Restoration or retribution - South African and German experiences of dealing with the past

PO590 - Specialist Dissertation

Restoration or Retribution -
South African and German Experiences of Dealing with the Past

Presented in partial fulfilment of the requirements for the BA degree in the
Faculty of Social Sciences
University of Kent
2003

Patrick Wagner
University of Kent, Canterbury

Contents

Introduction ... 3

Concepts of Justice ... 6

The South African Experience - The Truth and Reconciliation Commission ... 16

The German Experience - The Nuremberg War Crimes Trials ... 27

Restoration or Retribution? ... 37

Conclusion ... 47

Bibliography ... 50

Introduction
The South African and the German way of dealing with the past are discussed in this paper as examples for the two mechanisms, truth commission and trial or military tribunal, to achieve justice for post-conflict societies they represent. Clearly, the two cases are so fundamentally different that a traditional comparison between them could impossibly reveal anything. The aim of this paper is then not to point out obvious differences between indeed incomparable cases, but to examine the importance of the two examples as models for the concepts to achieve justice that they symbolize.

“With a closer look, it becomes clear that truth commissions are of a fundamentally different nature from courtroom trials, and function with different goals in mind.”¹ The major difference between the two concepts certainly is the form of justice they propose. By looking at the examples of the South African Truth and Reconciliation Commission (TRC) and the Nuremberg War Crimes Trials this paper shall seek to establish if any concept of justice is more appropriate to deal with past atrocities and if either mechanism for justice can be identified as more suitable than the other. The main question to ask is whether every mechanism of dealing with the past is right at the time and in the place it was employed or if a universal concept is feasible?

Numerous societies who are in a transition period between an authoritarian regime and democracy face the question of how to deal with their past. In most cases the option to forget what has happened and to concentrate only on the future is neither possible nor desired by the people. For many the choice is between setting up a truth commission and dealing with the perpetrators of gross human rights violations in special or conventional courts.

Before discussing the South African and the German examples, part one of this paper examines the different concepts of justice proposed by the two mechanisms of dealing with the past. The examination of those concepts of justice will be preceded by the more general debate why it is important for states and societies to deal with their pasts at all. Here, the negative impact of national amnesia about past atrocities will be considered.

Part two then focuses on the South African experience to deal with the atrocities of the apartheid regime by means of the Truth and Reconciliation Commission. The commissions approach on how to deal with the past will be discussed alongside both its achievements and shortcomings. The controversial debate about the TRC’s policy to grant amnesty for perpetrators of gross human rights violations in return for the truth shall be a central feature of this part.

The German experience and the International Military Tribunal (IMT) at Nuremberg are the topic of part three. One of the most important achievements of the IMT certainly was its impact on international law. For the first time in history, although this was not the primary aim of the tribunal, ‘crimes against humanity’ were part of the allegations against the defendants. On the other hand, the IMT was criticized heavily for constituting victors’ justice and therefore its judgement was argued to be illegitimately imposed.

Finally, part four compares the two mechanisms, truth commissions and trials or military tribunals, and seeks to point out their advantages and disadvantages. Clearly, it must be argued that the more traditional approach to achieve justice by punishment pursuit by trials or military tribunals satisfies victims’ desire for retribution better than truth commission could ever do. Nevertheless, truth commissions can be employed in circumstances where trials are impossible as well as they are the only mechanism to break the circle of revenge by promoting forgiveness and reconciliation. However, the problem remains that “reconciliation might be a desired end point but above all it is a process.”² One can thus hardly evaluate the success of a truth commission as the process it possibly initiated takes several generations to show its results.

The aim of this paper is to discuss the advantages and disadvantages of both truth commissions and trials or military tribunals as a means to deal with the past. Furthermore, this paper seeks to evaluate the suitability of both mechanisms for establishing a lasting peace and a stable government. Before engaging in this debate it seems appropriate to discuss the different concepts of justice the two mechanisms propose and establish the benefits and shortcoming of these concepts to promote reconciliation within a nation.

[...]

1 Priscilla B. Hayner: Unspeakable Truths: confronting state terror and atrocity, Routledge, London, 2001, p.7

2 Andrew Rigby: Justice and Reconciliation After the Violence, Lynne Rienner, London, 2001, p.139