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TRANSITIONAL JUSTICE: A FUTURE TRUTH COMMISSION FOR ZIMBABWE?

Published online by Cambridge University Press:  06 February 2009

Max du Plessis  and
Jolyon Ford
Max du Plessis
Affiliation:
Max du Plessis is a Associate Professor at the Faculty of Law at theUniversity of KwaZulu-Natal, Durban; Senior Research Associate, Institute for Security Studies, Pretoria; Advocate & Associate Member of the Durban Bar.
Jolyon Ford
Affiliation:
Centre for International Governance & Justice, Australian National University.
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Abstract

An eventual sustained democratic transition process in Zimbabwe may include a ‘truth and reconciliation’ commission. The need for—and possible form of—any such institution is situated in a number of discussions: the balance of principle and pragmatism that peace deals sometimes require; comparative experiences in other societies and the promise and limits of institutional modelling; the dynamic between global expectations or prescriptions and ground-level exigencies; the interface of international criminal law and institutions with national-level justice processes; the content of the State's international legal duty to afford a remedy. In considering the extent of an international normative framework limiting the justice options of transitional States, a certain margin of appreciation may be appropriate or necessary to enable a society to reconcile with its violent past on its own terms.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 58 , Issue 1 , January 2009 , pp. 73 - 117
Copyright
Copyright © 2009 British Institute of International and Comparative Law

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References

1 MDC Policy 2008 (Movement for Democratic Change, Harare), discussed further at (n 18) below.

2 ‘Agreement between ZANU-PF and the Two MDC Formations on Resolving the Challenges Facing Zimbabwe’ (Harare, 15 September 2008) available at www.allafrica.com/stories/200809151361.html.

3 On the limits of a legalistic approach to understanding or ensuring justice, see McEvoy's, Kieran excellent ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 34(4) Journal of Law and Society 411CrossRefGoogle Scholar.

4 N Biggar ‘Making Peace or Doing Justice: Must we Choose?’ in Biggar (ed) Making Peace and Doing Justice after Civil Conflict (Georgetown University Press, Washington DC, 2001) 6–13. See too V Nesiah, ‘Truth vs. Justice’ in Helsing and Mertus (eds.) Human Rights and Conflict (United States Institute of Peace, Washington DC, 2005), and generally Roht-Arrazia and Mariezcurrena Transitional Justice in the 21st Century: Beyond Truth versus Justice (Cambridge University Press, 2006).

5 For a recent thorough survey of the issues, see N Grono and A O'Brien ‘Justice in Conflict? The ICC and Peace Processes’ in Courting Conflict? Justice, Peace and the ICC in Africa (Royal African Society, London, 2008). As the authors maintain, difficult choices will arise however nuanced the approach is, since it will simply be impossible to simultaneously pursue peace and justice objectives in complex cases. See also P Siels and M Weirda, ‘The International Criminal Court and Conflict Mediation’ (International Centre for Transitional Justice, New York, 2005).

6 Justice Albie Sachs (Constitutional Court of South Africa) in Courting Conflict? (n 5), ‘Foreword’. Polarised debates about the supposed incompatibilities between ‘peace’ and ‘justice’ have obscured efforts to consider these issues in a more integrated way and to recognise the potential for these goals to be compatible and mutually reinforcing: G Simpson, ‘One among Many: the ICC as a Tool of Justice during Transition’ also in Courting Conflict, Chapter 9.

7 See for example ‘Justice in Zimbabwe’ (Legal Resources Foundation, Harare, 2002); Playing with Fire (Zimbabwe Institute, Harare, 2004); ‘Resolution on the Situation of Human Rights in Zimbabwe’ African Commission on Human and People's Rights, Banjul, 5 December 2005; monthly and annual reports of the Zimbabwe Human Rights NGO Forum www.hrforumzim.com; shadow reports and other reports of the Human Rights Trust of Southern Africa www.sahrit.org; ‘Policing the State’ (November 2006, with Solidarity Peace Trust) and the ‘Zimbabwe Monitor’ both of the Institute for Justice and Reconciliation (Cape Town) www.ijr.org.za/transitionaljustice/zimbabwe-monitor; Human Rights Watch world reports and occasional reports on Zimbabwe www.hrw.org/africa/zimbabwe.php, including the then influential June 2003 HRW Report ‘Under the Shadow: civil and political rights in Zimbabwe’ and more recent reports, most recently in June 2008 (www.hrw.org/reports/zimbabwe/0608/); annual and occasional country reports of Amnesty International www.amnesty.org/en/region/africa/southern-africa/zimbabwe; US State Department, Country Reports (Human Rights), 2000—present www.state.gov/g/drl/rls/hrrpt/; United Kingdom Government (Foreign & Commonwealth Office), Human Rights Report (2002–2007). See also the evidence brought before the US Federal District Court for the Southern District of New York in the case of Tachiona v Mugabe (2001) 169 F.Supp.2d 259. See too B Raftopoulos & T Savage (eds) Zimbabwe: Injustice and Political Reconciliation (Weaver Press, Harare; African Books Collective, Oxford; 2005). We note that the ZANU PF and the MDC parties have in respect of the post-March 2008 election period recorded themselves as being ‘[g]ravely concerned by the displacement of scores of people after the election of March 29, 2008 as a result of politically motivated violence’ (see Article 18.2 of the Agreement of 15 September 2008 (n 2). The agreement is a political settlement and carefully avoids laying responsibility for the violence at the door of any one party.

8 Launched in 2005, Operation Murambatsvina (this ChiShona language term has a ‘clean up’ connotation) involved razing of settlements in and around the capital, Harare, allegedly in an attempt to intimidate the urban civilian population and to force some to move to rural areas where a higher level of state control was thought possible; see Order out of Chaos, or Chaos out of Order? A Preliminary Report on Operation Murambatsvina (ZHR NGO Forum, June 2005); ‘Report of the Fact-Finding Commission of the UN Special Envoy on Human Settlement Issues’ (July 2005) www.un.org/News/dh/infocus/zimbabwe/zimbabwe_rpt.pdf.

9 Gukurahundi is a ChiShona word for a seasonal phenomenon and is usually translated as ‘the rain which washes away the chaff before the spring rains.’ It was the name given, reportedly by President Mugabe himself, to the new Zimbabwe army's 5th Brigade which, alongside police, intelligence and other entities was primarily responsible for the violence against civilians in Matabeleland in 1983–4. The insinuation was that there needed to be a ‘cleansing’ of the community which the government held responsible for harbouring a small number of dissident militant elements from the minority Ndebele-speaking group.

10 It was announced in November 1985 that the findings of the report would not be released; in 2004 the Supreme Court dismissed an application for the State to be compelled to release the report: Zimbabwe Lawyers for Human Rights v President of Zimbabwe & Anor, S-12-03; Civ. App. 311/99.

11 Catholic Commission for Justice and Peace; Legal Resources Centre (Harare, 1997); see also ‘Choosing the Path to Peace and Development: Coming to Terms with Human Rights Violations of the 1982–1987 Conflict in Matabeleland and Midlands Provinces’ (Zimbabwe Human Rights Association, Harare, 1999).

12 The Breaking the Silence report had recommended that if individual compensation was not possible (as indeed it suggested it was not), a form of communal reparation should be pursued (by targeted development or communal reparation), and proposed a Reconciliation (‘Uxolelwano’) Trust for this purpose. One recommendation was to extend the benefits of the existing War Victims Compensation Act (relating to the Rhodesia-era conflict) to gukurahundi victims. The Act had a number of difficulties, and its related fund has been subject to plunder and abuse by high-level officials. The commonly held view in Zimbabwe is that the Act and perhaps the idea of such a scheme now has no ‘moral credibility’: Buford, W and van der Merwe, H, ‘Reparations in Southern Africa’ (2004) Cahiers d'Etudes Africaines 44(1–2)Google Scholar.

13 Some observers are of the view that Zimbabweans are ‘cynical’ about reconciliation and the concept has been ‘widely devalued, perhaps irrevocably’ and ‘remains polluted as a result of its expedient political manipulation and its failure to deliver meaningful results’: Exploring Transitional Justice Options in Contemporary Zimbabwe (Zimbabwe Human Rights NGO Forum, Harare, 2006) 7, 21; also ‘Zimbabwe: Why Reconciliation Failed’ in Reconciliation After Conflict: A Handbook (International Institute for Democracy and Electoral Assistance, Stockholm, 2003) 34–39. We are not sure that this precludes such an institution. It rather depends on the form and practice of the institution and the prevailing political situation at the time of its establishment. The IDEA Handbook opines that the preference in 1980 for a ‘shallow, cheap form of reconciliation without historic, restorative or economic justice’ has devalued the notion of reconciliation in Zimbabwe. Other agree that by choosing ‘reconciliation’ over true ‘reparation’ in 1980, a dangerous culture of apathy and impunity was created: see Buford and van der Merwe (n 12) at fn 151; see also the record of an interview of July 2003 with former Archbishop Ncube in A Iliff ‘Arresting Impunity: Towards a Transitional Justice Paradigm for Zimbabwe’ (Honours Thesis, Harvard University, March 2004; unpublished).

14 The preference apparent in the Zimbabwe Human Rights NGO Forum's 2006 consultant's study (above) was, if anything, for prosecutions. While the report's cover quotes the Nuremberg Tribunal, it acknowledges that the scale of violations, while widespread and systematic has not, since 1983–4, been of the gravest extent of international crimes.

15 The Symposium condemned the pattern of amnesties and culture of impunity in Zimbabwean and Rhodesian history, and expressed the view that gross violations should never be subject of an amnesty; it noted that victims of all past human rights abuses have a right to redress and to be consulted about the nature of mechanisms what will be established to address their needs.

16 The proposed institution would sit for five years, with options to renew it for a further five years. It would be responsible for investigations of past violations, provision of remedies to persons injured, the promotion of reconciliation, and conflict prevention. Further details were left to a future non-constitutional instrument. The government's March 2006 proposal to establish a constitutional ‘Human Rights Commission’ to ‘counter the large scale orchestration of alleged violations’ and the ‘falsification, exaggeration, orchestration, and stage-managing of human rights violations by detractors’ was widely treated with derision.

17 ‘From Crisis to Human-centred Development’ (Movement for Democratic Change, Harare, December 2003).

18 ‘In the event that those identified as being responsible … do not themselves, on a voluntary basis, offer to come before the Commission to tell their side of the story, the Commission may, at its discretion, [direct the matter for investigation for possible prosecution]’: MDC Policy 2008 (Movement for Democratic Change, Harare) 37.

19 The communal ‘right to know’, the right to justice and a remedy, the right to reparations, and the ‘right to non-recurrence’: see discussion below.

20 MDC 2008 (n 18) 1, 36–38. The MDC policy appears to attempt—perhaps wisely—to structurally distance justice measures from the vexed issue of property losses, land seizures and land reform. The policy does not, however, mention a role for the international community in any justice process.

21 ‘Negotiating Zimbabwe's Transition’ Africa Briefing No. 1 (International Crisis Group, Pretoria/Brussels, 21 May 2008) 4.

22 Interview, BBC News ‘Hardtalk’, 18 April 2008. By May 2008, however, Mr Tsvangirai was again repeatedly speaking in terms of the need for a ‘graceful and dignified exit’ for President Mugabe. This position by Mr Tsvangirai has been overtaken somewhat by the September 2008 agreement between ZANU PF and the two MDC factions.

23 See Article 7.1(c) of the Agreement (n 2). The agreement has been read among civil society actors and others as denying amnesty or immunity for perpetrators of political violence, or at the very least not openly providing for it. The agreement stipulates that the Government will ‘apply the laws of the country fully and impartially in bringing all perpetrators of politically motivated violence to book’ (Article 18(5)(i)); that ‘while having due regard to the Constitution of Zimbabwe and the principles of the rule of law,’ the prosecuting authorities will expedite the determination as to whether or not there is sufficient evidence to warrant the prosecution or keeping on remand of all persons accused of politically related offences arising out of or connected with the March and June 2008 elections (Article 18(5)(j)); for further comment see ‘Some Preliminary Comments on the Agreement Compiled for the Research and Advocacy Unit’ the South African Institute for Democracy (IDASA), 16 October 2008, available at http://www.kubatana.net/docs/demgg/analysis_of_zim_agreement_081016.pdf.

24 Mendlehoff, D, ‘Truth-seeking, Truth-telling and Post-Conflict Peacebuilding: Curb the Enthusiasm?’ (2004) 6 International Studies Review 355CrossRefGoogle Scholar. The literature continues to grow. Commendable texts include: N Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes (US Institute of Peace, Washington DC, 1995 (3 volumes)) and Kritz's overview ‘Where we are and How we got Here: an Overview of Developments in the Search for Justice and Reconciliation’ in Henkin (ed) The Legacy of Abuse: Confronting the Past, Facing the Future (Aspen Institute, New York, 2002); J-P Lederach Building Peace: Sustainable Reconciliation in Divided Societies (US Institute of Peace, Washington DC, 1997); M Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press, Boston, 1998); G Robertson, Crimes Against Humanity: the Search for Global Justice (Allen Lane, London, 1999); J MacAdams (ed), Transitional Justice and the Rule of Law in New Democracies (Notre Dame, Indiana, 2001); R Teitel, Transitional Justice (Oxford University Press, 2000); Rotberg & Thompson (eds), Truth v Justice: The Morality of Truth Commissions (Princeton University Press, 2000); E Daly and J Sarkin Reconciliation in Divided Societies: Finding Common Ground (University of Pennsylvania Press, Philadelphia, 2006); T Borer (ed), Telling the Truths: Truth Telling and Peacebuilding in Post-Conflict Societies (University of Notre Dame Press, 2006); T Govier, Taking Wrongs Seriously: Acknowledgment, Reconciliation and the Politics of Sustainable Peace (Humanity Books, 2008). For a recent overview, see R Teitel, ‘Editorial Note: Transitional Justice Globalised’ (2008) 2 International Journal of Transitional Justice 1. For excellent resources see www.csvr.org.za (Centre for the Study of Violence and Reconciliation, Wits University) and www.itcj.org (International Centre for Transitional Justice); see also www.restorativejustice.org and www.ijr.org.za/transitionaljustice (Institute for Justice and Reconciliation, Cape Town); for a most extensive bibliography see the University of Wisconsin's ‘Transitional Justice database project’ www.polisci.wisc.edu/tjdb/bib.htm. We do not find it useful here to pursue whether the ‘field’ is a coherent one, has a future and is just getting going, or is already discredited as a unifying concept: Zachary Kaufman has opined that ‘transitional justice is a broad term that [wrongly] attempts to unify under a single topic a vast array of activities (including inaction) that pursue different objectives and employ varying procedures’: ‘The Future of Transitional Justice’ (2005) 1 STAIR 58–81, 77. We are cautious of the teleological prescriptiveness that might be seen to accompany formulas for effective transitional justice, and conscious that ‘transitions’ come in many forms: see too Carothers, T, ‘The End of the Transition Paradigm’ (2002) 12(1) Journal of Democracy 6Google Scholar. See also the discussion in L Bosire, Overpromised, Underdelivered: Transitional Justice in Sub-Saharan Africa (International Centre for Transitional Justice, New York, 2006) 8–9.

25 J Dugard, ‘Possible Conflicts of Jurisdiction with Truth Commissions’, in Cassesse et al, The Rome Statute of the International Criminal Court—A Commentary, vol 1 (Oxford University Press, 2002) 693.

26 P Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (Routledge, New York, 2002) 14. Hayner's remains a most comprehensive comparative examination of truth commissions, and, like ours, many subsequent studies draw upon it. Sara Parker considers a truth commission to be ‘a formal investigatory method implemented following some type of transition …  used to help societies come to terms with past abuses’: S Parker, ‘From Argentina to Zimbabwe: Chronicling the Emergence of an International Truth Commission Norm’ Paper for the International Studies Association Annual Conference, 26–29 March 2008, San Francisco [copy with authors]. See also definitional issues discussed in M Freeman Truth Commissions and Procedural Fairness (Cambridge University Press, 2006), and ‘The rule of law and transitional justice in conflict and post-conflict societies’ Report of the Secretary-General (UN Doc. S/2004/616, August 2004), [50]: official, temporary, non-judicial fact-finding bodies investigating a pattern of human rights abuses; are victim-focussed and produce a report or recommendation.

27 Hayner's 2002 study (Unspeakable Truths) identified 21 commissions. More have been created since: see the Centre for Transitional Justice at http://www.ictj.org. Parker's 2008 study (above) includes a table of over 30 commissions since 1982, and her research details evidence of demands for commissions in at least 10 other countries.

28 Daly, E, ‘Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition’ (2008) 2 International Journal of Transitional Justice 23, 27CrossRefGoogle Scholar.

29 Chapman, A and Ball, P, ‘The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa, and Guatemala’ (2001) 23(1) Human Rights Quarterly 2CrossRefGoogle Scholar. On the tensions between national courts and truth commissions, see generally W Schabas and S Darcy (eds), Truth Commissions and Courts: the Tension Between Criminal Justice and the Search for Truth (Springer, Berlin, 2005).

30 Hayner, Unspeakable Truths (n 26) 12–14. By nature trials moreover ‘paint an incomplete picture of the past’: Bosire (n 24) 4; as Gerry Simpson has pointed out, war crimes trials in particular have long had a didactic, narrative, commemorative and educational and self-legitimating function (not always entirely consistent with their judicial purposes), but one which can readily distort history: ‘Didactic and Dissident Histories in War Crimes Trials’ (1997) 60 Albany Law Review 801, especially 824–6. A theme running through Govier's Taking Wrongs Seriously (n 24) is rejection of the notion that criminal trials, while important from a rule of law perspective, have utility in promoting reconciliation in a society: this perhaps both underestimates the significance of trials as a means of vindication for victims, and overestimates the significance of non-judicial communal relationship-building processes in building sustainable peace.

31 For us, aspects of a restorative justice approach include responsiveness to community expectations, a recognition of the significance of locally-driven processes, and a need to focus on ‘bottom-up’ restorative processes, contrasted with attending primarily to processes involving only some elites (whether peacemakers, truth commissioners, prosecutors, or indicted persons). The overall focus is on the vindication of the victim, not the punishment of perpetrators. See van der Spuy, Parmentier and Dissel (eds), Restorative Justice: Politics, Policies and Prospects (Juta, Cape Town, 2007); J Braithwaite, Restorative Justice and Responsive Regulation (Oxford University Press, 2002); Biggar (n 4). We note this with a caution: the well-meaning promotion of some community-based rituals by external actors can amount to area-based exceptionalism: Tim Allen, ‘Ritual (Ab)use? Problems with Traditional Justice in Northern Uganda’ Courting Conflict, Chapter 6; see also in the same publication Nicholas Waddell and Phil Clark, ‘Introduction’, 10.

32 H Jeong, Peacebuilding in Postconflict Societies: Strategy and Process (Lynne Reinner, Boulder, 2005) Strategy and Process, 165, 168–9.

33 Hayner Unspeakable Truths (n 26) 25. Jeong has rightly pointed out that knowing ‘the truth’ of what actually took place is a necessary condition for forgiveness, but not a sufficient condition: Strategy and Process, 165; the same sceptical approach informs Daly's recent argument (n 28) that without accountability, truth on its own merely produces injustice (34), while surveys of attitudes have shown that establishing the truth about an event is no guarantee that beliefs and attitudes will change upon being presented with that truth, indeed it may serve to hinder not promote reconciliation (37). In the same way, Pablo de Greiff points out that a successful process of truth-telling, trials, forgiveness formalities, etc, would not automatically mean that elements of society are reconciled: ‘The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted’ in Gibney & Howard-Hassman (eds), The Age of Apology: Facing Up to the Past (University of Pennsylvania Press, Philadelphia, 2007). Simon Chesterman also notes the distinction between acknowledgement and accountability: You, The People: The UN, Transitional Administration and State-Building (Oxford University Press/International Peace Academy, 2004) (‘Justice and Reconciliation: the Rule of Law in Post-Conflict Territories’, Chapter 5) 157. More recently, (Daly n 28) has noted that ‘the truth neither is nor does all that we expect of it’—it does not necessarily help victims, promote accountability or non-impunity, prevent future abuse, or ensure reconciliation.

34 B Pouligny, ‘Building Peace after Mass Crimes’ (2002) 9(2) International Peacekeeping 202. This is not necessarily so that someone must be held to account: sometimes to know is enough. One argument for a more formal process after the conflict in Solomon Islands was that people were unable to concentrate on the future due to intense speculation, rumour and gossip on factual issues.

35 B Hamber and R Wilson, ‘Symbolic Closure through Memory: Reparation and Revenge in Post-Conflict Societies’ (2002) 1(1) Journal of Human Rights 35. Rosalind Shaw has argued that the ‘valorisation’ of this kind of memory practice involving public recounts of violence is based on ‘problematic assumptions about the purportedly universal benefits of verbally remembering violence’: R Shaw ‘Rethinking Truth & Reconciliation Commissions: Lessons from Sierra Leone’ Special Report #135 (United States Institute of Peace, Washington DC, 2005) 7. Her view is that ‘social forgetting’ may be an equally valid strategy and in Sierra Leone was a cornerstone of established local processes of reintegration and healing and so held far more appeal than the truth commission approach. We note that Shaw in fact concedes that truth-telling may be effective in cases of covert, state-sponsored violence.

36 See generally J Carroll & B Pasco, Forgiving and Forgetting (Life and Peace Institute, Uppsala, 2002). The emphasis is vividly captured in the name of the ‘Recovery of Historical Memory’ project in Guatemala: see Jeong, Strategy and Process (n 32) 185. See Naidu & Adonis ‘History on their Own Terms: the Relevance of the Past’ (Centre for the Study of Reconciliation and Violence (CSVR), Johannesburg, January 2007); see in general Southern African Reconciliation Project ‘Memorialisation Bibliography’ and ‘Memorialisation and Reconciliation in Transitional Southern African Societies’ (CSVR, Johannesburg, 2005); Naidu, ‘The Ties that Bind: Strengthening the Links between Memorialisation and Transitional Justice’ (2006) and ‘Empowerment through Living Memory’ (2004) (both CSVR, Johannesburg). On the troubled Indonesian province of Papua, where one proposed element of a new ‘Special Autonomy’ regime in 2001 was a truth and reconciliation commission, various indigenous Papuans have for some years asked for a process of ‘pelurusan sejarah’ (straightening of history): J Braithwaite et al, ‘Peacebuilding Compared: Working Paper #1’ (Australian National University, May 2008, draft; copy with authors) 31.

37 Jeong, Strategy and Process, 158; also K Christie The South African Truth Commission (St Martin's Press, New York, 2000). One can concede that it is problematic to conceive of a commission's report being a single definitive impartial historical record or national memory expressing the experiences and truths of all actors, and optimistic to expect that such a single record might ‘command agreement and heal social divisions’: Shaw (n 35) 3. However, this view overlooks the relative significance of process over outcome; nor need a report purport to be definitive of ‘the truth’—it can simply record various views and attempt some objectivity.

38 This paragraph draws from the authors' joint newspaper opinion piece in Business Day (South Africa), 17 April 2008. Archbishop Desmond Tutu referred consistently to the imagery of opening, cleansing and balming of societal wounds throughout South Africa's Truth and Reconciliation (TRC) process.

39 Terence McCaughey, ‘Northern Ireland: Bury the Hatchet, not the Past’ in Biggar (n 4): a new society cannot be built while mystery surrounds the fate of many people.

40 Shaw has argued that ‘nations do not have psyches that can be healed’—it is wrong to ‘anthropomorphize’ the nation as a suffering, feeling entity (see too T Borer, ‘Reconciling South Africa or South Africans? Cautionary Notes from the TRC’ (2004) 8 African Studies Quarterly 1) —and that ‘ideas concerning the conciliatory and therapeutic efficacy of truth telling’ are Western cultural products about memory and not necessarily applicable elsewhere: Shaw (n 35) 7. Truth-telling is not necessarily a complete therapy.

41 A du Toit, ‘The Moral Foundations of the South African Truth and Reconciliation Commission: Truth as Acknowledgment and Justice as Recognition’ in Rotberg and Thompson (n 24).

42 W Long & P Brecke, War and Reconciliation: Reason and Emotion in Conflict Resolution (MIT Press, Cambridge MA, 2003); R Fisher, ‘Social-Psychological Processes in Interactive Conflict Analysis and Reconciliation’ in H Jeong (ed), Conflict Resolution: Dynamics, Process, Structure (Ashgate, Aldershot, 2000); B Hamber, ‘Does the Truth Heal? A Psychological Perspective on Political Strategies for Dealing with the Legacy of Political Violence’ in Biggar (n 4) 131–150; see Jeong, Strategy and Process, 155, 159.

43 Hayner's study (Unspeakable Truths) considers the variety of redress measures that might fall within the general term ‘reparation’. For a comprehensive study of experiences in Southern Africa in developing official non-judicial reparation programmes for victims of human rights abuse, see Buford and van der Merwe, ‘Reparations in Southern Africa’ (n 12) and Hamber & Mofokeng, From Rhetoric to Responsibility: Making Reparations to the Survivors of Past Political Violence (CSVR, Johannesburg, 2000). See also ‘Reparation’ in Reconciliation After Conflict: A Handbook (n 13).

44 There are perhaps conceptual problems with compelling victims to grant forgiveness, which ought to be a gift: J Braithwaite, Restorative Justice and Responsive Regulation (Oxford University Press, 2002) 15.

45 Hayner Unspeakable Truths, 29.

46 H Klug, Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction (Cambridge University Press, 2000) 5–6. On the other hand, as discussed at n 51 below, as with Constitution-making, such commissions may foster division rather than cohesion, serving as a source of ‘fragmentation and disintegration’: W Murphy, ‘Constitutions, Constitutionalism and Democracy’ in Greenberg et al (eds), Constitutionalism & Democracy: Transitions in a Contemporary World (Oxford University Press, 1993).

47 Daglish, K and Nasu, H, ‘Towards a True Incarnation of the Rule of Law in War-torn Territories: Centring Peacebuilding in the Will of the People’ (2007) 54 Netherlands International Law Review 81CrossRefGoogle Scholar.

48 Shaw's view is that despite pressure from NGOs and human rights activists for a truth commission in Sierra Leone, most ordinary people preferred a ‘forgive and forget’ approach (what she describes as deliberate social forgetting), out of fear of retaliation and reprisal and other reasons: (n 35).

49 Jeong Strategy and Process (n 32) 163; also Chesterman (n 33) 154.

50 This is one of the reasons why Mendlehoff suggests that we ‘curb the enthusiasm’ for truth commissions: (n 24). The UN handbook Rule of Law Tools for Post-Conflict Societies: Truth Commissions (Office of the High Commissioner for Human Rights, Geneva, 2006; (n 86) below notes (albeit only in conclusion, 36) that a commission can be a risky endeavour in a fragile transition. In Taking Wrongs Seriously (n 24), Trudy Govier consistently notes that a superficial or dishonest or forced truth and reconciliation process may not only be unsuccessful but even itself dangerous and produce effects opposite to those intended. Daly has observed that it is increasingly characteristic of transitional governments to be ‘infatuated with the truth’ ascribing it ‘all manner of curative powers’ and reaching for truth commissions in a ‘headlong’ fashion without pausing to consider alternatives or negative consequences: Daly ‘Truth Skepticism’ (n 28) 23–4. The considerable force of these arguments undermines the search for the normative ‘neatness’ implicitly sought by some commentators in relation to transitional justice.

51 Jeong Strategy and Process 184.

52 The literature it has generated including in terms of ‘comparative models’ is large. See recently K Emmanuel, ‘Between Principle and Pragmatism in Transitional Justice: South Africa's TRC and Peace Building’ ISS Paper # 156 (Institute for Security Studies, Pretoria, 2007) and the extensive bibliography therein. See generally A Boraine, A Country Unmasked: Inside South Africa's Truth and Reconciliation Commission (Oxford University Press, New York, 2000); Posel and Simpson (eds) Commissioning the Past: Understanding South Africa's Truth and Reconciliation Commission (Witwatersrand University Press, Johannesburg, 2002); S Garkawe, ‘The South African Truth and Reconciliation Commission: a suitable model to enhance the role and rights of victims of gross violations of human rights? (2003) 27(2) Melbourne University Law Review 334; J Quinn and M Freeman, ‘Lessons Learned: Practical Lessons Gleaned from Inside the Truth Commissions of Guatemala and South Africa’ (2003) 25(4) Human Rights Quarterly 1117. For a critical appraisal of the South African TRC see Stuart Wilson, ‘The Myth of Restorative Justice: Truth, Reconciliation and the Ethics of Amnesty’ (2001) 17 South African Journal on Human Rights 531. The Institute for Justice and Reconciliation's paper ‘Truth and Reconciliation in South Africa: Ten Years On’ provides a realistic assessment of what a TRC can reasonably accomplish and provides an audit of the response of government and other agencies to the unfinished business of the TRC: www.ijr.org.za/publications/publications-v2-1/truth-and-reconciliatin-in-south-africa-10-years-on/.

53 Sarkin, J, ‘The Necessity and Challenges of Establishing a Truth and Reconciliation Commission for Rwanda’ (1999) 21 Human Rights Quarterly 767, 802.CrossRefGoogle Scholar

54 ‘Modelling’ as used in the social sciences describes the process by which one actor observes, interprets and copies the actions of another. It connotes more than mere imitation: rather it involves (or should involve) ‘intelligent adaptation to ensure that the exotic plant can take root in native soil’ B Opeskin, ‘Australian Constitutional Law in a Global Era’ in French, Lindell & Saunders (eds) Reflections on the Australian Constitution (Federation Press, Sydney, 2003) 176. We ought to be careful of the term ‘exotic’: while its courts and public institutions have been compromised, Zimbabwe is not to be conceived of as a ‘noble savage’ standing to benefit from the enlightenment of foreign institutional ideas; nor is it what Bhargava would call a ‘symmetrically barbaric society’ where there is no consensus on moral norms (R Bhargava, ‘Restoring Decency to Barbaric Societies’ in Rotberg & Thompson (n 24): agreed fundamental norms exist in Zimbabwean society and in its law (Chapter III of the Constitution of Zimbabwe 1979 (Bill of Rights), even if they have been breached and not practically enforceable for some time.

55 The World Bank recommends that successful new institutions share these features: they complement what already exists; they innovate; they connect with ‘users’; they are aware of competing institutions so that they remain oriented towards servicing needs: World Development Report 2002 (Oxford University Press, New York, 2002).

56 Davis, M, ‘East Asia after the Crisis: Human Rights, Constitutionalism and State Reform’ (2004) 26(1) Human Rights Quarterly 126, 128CrossRefGoogle Scholar; 145. In relation to interpreting the South African Bill of Rights, Currie and de Waal, The New Constitutional and Administrative Law Vol 1 (Juta, Cape Town, 2003) fn 24:

While in South Africa we may look to the jurisprudence of … [other] constitutional democracies as a vast historical text from which to draw … , the principles of constitutionalism adopted by our courts will achieve acceptance only if they address local problems. It is the shaping of these principles in the context of applying them to local issues—in effect their hybridization—which will give them a unique South African character and life. Our new experiment with constitutionalism will only bear fruit to the extent that these principles become ingrained into the hopes, dreams and practices of our society. From there, they will become part of the global text from which others may [in turn] draw examples and arguments while simultaneously shaping them to meet their own circumstances.' [Emphasis added].

57 Y Dezalay & B Garth (eds), Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy (University of Michigan Press, 2002) 326. See also H Klug, ‘Hybrid(ity) Rules: Creating Local Law in a Globalised World’ in Dezalay & Garth, 276ff.

58 ‘Process, Responsibility and Inclusion in EU Constitutionalism: A Contribution to the Debate on a Constitutional Architecture’ Constitutional Web Papers, No. 4, 2001 ([http://les1.man.ac.uk/conweb/]).

59 S Marks ‘Guarding the gate with two faces: international law and political reconstruction’ (Symposium: The Rule of Law in the Era of Globalization) (1999) 6(2) Indiana Journal of Global Legal Studies 457.

60 cf. R Wilson The Politics of Truth and Reconciliation in South Africa: Legitimising the Apartheid State (Cambridge University Press, 2001).

61 Ritualism in this context is the application of institutionalised means for securing objectives in such an unreflective and automatic way that focus is lost on actually achieving those outcomes: Merton, Social Theory and Social Structure (Free Press, New York, 1968). In the context of truth commissions and for on another aspect of ‘ritualism’, see T Kelsall, ‘Truth, Lies, Ritual: Preliminary Reflections on the Truth and Reconciliation Commission in Sierra Leone’ (2005) 27(2) Human Rights Quarterly 361.

62 Of course, many of these institutions are intended to be highly ritualistic and symbolic rather than attempting substantial individualised justice for perpetrators and individuals. It is conceivable that a traumatised society would prefer a ritualised, symbolic process at a distance than a very involved—but painful—process; for more discussion see M Humphrey ‘From Victim to Victimhood: Truth Commissions and Trials as Rituals of Political Transition and Individual Healing’ (2003) 14(2) Australian Journal of Anthropology 171.

63 Parker (n 26) also notes (37) that some truth commissions might be manifestations more of an attempt to appease the international community than a considered, popular decision or response to domestic demand. Bosire (n 24) 3 has cautioned that unmet expectations of transitional justice efforts are partly due to a default resort to a legally and institutionally demanding understanding of transitional justice divorced from the reality of weak capacities. While critical of the ‘infatuation’ with truth commissions, Daly ought to acknowledge that the ‘transition planners’ to whom her related caution is directed are usually not just ‘transitional governments’ but international NGOs, donors, the UN and others: E Daly ‘Truth Skepticism’ (n 28) 23; 40–1.

64 R Teitel, ‘Transitional Justice Globalised’ (n 24) 3.

65 Shaw (n 35) 12. Notwithstanding the (sincere) keenness of some international civil society organisations, a truth commission is not something to be imposed upon a society according to some transitional justice formula, automatically as part of a conflict resolution ‘first aid kit’. More recently Teitel used the term ‘tool box’ to make substantially the same point: (n 25) 4.

66 See D Shea, The South African Truth Commission: The Politics of Reconciliation (United States Institute of Peace, Washington DC, 2000); on prosecution models, see G Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press, 2000).

67 Parker (n 26) 3–5.

68 ‘TRC preferable to trials’ Pretoria News (18 August 1997), cited in A McDonald ‘A right to truth, justice and a remedy for African victims of serious violations of international humanitarian law’ (1999) 2 Law, Democracy and Development 139. Truth commissions are often—but not necessarily—the deliberate result of political compromise, rather than imposed by the dominant new regime. As Tomuschat points out, the ‘background of a truth commission is invariably … of stalemate in a political power play’: C Tomuschat, ‘Clarification Commission in Guatemala’ (2001) 23 Human Rights Quarterly 233, 235. In the transition to democracy in South Africa, the white minority still wielded serious negotiating power, including through control of the police and military. In Chile and Argentina, the enduring influence and power of the military leadership meant that at least initially it was unthinkable to commence criminal actions against the main culprits. In El Salvador and in Guatemala, the commissions were components of the ceasefire and peace agreements where neither government nor rebels had suffered military defeat.

69 Ho-Won Jeong observes that ‘[o]verall strategies of reconciliation are affected by political constraints and evolving intergroup relations in a postconflict society.’ Imposing justice can have a disruptive potential and, for example, lead to military coups, so that it may be crucial ‘not to provoke still-powerful elements in the armed forces that retain political veto power during a fragile democratic transition’ so that for any process of truth-seeking ‘the alignment of forces at the time of transition shapes the nature and degree of truth revealed’: Strategy and Process (n 32) 155; 168–9; 185, and see this theme explored in A Rigby, Justice and Reconciliation: After the Violence (Lynne Reinner, Boulder, 2001).

70 Victor de Waal's characterization of Zimbabwe's first decade after independence in 1980 is that it may have involved society as a whole deciding to simply move on, leaving the past behind: The Politics of Reconciliation: Zimbabwe's First Decade (David Philip, Cape Town, 1990) 45.

71 MDC 2008 Policy (n 18) 1.

72 ICCPR 1966, GA Res. 2200A (XXI), UN Doc. A/6316, entered into force 23 March 1976—Zimbabwe acceded on 13 August 1991. Importantly it is also a party to the African Charter on Human and Peoples' Rights (the ‘Banjul Charter’) 1981, entered into force 21 October 1986—Zimbabwe ratified on 30 May 1986.

73 Article 2 ICCPR; see also Article 8 of the Universal Declaration of Human Rights 1948 (GA Res. General Assembly Resolution 217A (III)); UN Human Rights Committee, ‘General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (UN Doc. CCPR/C/74/CRP.4/Rev.6 (2004), [15], [16]; UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (UN Commission on Human Rights, E/CN.4/Sub.2/1993/8; E/CN.4/1997/104); also (in relation to ‘gross’ violations), the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted by the UN General Assembly on 16 December 2005 (A/Res/60/147). Under the 2005 Basic Principles, reparation should respond to the needs and wishes of the victims and be proportionate to the gravity of the violations and the resulting harm. It should include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. In addition to providing reparation to individuals, states should make adequate provision for collective reparations for groups of victims and special measures should be taken to afford opportunities for self-development and advancement to groups who, as a result of human rights violations, were denied such opportunities.

74 UN Guiding Principles on Internal Displacement (UN Doc. E/CN.4/1998/53/Add.2; 11 November 1998. In this respect, it is likely the Principles declare an international legal duty.

75 The State's duty in respect of crimes of concern to the international community as a whole is considered below.

76 See the positions expressed in ‘Report of the Independent Expert: Update of Set of Principles to Combat Impunity’ (E/CN.4/2005/102/) (Geneva, 2005) and ‘Promotion and Protection of Human Rights: Study on the Right to Truth’ (E/CN.4/2006/91) (OHCHR, Geneva, 2006). More study is necessary on the issue of sourcing support for the bindingness of rules from the practice and publications of influential intergovernmental agencies such as the OHCHR. The state duty to investigate alleged disappearances declared in the famous Velasquez Rodriguez case (Inter-American Court of Human Rights) (1989) 28 ILM 291 is one of the bases relied on in a recent overview expressing support for the existence of ‘a right to truth’: Parker (n 26) 22–25. Apart from the awkwardness of conceiving of a right to ‘truth’, we do not think that the sources of Art 2(3) ICCPR or Velasquez amount, as such, to an internationally enforceable ‘right to truth’: it is a duty to genuinely investigate and attempt to remedy human rights abuses, and no more precise content can be placed on it. For European practice, see A Mowbray ‘Duties of Investigation Under the European Convention on Human Rights’ (2002) 51 ICLQ 437.

77 Currie & De Waal (n 56) 24.

78 Klug (n 46) 6. The corollary of such comments ties into wider debate, beyond the scope of this paper, on whether an emerging norm of a right to democratic governance exists in international law (such as the work of Thomas Franck) or the more controversial claim attributed to Francis Fukuyama as to whether western liberal democracy is now recognised as the ‘final form’ of government.

79 Parker (n 26). In support of the norm's crystallisation, her work chronicles the patterns of recommendation, praise and adoption of truth commissions, for example in UN-sponsored peace agreements or by agencies of the UN and international NGOs. We think it is misconceived to posit a norm on these bases alone. See also E Newman, ‘Transitional Justice: the Impact of Transnational Norms and the United Nations’ in Newman & Schnabel (eds) Recovering from Civil Conflict (Crown House, London, 2001).

80 At other points, however, it is clearly asserted as a legal norm: Parker's conclusion not only confuses two bodies of law, but goes too far. She argues that ‘not only does the truth commission mechanism agree with international principles of human rights law, but are in fact demanded by international humanitarian law itself’ (25). The praise and practice (mainly of NGOs) narrated by Parker cannot be said to amount to a norm that a truth commission is an obligatory part of transitional justice.

81 M Keck and M Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, Ithaca, 1998).

82 C Stahn, ‘“Jus ad Bellum”, “Jus in Bello” … “Jus Post Bellum”? Rethinking the Conception of the Law of Armed Force’ (2006) 17 European Journal of International Law 921, 938–41. The difficulty in characterising very diverse political situations as ‘transitional’ or ‘post-conflict’ is, we would add, one consideration undermining the supposed normative conclusions to be drawn.

83 N White & D Klaasen (eds), The United Nations, Human Rights and Post-Conflict Situations (Juris/Manchester University Press, 2005) 1, 3; the argument appears to be that since the UN with its ‘unique claims to universal competence in human rights’ has ‘to a large degree’ responsibility for setting the standards in this area, its practice can be the basis of new normative frameworks. See also Newman (n 79) 31. And see too R Cryer, ‘Post-Conflict Accountability: a Matter of Judgment, Practice or Principle?’ in N White & D Klaasen (eds), The UN, Human Rights and Post-Conflict Situations (Manchester University Press/Juris, 2005) 281–286 on the significance to be placed on the practice, which he chronicles, of the UN in negotiating peace agreements and it policy on amnesties.

84 Klug (n 46) 23 (in relation to constitutional forms adopted by new or transitional states).

85 Cf Emmanuel (n 52).

86 A number of tools and resources exist: see for example Reconciliation after Violent Conflict (International Institute for Democracy and Elections, Stockholm, 2003); D Orentlicher, Report of the Independent Expert: Update of the Set of Principles to Combat Impunity E/CN.4/2005/102 (United Nations, Geneva, 2005); Rule of Law Tools for Post-Conflict Societies: Truth Commissions (Office of the High Commissioner for Human Rights, Geneva, 2006); Amnesty International, Truth, Justice and Reparation: Establishing an Effective Truth Commission (London, 2007). See also generally the resources pooled at www.ictj.org (the International Centre for Transitional Justice, New York). For a comparative overview of different processes, see www.truthcommission.org (Harvard law school & the European Centre for Common Ground). See also Hayner, Unspeakable Truths, Chapters 4 & 5, and also P Hayner, ‘Fifteen Truth Commissions—1974 to 1994’ (1994) 16 Human Rights Quarterly 597. Some of these issues were canvassed by one of the authors in 2002: M du Plessis, ‘Truth and Reconciliation Processes: Lessons for Zimbabwe?’ Report No. 44 (South African Institute of International Affairs, Pretoria, 2002).

87 International civil society organizations may play a very important role. See generally K Kumar (ed), Rebuilding Societies after Civil War: Critical Roles for International Assistance (Lynne Reinner, Boulder, 1997), and for a case study, McPherson, ‘Supporting Post-Conflict Reconciliation: An Assessment of International Assistance to South Africa's Truth Commission (CSVR, Johannesburg, 2001); Cf J Braithwaite (n 44) 187 (outside peacemakers can seldom deliver the sort of engagement required at community level). There are many examples of commissions receiving external funding.

88 International Centre for Transitional Justice Truth Commissions and NGOs: the Essential Relationship (ICTJ, New York, 2004). Aside from advice, support, counselling and other activities, raising public awareness of the proposals for a truth commission or of the commission's work once established or completed is an important role for local civil society.

89 The ideal is of an institution ‘free of direct influence or control by the government, including in the interpretation of its written mandate … , in developing its operating methodology for research and public outreach, and in shaping its report and recommendations’ Hayner, Fifteen Truth Commissions (n 87) 179. One factor in favour of stronger international involvement in such an institution is the influence a strong external actor can bring to bear, through conditionality and other controls, or even ‘hybrid’ structures with expatriate impartial staff, in both ensuring operational independence and the perception of such independence.

90 Financially under-resourced truth commissions have failed: Hayner, Unspeakable Truths, 69, 224. Throughout its operation the Guatemalan commissioners were constantly diverting their energy away from the work of the truth commission and towards attempts to raise money from networks within the international community: Tomuschat (n 68) 248.

91 A truth commission's work may involve indirect financial consequences if, for example, it recommends certain institutional and legal reforms or human rights training for security services, refers matters for prosecution, proposes monuments and symbolic measures, or communal reparation in the form of development projects, or recommends the establishment of various bodies to oversee and resolve land and property disputes.

92 The South African TRC was empowered to make smaller ‘Urgent Interim Reparation’ payments to victims (or their families) in urgent need, and ‘Individual Reparation Grants’ for up to six years to ‘eligible’ victims. 22,000 eligible victims were identified during its proceedings, and eventually a one-off payment of R30,000 was given to such persons from the specially constituted President's Fund.

93 There is perhaps a tendency in the literature to focus on psychological aspects of communal ‘healing’, while glossing over the real needs victims may have for specific medical treatment and rehabilitation.

94 See discussion in relation to the Zimbabwe context in the earlier section (n 13 above).

95 Specific attention will be needed to the place of existing pension and compensation mechanisms which may be subject to legitimate claims preceding the recent crisis. A Zimbabwe commission might make recommendations but leave service provision to a range of other government and civil bodies.

96 For a comprehensive list of the ways in which truth commissions have come to be established, see Hayner Unspeakable Truths, Appendix 1.

97 Hayner Unspeakable Truths 72.

98 Hayner Fifteen Truth Commissions 636.

99 Hayner Unspeakable Truths 73. See too the South African TRC's mandate which called for investigation of ‘gross violations of human rights, including the violations which were part of a systematic pattern of abuse’.

100 Note, however, criticisms directed at the overly broad mandate of the Guatemalan Clarification Commission which was required to investigate ‘the’ human rights violations—textually meaning ‘all’ relevant human rights violations committed during twenty years of different dictatorships, provided they were linked to the armed confrontation. This overburdened the commission: Tomuschat (n 68) 239–240. The Nigerian equivalent's mandate to consider ‘human rights violations or abuses’ was understood very broadly: in its first few weeks of work 90 per cent of the 10,000 submissions pertained to labour disputes. The commission adjusted itself to focus on ‘gross violations of human rights only’: Hayner, Unpseakable Truths 69. One issue in Zimbabwe will be a mandate that includes human rights abuses associated with land invasions and displacement, without dragging the commission into the politics of land redistribution as they then stand.

101 Sarkin (n 53) 804. Considerations also include the extent to which commissioners are seen to be representative of a range of perspectives, racial, ethnic and other backgrounds Hayner, Fifteen Truth Commissions 654. While institutional independence is significant, it is not out of the question to include political party actors. In Chile, eight commissioners were appointed from both sides: Sarkin (n 54) 806; Hayner Unspeakable Truths 35. This may be a political necessity, despite the ideal of non-partisanship. South Africa's Promotion of National Unity and Reconciliation Act 1995 provided commissioners should be ‘fit and proper persons who are impartial and who do not have a high political profile’ (emphasis added). However, it may be unavoidable that political party representatives are included—at least they are engaged.

102 Both the Cambodian and Sierra Leone courts have been ‘hybrid courts’ involving local and foreign judges. See generally L Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97(2) American Journal of International Law 295. In Chile, Argentina, and South Africa all the commissioners were nationals of their respective countries. However, El Salvador had all foreign commissioners (two Latin American and one American) and Guatemala had a mixture. It is unlikely that exclusively foreign commissioners would be acceptable in any Zimbabwean commission, and there are good reasons for including nationals.

103 Sarkin (n 54) 806; Hayner, Unspeakable Truths 216.

104 J Sarkin, ‘The Trials and Tribulations of the South African Truth and Reconciliation Commission’ (1996) 12 South African Journal on Human Rights 617, 621.

105 A similar process was followed in Sierra Leone where the Special Representative of the UN Secretary General was appointed as selection co-ordinator and was directed to call for nominations from the public.

106 There are strong arguments for having a range of professions, beyond the legal profession: see Hayner, Unspeakable Truths 217.

107 In terms of staffing numbers, experiences again vary. Whereas Latin American commissions have enjoyed relatively large staff complements (Chile and Argentina had approximately sixty full time staff members each), others have had to do with very few personnel. Sarkin (n 53) 814. South Africa's TRC had the highest staff complement to date, with around three hundred staff between 1996 and 1998: Hayner Unspeakable Truths 218.

108 Hayner Unspeakable Truths 221; also Hayner Fifteen Truth Commissions 640.

109 Hayner points out that at this early stage a truth commission can also have the ‘secondary effect of holding off pressure for immediate reforms and other measures of accountability, giving the government time to take stock, plan, and strengthen institutions as necessary to further its other transitional justice initiatives’ Hayner, Unspeakable Truths 221.

110 The Argentine, Chilean and Salvadoran Commissions were established very quickly by decree and had only nine months to generate an authoritative account.

111 Hayner, Unspeakable Truths 222: to ensure that the commission works efficaciously towards its deadline, to enable healing to begin swiftly, and to ensure that a report (and its recommendations) is published while there is still buy-in to the reconciliation process. The Ugandan commission (narrated by Hayner) demonstrates the dangers: set up in 1986, the Commission of Inquiry in Uganda was given no time limit. It took over nine years before it finished, and by then had lost the support and interest of the public, and failed to produce the cathartic effect expected of the work of a commission.

112 Whereas a formal institution needs to establish public trust and awareness in quite a short time, whereas local, women's and Church groups have long been familiar to the community (and are likely to still be operating long after a truth commission has wrapped up). Judicial and quasi-judicial mechanisms are not likely to be sufficient to reconstruct the moral order: other needs on the cultural, the social, the psychological, and spiritual levels may be called for: E Kiss, ‘Moral Ambition within and beyond Political Constraints: Reflections on Restorative Justice’ in Rotberg & Thompson (eds) (n 24).

113 One idea is that the gradually narrowing mandate and budget enables the commission to ultimately run as a self-funding national attraction, by way of a museum. We are grateful to Professor John Braithwaite for this idea.

114 Sarkin (n 53) 811–812.

115 We think these reasons include the lapse of time; the legal barriers resulting from a succession of amnesties including under the Indemnity and Compensation Act 1975, the Amnesty Ordinance 1979, and the Amnesty (General Pardon) Act 1980 (Ch 9); the fact that the amnesty resulted from a compromise that effectively ended a decade-long civil war; the fact that a broad and largely effective political reconciliation process was set in motion at the time in 1980; the need to limit and focus any commission's mandate and workload; and the fact that the state abuses cannot be attributed to the Mugabe regime, whereas those from 1980 onwards can.

116 In legal terms, it is this period that arguably witnessed the most serious crimes including possible crimes against humanity (systematic attacks on a civilian population during an internal armed conflict). On the other hand, Part IV of the 1997 Breaking the Silence report, while not a judicial verdict, accepted the view that the effect of the grant of amnesties is immunity from prosecution, and this view has not been challenged in any legal forum to date.

117 See for instance article 14 of the ICCPR. For comprehensive treatment, see M Freeman, Truth Commissions and Procedural Fairness (n 24).

118 Hayner, Unspeakable Truths 134. By contrast see Shaw's views that this is a peculiarly ‘Western’, ‘Freudian’ concept and not necessarily of application in some African countries: (n 36).

119 Hayner, Unspeakable Truths 225. Sarkin (n 53) 817.

120 The process of course also has huge significance for perpetrators, and part of the aim of any such process is to provide a forum for their rehabilitation, expression of contrition, moral reconstitution and what Jeong calls ‘the recovery of their own humanity’ (Strategy and Process (n 33) 156). A commission may not have the resources or capacity for counselling services for those who testify. Community organizations, traditional healers, church structures, extended families and friends, and support groups may need to fill the breach: see Amoah & Greenbaum, ‘Has Everything been Done? The Nature of Assistance to Victims of Past Political Atrocities in Southern Africa’ and ‘Resources on Services for Victims of Political Violence in Southern Africa’ (Report and Bibliography for the Southern African Reconciliation Project) (CSVR, Johannesburg, 2005). Publication of the report and the termination of a commission's mandate is of course not likely to be—nor likely to purport to be—the ‘end’ of efforts at reconciliation, counselling, and other processes: see for example Kayser ‘Interventions after the TRC: Reconciliation, Advocacy, Healing’ (CSVR, Johannesburg, 2001).

121 To this end, although commissions do not formally conduct criminal proceedings, they have increasingly taken on prosecutorial powers. For example, the South African TRC was authorised to subpoena witnesses, and more recently the Sierra Leone TRC was vested with far-reaching subpoena and search and seizure powers, although it did not make use of these extensively: see C Stahn, ‘Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor’ (2001) 95 American Journal of International Law 955; see also Hayner, Unspeakable Truths 107–108. In Chile the commission did not carry out its own investigations despite its broad mandate, a feature viewed as a serious shortcoming: Sarkin (n 54) 816.

122 Sarkin (n 53) 817. Due to its short mandate, the El Salvador commission conducted in-depth investigations of selected cases chosen as representative of typical victims, perpetrators, and types of abuse over the historical period of study. The South African approach was to attempt a more thorough engagement, rather than a typology: Hayner, Unspeakable Truths 73.

123 While objective truth may be a difficult concept, and the official version likely to be contested, there is an inherent element of symbolism involved. Daly (n 28) 24, 28 criticises the attempt to promise or deliver ‘a single unit of truth’ or ‘single … authoritative record’: the truth is inherently elusive, not monolithic, subjective, cannot ‘be described by a single, elegant narrative’. Of course the report will not and should not in a pluralist democracy be ‘the last word on the history of a country for all’ (29). However, we think that it is likely that a population will appreciate the unscientific, symbolic and representational nature of the exercise. Daly also focuses unduly on the written report of a commission (see especially 26–7, 33), whereas surely it is its process which can be more significant in fulfilling its functions.

124 Recent commissions have provided extensive recommendations for reforms across many sectors of government and public life, including proposals for human rights training and education. The El Salvadoran TRC's recommendations ran to over fifteen pages, the South African TRC's recommendations 45 pages, and Chile's over 45 pages: Hayner, Unspeakable Truths 167. See also M Ensalaco, ‘Truth Commissions for Chile and El Salvador: A Report and Assessment’ (1994) 16 Human Rights Quarterly 656, 666–670. The recommendations on law reform and institutional change of the El Salvador commission were its greatest legacy: R Mani, Beyond Retribution: Seeking Justice in the Shadows of War (2002) 102. We think this last function is particularly important since one dilemma of a strongly independent commission may be that it sets the accountability of the state at a further remove.

125 See Cryer (n 83) 269–271, who notes that decisions on post-conflict justice options, and what constitutes a sufficient investigation, must be sensitive to context: European Convention standards may not be appropriate to Zimbabwe; Cryer selects two reasons: other priorities, and the likeliness of a weak prosecutorial and judicial system making it difficult to prosecute offenders en masse (therefore, making the decision to establish a truth commission reasonable).

126 See Azapo v President of the Republic of South Africa 1996 (4) SA 671 (CC), 681–685 (constitutionality of amnesty provisions of the statute establishing the TRC):

Most of the acts of brutality and torture which have taken place have occurred during an era in which neither the law which permitted the incarceration or persons or the investigation of crimes, nor the methods and the culture which informed such investigations were easily open to public investigation, verification and correction. Much of what transpired in this shameful period is shrouded in secrecy and not easily capable of objective demonstration and proof. … That truth, which the victims of repression seek so desperately to know is, in the circumstances, much more likely to be forthcoming if those responsible for such monstrous misdeeds are encouraged to disclose the whole truth with the incentive that they will not receive the punishment which they undoubtedly deserve if they do. Without that incentive there is nothing to encourage such persons to make the disclosure and to reveal the truth …

127 See generally P van Zyl, ‘Justice without Punishment: Guaranteeing Human Rights in Transitional Societies’ in Villa-Vicencio and Verwoerd (eds), Looking Back—Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (University of Cape Town Press, 2000). Indeed, international law has long acknowledged the place of amnesty. Notwithstanding that the Geneva Conventions regime is partly intended to prevent impunity, Article 4 of Additional Protocol II calls on states after the conclusion of internal conflicts to grant ‘the broadest amnesty possible’ to participants.

128 On the South African TRC's amnesty process, see A McDonald, ‘A right to truth, justice and a remedy for African victims of serious violations of international humanitarian law’ (1999) 2 Law, Democracy and Development 139, 164–170; Hayner Unspeakable Truths, 98ff. On the amnesty process in East Timor, see Stahn (n 121) 962–965. As discussed below, South Africa purported to grant amnesty for international crimes, whereas the Timorese commission was unable to formally grant amnesty for international crimes.

129 See L McGregor, ‘Individual Accountability in South Africa: Cultural Optimum or Political Façade?’ (2001) 95 American Journal of International Law 32, 37; S Wilson ‘The Myth of Restorative Justice: Truth Reconciliation and the Ethics of Amnesty’ (2001) 17 South African Journal on Human Rights 531, 542–545.

130 Where amnesty is not appropriate, there is in principle no reason why related information cannot be provided to prosecutors in the criminal justice system to pursue should they chose to do so according to existing criteria. See in this regard Hayner, Unspeakable Truths, Ch 7; also C Lerche, ‘Truth Commissions and National Reconciliation: Some Reflections on Theory and Practice’ (2000) 7(1) Peace and Conflict Studies 1.

131 UNTAET Regulation 2001/10 (13 July 2001): this would preclude any criminal prosecution.

132 Stahn (n 121) 963. Care must be taken to afford the perpetrator some dignity and redemption—it may be dangerous to institutionalize humiliation.

133 Since 1992 Zimbabwean law has recognised a ‘community service’ alternative to prison.

134 Arguably, a separate mechanism would need to be established for land claims issues. On overlaps between reconciliation and the land issue, see E McCandless, ‘The Case of Land in Zimbabwe: cause of conflict, foundation of peace’ www.restorativejustice.org/resources/world/africa3/africa/zimbabwe.

135 See D Dyzenhaus, Judging Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Hart Publishing, Oxford, 1998) 28–33; also van Zyl (n 127) (‘Justice without Punishment’).

136 R Cryer (n 83) 288.

137 For a comprehensive consideration, see A O'Shea, Amnesty for Crime in International Law and Practice (Kluwer, The Hague, 2002). For discussion in favour of a general duty on states to prosecute and punish past crimes see for example D Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale LJ 2537; N Roht-Arriaza, ‘State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law’ (1990) 78(2) California Law Review 449; Dugard (n 25) 697 and the authorities cited therein. Much of the debate about the legality of amnesties is still—at least for now—somewhat academic: Hayner makes the important point that ‘even where international law clearly requires prosecution of those accused of rights crimes, serious prosecutorial action against perpetrators is still uncommon and many blanket amnesties remain in force’ (Unspeakable Truths, 90).

138 Dugard (n 25) 699. The duty on a state to extradite or prosecute individuals for torture or genocide may be a matter of customary international law: Prosecutor v Furundzija (ICTY) IT-95-17/1-T, [156]ff. See too W Schabas, ‘The Relationship between Truth Commissions and International Courts: the case of Sierra Leone’ (2003) 25 Human Rights Quarterly 3, 1035.

139 See generally Jeong, Strategy and Process, 166; J Gavron, ‘Amnesties in the light of Developments in International Law and the Establishment of the ICC’ (2002) 51 ICLQ 91. The United Nations Secretary General's view is that UN-endorsed peace agreements can never grant amnesties for genocide, war crimes, crimes against humanity, or gross violations of human rights. Amnesties purportedly given for such offences will not be considered a bar before UN-established or assisted courts: UNSG Report (n 24) [21]; Cryer has demonstrated that by 1999 the UN would not be party to peace deal that included an amnesty for international crimes (n 83) 284. A number of international and other tribunals have refused to recognize amnesties for grave breaches of human rights: Furundzija (ICTY Trial Chamber, 10 December 1998), Barrios Altos (Inter-American Court on Human Rights, Vol. 75 (Series C), 27 November 1998), [39]–[41] and various cases in the Special Court for Sierra Leone in relation to the Lomé Accord amnesty. The House of Lords in Pinochet can be understood to have overwhelmingly rejected the argument that Chile's decision to grant amnesty (immunity from prosecution) as part of its peace process ought to be respected by another court: R v Bow Street Magistrates Court; ex parte Pinochet Ugarte (3) [1998] 4 All ER 897. Unlike an acquittal in another forum, there is no rule of law preventing a national court from disregarding an amnesty granted elsewhere, provided it has jurisdiction.

140 J Dugard, ‘Possible Conflicts of Jurisdiction with Truth Commissions’ (n 25) 700. As such, the blanket amnesty in Chile passed by the regime prior to the establishment of the commission may not meet the required standard, while the South African amnesties granted by a quasi-judicial amnesty committee functioning as part of a TRC process established by a democratically elected government, may well do so. See too Mani (n 124) 112–113.

141 AZAPO v President of the Republic of South Africa (1996) 4 SA 671, (cc) [20], [31], [42]–[45]. The Court's use of ‘entrusted’ highlights how a decision taken by a politically illegitimate regime might not receive the same political deference or (which might in amount to the same thing) international legal recognition. Cryer argues (n 83) 274–7, 289) that this ‘national deference’ argument not only is open to abuse by complicit or self-interested national authorities, but also insufficiently takes into account the international community's legitimate interests. Local amnesties for non-international crimes are easier to defer to: the only question is whether the ICCPR Art. 2(3) duty is met).

142 For a critical reflection on the South African TRC in this respect, see J Dugard, ‘Retrospective Justice: International Law and the South African Model’, 269ff, in J McAdams (ed), Transitional Justice and the Rule of Law in New Democracies (1997; n 24 above); also C Jenkins, ‘After the Dry White Season: The Dilemmas of Reparation and Reconstruction in South Africa’ (2000) 16 South African Journal on Human Rights 421.

143 The pursuit of justice for such crimes has long been a selective and irregular process: see Gerry Simpson's historical overview of war crimes trials: (n 30). While the Timorese truth commission could not grant immunity to persons who had committed a ‘serious criminal offence’, including the international crimes of genocide, crimes against humanity, war crimes, and torture: Stahn (n 121) 957–958, for a range of reasons including local peace exigencies not all persons known to have committed such acts were prosecuted.

144 This referral to the National Prosecuting Authority of South Africa by the Southern Africa Litigation Centre was for possible action should the accused be found within South African jurisdiction: Legalbrief Africa, Issue 279, 5 May 2008. The South African legislation is The Implementation of the Rome Statute of the International Criminal Court Act 2002: see further Max du Plessis ‘Bringing the International Criminal Court Home’ (2003) 1 South African Journal of Criminal Justice 1. An attempt to invoke the Act was made in September 2002 while Robert Mugabe was attending an international conference in Johannesburg, while in January 2004 a United Kingdom national sought an order against President Mugabe from a London magistrates court on torture charges. For an overview of this avenue see J Charney, ‘International Criminal Law and the Role of Domestic Courts’ (2001) 95 American Journal of International Law 120.

145 Dugard, Conflicts of Jurisdiction (n 25) 699. The exercise of that discretion might be mainly contingent on the quality of amnesty process that the state had followed, which no doubt inherently involves a political judgment about the democratic legitimacy of the regime sponsoring the amnesty.

146 Mark Ellis, International Bar Association, 7 March 2003 (IBA Press Release); see Legalbrief Africa, 7 March 2003. The August 2003 Zimbabwe civil society symposium's Declaration appeared to support the use of ICC mechanisms by any new government.

147 It would be a jurisdictional threshold question whether the level and kinds of violence perpetrated by certain individuals in Zimbabwe might trigger the International Criminal Court's subject-matter jurisdiction, including whether they could be considered part of an intentional widespread or systematic attack directed against a civilian population; and the Court has jurisdiction only in relation to crimes committed on or after 1 July 2002.

148 See articles 12, 13 and 14 of the Rome Statute of the International Criminal Court; see also P Kirsch and D Robinson, ‘Trigger Mechanisms’ in A Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (Oxford University Press, 2002). Zimbabwe signed the Rome Statute on 17 July 1998, but has not ratified it. A future government in Zimbabwe could, in terms of Article 12(3) of the Rome Statute (with 11(2)), make an ad hoc acceptance of the exercise of jurisdiction by the Court over its nationals or crimes committed on its territory; see also H-P Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese et al.

149 Commentators argue that this is because the Rome Statute was never drafted with the intention of allowing amnesty to be raised as a defence: Dugard, Conflicts of Jurisdiction with Truth Commissions 700–701; cf D Majzub, ‘Peace or Justice? Amnesties and the International Criminal Court’ (2002) 3 Melbourne Journal of International Law 251. How the ICC should deal with national level amnesties was put aside during negotiations on the Rome Statute, as there seemed no prospect of a consensus: J Holmes, ‘The Principle of Complementarity’ in Lee (ed), The ICC: The Making of the Rome Statute (Kluwer, The Hague, 1999) 60. Cases would be inadmissible before the ICC if they had already been subject to a criminal proceeding. While Article 17 of the Rome Statute refers to ‘investigation’ it seems clear that a truth commission investigation before a non-judicial body (granting amnesty) would not be sufficient to amount to a prior proceeding (requiring inadmissibility): the use of ‘investigation’ is tied to criminal proceedings since one will not be genuine where it is inconsistent with an intent to bring the person concerned to justice—a bona fide prosecution trajectory is what is contemplated: see Chesterman (n 33) 164; also Cryer (n 83) 277; Dugard, Conflicts of Jurisdiction (n 25) 701–2. The prosecutor's discretion is very wide and it is not clear how pardons and amnesties would fall to be treated: see generally J Dugard, ‘Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?’ (2000) 12 Leiden Journal of International Law 1001.

150 A ‘genuine’ amnesty (see discussion at n 140 above) might be recognised in appropriate circumstances. Article 53(2)(c) of the Rome Statute allows the Prosecutor to refuse prosecution where, after investigation, he concludes that ‘a prosecution is not in the interests of justice, taking into account all the circumstances’; see too Dugard, Conflicts of Jurisdiction 702; also Cryer (n 83) 278. The prosecutor would no doubt consider the quality of the truth commission's process (and of the bona fides and legitimacy of the regime sponsoring it), the nature of the offence, and the terms of disclosure on which amnesty was granted. The ICC scheme is not so blunt or automatic or insensitive to local realities that local imperatives for restorative justice cannot be accommodated. On the other hand, as Cryer has noted (278–281) these decisions are taken at an international level, and are out of the hands of the national authorities; the public interest of the ‘international community’ can be a veil for national self-interest of others: 283. See too the section ‘Prosecutorial Discretion and the Interests of Justice’ in Siels and Weirda, The International Criminal Court and Conflict Mediation (n 5) 12. William Schabas has also noted that a genuine but non-judicial effort at accountability, falling short of prosecution, might ‘have the practical effect of convincing the Prosecutor to set priorities elsewhere’: An Introduction to the International Criminal Court (2nd edn, Cambridge University Press, 2004) 87.

151 John Braithwaite has cautioned against ‘select [international] trials of demonized individuals that exonerate the collective and that may jeopardize responsive regulation to protect the vulnerable’, and how selective prosecution sends the signal that whoever is not charged is innocent: (n 44) 204.

152 Chesterman (n 33) 156.

153 This characteristic of ‘singularity’ is rightly emphasised by Iliff (n 13).

154 Compare Gutmann and Thompson's view that political stability is not itself a moral good unless it is necessary to the promotion of future justice: ‘The Moral Foundations of Truth Commission’ in Rotberg and Thompson (n 24) 23.

155 R Teitel, ‘Transitional Justice Globalised’ (n 24) 2.

156 See Sparrow, The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance (Brookings Institute, Washington DC, 2000).

157 Braithwaite (n 44) preface.

158 Local exigencies mean that detailed transitional justice prescriptions are unlikely to attract the practice and recognition necessary for international legal normativity. See also Cryer (n 83) 269.

159 Public international law courses at the University of Cambridge have traditionally been offered by the formal title of ‘the Law of Peace’.