[Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law, and Extraordinary Professor in the Department of Private Law, University of Pretoria.]
This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below.
Knowing the truth and holding persons accountable for wrongdoing are important preconditions for reconciliation of communities in transition. There is a certain discrepancy between these two components of transitional justice. Truth commissions as an expedient mechanism for the cultivation of an impartial historical record through collective memories of past atrocities of perpetrators and victims alike seem dependent on amnesties for serious wrongdoing during the preceding age of repression. As evidenced by the South African Truth and Reconciliation Commission, which was instrumental in transforming the Republic of South Africa from a racist oligarchy into “an open and democracy society based on human dignity, equality and freedom,” amnesties for serious wrongdoing was an essential precondition for revealing the truth, the whole truth, and nothing but the truth.
Creation of the International Criminal Court (ICC) in 1998 has clearly implicated this tension between retributive and restorative justice. There are clear indications that establishment of the ICC ruled out amnesties for any of the core crimes of customary international law, and truth commissions without amnesties seems to be a contradiction in terms. At the Rome Conference, the United States noted in a non-paper that conflicts might arise between international prosecutions and truth commissions but did not take the matter further, and the issue was therefore not further pursued in Rome. At a final social event in Rome, Philippe Kirsch, chairman of the Committee of the Whole who was to become the first President of the ICC, was asked by one of the delegates about the future of truth commissions, and he responded that this was “a creative ambiguity” to be resolved if the matter should come before the ICC.
Collective knowledge is not necessarily accurate knowledge of historic events. Nor should it be.
Many years ago, a visiting professor from the Netherlands delivered a public address at my alma mater in South Africa on “History and Mythology.” He noted that the stories recorded in Greek mythology were not really based on empirical facts and events but were fabricated by their authors to instill in the minds of the readers a certain moral consciousness―a perception of right and wrong. History as recorded in textbooks also does not reflect the truth. Abraham Lincoln was not really, really the person as recorded in history books. Historians reflect an idealized image of this great man; and in doing so they instill in the public mind a certain moral perception of good governance. By contrast, history records in exaggerated form the bad characteristics and wrongdoing of the deplorable characters of the past in order to creating a perception in the minds of the people of what ought not to be. History as reflected in history books serves the same purpose as Greek mythology. History, in a word, is mythology.
If I were to translate this into the current recording of South Africa in transition, I can already see the emphasis on the wonderful contributions of Nelson Mandela toward political change and reconciliation, and perhaps an exaggerated portrayal of the lust for power, for wealth and for sex of President Jacob Zuma as the icon of impropriety. South African governments of the past have had their ups and downs. Prior to political change in the country in 1994, successive governments applied a policy that has now come to be condemned by the international community of states as a crime against humanity. But as far as defiance of the rule of law and disrespect for judgments of courts of law are concerned, no government in the entire history of South Africa has stooped so low as the one currently in command!
And there is one more matter relating to collective memory as a component of transitional justice I wish to emphasize.
In 2008, Karl Doehring (1919-2011), internationally famous professor of General Political Science and of International Law at the University of Heidelberg in Germany, published a book entitled Von der Weimarer Republic zur Europӓischen Union (From the Weimar Republic to the European Union), which is in essence an autobiography. In the opening introduction he proclaimed that current generations looking back at past historical events can describe what happened, evaluate and criticize those events, and seek guidance for future conduct, but―proclaimed Prof. Doehring―if you haven’t been there at the time and personally experienced what happened, you will never understand it.
Collective memory of past events in the minds of peoples in transition is not merely designed to record and to understand history; it is destined to secure a better future. We may not accurately record or truly understand the policies and practices of the past, but must apply our collective, and perhaps mythological, knowledge to secure a better future.