, explaining why some succeeded while others failed. Among those in the latter category is the commission that was set up in Haiti from 1995 to 1996 after the United States sent in troops in 1994 to restore President Jean-Bertrand Aristide to the office from which the military had removed him three years earlier.

  1. 1

    Renaud Girard, “Vojislav Kostunica: ‘Milosevic a signé son arrêt de mort politique,’” Le Figaro (Paris), December 19, 2000.

  2. 2

    Antjie Krog, Country of My Skull: Guilt, Sorrow, and the Limits of Forgiveness in the New South Africa, with an introduction by Charlayne Hunter-Gault (Times Books, 1999).

  3. 3

    Steven Erlanger, “Montenegrin Pays Visit to Belgrade After Two Years,” The New York Times, December 26, 2000.

  4. 4

    A valuable contribution to the growing body of scholarly literature is Transitional Justice by the New York Law School scholar Ruti G. Teitel (Oxford University Press, 2000).

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