The Independent Newsweekly
Issue Date: May 9, 2003
By ROBERT F. DRINAN
On March 21 Archbishop Desmond Tutu and the Truth and Reconciliation Commission he chaired ended their work of more than seven years by presenting their findings and recommendations to South African President Thabo Mbeki. This monumental development in international law has been replicated in some 15 nations and might well have created a model for the conduct of countries at the end of a civil war or a period of occupation.
When apartheid finally collapsed in South Africa, the new government was confronted with the question of what should be done about those whites and blacks who had injured countless people in the struggle over a segregated society. The whites, who numbered about 2 million, were generally rich from gold and diamonds. The blacks, numbering about 40 million, had been dispossessed of the resources of their own country and lived in miserable ghettos.
The new government concluded that a strict accounting of the wrongs would deepen the antagonism on both sides and delay or destroy hopes for a peaceful society.
The Truth and Reconciliation Commission provided that both sides could testify with respect to their activities and receive amnesty. Tutu had the credibility to persuade the citizenry that they would be able to bring healing and peace by allowing the guilty to confess to the truth. For seven years there were daily revelations of harrowing tales of murder and torture.
The final report reveals that 19,000 people testified before the commission about the brutality they endured under apartheid. Some of them received money damages, but only $6 million has been distributed to victims, who received payments ranging from $200 to $800.
But the most important architects and enforcers of apartheid did not take part in the inquiry. Their legal fate is unclear. Over 7,000 applications for amnesty were received. The total number of amnesties granted also is not clear, but an earlier report said that it was around 800. Amnesties were not granted when the application was incomplete or contested.
A final report of Tutus commission has new revelations about the activities of former President F.W. De Klerk. It asserts that he knowingly withheld information about state-sponsored violations. The Tutu report also accuses South Africas black party (the Zulu-led Inkatha Freedom Party) of the massacre of hundreds of people in the early 1990s.
At a recent conference, Tutu spoke angrily about the degradation of black people in South Africa 10 years after the abolition of apartheid. Discrimination against blacks continues, Tutu said, and unemployment among the black population is enormous.
The scene in South Africa a decade after liberation from domination by a white oligarchy is grim. The advent of the pestilence of AIDS complicates all the other problems.
Recently, I lectured in South Africa to legal, cultural and religious groups. One gathering was attended by prison officials who must process applications for new trials by over 160,000 prisoners. Virtually all of them are black and claim that the former government railroaded them to prison because they were opposed to the regime. Legal educators are trying to help black students enter law schools that were all white until 10 years ago. Churches are starting to create some kind of interracial harmony in congregations that for a century had been legally required to segregate.
The dozen or so countries that have commissions more or less modeled on the Tutu commission now have the final report of that pioneering group. They must confront the basic tenet of that commission that no nation can give blanket amnesty to an outgoing regime. The victims of state-sponsored violence now have rights under newly emerging international law to the effect that every injustice done with the active or passive collaboration of the government merits indemnification.
The Inter-American Court in Costa Rica, for example, told Chile that it has no right under international law to give total amnesty to the officials who tortured those opposed the Pinochet regime.
This principle will have acute relevance in the aftermath of Americas takeover of the government of Iraq. Any new government has under international law an obligation to enact remedial measures for the victims of the old regime.
Tutu has brought credibility to the essential Christian teaching that every violation of basic human rights demands confession, reconciliation and some form of remedial action. We cannot know at this time how or if South Africa will follow all of the recommendations of the Tutu Commission. But the completeness of that report along with its reasoned approach and its appeal to the consciences of everyone in South Africa and the world make it one of the most important documents in the history of modern times.
Jesuit Fr. Robert Drinan is a professor at Georgetown University Law Center. His e-mail address is drinan@law.Georgetown.edu
National Catholic Reporter, May 9, 2003
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