Refuge Network International

The Practice, Problems and Prospects of Transitional Justice: the South African Experience – Human Rights Law Research Paper by Charles Gimoh

 

Introduction

There are various phases in the historical experiences of nations. There are times of peace, stability and prosperity; and there are periods of conflicts, adversity and insecurity. Peaceful dispensations may be characterised by democracy and good governance, while dispensations of conflicts may be marked by totalitarian oppression and widespread human rights violations. Disturbingly, report suggests the world is becoming increasingly dangerous and conflict-prone. There are currently 67 nations involved in wars;[1] 767 non-state groups involved in various conflicts;[2] and only 10 countries on the planet are now actually free from conflict.[3]

Societies emerging from conflicts and repression are confronted with the challenges of addressing gross human rights violations perpetrated during the period, and promoting justice, reconciliation, rehabilitation, democratisation, and stabilisation. It is these conditions that make the adoption and implementation of a transitional justice process a necessity within the affected community.

I would conceptualise Transitional justice (TJ) as the combination of judicial and non-judicial measures and mechanisms that may be deployed by a society emerging from conflict and repression, to address legacies of mass atrocities and widespread systematic human rights violations, with a view to entrenching democracy, ensuring accountability, enabling reconciliation, encouraging peace, and establishing stability. Francesc Vendrell defines it as involving ‘anything that a society devises to deal with a legacy of conflict and/or widespread human rights violations, from changes in criminal codes to…tackling the distributional inequities that underlie conflict.[4]

This paper is an attempt to contribute to ongoing research in the field of transitional justice and would reflect the view that TJ is a vital and effective tool for societies in transition, to promote peace, stability and democracy, but that its implementation may also generate some problematic aspects capable of ultimately undermining the peace and stability it seeks to promote.

Applying both a thematic and country case study approach, and drawing from a variety of texts and online materials, we will use South Africa as a case study to elaborate on the practice of transitional justice, enumerating the mechanisms through which it is practically delivered. We will also examine some of the problems and prospects of the South African Truth and Reconciliation TJ approach.

The discussion is divided into three main segments. The first and most detailed segment of the paper will examine the practice of transitional justice in terms of its mechanisms, focusing on their practical application in the South African transition process. The second segment will examine some problematic aspects of South Africa’s transitional justice exercise with a view to underscoring the limits of the TJ approach. And the third section would reflect on the prospects of the South African TJ experience.

The Practice of Transitional Justice

Attempts by societies to move on after a period of conflict are always complex and challenging. Post-conflict communities may be fragile and fragmented, with victims agitating for retribution, reparation and rehabilitation; and perpetrators spoiling for amnesty, some authority in the new government, or hostility if demands are not met. Applying a strictly criminal justice approach in such volatile circumstances may lead to the resumption of hostilities. The transitional justice approach provides a tool-kit for contextually appropriate legal and non-legal measures that may be applied towards navigating the delicate transition.[5]

Since the evolution of the transitional justice concept in the 1980s,[6] there has been increasing demand for the process arising from political instability in Eastern European states,[7] to armed conflicts in Africa[8] and Asia,[9] The need to evolve strategies that would balance the demand for justice with the exigencies of promoting reconciliation, peace and stability, has contributed to the rapid development of the field of transitional justice. This need was particularly important in the South African situation, and it reflected on the mechanisms that they adopted to deal with the peculiarities of their own transition.

The Mechanisms of TJ in South Africa’s Transition

The South African Truth and Reconciliation Commission was the arrow-head of the country’s transition programme which has been hailed as a model.[10] Consultation, Truth Commission, Criminal Accountability, Memory and Memorialisation, Gender Justice, Institutional Reforms, Reparations and Reconciliation, now widely accepted TJ mechanisms, all featured in the South African process. We will reflect on the South African experience and see how these practices were applied in the country’s transition.

The Machinery of South Africa’s Transitional Justice Approach

The South African Truth and Reconciliation Commission (TRC) was the machinery behind its transitional justice approach.[11] The country was grappling with historical scars arising from over 300 years of colonial subjugation which had become contemporised and institutionalised as Apartheid in 1948.[12] Following the liberation of political prisoners and deproscription of liberation movements in 1990, an interim constitution was drawn up in 1993,[13] and the first truly democratic elections were held on 27 April 1994, leading to the formation of a government of National Unity with ANC’s Nelson Mandela as president and F. W. de Klerk of the National Party as a Deputy President.[14]

The end of apartheid was preceded by consultations which laid the groundwork not only for a transition programme that was contextually adaptable to the prevailing situation, but one that was mutually acceptable to stake-holders. During this period collective concerns by the various political parties representing perpetrators and victims were raised and compromises reached. ‘As they debated how to manage the transition from apartheid, negotiators on behalf of the African National Congress (hereafter ANC) and the outgoing National Party clashed repeatedly’[15]

A major demand of the outgoing apartheid government was for amnesty for perpetrators, to prevent accountability for apartheid atrocities. The incoming government on the other hand, wanted justice, peaceful democratisation, and stability. Paul van Zyl posits that ‘the former government and its security forces never would have allowed the transition to a democratic order had its members, supporters or operatives been exposed to arrest, prosecution and imprisonment’.[16]

Many blacks canvassed for a Nuremberg style criminal prosecution of apartheid perpetrators. Though, terrible atrocities had been committed by both sides, the apartheid regime was largely responsible for most violations. However, because of the need to prevent further conflict that could degenerate into a civil war, the factions settled for a conditional amnesty-based restorative justice model.

The TRC was subsequently set up in 1995 through the Promotion of National Unity and Reconciliation Act 34 of 1995.[17]  The crucial challenge of the TRC was to deal with the legacy of almost half a century era of repressive apartheid rule by whites,[18] and about three decades of aggressive armed struggle by oppressed blacks.[19]  It was responsible for examining politically-motivated human rights abuses, perpetrated between March 1960 and May 10, 1994.[20]

In addition to its political and quasi-legal features, it also had moral, cultural and theological elements. Chaired by a clergyman, there was deliberate emphasis on forgiveness and reconciliation, including encounters between victims and perpetrators to facilitate personal apologies and forms of restitution.[21] Sessions were punctuated by prayers, singing, scripture reading and emotional manifestations.

Unlike previous transitions, such as those of Chile and Argentina which were established by presidential decrees, the South African Truth and Reconciliation Commission was established by a legislative act of parliament. This gave it some judicial powers which the other models did not have, like the power to subpoena.[22] It was thus able to ensure the participation of many perpetrators.

Documentation was integral aspect to the workings of the TRC. It was an attempt to generate a factual record of what happened during apartheid. ‘The information gathered by the TRC was central to fulfilling one of its most important functions- the official acknowledgment of human rights abuse’.[23] According to Baumgartner et al, ‘The documentation of past human rights violations can help with the prosecution of perpetrators, identification of victims for reparations programmes, and the planning of memorials.’[24]The South African TRC process reflected both truth-telling and truth-seeking elements. Villa-Vicencio and Verwoerd identify personal truth narratives, moral truth, historical truth, forensic truth, healing and restorative truths, as some of the multiplicitous strands of truth that manifested at the TRC.[25]  The various hearings facilitated the process of unearthing the events of the past and collating accurate records through various submissions, oral, written, and recorded that were made by testifiers. The TRC’s truth-seeking exercise was particularly helpful, not just for establishing culpability of perpetrators for amnesty and accountability; but importantly for victims, as disclosures led to discoveries that enabled proper burials, apologies, reconciliation, closure, and memorialisation.

The Membership of the TRC

Some transitional justice programmes are made up of both local and international actors. Organisations like the UN and international NGOs are increasingly active actors in many contemporary national transitional justice processes, like that of Afghanistan.[26] This sort of collaboration is particularly important in fragile states. They may also involve international tribunals and the ICC.[27]

South Africa’s transition was principally a South African affair. The 17 commissioners of the TRC were all South Africans drawn from various backgrounds such as the academia, the judiciary, and civil society, and nominated by the various political interests. It had a good gender balance of nine men and eight women, with Arch Bishop Desmond Tutu as Chairperson.[28]  The commission had a total of 438 employees,[29] with about 300 staff working with its 3 committees.[30] There were 12 foreign investigators who supported its 60 local police investigators. This represented a form of international collaboration.

The Mandate of the TRC

The mandate of the TRC was ‘to prepare a record of the apartheid era, make recommendations for reparations, and grant amnesty on the basis of individual applications in limited circumstances.’[31] Its aim was ‘to combat impunity and recreate a culture of accountability, and most importantly to uncover truth about gross human rights violations and assist families of the victims in getting closure;[32] while promoting reconciliation.

The Method of the TRC

The Commission had its first sitting on the 15th of April 1996 in the locality of East London. It was the first of a series of meetings that took place in various communities all over the nation, spanning a two and a half year period.[33] It released the first five volumes of its final report on 29 October 1998, and the remaining two volumes on 21 March, 2003.

There were 3 special hearings and 6 institutional hearings covering key segments of the population. The special hearings encompassed children and youth interests, women, and military service; while the institutional hearings involved the religious community, labour and business, the prisons, media, the legal profession and the housing sector.[34]  Victims, perpetrators and witnesses testified.

Sessions of the commission received detailed coverage on papers, national radio and television with translations into the various national languages, and were also transmitted internationally.

The work of the commission was carried out by three committees namely, the Human Rights Violations Committee, Amnesty Committee, and Reparations and Rehabilitation Committee.

Human Rights Violations Committee

This committee had the main responsibility of investigating human rights abuses.  It investigated politically- motivated human rights violations like torture, abductions, severe-ill treatments, and killings that occurred during the apartheid regime between 1960 and 1994. It covered both institutional and individual participants.

Institutional figures of the state like law enforcement agents as well as civil society representatives like the clergy and the business community were invited to testify before it.[35] This helped in establishing the level of complicity, level of collaboration or non- involvement of key institutions in the human rights violations of the apartheid era. It was also an attempt to establish some form of individual and collective accountability and to come up with reform proposals to prevent future systematic violations.

The committee had public sessions in various parts of the country and received over 21,000 testimonies, 20 percent of which was shared publicly by testifiers. Majority were blacks and mostly women, many representing their deceased, disappeared, or damaged family members. According to a World Bank study, ‘The South Africa case set an important precedent in the incorporation of a gender perspective in a TC… women were invited to tell their stories and express their demands for justice and reconciliation.[36] However, a United Nations report has criticised the TRC ‘for its failure to achieve gender justice because of a narrow interpretation of its mandate … and also a narrow interpretation of gross violations of human rights.’[37]

‘The TRC regarded these hearings as vital to achieve one of its statutory objectives—“restoring the human and civil dignity of such victims…” The hearings …made it impossible for South Africans ever again to deny that such violations had indeed taken place.”[38]

Amnesty Committee

This committee had quasi-judicial procedures and was made up of three judges and two members with law degrees.[39]  ‘The TRC operated outside South Africa’s domestic legal system, but the Amnesty Committee’s amnesty decisions were binding on domestic courts. The Commission had powers of subpoena, search, and seizure enforced by domestic law enforcement officials.’[40]  Legal representation was also permitted for those who testified before it. At the core of its activities was the need to get the truth about the apartheid era, and conditional amnesty was the price of obtaining that truth directly from perpetrators. This conditional amnesty strategy was a departure from previous transitional justice models and represents one of the distinctions of the TRC’s work. However, it has also received some criticisms for absolving many criminals.[41]

The committee was empowered to accord amnesty to only those who could prove a political motive behind their crimes. The individual also had to make a truthful and full disclosure of the concerned apartheid atrocity and prove that the action taken was proportional to the objective.

The process involved perpetrators encompassing state actors and the civil populace. Full and truthful confessions of atrocities by perpetrators aided the healing process for victims as many got to know how their loved ones were killed and where they were buried.  Amnesty meant that the perpetrator was free from prosecution for the act concerned. In all, the committee entertained a total of 7,112 applications, granted amnesty to 849 individuals, and refused 5,392 perpetrators amnesty. A number of cases were withdrawn.[42]

Curiously, major apartheid leaders did not appear before the committee. It was essentially an affair involving low and mid-level officials. ‘In the case of the liberation movements, the members argued that as they had conducted a “just war,” they were not required to apply for amnesty’.[43]

Reparation and Rehabilitation Committee

This committee consisted mostly of medical experts and was empowered ‘to provide victim support to ensure that the Truth Commission process restores victims’ dignity; and to formulate policy proposals and recommendations on rehabilitation and healing of survivors, their families and communities at large.’[44]

It had the responsibilities of determining victims who qualified for reparations; discovering the harm they had suffered; ascertaining their immediate needs and expectations; evolving short term measures to help those in urgent need; and making long term recommendations for individual and community reparations and rehabilitation. The government dedicated a presidential fund to facilitate victims’ payments and the rehabilitation process.[45]

The reparation process had the unique and controversial elements of restricting compensation payments to only those who registered during the life-time of the TRC, and only those who testified before the commission were eligible to participate in the reparations program.

The committee proposed a reparation and rehabilitation policy that covered five areas: Interim Reparation, Individual Reparation Grants, Symbolic Reparation, Legal and Administrative measures, Community Rehabilitation Programmes, and Institutional Reform.  Individual benefits included exhumations and ceremonial reburials, issuance of death certificates, and memorial tombstones. Community symbolic measures and memorialisation included street and facility renaming, memorial monuments (such as the Soweto Memorial in Johannesburg) and culturally relevant ceremonies reflecting communal needs and sensitivities in relation to the period. National benefits included national monuments as a reminder of the past and to serve a ‘never again’ future purpose. It also recommended, wide-ranging rehabilitation of communities, education, health, housing and institutional reforms aimed at creating a socially balanced society.[46] Financially, it recommended a wealth tax from corporations that benefitted from apartheid and ‘that each victim or family should receive approximately $3,500 USD each year for six years.’[47]

The Problems of Transitional Justice

South Africa’s transitional justice process though arguably peaceful, has been problematic and riddled with contradictions. These comments from one of South Africa’s foremost historical research portals, gives an insight into the situation:

Amongst others, the TRC has been criticized for its narrow focus which ‘failed to adequately situate the gross human rights violations in the wider context of apartheid which include forced removals and the expropriation of land,… instead of focusing on political repression’…this presented a ‘compromised truth’ that excluded a large number of victims from the Commission’s scope.

The process has been variously described both as a success and as a failure. While there was some success in achieving peace and in obtaining some truth; reconciliation and justice have been largely problematic. According to the ICTJ, ‘much has been lacking and accountability for many issues has yet to be achieved.’[48]

These problematic aspects, underscore some of the limitations of TJ as a tool for ensuring holistic outcomes. Due to the constraint of space, I shall briefly reflect on the justice and peace problems, as well as the reparation, rehabilitation, and reconciliation problems.

The Justice and Peace Problems

This is focused on the questions of criminal accountability and issues to do with peace. Major failings of the TRC in terms of justice, were ‘the disregard of racism as a political crime,’ and ‘the abandonment of retributive justice as a principle.’[49] The TRC has been criticised for not considering the racist crime of apartheid itself which is a crime under international law. Also, in applying a restorative justice approach, many perpetrators of major criminal violations of human rights escaped prosecution.

These accountability problems are a reflection of some of the tensions often apparent in transitional justice practices, the tensions between justice and power; between the need for peace and the need for justice; between national law and international law. In terms of the tension between justice and power, Clive Mentzel argues that the South African transition necessitated a ‘pragmatic balancing act’ between the need for ‘ideal justice’ and the demands of political power.[50] Those in power curtailed the demands for justice based on political expediencies. Officials of the old order leveraged their military power to negotiate a compromise with the ANC that guaranteed them amnesty during the transition.[51] Mainly low and mid-level officials testified before the TRC, leaving the key political actors of the regime completely off the hook. This was a major problem with the process. Political considerations effectively undermined judicial obligations. This tension also manifested in relation to the justice and peace question, the threat of resistance and war by the old regime, meant that justice had to be traded for peace. And in terms of the tension between national laws and international laws, by applying a restorative justice approach, the state inadvertently shielded criminals from prosecution. The consequence of this was that apartheid era actors guilty of widespread contraventions of major international human rights laws such as the treaty against racism,[52] the treaty against torture and other inhuman acts,[53] the covenants on civil and political rights,[54] the convention on the rights of the child,[55] convention on the crime of Apartheid,[56] and various subsisting international laws, escaped justice.

Though Desmond Tutu has argued that the TRC delivered justice, a healing restorative justice based on forgiveness[57] and in line with the South African principle of Ubuntu which is centred on a shared humanity;[58] but there are strong arguments against this. Stephan Landman contends that ‘Criminal prosecution of egregious human rights violations is usually the wisest course for a successor regime,’ and that Truth Commissions must not exonerate perpetrators of gross criminal acts.[59] Elliot Abrams and Gutmann et al conclude that ‘there is a moral cost when justice is subordinated to “truth,” “history,” “reconciliation,” or any other goal.’[60]

The absence of proper criminal accountability breeds a culture of impunity and creates acrimony within the affected community, thus hampering reconciliation. This is exactly what has happened in the South African experience. There is widespread dissatisfaction, indignation and social discontentment, especially among the victims who feel short-changed by the TJ process.[61]

The Reparation, Rehabilitation and Reconciliation Problems

The reparation and rehabilitation problems have become the most contentious and acrimonious issues of South Africa’s transition justice exercise. Victims and civil society organisations such as the Khulumani Support Group the ICTJ, and the South African Coalition for Transitional Justice are still agitating on these issues.[62] And it goes without saying, that true reconciliation becomes difficult under these circumstances.

While TRC’s recommended reparations payments were criticised as being too little, the government reduced it even further by making only a one-off payment of a little over $3000 (estimated by some as $4000 depending on exchange rates) to individuals. Many identified victims are yet to receive this paltry payment. As the number one demand by victims was for financial reparations,[63] this is particularly upsetting; more so as majority of apartheid victims are the vulnerable black poor.

Also, ‘of the countries that have implemented reparations based on truth commission recommendations, South Africa is the only one that has restricted the number of recipients to those registered by its TRC’[64]. This is a major problem of the South African transition process as it has denied thousands of victims who did not register with the TRC the right to reparations.

There is also the problem associated with the tension between reparations and amnesty. It has been argued that while the amnesty was generous and quick, reparations were small and slowly delivered.[65] Many individuals are still fighting for reparations and many black communities have also not benefitted from the post-apartheid rehabilitation exercise that they envisaged the TJ process would deliver.

While there have been strides on reconciliation at various individual and community levels, the nation still has some work to do in the area of reconciliation. Though ‘some victims did indeed offer forgiveness, for the most part perpetrators did not come forward or acknowledge their crimes. Now two decades on, few would argue South Africa has achieved the reconciliation the TRC sought. Despite progress, racial gulfs and economic

disparities persist.’[66]Adam Sitze sums up the feeling on this issue describing the TRC process an impossible machine which has over-promised and has not produced reconciliation.[67]

Millions of black South Africans are still suffering poverty and deprivation similar to the apartheid era, while the minority white beneficiaries are still enjoying their unjust apartheid gains. A Global Wealth Report by Oxfam cited South Africa as the most unequal nation on earth with just two citizens owning as much wealth as 50% of the nation’s population.[68] People are angry. Last year, a WHO report listed South Africa among the top 10 most violent nations on earth.[69]

The Prospects of Transitional Justice

Opinions on the success and prospects of South Africa’s transition vary. The ICTJ declares that ‘South Africa’s experience…has played a significant role in the development of the transitional justice field’.[70] For Desmond Tutu, the ‘TRC provided some basis for considering conditional amnesties as a useful compromise, particularly if they help to secure perpetrator confessions’ and ‘represented a major departure from the approach taken at the Nürnberg trials. It was hailed as an innovative model for building peace and justice and for holding accountable those guilty of human rights violations’.[71] For Leslie Vinjamuri, the TRC ‘was inevitably compromised, the vast majority of political crimes remain unreported, and the majority black population has so far failed to reap the economic benefits of transition. What the commission did manage, though, was to inject a moral resource for talking about the past while preserving the political transition.[72]

On a cursory level, it is facile to dismiss the South African transition as not that successful given the reasons mentioned earlier. However by looking at the context of the political climate in which the transition occurred, we get a different perspective of the outcome, one that is positively optimistic. The Nuremberg trials were successfully done and key players were brought to justice because the allies had defeated the perpetrators, so they had the political and military might to facilitate a victor’s justice. The South African case was completely different. The whites were in control of government and had the capacity to truncate the transition process. It was the balance of power that dictated the outcome of the transition. It was a case of choosing between a full-scale long-drawn civil war, or settling for a compromised peace that would facilitate a successful democratic transition and stability while working towards possible reconciliation. The government chose the latter. Looking back some twenty years later, and with the benefit of historical hindsight, it is difficult to conclude that the TRC was not successful. The histories of many ongoing national crises suggest that South Africa did the right thing. Whatever challenges her people are passing through today is incomparable to the utter carnage and unending conflicts happening in countries with failed transitions like South Sudan,[73] Libya,[74] and Afghanistan.[75]  It would take decades to restore these nations to their former glory and nothing can ever restore the lives that are being taken as these conflicts persist. So this is perhaps South Africa’s greatest achievement, peace, democracy and stability.

However, in the attempt to make peace, South Africa settled for a ticking-time- bomb compromise that could explode in future. This in my opinion was the greatest error of the transition programme. The failure to effect criminal accountability may be excusable in the light of the jeopardy factor, but what is inexcusable is the failure to redress the economic inequalities created by apartheid, via a robust and comprehensive redistributive justice process of reparations, restitution and rehabilitation to redistribute wealth and uplift the living standards of the millions of victims pauperised by the oppressive system. This problem could lead to future conflicts capable of threatening the very existence of the South African state.

We are thus confronted with the contradictions of South Africa’s transition process, one that highlights the effectiveness of TJ as a tool for democratisation, peace and stability, but with problematic aspects capable of ultimately undermining the peace and stability it seeks to promote.

Conclusion

This paper has examined the subject of transitional justice with specific focus on the South African experience. The successful practical application of TJ mechanisms within the context of South Africa’s historic transition from an oppressive apartheid system to a stable peaceful democratic society is indicative of the powerful prospects and potentialities inherent in the transitional justice approach to transitions.

However, the paper has also underscored the fact that South Africa’s transition process was not a holistic success, as it was characterised by positive and negative elements. While amnesty has been made to perpetrators speedily and generously, reparations have not been given to victims expeditiously and comprehensively. While beneficiaries from the racist apartheid era got to keep their loot, victims of the former era still suffer from economic apartheid. Peace and stability have come at the expense of justice and truth; and restorative justice was not followed by redistributive justice.

These ambiguities in the South African experience are realities that are reflective of the view I have attempted to advance in this paper that TJ is a vital and effective tool for societies in transition, to promote peace, stability and democracy, but that its implementation may also generate some problematic aspects capable of ultimately undermining the peace and stability that it seeks to promote.

Understandably, it may take years to achieve full reconciliation and social justice; however these are areas the government can work towards improving progressively. It is still too early to draw full conclusions on the ultimate outcome of this process. However, some encouragement we can take away from the South African process is that it definitely helped in ensuring a peaceful transition, it helped in establishing and consolidating democracy, it has so far succeeded in maintaining peace and stability, and it has left the door open for the process of reconciliation to develop.

 

Reference

[1] Warsintheworldcom, ‘List of ongoing Conflicts’ (Warsintheworldcom, 12 August 2017) accessed 15 August 2017.

[2] Ibid.

[3] Adam Withnall, ‘Global Peace Index 2016: There are now only 10 countries in the world that are actually free from conflict’ (The Independent, 8 June 2016 ) accessed 12 August 2017.

[4] Francesc Vendrell, ‘Transitional justice and international criminal law’ (Peace versus Justice Seminar, 3rd July) accessed 15 July 2017.

[5] Ictjorg, ‘What is Transitional Justice?’ (Ictjorg, 2009) accessed 12 August 2017.

[6] Ibid.

[7] Lavinia Stan, Transitional Justice in Eastern Europe and the former Soviet Union (1st edn, Routledge 2010).

[8] David J. Francis, Africa at War against Itself: Civil Wars and New Security Threats. in Erin Mccandless and Tony karbo (eds), Peace, Conflicts, and Development in Africa: A Reader (University for Peace 2011) 53-67.

[9] Nigel Inkster, ‘Armed Conflict Survey 2015 Press Statement’ (International Institute for Strategic Studies, 19 May 2015) accessed 12 August 2017.

[10] Msuedu, ‘ Exploring the Truth and Reconciliation Commission’ (Msuedu, No Date) accessed 21 August 2017.

[11] Adam Sitze, The Impossible Machine: A Genealogy of South Africa’s Truth and Reconciliation Commission (University of Michigan Press 2016).

[12] Padraig O’Malley, ‘Colonial Background-Apartheid’ (Nelsonmandelaorg) accessed. 9 August 2017.

[13] Peaceaccordsndedu, ‘Powersharing Transitional Government: Interim Constitution Accord’ (Peaceaccordsndedu, 2015) accessed 15 August 2017.

[14] Ibid.

[15] Nir Eisikovits, ‘Transitional Justice’ (The Stanford Encyclopedia of Philosophy , Winter 2016 Edition) accessed 12 August 2017.

[16] Paul van Zyl, ‘Dilemmas of Transitional Justice: The Case of South Africa’s Truth and Reconciliation Commission’ [Spring 1999] 52(2) Journal of International Affairs 648.

[17] Justicegovza, ‘Promotion of National Unity and Reconciliation Amendment Act 34 of 1995 ‘ (Justicegovza, 2005) accessed 9 August 2017.

[18] O’Malley, (N13)

[19] Stephen Ellis, ‘The Genesis of the ANC’s Armed Struggle in South Africa 1948–1961′ [2011] 37(4) Journal of Southern African Studies 657-676.

[20] Justicegovza, ‘Promotion of National Unity and Reconciliation Act 34 of 1995′ (Justicegovza, Assented to 19 July 1995] [Date of commencement: 1 December 1995) accessed 21 August 2017.

[21] Clive Mentzel, ‘South Africa – Where Is the Truth and Where Is the Reconciliation? ‘ (YouTube, 11 May 2016) accessed 19 August 2017.

[22] Cornelledu, ‘South African Truth Commission’ (LII / Legal Information Institute, No Date) accessed 21 August 2017.

[23] Van Zyl, (n 13)

[24] Elisabeth Baumgartner and others, ‘Documentation, Human Rights and Transitional Justice’ [ 01 April 2016] 8(1) Journal of Human Rights Practice 1-5.

[25] Charles Villa-vicencio and Wilhelm Verwoerd, Looking Back – Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (University of Cape Town Press 2000).

[26] Sari Kouvo and Patricia Gossman, ‘Tell Us How This Ends. Transitional Justice and Prospects for Peace in Afghanistan’ (Afghanistan-analystsorg, June 2013) accessed 20 August 2017.

[27] Drazan Dukic, ‘Transitional justice and the International Criminal Court – in ‘‘the interests of justice’’?’ [2007] 89(867) International Review of the Red Cross 691-718.

[28] Usiporg, ‘Truth Commission: South Africa’ (United States Institute of Peace, 1 December 1995) accessed 16 August 2017.

[29] Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission (Oxford University Press 2000).

[30] Usiporg, (n 27).

[31] Hrworg, ‘Truth and Justice: Unfinished Business in South Africa, Amnesty International / Human Rights Watch Briefing Paper’ (Hrworg, February 2003) accessed 16 August 2017.

[32] Sahistoryorgza, ‘South Africa – First 20 Years of Democracy (1994 – 2014)’ (South African History Online, 20 Mar 2017) accessed 16 August 2017.

[33] Sahistoryorgza, ‘Truth and Reconciliation Commission (TRC)’ (South African History Online, 12 April 2017) accessed 21 August 2017.

[34] Sahaorgza, ‘TRC Final Report’ (Sahaorgza, 2017). accessed 21 August 2017.

[35] Ibid.

[36] Worldbankorg, ‘Gender, Justice, and Truth Commissions’ (Worldbankorg, 2006) accessed 17 August 2017.

[37] Rashida Manjoo, ‘The South African Truth and Reconciliation Commission—a Model for Gender Justice? (Draft)’ (Unrisdorg, 2004) accessed 17 August 2017.

[38] Hrworg, (n 30).

[39] Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission (Oxford University Press 2000) 116.

[40] Cornelledu, (n 23)

[41] Ibid 117.

[42] Justicegovza, ‘Amnesty Hearings & Decisions’ (Justicegovza, 2017) accessed 16 August 2017.

[43] Desmond Tutu, ‘Truth and Reconciliation Commission, South Africa (TRC)’ (Encyclopedia Britannica, 22 February 2017) accessed 20 August 2017.

[44] Justicegovza, ‘The Committees of the TRC’ (Justicegovza, 2017) accessed 17 August 2017.

[45] Nationalgovernmentcoza, ‘President’s Fund’ (National Government of South Africa, 2017) accessed 20 August 2017.

[46] Justicegovza, ‘A Summary of Reparation and Rehabilitation Policy, Including Proposals to be Considered by the President’ (Justicegovza, No-date) accessed 17 August 2017.

[47] Usiporg, (n 27).

[48] Ictj, ‘South Africa’ (ICTJ, No-Date) accessed 17 August 2017.

[49] Cristina Buarque De Hollanda, ‘Human rights and political transition in South Africa: the case of the Truth and Reconciliation Commission’ [2013] 7(1) Brazilian Political Science Review 12.

[50] Youtubecom, ‘South Africa – Where Is the Truth and Where Is the Reconciliation? 33116′ (YouTube, 4 April 2016) accessed 18 August 2017.

[51] Paul Van Zyl, ‘Dilemmas of Transitional Justice: The Case of South Africa’s Truth and Reconciliation Commission’ [Spring 1999] 52(2) Journal of International Affairs 648-651.

[52] International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (ICERD).

[53] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT).

[54] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

[55] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC).

[56] International Convention on the Suppression and Punishment of the Crime of Apartheid ( adopted 30 November 1973, entered into force 18 July 1976) A/RES/3068(XXVIII).

[57] Youtubecom, ‘Apartheid, Perpetrators, Forgiveness: Desmond Tutu’s views’ (YouTube, 20 April 2008) accessed 18 August 2017.

[58] Youtubecom, ‘Truth Justice Memory: South Africa’s Truth and Reconciliation Process [Introduction]’ (YouTube, 4 April 2014) accessed 18 August 2017.

[59] Stephan Landman, ‘Alternative Responses to Serious Human Rights Abuses: of Of Prosecution and Truth Commissions’ [Fall, 1996] 59(4) Law and Contemporary Problems 92.

[60] Elliot Abrams, ‘Truth Without Justice’ [2001] February(10) Policy Review 73.

[61] Ictj, ‘South Africa’ (ICTJ, No-Date) accessed 17 August 2017.

[62] Ictjorg, ‘Annual Report 2004/2005′ (Ictj.org, 2005) accessed 18 August 2017.

[63] Mentzel, (n 22).

[64] Sufiya Bray, ‘Article on the ‘Unfinished Business’ of reparations in South Africa in the Pan-African Reparation Perspectives Bulletin’ (Khulumaninet, 8 July 2014) accessed 19 August 2017.

[65] Clive Mentzel, ‘The Truth and Reconciliation Process in South Africa’ (YouTube, 11 May 2016) accessed 19 August 2017.

[66] Paul Seils, ‘After the Rupture: Understanding Transitional Justice and Reconciliation’ (International Center for Transitional Justice, 29 June 2017) accessed 20 August 2017.

[67] Adam Sitze, ‘Adam Sitze on Rethinking South Africa’s Truth and Reconciliation Commission’ (YouTube, 10 April 2013) accessed 21 August 2017.

[68] Bianca Ackroyd, ‘Report declares SA as world’s most unequal country’ (Encacom, 30 October 2014) accessed 19 August 2017.

[69] Alexis Haden, ‘South Africa now ranked the world’s ninth most violent country’ (The South African, 24 May 2016) <https://www.thesouthafrican.com/south-africa-now-ranked-the-worlds-ninth-most-violent-country/> accessed 22 August 2017.

[70] Ictj, (n 50).

[71] Tutu, (n 43).

[72] Leslie Vinjamuri , ‘Lessons From Africa’s Efforts at Transitional Justice’ (Nytimescom, 6 JANUARY 2014) accessed 20 August 2017.

[73] Mahmood Mamdani, ‘Can the African Union Save South Sudan from Genocide?’ (Nytimescom, 25 September 2014 ) accessed 21 August 2017.

[74] Frederic Wehrey, ‘Why Libya’s transition to democracy failed’ (Washington Post, 17 February 2016) accessed 21 August 2017.

[75] Kuovo and Gossman, (n 27).

 

List of Primary Sources

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT).

Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC)

International Convention on the Suppression and Punishment of the Crime of Apartheid ( adopted 30 November 1973, entered into force 18 July 1976) A/RES/3068(XXVIII)

International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (ICERD)

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

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