George Mason University -Fairfax Virginia
Spring 2015
Introduction
From 1948 to 1990, the South African government implemented and enforced an institutionalized system of racial segregation, known as "apartheid.” During this time, many South Africans suffered severe human rights violations, including forced relocations, exclusion from politics, deprivations of citizenship and systematic segregation. Following continued internal resistance and international sanctions, the government saw itself forced to back down and in 1994 the African National Congress (ANC) under Nelson Mandela won South Africa's first multi-racial democratic elections. The new government established the Truth and Reconciliation Commission (TRC), a court-like body intended to investigate human rights violations perpetrated during the apartheid regime.
The following paper seeks to evaluate the effectiveness of restorative justice approaches in post-conflict reconciliation processes by analyzing South Africa's truth and reconciliation process. It thereby aims to answer the following question: How did restorative justice contribute to South Africa's reconciliation process and what lessons can be drawn from it?
The first part of this paper will outline the theoretic framework for the analysis of South Africa’s truth and reconciliation process. It will discuss the meanings of reconciliation, retributive justice and restorative justice as well as describe their main concepts and principles. The second part will examine the development of the TRC’s restorative approach and describe its structure and process. The third part will constitute an assessment of the strengths and weaknesses of South Africa’s truth and reconciliation process, as well as an evaluation of how restorative justice contributed to South Africa's reconciliation process and what lessons can be drawn from it. This paper will conclude with a brief summary of the main points of this paper and a final conclusion.
Reconciliation and Justice in a Transitional Context
In countries that have witnessed violent conflict and gross human rights violations it is critical that the past be dealt with for a society to move forward towards a unified and harmonious future and avoid a relapse into conflict. In his book Building Peace: Sustainable Reconciliation in Divided Societies, John Paul Lederach (1997, p. 26) argues that relationships are at the basis of conflicts and their long-term solutions, and that reconciliation is "built on mechanisms that engage the sides of a conflict with each other as humans-in-relationship.” Reconciliation represents a place, a "point of encounter” that promotes "open expression of the painful past, on the one hand, and the search for the articulation of a long-term, interdependent future, on the other hand,” a place where concerns about the past are validated and let go "in favor of renewed relationship" (Lederach, 1997, p. 30). Finally, reconciliation recognizes the need to redress the wrongs that were done and at the same time promotes the idea of a "common, connected future" (Lederach, 1997, p. 31).
One of the fields that address this task is that of transitional justice, which encompasses procedures such as trials, truth commissions, and reparations programs. In his article “Transitional Justice, Civil Society, and the Development of the Rule of Law in Post Conflict Societies,” Eric Brahm (2007, para. 1) claims that unveiling the “details of the past may provide both a primer on what conditions permitted the violations of the rule of law in the past,” as well as deter “would-be human rights abusers of the future,,” and “help develop the institutional basis and the cultural norms to support the rule of law.” Two fundamental approaches to this this task of addressing the past can be distinguished: retributive justice and restorative justice.
Retributive Justice
Retributive justice is tied to the idea that the perpetrators of crimes should be brought before criminal trials and, if found guilty, punished. In their article “Institutions for Restorative Justice: The South African Truth and Reconciliation Commission,,” Jennifer J. Llewellyn and Robert Howse (1999, p. 359) note that “advocates of criminal prosecutions claim that trials serve a range of purposes related to the overall goal of building a tolerant, more just society.” Such purposes include: promoting “the value of legality or the rule of law,,” producing “'closure' on the cycle of vengeance between groups,,” allowing “for disclosure of what actually happened,,” giving “victims an opportunity to tell their stories, confront those who harmed them, and begin the process of healing,” as well as “deterring those who might be inclined to commit such human rights violations in the future” (Llewellyn & Howse, 1999, p. 359).
Critics of retributive justice point out that there are several problems with this approach:
1. The concept of a legitimate rule of law, which retributive justice claims to promote, rests on the “idea of a community governing itself under law,” (Llewellyn & Howse, 1999, p. 360). In countries that are undergoing major political changes, a legitimate rule of law may not yet be fully developed. Retributivists argue that regardless of this, states have a duty to prosecute human rights violations, and if they are not able or willing to do so, the task of restoring justice should be handed over to neutral international tribunals (Leebaw, 2003; Llewellyn & Howse, 1999). In a transitional context, outside imposition can, however, hinder the development of the rule of law, and may even become a further cause of conflict (Llewellyn & Howse, 1999, p. 360).
2. As pointed out by Alfred Allan and Marietjie M. Allan (2000, p. 462) in their article “The South African Truth and Reconciliation Commission as a Therapeutic Tool,” in countries that are undergoing a transition of power that “does not follow the military defeat of the previous regime, but takes the form of a gradual democratization or negotiated settlement,” previous leaders often play a “pivotal role” in guaranteeing a peaceful transition, in which case retributive justice may be waived to “ensure future peace and stability.”
3. In regard to the idea of individual culpability being a way to overcome the problem of vengeance between groups, Llewellyn and Howse (1999, p. 361) claim that the notion of individual responsibility relies on the assumption that individuals always act on free will, even “in the most inhumane circumstances.” This, however, is questionable. The authors argue that war crime trials are neither suited to investigate the extent to which a person acted on free will, nor do they sufficiently explore the moral complexity of specific situations (Llewellyn and Howse, 1999, pp. 361-362).
4. During a phase of transition, “past conflicts and state policies” often come to be viewed as systematic injustices, which involve a “large proportion of the population” (Leebaw, 2003, p. 27). Perpetrators are often to be found on both sides of a conflict, and the extent of atrocities is often so wide and “multileveled that it is frequently impossible to identify and remove all perpetrators from society without destabilizing the country” (Allan & Allan, 2000, p. 464).
5. Against the argument that trials through criminal procedure offer the possibility of an acceptable and credible impartial account of past events, Llewellyn and Howse (1999, p. 363) argue that legal objectivity and the aim of a criminal process to determine guilt rather than truth leads war crimes tribunals and prosecutors to “exclude or minimize” subjective “narratives of victims, perpetrators, and others.”
6. Whether or not criminal trials can have a deterring effect depends on the “practical ability to bring perpetrators to justice and then convict them based upon credible testimony” (Llewellyn & Howse, 1999, 364). This however is not always possible given the large number of people that were likely responsible for or supportive of past injustices. Moreover the “tensions of the transitional context, and the divisions and uncertainties that influence the enforcement of international law” make deterrence implausible (Leebaw, 2003, p. 29).
Restorative Justice
In their article “More than Words: Restorative Justice Concepts in Transitional Justice Settings,,” Kerry Clamp and Jonathan Doak (2012, p. 340) point out that restorative justice, like transitional justice, is a relatively new field of study that has developed over the course of the past decade. There is not as of yet a clear definition of restorative justice, and it is “difficult to know what qualifies as a restorative process, and what does not” (Clamp & Doak, 2012, p. 340).
Restorative justice is often defined in contrast to retributive justice. In his book Changing Lenses: A New Focus for Crime and Justice, Howard Zehr (1990, p. 80-81) notes that rather than viewing crime as a violation of the law with the state being the victim, restorative justice views crime as “a violation to people and relationships.” The aim of restorative justice is not to establish guilt and punish perpetrators of crimes, but to “identify obligations” as well as to meet the needs of everyone involved and promote healing (Zehr, 1990, p. 81). Furthermore, rather than viewing the process of justice as a dispute between offenders and state law – which in most cases leads to a win-lose outcome – the process of restorative justice involves all stakeholders in a conflict – including the larger community – in identifying obligations and solutions, thus promoting dialogue and mutual agreement and contributing instead to a win-win outcome (Braithwaite, 2006; Zehr, 1990).
Instead of punishing perpetrators by means such as fines, penalties or confinement, restorative justice seeks to reintegrate them into society. It recognizes that in order to heal, people need to be able to tell their stories and hear the stories of others. By using the tools of “mediation and dialogue,,” it generates “space for expressions of approbation, remorse, and pardon, and aspires to address the underlying causes of conflict,,” as well as to help prevent future “abuses” (Leebaw, 2003, pp. 28-29). “Restorative Justice is about flipping vicious circles of hurt begetting hurt into virtuous circles of healing begetting healing” (Braithwaite, 2006, p. 403).
Like retributive justice, restorative justice is not immune to criticism. Clamp and Doak (2012, p. 342), argue that although the vision of restorative justice seems to be “fairly straightforward,,” the “specific values, processes and elements of restorative justice remain highly contested.” There is much debate over the “extent to which restorative justice ought to be seen as a process, as opposed to an outcome” (Clamp & Doak, 2012, p. 342). Allais (2011, p. 351) notes that advocates for restorative justice often stress the importance of an informal justice process. She warns that although “much can be said about the alienating and bureaucratic nature of the state and the criminal justice system, there is great danger in romanticizing the roles of laypeople, families, and communities” (Allais, 2011, p. 351). Her argument is that an important requirement of justice is that “state officials serving in an official capacity act on behalf of all of us, and not their personal interests, families, and communities” (Allais, 2011, p. 351).
Another problem concerns the language of restorative justice. Clamp and Doak (2012, pp. 345-346) point out that attempts to define restorative justice have been made “predominantly against the backdrop of advanced democratic societies and focused at criminal justice processes,” which makes the application of its concepts to “human rights violations and other serious acts committed in the course of civil conflict” problematic. For example, as seen in the case of retributive justice, the use of terms like “victim” and “offender” in post-conflict settings can be problematic, given that the number of people involved in human rights violations and acts of violence is usually very high, and so-called “victims” and “offenders” can often be found on either side of a conflict (Allan & Allan, 2000; Clamp & Doak, 2012).
Furthermore, Clamp and Doak (2012, p. 355) argue that in transitional settings, “achieving reintegration is much more complex than that which takes place within criminal justice procedures in democratic states” because “the harm that may have been caused is generally much more serious and the motivations for committing those actions are generally underpinned by more than material or psychological gain.” Moreover, similarly to retributive justice, restorative justice “has not yet advances adequately to provide a sufficient normative framework to take account of the different levels of criminal responsibility that may be at stake” (Clamp & Doak, 2012, p. 356).
South Africa’s Truth and Reconciliation Process
South Africa’s Truth and Reconciliation Commission is probably one of the most famous institutions charged with the task of dealing with the past and ensuring a just and peaceful transition to a stable society. After over four decades of apartheid and conflict to end racial oppression, South Africa’s liberation movement negotiated an agreement with state representatives that ended apartheid and transferred power to a democratically-elected transitional government under Nelson Mandela (who was President) with Frederik W. deKerk as Deputy President. The interim constitution of 1993 had deemed it necessary to build a bridge between the past and the future, to establish the truth about the past in order to prevent the occurrence of human rights violations in the future, as well as to promote ubuntu – a Zulu word meaning “humanness” – in pursuit of national unity and reconciliation (Allais, 2011; Promotion of National Unity and Reconciliation Act No. 34, 1995).
The TRC was established with the aim of achieving these goals. It was to investigate and draw “as complete a picture as possible of the nature, causes and extent” of the human rights violations committed during the period from 1960 to 1994, to grant amnesty to those who fully confessed to their roles in set violations, to offer victims “an opportunity to relate the violations they suffered,” to take measures aimed at granting reparations to victims as well as restoring their dignity, to produce a report about such violations and victims, and to make recommendations aimed at preventing them in the future (Promotion of National Unity and Reconciliation Act No. 34, 1995).
The Development of a Restorative Approach
According to Leebaw (2003, p. 32), South Africa’s development of a restorative approach was influenced by four circumstances:
1. Villages and townships had been using informal justice processes for a long time, and started using them even more when in 1985 ANC leaders developed “alternative structures of governance” to oppose the government and its rule (Leebaw, 2003, p. 33).
2. The negotiations to end apartheid resulted in amnesty for the “outgoing regime […], which placed constraints on what kind of process could be introduced” (Allais, 2011, p. 333). Despite the ANC’s initial goal to condemn apartheid as a system, it s oon became clear that given the transitional context, the lack of institutional and social structures to sustain retroactive prosecutions, as well as the scale and political nature of the crimes committed, granting amnesty was a way to facilitate democratic change and investigate the truth (Allais, 2011; Leebaw, 2003).
3. A series of public debates concerning the TRC legislation in 1994 and 1995, gave the notion of healing increasing importance (Leebaw, 2003, p. 38). This focus on healing drew “attention away from the political responsibility,” thereby depoliticizing past injustices and providing a “way to legitimate the compromises that facilitated the transition” (Leebaw, 2003, p.39).
4. Finally, Leebaw (2003, p. 39) argues that the administration of the TRC strongly influenced the development of South Africa’s restorative approach.
Structure and Proceedings of the TRC
Seventeen commissioners – among whom seven women – were selected from various racial, religious, social and professional backgrounds to run the TRC (Leebaw, 2003, p. 40). Archbishop Desmond Tutu, who has come to be seen as having had a strong role in developing the TRC’s restorative character, was appointed the position of Chairperson (Leebaw, 2003, p. 40). The TRC was composed of three committees:
The Human Rights Violations Committee was intended to investigate human rights violations, conferring victim status and determining eligibility for government reparations (Llewellyin & Howse, 1999; Promotion of National Unity and Reconciliation Act No. 34, 1995). It provided forums in which victims could relate their stories. According to Allais (2011, p. 333), what distinguished these forums from ordinary court processes was the fact that “victims were not present as witnesses, to be cross-examined in an adversarial process designed to establish the guilt of the accused, but rather they were present in their own rights, speaking about what had happened to them in a supportive environment.”
The Amnesty Committee was responsible for considering perpetrators’ applications for amnesty and to investigate the validity of their claims (Promotion of National Unity and Reconciliation Act No. 34, 1995). Although the interim Constitution “mandated the provision of amnesty, it left open the mechanisms, criteria, and procedures by which amnesty might be granted” (Llewellyn & Howse, 1999, p. 367). Amnesty was only given to individuals in respect to specific acts committed in the service of a political objective between 1960 and 1993 (Allais, 2011; Llewellyn & Howse, 1999). They were granted individually and only after full public disclosure of perpetrators’ stories (Allais, 2011). Aside from promoting reconciliation, the offer of amnesty to those who confessed to their involvement in human rights violations served to incentivize perpetrators to disclose information (Allan & Allan, 2000; Leebaw, 2003). Those who chose not to participate in this process could still face prosecution (Allais; 2011; Leebaw, 2003). Moreover, victims could question perpetrators and oppose amnesty (Allais, 2011, p. 334).
The Reparation and Rehabilitation Committee was to make recommendations with regard to the reparation of victims, the prevention of future abuses and the establishment of a culture of respect for human rights (Llewellyn & Howse, 1999; Promotion of National Unity and Reconciliation Act No. 34, 1995). Reparation included “any form of compensation, ex gratia payment, restitution, rehabilitation or recognition” (Promotion of National Unity and Reconciliation Act No. 34, 1995).
In addition to the work of the committees, the TRC itself undertook investigations and held hearings in order to establish a picture of the past (Llewellyn & Howse, 1999, p. 368). The TRC “moved around the country for two years, so both victims and perpetrators forums were held many times, in different places” (Allais, 2011, p. 334). Its final product was to be a detailed report about the accounts of victims and perpetrators and the circumstances in which human rights violations were committed (ibid.).
Strengths and Weaknesses of South Africa’s Reconciliation Process
The TRC has been criticized and praised on many accounts. One major criticisms is that it failed to condemn apartheid law and its leaders (Allais, 2011; Leebaw, 2003; Llewellyn & Howse, 1999; Stanley, 2001). In her article “Evaluating the Truth and Reconciliation Commission,” Elizabeth Stanley (2001, p. 526) argues that by “placing amnesty of violations as a carrot to perpetrators in exchange for a full story, with the stick of prosecutions for those who did not come forward,” disclosure of the past took precedence over justice. Furthermore the failure to prosecute perpetrators of human rights violations has “contributed to a climate of impunity for officers in the fight against crime,” causing problems for civil society (Stanley, 2001, p. 536). The latter is undoubtedly a major problem that needs to be dealt with. There are however various explanations that justify the TRC’s lack of judgment of apartheid as a system.
Leebaw (2003, p. 26) asserts that although the TRC hoped to condemn apartheid as a system, it chose to depoliticize past crimes in order to facilitate the political and social transition from the old system to the new. Similarly Allais (2011, p. 336) maintains that given the transitional context, internal tensions, fragilities, the high cost of prosecutions as well as the “difficulty of obtaining evidence,” overriding justice “in order to promote overall welfare,” was a reasonable compromise. Despite the fact that “perpetrators were not punished, the public and individual nature of the amnesties meant that the process upheld the idea of individual accountability” (Allais, 2011, p. 356). Moreover, because of its process, the TRC’s “allocation of responsibility and its condemnation were not limited to those who came before it as amnesty applicants, and meant that it could in fact have a wider condemnation of wrongdoing than a process which had been oriented only to specific prosecutions would have had” (Allais, 2011, p. 357). Therefore, Allais (2011, p. 337) rightly points out that the TRC was not a compromise with justice, but rather the expression of a different kind of justice, one that was not intended to be retributive but restorative. In this sense, justice – as understood by retributivists – sometimes had to be sacrificed for the pursuit of other goals, such as peace, stability, healing and the restoration of relationships.
Another major criticism of the TRC is that it failed to give victims adequate reparations (Allais, 2011; Stanley, 2001). Stanley (2001, p. 538) claims that in spite of the TRC’s promise of reparations, it was not as “successful as ‘victims,’ Commissioners and some governmental officials had hoped.” Allais (2011, p. 335) notes that “at the time of the process, victims walked away with nothing (while perpetrators of horrific crimes could appear before the TRC and be immediately granted amnesty), and had to wait for the long process of the TRC report being concluded and recommendations being made to parliament.” Moreover, when the TRC made its recommendations, “parliament dramatically reduced the amount that victims would be paid” (ibid.). Allan and Allan (2000, p. 467) note another problem in regard to reparations, namely that “amnesty seekers did not have to make any form of restitution (not even symbolic),” and that the as the burden of reparations falls on the state and thus society, the contribution of individual perpetrators would be indirect at most. Nevertheless, many perpetrators did have to publicly take responsibility for their actions and many showed remorse (Allan & Allan, 2000, pp. 467-468). Furthermore, reparations – however unsubstantial – can be considered an important symbolic gesture. Therefore, “rather than talking about them in light of victims’ needs,” perhaps one should view them as gestures of acknowledgement and validation of victims’ suffering (Allais, 2011, p. 359).
One of the TRC’s biggest accomplishments was that it was able to facilitate a story-telling process, which uncovered a large part of the truth about the past (Allan & Allan, 2000; Leebaw, 2003). The number of perpetrators who applied for amnesty reached 7,128 and 21,298 people made use of the process and came forward to give their testimony (Allan & Allan, 2000, p. 468). Allais (2011, p. 357) notes that during apartheid many white South Africans were not aware of victims’ suffering, and that the process of allowing victims to tell their stories and recoding these stories “was an important counter to this previous denial.” Moreover, the story-telling process allowed not only victims but also perpetrators to relate their stories and experiences. As argued by Leebaw (2003, pp. 50-51), by remembering the “causes and consequences of systematic injustices, truth commissions may underscore the limits of what passes for justice in the context of transition and provide a basis for pursuing ongoing reforms,” yet at the same time through “gestures of remorse, forgiveness, and reparation, truth commissions may illuminate possibilities for future political relationships that are not readily apparent during the transition.”
Another strength of the TRC is that through its transparent and democratic activities as well as its investigation of human rights abuses committed on both sides of the conflict, it contributed to the establishment of a culture of human rights (Allan & Allan, 2000; Leebaw, 2003). Allan and Allan (2000, p. 474) maintain that the TRC was also “relatively successful as a therapeutic tool because the enabling legislation emphasized truth, reconciliation, stability, and restorative justice.”
Evaluating the Role of Restorative Justice in South Africa’s Reconciliation Process
At the beginning of this paper it was said that reconciliation, as defined by Lederach (1997, p. 30), represents a place, a "point of encounter” that promotes "open expression of the painful past on the one hand and the search for the articulation of a long-term, interdependent future on the other hand,” a place where concerns about the past are validated and let go "in favor of renewed relationship.” Reconciliation also recognizes the need to redress the wrongs that were done and at the same time promotes the idea of a "common, connected future" (Lederach, 1997, p. 31). Based on the previous assessment of the strengths and weaknesses of South Africa’s truth and reconciliation process, it can be said that Lederach’s (1997) first two aspects of reconciliation were – at least to some extent – met. The TRC’s choice of a restorative justice process allowed victims and perpetrators to encounter one another in a peaceful manner, openly relate their experiences of the past, and have their concerns validated. Thus, it can be said that the TRC’s decision to use a restorative justice approach enabled it to fulfill the interim government’s goals of building a bridge between the past and the future, establishing the truth about the past in order to prevent the occurrence from human rights violations in the future, and promoting ubuntu in pursuit of national unity and reconciliation.
As to redressing the wrongs that were done, it can be argued that this goal was sacrificed in order to “achieve the overriding aims of nation-building (albeit that a necessary goal for any new administration wanting to secure a peaceful and democratic future)” (Clamp & Doak, 2012, p. 359). As mentioned in section two of this paper given the transitional context, the lack of institutional and social structures to sustain retroactive prosecutions, as well as the scale and political nature of the crimes committed, the ANC chose to grant amnesty to perpetrators as a way to facilitate democratic change and investigate the truth (Allais, 2011; Leebaw, 2003). Thus, it can be argued that restorative justice was used as a tool to forego the difficulties of implementing a retributive form of justice and facilitate political change. Whether or not the aims of restorative justice to identify obligations as well as to meet the needs of everyone involved and promote reconciliation and healing remains highly contested (Allan & Allan, 2000; Clamp & Doak, 2012; Stanley, 2001). According to Allais (2011, p. 360), the TRC can be viewed as an innovative response to a situation in which condemning wrongdoing and defending the legal order were important, but almost impossible to achieve by means of normal legal procedures.
As suggested in previous sections, it is not always possible to punish wrongdoers, nor is it necessarily always the best option. Drawing on the example of South Africa’s truth and reconciliation process, it can be said that restorative justice can provide a valid alternative to retributive processes. However, as argued by Clamp and Doak (2012, p. 360), given the “problematic nature of thinking about restorative justice within transitional contexts,” it is important to exercise caution “in how the ‘restorative’ label is employed in relation to transitional societies.” Daniel W. Van Ness and Karen Heetderks Strong (cited by Clamp & Doak, 2012, p. 358) maintain that four elements of restorative justice are appropriate for empirical investigation: “encounter reparation, reintegration and participation.” Encounter and participation relate to processes, while reparation and reintegration relate to outcomes (ibid.). Clamp and Doak (2012, p. 358) argue that although these elements “might provide a useful framework for analysis, they to not expressly take account of the multi-faceted nature of civil conflict.” The authors suggest evaluating values “on the basis of their responsiveness to the needs of stakeholders, how democratic the process is, and finally, the legitimacy of the process in terms of truth and justice” (ibid.). In other words, such “values rather than processes or outcomes” should be used to assess the “extent to which transitional justice mechanisms might legitimately claim to be upholding restorative principles” (Clamp & Doak, 2012, p. 360). Furthermore, one should keep in mind that each post-conflict case is different, and that just because one method might work in one transitional society does not mean that it can be applied exactly the same way elsewhere. It is important that restorative justice theorists develop evaluation tools which are “both precise enough and flexible enough to be used as yardsticks to measure the degree to which restorative justice is actually taking place in practice, irrespective of the preferred labels that might [be] adopted by those leading or overseeing the peacebuilding process” (Clamp & Doak, 2012, p. 360).
Conclusion
South Africa’s truth and reconciliation process is considered to be one of the most prominent examples of transitional justice processes. The TRC sought to provide a clear picture of the past, to promote reintegration and reconciliation, to establish a human rights culture, as well as to facilitate a peaceful political transition. To fulfill these goals it adopted a restorative approach rather than a retributive one.
This paper set out to examine how restorative justice contributed to South Africa's reconciliation process and what lessons can be drawn. In order to answer this question, I drew upon John Paul Lederach’s (1997) definition of reconciliation, and described the concepts of retributive and restorative justice in transitional settings. Section two recounted South Africa’s development of a restorative approach and described the TRC’s structure and proceedings. It was argued that the TRC’s restorative approach was influenced by the previous use of local informal justice processes during apartheid era, by the transitional context as well as by the desire to facilitate investigate the truth and promote healing, and finally by the TRC administration itself, particularly by Desmond Tutu.
By examining the strengths and weaknesses of the TRC’s work in section three, it was argued that although the TRC’s decision to give amnesty to perpetrators who came forward and confessed their crimes is often seen as a failure to condemn apartheid as a system and thus do justice, this decision has to be viewed in light of the difficulties of the transitional context. The TRC chose to depoliticize past crimes in order to facilitate the political and social transition form the old system to the new. It was argued that the process failed to provide adequate reparations for victims, but that the show of remorse of perpetrators who publicly took responsibility for their actions can be considered an important symbolic gesture. Among the TRC’s biggest accomplishments are the fact that it facilitated a story-telling process, through which it was able to uncover a large part of the truth about the past, that it promoted a culture of human rights and that it emphasized truth, reconciliation, stability, and restorative justice.
In the final section of this paper it was argued that the TRC’s choice of a restorative justice process enabled it to fulfill the interim government’s goals of building a bridge between the past and the future, establishing the truth about the past in order to prevent the occurrence from human rights violations in the future, and promoting ubuntu in pursuit of national unity and reconciliation. Furthermore, it was argued that restorative justice was used as a tool to forego the difficulties of implementing a retributive form of justice and facilitate political change.
Drawing on the example of South Africa’s truth and reconciliation process, it was said that restorative justice can provide a valid alternative to retributive processes, but that given the “problematic nature of thinking about restorative justice within transitional contexts,” it is important to exercise caution “in how the ‘restorative’ label is employed in relation to transitional societies” (Clamp & Doak, 2012, p. 360). It was suggested that values, such as the responsiveness of restorative processes to “the needs of stakeholders, how democratic the process is, and finally, the legitimacy of the process in terms of truth and justice,” be used “rather than processes or outcomes” to assess the extent of restorative principles in transitional societies (Clamp & Doak, 2012, pp. 358-360). Furthermore, it was argued that one must take into consideration the uniqueness of each post-conflict case, not only in applying restorative principles to transnational justice but also in assessing them. Finally, this paper emphasized the importance of developing precise but flexible evaluation tools to measure the ‘restorativeness’ of transitional justice practices.
In conclusion it can be said that restorative justice is a useful approach that can complement and even replace traditional retributive approaches. However, its theory and application must be further developed in order for it to gain strength as an approach to post-conflict reconciliation processes in transitional societies.
Bibliography
Allais, L. (2011). Restorative Justice, Retributive Justice, and the South African Truth and Reconciliation Commission. Philosophy & Public Affairs, 39: 331–363. doi: 10.1111/j.1088-4963.2012.01211.x
Allan, A. & Allan, M.M. (2000). The South African Truth and Reconciliation Commission as a Therapeutic Tool. Behavioral Sciences and the Law, Vol. 18, pp. 459-477.
Brahm, E. (2007). Transitional Justice, Civil Society, and the Development of the Rule of Law in Post Conflict Societies. The International Journal of Not-for-Profit Law. Vol 9, No. 4.
Braithwaite, J. (2006). Doing Justice Intelligently in Civil Society. Journal of Social Issues, 62: 393–409. doi: 10.1111/j.1540-4560.2006.00456.x
Clamp, K., & Doak, J. (2012). More than Words: Restorative Justice Concepts in Transitional Justice Settings. International Criminal Law Review. Vol.12, No. 3, pp. 339-360.
Leebaw, P. (2003). Legitimation or Judgment? South Africa's Restorative Approach to Transitional Justice. Polity.Vol. 36, No. 1, pp. 23-51
Lederach, J.P. (1997). Building Peace: Sustainable Reconciliation in Divided Societies. Washington, DC: United States Institute for Peace.
Llewellyn, J. J. & Howse, R. (1999). Institutions for Restorative Justice: The South African Truth and Reconciliation Commission. The University of Toronto Law Journal. Vol. 49, No. 3, pp. 355-388.
Promotion of National Unity and Reconciliation Act No. 34. South Africa (July 26, 1995). Retrieved from: www.b92.net/trr/eng/doc/southafrica-mandate.doc
Stanley, E. (2001). Evaluating the Truth and Reconciliation Commission. The Journal of Modern African Studies. Vol. 39, No. 3, pp. 525-546
Zehr, H. (1990). Changing Lenses: A New Focus for Crime and Justice. Scottsdale, PA: Herald Press.
