CONSTRUCTING POST-CONFLICT JUSTICE
The South African Truth and Reconciliation Commission
As an Ongoing Invention of Reconciliation and Truth
© 1999, Stéphane Leman-Langlois

PhD Thesis
Centre of Criminology
University of Toronto
November 1999

READ MY PRESENTATION FOR ORAL EXAMINATION (comments welcome)
READ COMPLETE THESIS (scanned .pdf, Library and Archives Canada)
 
 

Abstract

This thesis aims at deepening our understanding of the creation and work of post- conflict justice initiatives, and takes as a case study the South African Truth and Reconciliation Commission (TRC). Its main question could be put this way, "what does it mean to 'invent' a new way of doing (post-conflict) justice, what does it involve, how is it done?

I take this question as one about a social process, rather than one of legal or political rationality, and I explore possible answers not in terms of solving the legal problems at hand, but rather as the identification, articulation and application of the "proper" normative principles to a corresponding construction of the social context. Under this light, the "tone" of any possible answer appears almost right away: because I take none of these elements as "natural" or even "cultural" in the sense of "given," they are fragile and must be protected. Because they are constructions, they only "float" above material elements, they are not anchored in them; they are also unlikely to be understood or reproduced in the same way by different individuals. So "inventing" a new institution is going to be a continuous process of creation and maintenance of contingent concepts.

To portray the TRC, either in analyses or in political debates, as having either followed the law and met its objectives, or on the opposite broken with the mission and ideals set by Parliament would be to take meanings as set, and either accepted or ignored (willfully or through incompetence). The story of the TRC project disproves this. What we will see below is a development not simply of a solution but of the definition of the context as well, and including the logical link between the two: what makes a solution be recognized as one. None of which is bound to be impervious to changing settings for action, say from Parliament to the Commission, but within the Commission as well since its operation on reality transforms it. Therefore, any evaluation of success or failure of the TRC, if it is to extricate itself from the process it purports to evaluate, should go beyond appearances of conformity or breaks with established plans, the letter or the spirit of the law, etc. and rather look at these as further developments.

This story breaks down into four main stages, or sites where the principal issues related to the TRC were discussed, understood, constructed. The first one was the determination that the situation in post-apartheid South Africa was not compatible with conventional justice solutions. This was done not through objective observation but rather by 1) reinforcing the view of history as a political conflict and 2) that in this case retribution is unjust, vengeful, etc. This recasting of fundamental elements was articulated and spread through the myth of "Nuremberg:" not the legal/technical precedent, but what Nuremberg was understood to stand for in terms of general principles, i.e. the way it reflected and supported a specific version of what society is and what it needs.

The second site concerns the discussion of what the proper alternative should be. Conventionally, this is the point where those in charge look for like situations and intelligent solutions elsewhere and adapts them to their particular problem. And on the surface that is exactly what happened, and South American truth commissions were invoked as good examples, the Chilean one in particular. Taking this at face value, however, is missing a very important process: rather, we should wonder how an alternative appears as "proper" and why a solution is "intelligent." In this case "Chile" became a powerful way to condense disparate agendas and gloss over unresolved differences with a "real" example of reconciliation, of peace, of absence of recriminations, and to finally produce legislation and project an image of effective government.

We then leave behind drafters and parliamentarians to follow the project into its practical application. There is no discontinuity there as what we are following is a set of images and concepts through continuous transformations; this is simply a new stage for new elements to influence the production of meaning. Practices related to perpetrators in the TRC were to transform the meaning of justice and reconciliation: because acknowledgements of wrongdoing were not forthcoming in practice, while being the basis for "restoring victims' dignity" and the moral order that reconciliation was understood to depend on, the Commission as a whole broke with its neutral stance and adopted a more condemnatory discourse.

The Commission represented "its" victims in very specific ways. Through the retelling of narratives of their victimization, and of their participation in the process, we see the TRC project being built as a victim-oriented institution by constant realigning victims' experiences with its practices of hearing the truth, gathering the truth and symbolically offering compensation (it actually only made recommendations for reparations).

Finally, I will conclude with the way "reconciliation" is portrayed in the TRC's Final report. The Report of course presents the entire story as a rational plan being realized. To do this, and to protect itself against accusations of not having promoted reconciliation, as well as to integrate the moral condemnations it was supposed to avoid, "reconciliation" was evacuated from the original mission. Not that it did not happen, but that it happened despite the main objective of the work of the TRC: finding a normatively significant truth. Truth is a divisive thing, says the Chairperson.

The development of the TRC project shows a continuous work of construction of both the ideals aimed at, the methods to be used and the historical reasons why something needs to be done. Throughout, all the elements of the project are constantly readjusted to maintain a consistent discourse about the world and how to act in it.


Chapter 1: Introduction ...1
1: Post-Conflict Justice: context, problem and solution ...3
1.1: Truth commissions can restore the moral order
1.2: Comparative analyses: commissions are product of context
1.3: Negotiation and compromise: defining the ideal and the possible
1.4: Rethinking Justice and government responsibility

2: Doing post-conflict justice: producing coherence and predictability ...25

2.1: Making the world predictable
2.2: Unruly reality and creative power
2.3: Post-conflict justice as work in progress
2.4: The creation of the truth and reconciliation universe

3: Methodology ...39

3.1: Approach: theory and empirical research
3.2: Data collection and analysis



Chapter 2: Popular images in the construction of problematic contexts: transforming diversity into uniformity ...44
1: The birth of the TRC as a narrative of political will and problem-solving ...48
1.1: Legal and political hurdles of the transition
1.2: A new day: the rule of law, a fragile peace
1.3: The TRC as final compromise

2: "Nuremberg:" historical knowledge and affective content ...69

2.1: "Victory-day" and the Nazi symbolic
2.2: Nuremberg and international law
2.3: The conventional story so far

3: The production of context through "mythical Nuremberg" ...83

3.1: Moral condemnation as a breach of political neutrality
3.2: Producing legitimacy through the containment of blame
3.3: Avoiding revenge

4: Myths, tropes and symbols as tools of problematization ...104



Chapter 3: National reconciliation as public peace and quiescence: building a consistent alternative model of justice ...113
1: Glossing over incompatibilities in reconciliation discourses ...116
1.1: Administrative reconciliation: making the country "work"
1.2: The constitutional amnesty provision as concrete reconciliation

2: Symbolic Chile: consensus through reflective myth ...133

2.2: The implications of truth as "acknowledgement:" recasting justice
2.3: National history and national reconciliation

3. Style and substance: consequences on the TRC model ...145



Chapter 4: The logic of shame and the logic of the shameful past: discursive consistency as a work in progress ...153
1: Political motivation: defining responsibility in history ...157
1.1: Understanding the circumstances of the past: just wars
1.2: The practice of the amnesty hearing compounds the dynamic of justification

2: Redressing the moral order: making truth condemnatory ...177

2.1: Restoring the moral order: from acknowledgement to condemnation
2.2: Working around the contradiction of condemnation and amnesty

3: Logical coherence as a work in progress ...190


Chapter 5: Victim identity, discourse consistency and the power of narrative ...195
1: Constructing the essential TRC victim ...198
1.1: Addressing basic material needs
1.2: Vindication through truth: truth as justice

2: Victim-reconstruction through narrative ...213

2.1: From truth contests to victim satisfaction in the amnesty hearing: narratives of participation as narratives of satisfaction
2.2: The victim's truth: a variety of meanings and uses

3. The power of narratives as lay theories of justice: "doing" restoration ...226

3.1: How stories give life and power to concepts
3.2: Dignity, discourse and rhetoric


Chapter 6: The practice of reconciliation ...236
1: Conforming to the reconciliation ideal: hortatory language and practice ...239
1.1: Disengaging the TRC from reconciliation
1.2: The TRC as a setting for reconciliation

2. Doing reconciliation through truth ...249

2.1: Reconciliation cannot be produced, but truth can
2.2: Adjusting objectives to changing context

Chapter 7: Conclusion ...257
1: Social reality is performance ...257
1.1: No Nuremberg in South Africa1
1.2: Chile: putting a name on a justice alternative
1.3: Political circumstances, justifications and the moral order
1.4: Creating dignified victims
1.5: Reconciliation through truth

2: Logical consistency and predictability is a work in progress ...269