Markkula Center of Applied Ethics

Can Dictators Be Forgiven?: Political Change in Facing the Past

This article is based on an Ethics at Noon presentation, Monday, April 12, 2003, at the Markkula Center for Applied Ethics. [Hear an audio version] Included are edited transcripts of the remarks by Jane Curry, professor of political science at Santa Clara University and Robert Meister, professor of politics at UC-Santa Cruz. Lisa Ann Mammel's comments were excerpted from the longer paper which appears in its entirety below.

Lisa Ann Mammel, an attorney practicing in Palo Alto; served as a U.N. monitor for the 1994 South African elections and as an attorney monitor for the South African Truth and Reconciliation Commission. Jane Curry has written extensively on Eastern Europe, on Soviet domination, and on the transition of those once totalitarian governments and societies to a democratic future. Robert Meister has explored in depth the topic of forgiveness in political transition.

JANE CURRY: I have an awful admission to make before I start: I was a part of thinking up title for this presentation — "Should Dictators Be Forgiven?" Now, I am totally befuddled by answering this question. It seems to me that, before I start, there are some questions to be raised about the question itself. These are quite important in our understanding of the potential for forgiving dictators and making a peaceful transition.

The first is, "should" for what? There are a number of goals we can think about. One is to create new democratic systems peacefully. The second is to take a moral stance and, perhaps, teach people about what is acceptable behavior. The third is to bring peace to the victims. It seems to me that each of these options has very different requirements.

Secondly, what do we mean by dictators? There are lots of kinds of dictators. There the Polish, the East European, and even the Soviet dictators who held power, gave rewards to their people, ran countries in ways that did not work, and punished critics. In very few instances, after the '50s, were there serious and ongoing patterns of violence comparable to the torture, rape, and murder elsewhere. On the other extreme, we have Saddam Hussein and Hitler-people who are responsible for much torture and death. Most of the dictators we deal with are people who are in between-they are involved in bad policy and they are also involved in repression.

The other piece of talking about dictators is deciding how many are involved and need to be punished. No single individual manages to commit the kind of torture and killing that we regard as human rights violations. Indeed, no single individual can and does control or repress a whole country. Dictators aren't the ones who pull the triggers. In each society, there's a medieval hierarchy of repression from the top to the tiniest village. And there's always an elaborate support system of foreign regimes and groups that keep dictators going, either by trading with them or ignoring them. To punish dictators or even to focus on them as individuals is to absolve the rest or save them with a shift in the focus.

Then there's the mysterious concept of "forgiven." We three were involved in a study group for two years and came up with no clear definition of forgiveness. It seems that, in some cultures, forgivers must be the victims and, in others, they can be the larger society. Forgiveness may require that wrongdoers take responsibility and it may not. For some, forgiveness is the opposite of justice and, for others, it's a part of justice.

With those issues in mind, let me begin and work through this from the perspective of ending dictatorships and getting democracies going. How do we end dictatorships? Well, we just ended one in Iraq. It was bombs, a lot of fighting, and a lot of disaffection on the part of the Iraqis for what they have now.

Ironically, the Bush administration is involved in a second attempt to end dictatorship: That is a chair that has been created at Boston University, the African President-in-Residence. The chair is intended to get dictators in Africa to leave their positions through free elections they accept losing. They then come to Boston in exchange for a nice house on the Charles River, a good stipend, a nationwide audience, an archive for their papers, and a staff and security detail. (Clearly, if they need a security detail, they haven't been forgiven by their populations.) Kenneth Kaunda is the first. The hope apparently is that Robert Mugabe will be the next person who gets this chair. What it does require is a peaceful handing over of power. What it does not require is having been a democratic leader. So here we have an academic incentive for bad guys to turn over power. Whether or not they're forgiven by their societies, they have an incentive to give up. All you have to do is be a dictator-that seems to be the unwritten requirement-have multiparty elections, and leave.

That's not unlike how the leaders gave up or were negotiated out of power in Southern Europe, Latin America, and less explicitly the Communist states. I say less explicitly because, in Communist states, the first leaders still thought they'd hold power even as they negotiated to hand it over. I would also say that the arrest of Pinochet in England made this option a much more difficult case to make for leaders. We can no longer promise that, if you just turn over power and accept an amnesty, you're going to be okay for the rest of your life.

Now, to stimulate discussion, I'm going to go further than I personally feel comfortable with doing. I'm going to suggest that getting rid of dictators is best done with as little carnage as possible. In that case the issue is not punishing them but simply getting them out and inducing them to leave. What societies need is not punishment of dictators; but, a clear sense that they and their systems are gone and cannot come back. Secondly, societies need a knowledge of what happened and why it happened.

There are some options that have been tried or some techniques that have been used to bring this kind of regime transformation. They range from amnesty to the opposite-slaughter, trials, lustration (that is, removing all the people who were associated with the old administration). Finally, there are truth commissions. These really involve getting the information out. But, unlike trials, they don't involve punishment. In fact, generally, the people who are revealed in the truth commissions are allowed to live out their lives; but, the story is there and the pain of their defeat I think is clearly there.

I am speaking from the level of societies, not the individuals in them. I'm not speaking, although I know this is a discussion on ethics, particularly ethically-I'm talking practically. I think what you need to create a new democracy is for citizens to feel safe participating. That means that they have to know that the old system is over. To know that, they have to know how it worked and what the rules are to prevent things from going back to the way they were. They need to know there is not a new community of losers who are looking to get back into power. The worst kind of losers are the people who used to be on the top. They want to get back. Also, citizens need to have a clear sense of the rule of law. They need to know they cannot be punished for something that was not illegal before. That makes punishing dictators from past regimes complicated because, most often, they didn't violate their own laws in being dictators. Finally, I think it is very important to keep the system going. To disrupt a system by removing all of its administrators because they were involved with the old regime doesn't serve people's immediate interests.

How do you do this? Well, let me suggest that a peaceful transition is the best way to do it. It creates a model of the new politics and of compromise. It makes the point that there is a change in the system, not simply in politicians. And it's best if it's done internally because there is something about having change dictated from the outside that makes it very easy to shift blame.

The second thing is that the story needs to get out and the questions need to be answered. In order not to recreate the past, it's important that people know what happened and why it happened. For victims, it becomes very important their questions of what happened are answered. I think there needs to be a societal examination of its past. Vaclav Havel said, when Czechoslovakia moved toward trial and lustration, this was wrong- indeed, the entire Czech nation had been involved in the dictatorship, even the victims to some degree.

Finally, I think the focus needs to be on improving the present. Resources for internal criminal trials or for external trials really take away from what these poor societies need to focus on, which is, how are they going to make daily life better for people?

Is this justice? Is it ethical? Well, perhaps it's neither. I think it's a matter of establishing a new system where there can be social justice. I think it's all been about facilitating the start of democracy and laying the groundwork. Is it about forgiving? I'm not sure it's really about forgiving. Individuals who are dictators are unlikely to apologize; but, they may be willing to leave if they are left alone. Is it about forgetting? No, I think it's absolutely not about forgetting: it's about creating a system where the past can never be repeated. I think it's about accepting, about disabling the past and drawing a thick line and going on.

To go on, I think two things have to happen. One is that there needs to be an emphasis not only on who did wrong in the society; but on the good actors, the people who protected, who acted to change the society, and who pushed for more freedom. When we do that, we are modeling good action rather than simply looking at punishing. Secondly, I think what becomes imperative in all these societies is that there be a very immediate move to decrease the extent of economic inequality so the lives of victims improve. This needs to be done in a transparent fashion so that people see that the dictators of the past are out of power. Maybe they are not out of a good life; but, at least, their potential to do harm is past.

In conclusion, what's been interesting in Eastern Europe is that the places where drawing a thick line was not acceptable were the places where the economic conditions got worse. It's not the real victims in Eastern Europe who want trials and justice; it's the people who want their lives to change and can't understand why the new system isn't bringing them a better lifestyle.

Lisa Ann Mammel: I understood that the topic today was loosely framed by the question: "Can Dictators Be Forgiven?"

The topic is broad enough for varying interpretations and perspectives, but I would suggest that it does seem to indicate that the determination is a public and perhaps policy-driven one, that of forgiving a fallen dictator or past regime by a nation, by the successor government, or by the international donor community and world public opinion.

I would like to talk about forgiveness in post-apartheid South Africa— and suggest that the determination of whether or not to forgive is a personal one -- to be offered by those who suffered under the predecessor regime. The relegation of forgiveness to such a personal level does not (or did not in South Africa) make it irrelevant to the tasks of regime change and nation-building. Indeed it was essential to such a successful and peaceful transition in South Africa. Most particularly, the political and legal mechanism (known as the Truth and Reconciliation Commission — or TRC) which allowed for a relatively peaceful transition was based on the very personal realm of the victims' capacity forgive.

Today I would like to review the TRC apparatus implemented in South Africa, then look at the personal element of forgiveness which formed the underpinnings of the TRC - in order to state that yes, a dictator or oppressive regime can be forgiven. Whether it should be forgiven demands a personal accounting. Whether it should be pardoned or amnestied demands a cost/benefit analysis on the political level… a situation as varied as there are oppressive regimes and countries.

Creation of the TRC

The Truth and Reconciliation Commission (or the "TRC") was the mechanism created as part of the transitional power sharing agreement that led to South Africa's the first multi-racial elections of 1994. Its goal was to assist the country in moving from its divisive, apartheid past to a multiracial, reconciled future. Its miracle quality was that it was able to forge unity out of decades of animosity and distrust --stemming in large part from the enormous capacity of South Africans to forgive.
The creation of the TRC was not an obvious outcome of the multiparty negotiations at Kempton Park. Certainly central to such talks was the issue of how to deal with the crimes of the apartheid past. Two options representing opposite extremes were among those considered: one formally prosecuting all of the perpetrators of human rights violations (also known as the "Nuremberg option"); the other being a blanket amnesty. Both options had their strong advocates. Both options were impractical (indeed impossible) solutions for the newly democratic South Africa, and were correctly rejected.

Nuremberg Option

Briefly, the Nuremberg Trial paradigm had its greatest advocates among those involved in the liberation struggle. The experiences of the black population under apartheid (including arbitrary arrest, detentions without trial, summary executions, rape, mass removals, disappearances, and torture) were gross human rights violations - some of which could arguably be classified as genocide. At the time of the multiparty talks, many, if not most, of the crimes had never been investigated. To forego trying those responsible would be to allow for the commission of the most abhorrent crimes with impunity - and could be presumed to be the equivalent of condoning such acts. At the rebirth of a nation, at the point at which its moral foundation was to be set, the country needed to set the tone of a rights-based culture: Such injustices would not be tolerated.

Those advocating that the new government was obligated to prosecute human rights violators had considerable support from the body of international law. United Nations' instruments such as the Universal Declaration of Human Rights1 and the International Covenant on Civil and Political Rights2 provide for individual responsibility for crimes such as torture and genocide. International treaties such as the Convention on the Prevention and Punishment of the Crime of Genocide3, and the four Geneva Conventions of 19494 not only emphasize individual responsibility, but also require punishment of such offenders.

As strong as the argument was made for the prosecution of the perpetrators of such crimes during the apartheid era, its adoption was doomed at the outset for many reasons - some practical, others philosophical. For unlike post World War II Germany, in South Africa there was no triumphant allied force nor a defeated regime. The Nationalist Party remained in power during the multiparty talks. There was no possibility of the liberation movement imposing the prosecution option on the white government led by the Nationalist Party. In any case, a negotiated settlement could not have been reached with the former apartheid government if it provided that members of such government would face prosecution as perpetrators of gross violations of human rights. If the Constitution kept alive the prospect of continuous retaliation and revenge, the agreement of those threatened by its implementation might never have been forthcoming."5

Further practical reasons precluded the option of trying the perpetrators. Among them, limited judicial resources. Prosecuting the tens of thousands of perpetrators responsible for crimes occurring over a thirty-four year period would tax any judicial system -- in terms of personnel, logistics and available venue. One might note that just over 200 Germans were tried in the Nuremberg trials which lasted almost three years. As of the amnesty application cut-off date of May 10, 1997, 8,000 amnesty applications had been received by the South African TRC, with some estimating that the number of perpetrators who had not applied for amnesty to be at least that of the amount of those who had applied.

Assembling evidence linking the thousands of accused to crimes of over three decades old, would have been daunting, if not impossible, as those affiliated with the apartheid regime had ample opportunity to obliterate any telltale evidence of their wrongdoing, and the passage of time and death of any adverse witnesses further clouded any evidentiary trail. Furthermore, trying the accused at the cost of approximately one to two million dollars per person6, was simply cost prohibitive, especially so when the country desperately needed to address urgent needs of access to potable water, housing, health and education for the majority of its population.

General Amnesty Option

In contrast to those who favored the Nuremberg Option, the white power structure advocated a blanket amnesty. In essence, the General Amnesty Option provided that all perpetrators of crimes under the apartheid regime would be pardoned without being named or linked to a crime. The assumption was that the act would be a simple, symbolic and inexpensive one. It would demand no resources, take minimal time, and the country could move on to other matters of nationbuilding.

General Amnesty was not truly a practical option from the moment it was proposed. A population of over 35 million non-white South Africans suffering under decades of injustices would not support what some labeled not a general amnesty, but "general amnesia." Total lack of accountability was too high of a price to pay for a negotiated settlement. A government exemption of perpetrators from punishment would pre-empt a recognition of harm suffered by victims. To forego reckoning of the crimes would be to subject the victims of apartheid to a second victimhood - robbed of any sense of justice or closure. The opposition to a blanket amnesty was shared those who claimed that failure to face the crimes of the past portended a future where they would be repeated. Acknowledgement of the crimes was necessary to clearly condemn them, to prevent their reoccurrence and to recognize the pain and loss of the victims.

Like the Nuremburg Option, the General Amnesty Option could not provide for the peace and reconciliation of the nation. General amnesty relied exclusively on mercy - disregarding both truth and justice (either retributive or restorative). Reconciliation could not occur if the need for truth has not been met. Faith and trust in future governance simply would not exist without a public accounting for the transgressions of the past regime.

Truth Commission Option

Truth and forgiveness were the twin pillars upon which those advocating a truth commission hoped to found a reconciled nation. At its simplest, the TRC granted prosecutorial amnesty to individuals who had committed crimes in the past in exchange for Truth: a complete and public disclosure of the crimes that they committed. Forgiveness was imparted by the grace of the victims. For those perpetrators failing to make an amnesty application, or failing to make a complete disclosure of the crimes they committed, the route of prosecution would be pursued. Victims, denied justice by the court system during the apartheid era, and silenced by threats of further violence, were given the opportunity to tell their stories of pain and suffering to a listening nation -- and to receive reparations for their losses.

The Truth Commission Option drew much of its support from the prevailing concept among indigenous groups in South Africa known as "Ubuntu" in the Nguni languages. The concept is not easily translatable into English. It has been understood to be a philosophy of life prevailing where "group solidarity is central to the survival of communities with a scarcity of resources."7 Its central tenet, when translated, means a person can only be a person through others.8 In short, Ubuntu suggests that self-fulfillment can only be found through harmonious social relationships, group solidarity and unity. Harboring vengeful grudges is antithetical to harmonious social relationships. The act of forgiving can reconnect the perpetrator and the victim, establish or reconstruct a relationship, heal grief and break cycles of violence.9 In the case of South Africa, where violence permeated a society, forging relationships of trust and foundations for collective self-government were urgent goals for a the viability of a new nation.

The concept of Ubuntu was very much on the minds of those negotiating in Kempton Park and setting up the principles to be ensconced in the Interim Constitution. The final clause of the 1993 Interim Constitution specifically mentions Ubuntu. It reads:

The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgressions of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimization10

On July 19, 1995 parliament passed the Promotion of National Unity and Reconciliation Act to establish the Truth and Reconciliation Commission (hereinafter "The Act.")11 In its adoption of The Act, parliament concluded that reconciliation of the country - among citizens, and between the past and the future - could only take place after the Truth surrounding past crimes had been disclosed and their forgiveness had been achieved.12

The TRC was composed of a Committee on Amnesty, Committee on Human Rights Violations and Committee on Rehabilitation and Reparations, each tasked with specific duties. The amnesty process was the purview of the Committee on Amnesty. According to The Act, for a person to apply for amnesty, his or her act must have been: 1) a gross human right violation (defined as torture, killing, abduction or severe ill treatment); 2) committed with a political objective (defined as committed as a member of a publicly known political organization or as an employee of the state or state security forces; and 3) committed from the date of the banning of the ANC and PAC (March 1, 1960) until the date of inaugurating Mandela as president (May 10, 1994) -- a time during which real political participation was not possible.13 The amnesty process was founded on the premise that political violence should be forgiven. Crimes of spite and vengeance (those not committed to further a political cause) were not eligible, nor were those occurring at a time where political expression was possible. Those perpetrators who did not apply for amnesty by May 10, 1997, or did not fulfill the three criteria of crime, political objective and time period, or who did not make a full disclosure, were not granted amnesty. Without amnesty, they were subject to full prosecution.

The Committee on Human Rights Violations (or HRV Committee) continued to function until the end of 1998. It was charged with: 1) establishing as complete a picture as possible of the causes, nature and extent of the gross human right violations; 2) establishing or making known the fate or whereabouts of the victims; 3) restoring the human and civil dignity to victims by allowing them an opportunity to relate their accounts of violations; and 4) recommending reparations for victims.14 The Commissioners took testimony at victims' hearings which was subsequently shared with the Committee on Reparations.

The Committee on Reparations focused on assessing the impact of the crimes on individuals and communities and considering ways of achieving reparation and rehabilitation. Where other truth commissions have at times obtained information in an effort to prosecute perpetrators, the South African TRC took information (that provided through victims' testimony at the HRV Hearings, and that provided through perpetrators' testimony at the amnesty hearings) so as to make recommendations on forms of reparation due to victims. Upon receiving recommendations, the President of South Africa makes the actual award to victims — paid through the Presidential Fund. The decision announced only last week by President Mbeki noted that reparations would be paid of approximately $2,000-$3,000 per victim.

The uniqueness of the TRC was that it was based on the principles of victims' forgiveness. The TRC was unique in more than just its genesis, structure and duration as compared to other truth commissions, it was unique as it was based on assumptions that either were untested in a political transition context, or were contrary to prevailing understandings of forgiveness. Such assumptions included: that truth provides for forgiveness; forgiveness can be a public act; forgiveness is beneficial to victims; forgiveness is possible without a repentant wrongdoer; and forgiveness is not the absence of justice.

Truth provides for forgiveness; To forgive one must NOT forget

Contrary to the forgive and forget adage, the TRC was set up on the premise that to forgive, one must NOT forget. Indeed one must actively seek out and establish the truth. The establishment of truth (publicly revealed truth) provides for avoiding repeating the mistakes of the past; as well as for atonement, forgiveness and eventually, reconciliation. In order to build the "historic bridge" between the past society characterized by injustice and the new nation founded on a recognition of human rights, the TRC was founded to establish as complete a picture as possible of the Truth regarding injustices committed in the past.15 The picture was a mosaic of perpetrators' amnesty applications, investigative findings and, perhaps most importantly, victims' testimony.

The amnesty component was essential in order to get at the Truth. Indeed, when one perpetrator applied for amnesty, and implicated another in his testimony, the TRC often found the implicated perpetrator would apply for amnesty and further implicate others up the chain of responsibility. Among the revelations the amnesty proceedings provided were: 1) the existence of death farms - rural areas where many bodies were located and exhumed; 2) the development of torture methods; and 3) state-sponsored experimentation in poisons. Through the amnesty process, where Truth was traded for freedom from prosecution, the amnesty of one provided for a spiral of confessions leading to information essential to victims and the state -- something that an adversarial trial process would not have provided.

Perhaps more important than the perpetrators' testimony, was the truth gained via victims' testimony. A massive campaign was launched by the TRC in obtaining the Truth according to victims. Official TRC posters were placed in major cities, townships and rural areas, one of which stated: "If your mother was tortured, father murdered and children abducted, would you be silent?" After the information campaign, statement takers were sent throughout the country to take down victims' testimony for submission to the HRV Committee. In the end, over 21,3000 statements were made by those claiming to be victims of gross human rights violations - with some statements representing several individuals.16 HRV Committee hearings were held in over 75 public venues throughout South Africa from April 1996 though August 1997.17 Victims' stories revealing the worst injustices possible essentially rewrote the history of the country. Amidst the necessary, yet bureaucratic groans of nation-building (setting up ministries, dismantling legislation…), were victims' voices stating, "This happened, I know, because it happened to me…"

Time and time again, many victims stated that the simple act of giving testimony provided the support that allowed many of them to forgive — to forgive based on remembering (as opposed to forgive so that one may forget.) As one South African stated, "We retell our painful stories so that we shall remember the years that lied behind with all their struggles and terror as the way that led to new life."18

Forgiveness can be a public act; Forgiveness is beneficial to victims

Once considered to be something located in the private interpersonal realm between a person wronged and his offender, forgiveness has increasingly expanded to a more public sphere. International observers reporting on the HRV Committee agreed that the public nature of the hearings provided a necessary and positive mechanism of allowing victims to tell their personal and very painful stories to a public which, up until then, had refused to listen, or when it did listen, challenged both the veracity and significance of the tales. Through public revelation of her experience, the victim gained community acknowledgment of her pain and suffering. National and international television and radio coverage widened the public circles validating the testimony of the victim, and encouraged many of those once hesitant to testify.

Anecdotal evidence indicates that testifying also provided a therapeutic or healing effect for the victims. Telling one's story to a listening public appears to have lifted a burden; the lifting of that burden further led to offering of forgiveness. In the words of the The Act, testifying (and, at times, offering forgiveness) "restor[ed] the human and civil dignity"19 of the victims. The respect and dignity gained by testifying to a respectful public was enhanced by the power that the victim possessed to forgive the perpetrator of his crime.

One victim, Lucas Sikwepere, shot in the face and blinded, explained the therapeutic effect of testifying:

I feel what … has brought my sight back, my eyesight back, is to come here and tell the story. I feel what has been making me sick all the time is the fact that I couldn't tell my story. But now … it feels like I have got my sight back by coming here and telling you the story.20

The public nature of the hearings appeared to benefit more than the individual. The public hearings provided the South African nation (and to some extent the world) to participate in the victims' pain. Private grief was shared by the nation; and private forgiveness became national forgiveness.

At times, the South African community at large, neither direct victims nor perpetrators, actively adopted the prevailing sentiments of confession and forgiveness of the perpetrators and victims. An official register was established by the TRC so that the general public could submit comments. Many of those comments intoned the spirit of, "I am sorry. I could have done more. Please forgive me."

Holding the HRV Committee hearings in a public forum was not without a price. Although many victims may have experienced catharsis in testifying, there remained many who were traumatized - having just opened emotional and psychological wounds. Psychologists and social workers (known as "Briefers") were sensitive and compassionate during the victims' 15-20 minute testimony at the hearings - sitting with the victim and providing support. Unfortunately, very little official therapeutic assistance followed the victims after they testified.

Further, open hearings, coupled with an accused's statutory right to attend the hearings21 created an uncomfortable situation for some victims testifying. Twice during hearings in Mooi River, Natal, victims were unable to continue their testimony in front of an assembled crowd which included the alleged perpetrator of their human rights violations. Indeed, one victim was so emotionally overwhelmed by the presence of the accused that she was taken to the town clinic.

Forgiveness is possible without a repentant wrongdoer

The amnesty component of the TRC did not demand a statement of contrition. Quite simply, such a statement could be insincere and was surely of less importance than a disclosure of the facts surrounding the atrocities committed. Whereas some amnesty applicants did offer apologies during their amnesty hearings, and still others made overtures to their victims (including meeting with communities that suffered the wrongs committed by the applicant), many perpetrators never offered an apology. Often crimes identified to the TRC by the victims who experienced them were never the subject of an amnesty application. Therefore, in many cases, victims who were willing to tell their tales in public about the injustices they experienced and furthermore, who were generously inclined to forgive the perpetrator of their offense, had no person to whom they might offer such forgiveness. As the daughter of one of the Cradock Four victims stated, "We do want to forgive, but we don't know whom to forgive."22

A wrongdoer can benefit from repentance (and when offered, the subsequent receipt of forgiveness) often times by experiencing a change in self-worth, a reclaiming of his humanity and reintegration into the community. Indeed, for a wrongdoer to heal, it appears that acknowledgment of and repentance for a wrong is necessary. Not so for a victim. A victim can forgive and benefit from the act of forgiveness even without the wrongdoer's repentance. It is suggested that a victim who cannot forgive is imprisoned by his or her vindictive wrath. As Archbishop Tutu, the Chair of the TRC, states: "If a victim can forgive only when a culprit confesses, he would be locked into his victimhood."23 The benefit of forgiving (regardless of a repentant culprit) includes an unburdening of anger and vengeance, and a rededication of energy toward positive pursuits. Dumisa Ntsebeza, a TRC Commissioner who was incarcerated for years under apartheid, stated that "there is so much to do in the time that remains of one's freedom."24

The exchange between a HRV Committee Commissioner and grenade blast victim Beth Savage indicates that one does not need the identity of a person to resolve questions of culpability and vengeance. Although it is not necessary, meeting a perpetrator could assist in forgiveness. More importantly, it can create a relationship of exploring the underlying dynamics that contributed to the injustices and violence in the first place.

HRV Commissioner: Is it important for you to have the identity of the people who are responsible?

Beth Savage: It's not important to me…. What I would really, really like is, I would like to meet that man that threw that grenade in an attitude of forgiveness and hope that he would forgive me too, for whatever reason.25

Forgiveness is not the absence of justice

Many of those critical of the TRC process stated that it was created at the price of justice.26 Such a position: 1) mistakes punishment for justice; and 2) mistakes judicial proceedings for justice.

Punishment stems from retributive justice - the offender is subject to punishment for his crimes or wrongs. In contrast, the TRC advocates restorative justice linking justice and reconciliation. TRC Chairperson Tutu explained the differences in this way: "Retributive Justice is largely Western. The African understanding is far more restorative - not so much to punish as to redress or restore a balance that has been knocked askew. The justice we hope for is restorative of the dignity of people."27 Therefore, reconciliation (stemming from restorative justice) does not replace or exclude justice. It replaces the punishment (stemming from notions of retributive justice). Under the TRC, retributive justice was politically and practically unfeasible. However moral accountability was still possible. Instead of punishing a few for individual crimes, the country chose to come to terms with the entire legacy of apartheid so that a reconciled society could move forward.

The focus on the trappings and venue of the TRC made others state that the TRC was not providing for justice. To them, justice was confined to a courtroom and legal proceedings and the TRC was a superfluous religious ceremony. It is true, the TRC was distinguished by religious elements. Religious leaders were actively involved in the public debate setting up the TRC. The head of the TRC was an archbishop; three ordained ministers served as Commissioners; and hearings were often held in church halls. A hymn opened victims' hearings, followed by a prayer and victims often invoked the name of God in asking for strength in giving testimony. Solemnity, contrition and forgiveness were emphasized. As a white woman serving lunch to victims in Mooi River stated, "We've got churches. I don't know why people have to confess and forgive in another place like the TRC, especially when it costs so much."28

Some recognized that the TRC Hearings were a hybrid of a judicial process, but found it sufficient for the task at hand. Interviews of victims testifying at the HRV Committee hearing in Mooi River, revealed many who were willing to commit entirely to the TRC Process - at times invoking President Mandela's name for further weight that public confession sufficient for granting amnesty, and that nothing further should be done to or required of the perpetrators. Others were somewhat equivocal - while embracing the TRC process for the here and now, they stated that justice or indeed, vengeance was to be meted out through God… and that it would come in time.29

Viewing justice through the lens of punishment meted out through a judicial process is a myopic exercise. It overlooks restorative justice, and underestimates the power of forgiveness. Whereas forgiveness is an indication of how a victim feels about the perpetrator who committed the injury — and not an act of a formal justice system, it certainly is a valid tool in establishing moral foundations and equity.

The creation of the TRC as the mechanism by which South Africa could transition from apartheid past to democratic future was borne in large part out of political compromise. It was a practical decision. But, given its emphasis on the suffering of Victims, the investigation into the causes of such injustices so as to avoid their repetition, and the healing of a nation through the revelation of truth and the opportunity for forgiveness, it was the best decision.

Conclusions

I return now to the question posed in the title of this panel: Can dictators be forgiven? I answer that a state cannot forgive. A state can prosecute individuals for crimes or grant them amnesty. It can punish or absolve.

Can dictators be forgiven? The answer is found in the personal sphere -- and will vary from victim to victim, and among the crimes experienced. In South Africa's case, many victims did forgive, and expressed their forgiveness publicly. Nelson Mandela was among them. However, others did not.

I think that the most interesting question is a practical one -- one that will provide lessons for other countries experiencing regime change after a violent or repressive past. Can a state foster forgiveness? I respond in the affirmative, although I recognize that it stems much from whether the state can provide a mechanism much like the TRC which offers the exposure of truth - truth to allow for reconciliation on a national level, and forgiveness on a personal one.

ROBERT MEISTER: Time is short, so I'll make some broad points that are responsive to what you've just heard, most of which I agree with. Jane Curry addresses the question of how to bring about a transition from an evil regime to something better. Should the evildoer, such as Pinochet or Saddam Hussein, be offered amnesty and exile, or perhaps a fellowship, in return for relinquishing illegitimate power? And if this happens, should the deal be honored afterwards?

I agree with Jane that there are obvious advantages to getting rid of a bad regime without a fight. The serious issue here is whether honoring the deal later means that the legitimacy the new regime depends to some degree on the consent of the old. If the old regime is not discredited in the transition, is this really a new beginning or just another compromised successor state?

I think it's useful here to make a distinction that was originally articulated by a political scientist named Anne Sa'adeh in her book, Germany's Second Chance. Sa'adeh describes two distinct strategies of political transition: an "institutional" approach on the one hand and a "cultural approach" on the other. The institutional approach says that any transition from a bad regime to a liberal, democratic, human rights-oriented regime has to begin with the people you have-the people who existed under the old regime and will continue to exist under the new regime. If that's the case, then many, if not most, of these people will have been compromised, perhaps severely compromised, by their previous lives in the old regime. To make them loyal to the new order, you must, thus, persuade them that it was the old institutions that were to blame for the way they were then, and they will be better people under the new and better institutions. When the institutional approach succeeds, those who were compromised under the old regime will actively support the new institutions because they see these institutions, themselves, as their salvation, bulwarks against returning to the past.

What you heard in Jane Curry's talk was essentially a version of the institutional approach, and it is an approach, I should point out, that has a very high chance of success. Nevertheless, it also carries with it certain costs because, under it, there need be no meaningful confrontation with the past. Another way of putting this is to say that the institutional approach, if it succeeds, will include too many of the perpetrators of the old regime as necessary functionaries in the new. Another reason is that those who were conformists in the old regime are the real constituency of the institutional approach, the point of which is to make it easy for them to conform to the human rights culture, as well.

This moral disappointment in the institutional approach is the basis for what Sa'adeh calls the cultural approach. The cultural approach says that those who live through a transition must undergo an inner moral change if they are to see the old regime as having been discredited, rejected, and disgraced. For them, this cannot simply be a matter of distinguishing "the way we were then" from "the way we are now." Rather, the cultural approach suggests that people who survived an evil regime must confront and root out whatever it was that made it possible for them to be the way they were "then." Only such a change in personal consciousness and public culture, it is argued, will make them resistant to the return of evil institutions.

So, if the institutional approach aims to persuade people that they were the victims of bad institutions and will be better under better institutions, then the cultural approach requires, instead, that they reflect upon and repudiate the past attitudes that made bad institutions tolerable to them. The cultural seeks to persuade them that they are, at least presumptively, the same people now that they were then, and that, to rebut this presumption, they must take every possible opportunity to demonstrate that they have changed. They must, for example, resignify the Nazi swastika as an emblem of evil; they must resignify the Confederate "stars and bars" as a symbol of racism. Such once-revered symbols must be actively re-signified at every opportunity because, otherwise, we can't be sure that different institutions have really made us different after all.

Lisa Mammels's account of the TRC, and its broader cultural effects, is an example of the cultural approach. Her argument is that the institutional and cultural approaches are not mutually exclusive and that elements of a cultural approach can be added to the institutional approach with good results. This, she argues is essentially what happened when South Africa followed the political compromise at Kempton Park with the establishment of a Truth and Reconciliation Commission. .

So we now have heard defenses of these two different approaches - approaches that are not necessarily in disagreement with each other, and that can, and often do, coexist to different degrees. I think this framework helps to answer the question of amnesty for dictators that David put to us, and, so, I will conclude by briefly commenting on trials versus forgiveness as responses to dictatorships that are gone.

Lisa mentioned the example of Nuremberg. It's interesting that by the early 1950's, the principal figures in the Nuremberg prosecution, including the highly-esteemed judge, General Telford Taylor, believed that Nuremberg had been a failure because only about 200 people were eventually tried, despite that fact the under the Nuremberg precedent, trials should arguably have numbered in the thousands. By the 1990s, however, Nuremberg was reinterpreted as a success precisely because only 200 people were tried-just the right number to give confidence in the new institutions and not enough to cause the divisive cultural conflicts that would have resulted if the trials would have been more widespread. In other words, Nuremberg was reinterpreted as no longer a failed cultural strategy, but as, rather, a successful institutional strategy.

Thus, it seems to me that the Nuremberg model of trials can function in two ways. Under the institutional strategy, the trial of an evil leader can serve as a limitation of liability for everyone else. The main effect of trying the evil leader is not primarily to punish him but, rather, to get everyone else, including advocates of the cultural approach, to buy into the ideal of respect for the rule of law. This implies, of course, respect for the conviction of the old leader, if that is the outcome of an actual trial, but it implies also a recognition that all those who were not tried are entitled to benefit from the presumption of innocence. If the Nuremberg-type trial is used in this way, it's effectively equivalent to an amnesty for everyone else who is not prosecuted. It, thus, stands as an implicit abandonment of the kind of cultural confrontation and change that many hope to achieve in the political transition

Under the cultural approach, however, the trial of a dictator might set a precedent for confronting the moral, and possibly legal, guilt of those who should have known and looked the other way. Here, the political trial would aim to put beneficiaries and bystanders under the old regime on the moral defensive, and lead many perpetrators who might claim that they were "just following orders" to fear prosecution or lustration.

The South African TRC was interesting in this regard, because it was originally designed to make amnesty conditional upon the perpetrator confessing what otherwise would be prosecuted if it were revealed by the confessions of others. It was, in effect, more like a universal plea-bargain than an amnesty - inasmuch as it offered immunity from prosecution in return for full and honest testimony.

If the TRC process had actually had led to widespread confessions it might have produced a cultural change among whites more cheaply and effectively than criminal trails. I'm a little less positive about it than Lisa, however, because that isn't what happened. Rather, the people with whom I spoke in South Africa felt sorry for those who confessed because the threat of prosecution was not really credible after the new government failed to convict General Magnus Malan in 1994. As the TRC actually worked out, it did not fulfill its promise of combining the best of the institutional and cultural approaches because so many white perpetrators and beneficiaries treated it as an amnesty, rather than as a plea bargain. Lisa has well-described the respects in which the TRC's cultural approach succeeded in relation to individual victims, but I think, overall, South Africa must be described as an example of the institutional approach, while claiming the benefits of a moral and cultural transformation that was merely aspirational. This, I think, is the main political significance of the TRC experiment.

Footnotes

1. General Assembly Resolution 217A (III), U.N. Doc. A/810 at 71 (1948) .
2. General Assembly Resolution, 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N.Doc. A/6316 (1966).
3. Dec. 9, 1948, 78 U.N.T.S. 277.
4. August 12, 1949, I. Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field; Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; III. Treatment of Prisoners of War; and IV. Protection of Civilian Persons in Time of War, 75 U.N.T.S. 31.
5. Judge Mahomed quoted in Desmond Tutu, No Future Without Forgiveness, (New York: Doubleday, 1999), 22.
6. It is estimated that the failed prosecution of former Minister of Defense, General Magnus Malan, cost the South African state approximately 12 million Rand in 1996.
7. J.Y. Mokgoro, "Ubuntu and the Law in South Africa" Paper delivered at the first Colloquium, Constitution and Law held at Potchefstrom on 31 October 1997, 1.
8. Id.
9. Martha Minnow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence, (Beacon Press: Boston, 1998) 14.
10. Rep. S. Afr. Const. Act. No. 200 of 1993, Ch. 16, National Unity and Reconciliation, South African Interim Constitution of 1993. (emphasis added).
11. Promotion of National Unity and Reconciliation Act, Act No. 34, 1995, Republic of South Africa, Government Gazette, Vol. 361, No. 16579, Cape Town, July 26, 1995. (Hereinafter referred to as "The Act".)
12. Explanatory Memorandum to the Parliamentary Bill known as the Promotion of National Unity and Reconciliation Bill of 1995.
13. The Act, Chapter 4.
14. The Act, Chapter 4.
15. TRC Report, Volume 1, Chapter 5, at p.1.
16. August 7, 1998 briefing by Denzil Potgieter, S.C. Chair of the Media and Communications Committee of the Truth and Reconciliation Commission.
17. TRC Report, Volume 5, Chapter 1, Appendix 2.
18. TRC Report, Volume 5, Chapter 1.
19. The Act; Chapter 2, Section 3(1)(c).
20. TRC Report, Vol. 5, Chap.5.
21. The Act, Chapter 6, Section 30.
22. Desmond Tutu, No Future without Forgiveness, 149.
23. Id., 272.
24. Dumisa Ntsebeza, Yale University Conference, "Searching for Memory and Justice: The Holocaust and Apartheid," 9 February 1998 as quoted in Martha Minnow, Between Vengeance and Forgiveness, 19.
25. TRC Report, Vol. 5, Chap. 1.
26. Those challenging the amnesty process included Ntsiki Biko, the widow of slain popular leader Steve Biko, who stated "What I want is for the proper course of justice to be done." Washington Post April 4, 1996 in "Truth and Justice in South Africa."
27. Quoted in Martha Minnow, Between Vengeance and Forgiveness, 81.
28. Lisa Mammel, Interview conducted at Mooi River Community Hall, Human Rights Violations Committee Hearings, June 1997.
29. Lisa Mammel, Interviews conducted at Mooi River Community Hall, Human Rights Violations Committee Hearings, June 1997.

© Robert Meister, 2003


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