Available online at: http://www.uniya.org/talks/byrne_sep05.html

Roads to reconciliation

A version of this paper was published as Uniya-JRS Occasional Paper, no.9, September 2005

What do nations need to do to heal the wounds of the past? At first glance the recent traumatic experiences of South Africa and Timor-Leste (East Timor)[1] might appear to have little in common with a nation like Australia, with its long history of stable democratic government. While acknowledging the historical and cultural differences, this paper argues that there may be lessons from the transitional justice processes undertaken in these nations for the Indigenous reconciliation process in Australia.

Transitional and restorative justice

Transitional justice has been defined as the pursuit of “accountability for past mass atrocity or human rights abuse... in societies emerging from repressive rule or armed conflict, as well as in established democracies
where historical injustices or systemic abuse remain unresolved.”[2] Countries with unhealed historical wounds may, by this definition, have something in common with those emerging from war and/or oppression.

In the past, transitional justice processes have mostly been based on a retributive framework[3] motivated by concerns for accountability, punishment and rehabilitation (the Nuremberg trials of Nazi war criminals being the most famous example). However, retributive justice is usually adversarial, expensive and time-consuming. In addition, it may not lead to the uncovering of truth; contrition on the part of offenders; justice for victims; or the healing of individual or communal wounds.

Recent transitional justice processes have therefore increasingly been based on a restorative justice model, which “emphasises repairing the harm caused or revealed by criminal behaviour... through cooperative processes that include all stakeholders.”[4] The idea is to bring victims and offenders together, giving perpetrators the opportunity to admit their crimes while victims are afforded the opportunity to tell their stories.
Some perpetrators are moved to express remorse, while some victims come to forgive their perpetrators. Restorative measures are adapted to local conditions and include forums for victims to confront offenders, the use of customary law and the payment of reparations.[5]

South Africa

As South Africa made its “long night’s journey into day”[6] following the end of apartheid rule in the early 1990s, it set up a Truth and Reconciliation Commission (TRC) “for the investigation and the establishment of as complete a picture as possible of the nature, causes and extent of gross violations of human rights committed”[7] between 1960 and 1994.[8]

Between 1996 and 1998 the TRC took statements from more than 21,000 victims documenting allegations of over 38,000 human rights crimes, including 10,000 murders. There were more than 8,000 applications for amnesty from prosecution (although only a small minority of these were approved).[9] The hearings gave victims the opportunity to speak in public and have their grief and anger heard by perpetrators and the nation. It enabled a new era of South African history to be built on the foundations of a human rights culture and truth about the past, so that the crimes of apartheid could never be denied (as has sometimes happened with the Holocaust).

Nevertheless, the TRC has been widely criticised for two main reasons. First, reparations to survivors and the families of victims were generally regarded as inadequate and have been slow to materialise. Second, offenders
were guaranteed amnesty from prosecution if they agreed to appear before the TRC and tell the whole truth. Some victims ­ most notably the wife of murdered activist Steve Biko ­ took the TRC to the nation’s highest court
(unsuccessfully) on the grounds that it had taken away their right to seek justice.[10] Mere confessions were not enough: many also wanted contrition and some demanded punishment.

In this respect the TRC’s hands were tied. The amnesty guarantee was part of the deal made in 1994 between the African National Congress and the apartheid government of F. W. de Clerk that led to the elections which
ended the era of white rule.[11] This compromise resulted in the addition of a postamble to the 1994 Interim Constitution which articulated “a need for understanding but not vengeance, a need for reparation but not
retaliation, a need for ubuntu [humaneness and community interdependence] but not victimization.”[12]

The TRC was therefore intended from the outset to be an exercise in restorative rather than retributive justice.[13] As TRC Chairman Archbishop Desmond Tutu saw it, restorative justice “is concerned not so much with
punishment as with correcting imbalances, restoring broken relationships ­ with healing, harmony and reconciliation.”[14]

Central to Tutu’s vision for the TRC were two principles: the healing power of truth and memory, and forgiveness as an alternative to revenge. Hearings were held under a banner that read “Truth: the road to reconciliation.”[15]
In one hearing Tutu stated that “This process is not about... persecution... It's about getting the truth, so that we can help to heal...”[16] For victims and offenders, black and white, having the opportunity to remember and confess their crimes or express their pain in a supportive environment was thought to help the healing process ­ whether or not it was accompanied by contrition on the part of offenders, their prosecution and punishment under criminal law, or reparations for victims.

Offenders were not asked to do anything other than tell the whole truth. Instead, Tutu spoke of “substituting forgiveness for revenge and reconciliation for retribution.” [17] Forgiveness, he says, is “the best form of self-interest, because I’m also releasing myself from the bonds that hold me captive”.[18] At TRC hearings victims were sometimes encouraged to forgive their offenders, even in the absence of contrition. As well as helping victims to come to terms with their grief, forgiveness was believed to be helpful to national reconciliation.[19] While this encouragement sometimes worked quite powerfully, other victims felt it to be forced, false, or offensive to their grief.[20]

Although there had been earlier truth commissions, South Africa’s TRC gave the world a legacy of establishing truth as the foundation of reconciliation, the critical role of public hearings, the importance of cultural concepts such as ubuntu, and the healing power of forgiveness. However, it also emphasised the need for other transitional justice processes to consider the relevance of criminal trials; to implement a range of restorative justice measures other than forgiveness; to balance the needs of individuals and the community; and to offer appropriate
reparations to victims.

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