The Truth and Reconciliation Commission (Column 54)

With God's help

A few years ago I saw a very interesting film, known in Israel as: One Day After Peace, which deals with an amazing phenomenon, the Truth and Reconciliation Commission in South Africa. Later I discovered that reconciliation commissions have become something of a myth among the radical left around the world, and their aspiration is to apply this concept in every conflict, and especially in our conflict with the Palestinians. Some time later I saw another film on this subject, Red Dust, which deals not with applications but with the phenomenon itself. The second film tells the story of four people, two from the African National Congress, and opposite them two white policemen. The latter arrested and tortured the former, and in the end murdered one of them. The other was elected to the South African parliament after the political upheaval. He describes the dilemmas faced by the survivor, as well as by his comrades in the movement and black society in general, surrounding the decision whether truly to forgive the policemen who tortured him. The first film, by contrast, tells the story of a bereaved mother whose reservist son was shot at a checkpoint, who sets out to examine the model of the Truth and Reconciliation Commission in South Africa as a model for resolving the Israeli-Palestinian conflict. It projects expectations that appear on their face utopian and unworkable in our region, although in South Africa too, I assume, people thought so before that commission was established.

The Truth and Reconciliation Commission

As a viewer of the film, I encountered an amazing phenomenon, one I assume many people like me had never heard of. After the fall of white apartheid rule in South Africa and the black majority's rise to power, there was grave fear of riots and revenge against the whites who had abused black South Africans in cruel and disgraceful ways (especially in the period after the African National Congress, the ANC, was established and began violent terrorist actions against the white regime and against whites in general). In the early 1990s a political upheaval occurred in South Africa, and the black population, which was a large majority in the country, won equal rights, participated in democratic elections, and came to power.

At the initiative of the leaders of the black majority, the Truth and Reconciliation Commission was established. It moved from place to place and "tried" criminals who had belonged to the white government and security services, as well as activists of the African National Congress, for their crimes during the apartheid period. As part of the proceedings, the accused had to tell the truth sincerely and express remorse, and insofar as the members of the commission (the judges) were impressed by the sincerity of what was said, and provided that the crime had an ideological background, they granted the offenders amnesty. At most they gave them community service in order to atone for their deeds. These were people who had abused others in horrific ways. They arrested, tortured, murdered, and made people disappear, all without trial, or without respecting their basic rights.

The commission was established at the initiative of the government of President Nelson Mandela, Nobel Peace Prize laureate (1993, together with the former white president de Klerk, who became Mandela's deputy), who appointed Archbishop Desmond Tutu, Nobel Peace Prize laureate (1984), to head the commission. One of Tutu's well-known sayings was: "Without forgiveness there is no future, but without confession there can be no forgiveness." Thanks to these commissions, the anticipated bloodbath in South Africa was averted, and the revolutionary process passed with relative quiet and calm. The white minority accepted the rule of the black majority, and the black majority overcame its desire for revenge.

Admiration for the Phenomenon

It is no wonder that the world looked at this phenomenon with astonishment and admiration. At the beginning of Red Dust we are told that this commission operated in a manner completely opposite to a criminal trial. In a criminal trial, the more the truth becomes clear, the more this serves as a basis for punishing the guilty party, whereas here, the more the truth becomes clear, the more it serves as a basis for forgiving and pardoning him. This is of course an exaggerated description that does not quite accord with reality, since even in a criminal trial, a sincere and truthful confession by the accused is not a reason to be harsher with him. Still, it is clear that there is a fascinating and unique phenomenon here (incidentally, it existed with varying degrees of success in Rwanda as well and in several other places around the world). It is hard not to be captivated by the nobility of spirit and the fascinating human phenomena involved. People who had been grievously harmed and subjected to terrible abuse were asked to forgive and forgo retribution for the sake of those who abused them, and many indeed did so. One must understand that even if society adopts such a decision on the collective plane, forgiveness by a private individual who underwent severe abuse and was then given the power to harm his abuser or abusers is not a simple process, and it deserves enormous appreciation on the human level. Clearly, at times the confession and remorse were not sincere, since the accused knew what awaited him if he did not confess (one who did not appear before the commission faced a criminal indictment). It is also clear that not all the victims truly forgave with a full heart. And yet it seems there was no other way to prevent the terrible rupture expected in that country except by adopting this sweeping forgiveness.

From this it is also clear why many see this phenomenon as a precedent that can be applied in other places as well (including here). One must give up absolute justice (which each side is certain lies with it) in order to succeed in continuing to live together. Moshe Dayan called this in his book: Shall the sword devour forever?! ("Shall the sword devour forever?!").

Criticisms

Clearly, such a phenomenon also incensed many, for it seemed that the wrongdoer came out ahead. Criticisms were raised against the commission both regarding the way it was conducted and on principled grounds against the process itself. For example, people argued that the commission treated the testimony of blacks as credible without subjecting it to the required examination (they took pity on the sufferers, but did not check whether their testimony was true). Another criticism was that the way the sessions were conducted under Archbishop Desmond Tutu was saturated with a religious atmosphere, and some described them as resembling a church mass or a confessional more than a trial. This is of course a sectarian rather than a substantive criticism, but later I will explain why it matters for our purposes. Beyond that, principled criticisms were also raised. The main one came from human-rights circles and opponents of apartheid, according to whom the legal system should have severely punished the perpetrators of apartheid. They were uncomfortable with accepting the argument that acting in the service of a political ideology is a mitigating circumstance justifying amnesty. Many compared this to the claim of Nazi war criminals who said, "I was only following orders"—a claim that of course was not accepted in its time.

To the best of my judgment, the last claim is not relevant to the discussion. Nobody argued that these defendants did not deserve punishment because their crimes were ideologically motivated. The claim was entirely on the pragmatic level: socially, it was better to forgo punishment and not punish them, in order to stabilize society and the regime in the renewed state. That was not the situation after the victory over Nazi Germany. There, the discussion was not being held among different parts of the same society, and the fears that accompanied the revolution in South Africa did not exist. In addition, one must take into account that in South Africa it was not expected that the criminals would repeat their deeds in the future, since white rule had fallen. In such a situation, the importance of absolute justice as against the practical consideration is greatly reduced. Even so, a feeling of injustice continues to gnaw at the heart, and perhaps there is room for the claim that, with all due respect to pragmatic considerations, they should not have relinquished justice and truth.

Applying It in Our Region

As noted, the claim of the radical left is that this is a model that can be applied here as well. To put forward such a proposal, we must examine it on at least two levels: 1. The normative: that this is indeed a proper way to end a conflict, there and here; that pragmatism should override truth and justice. 2. The practical: that it can in fact succeed.

It is important to note here that one should not dismiss the practical viability of the proposal out of hand, since there too people were sure it would not work, and in practice it did. True, in parallel places where this was tried it did not work, and there are claims that even in South Africa itself it did not entirely work. The number of people murdered after the revolution was much larger than the number murdered during apartheid. In my judgment this is not correct, and those murders were mainly criminal in nature and not acts of revenge for apartheid (although it is difficult to distinguish and separate sharply between motives).

Dany Orbach, in his interesting blog, writes that at least on the practical level this proposal is doomed to fail (see also the interesting discussions in the comments there). He explains that the success of this model in South Africa required two conditions: a. The white minority adopted the narrative that they had been wicked and had treated blacks improperly (that is, there was agreement that the blacks were right). And indeed many of them really did adopt this narrative, above all de Klerk (although of course quite a few did not). b. The white minority retained enough power (they held a significant portion of the positions even in the new government), so that the black majority still had something to fear from them. The black majority had a strong interest in reaching agreement by peaceful means, since they too would have suffered greatly from the violence that would have erupted after the change of regime.

Orbach's claim is that in our case neither of these two conditions exists. I completely disagree regarding the second. In the current situation, both sides have a great deal to lose from the continuation of the violence, so the interest certainly exists. It is true that regarding the competing narratives, at present it seems that both sides (especially the Palestinians) are entrenched in their positions. To be sure, in radical-left circles they mostly see only their own bubble and think everyone understands that they themselves do not belong to the side that is right, but as is well known, they are living in a fantasy.

The Religious Background

It seems to me that there is one central aspect that Rabinovitz misses in his analysis, and it struck me very strongly when I watched these films. Here we come to the criticism of Desmond Tutu's religious manner of conducting things. At first glance, such a move could actually function precisely within a religious culture, since even if we compromise and reach agreement, absolute justice can still be carried out by God. A secular person has no further authority that can take the execution of justice into its own hands. True, on the other hand, it is also not clear that he has much motivation to do justice, and the pragmatic consideration may also be stronger there (you only live once, and there is nothing to die for).

But specifically, one should note that this move in South Africa was led by Christian leadership. At its head stood an archbishop (Tutu), who was accused of conducting these sessions as a kind of mass. In Christian culture, the element of forgiving and yielding to the aggressor (turning the other cheek) is very deeply embedded. I may have (and indeed I do have) criticism of this conception, both in principle and in practice, but it seems to me that this is a necessary background for the success of such a move. In a culture that is prepared to forgive the aggressor and accept judgment upon itself, such a move has a chance of success. This is an ethos to which it aspires, even if it does not always implement it.[1] On the strength of this, one can demand of people that they live up to these lofty and almost inconceivable standards (part of the criticism of Christianity stems precisely from the fact that such an approach is not workable, even if there may perhaps be room for it on the level of theoretical morality). By contrast, our conflict involves Jews and Muslims. True, I do not know Islam deeply, but I am fairly convinced that it would be correct to say that neither of these two religions really advocates concession and forgiveness.

Does Judaism Advocate Forgiveness and Concession?

True, our sources contain several very impressive sayings in this "Christian" direction, such as (Shabbat 88b):

The Sages taught: Those who are insulted but do not insult in return, who hear themselves reviled and do not respond, who act out of love and rejoice in suffering—about them Scripture says, “And those who love Him are like the sun going forth in its might.”

One might add to this the prohibition (Leviticus 19:18): You shall not take vengeance and you shall not bear a grudge ("You shall not take vengeance and you shall not bear a grudge"), which of course concludes: against the children of your people ("against the children of your people") (and the sages expound:[2] one who acts as one of your people, one who acts as one of your people). Let us spare ourselves the hair-splitting. If we ever gave way to anyone, it was only for pragmatic reasons, because we lacked the power to fight and strike back violently. Beyond all the debates, it is clear that our practical ethos is not of this sort. In our current discourse, those who call for concessions are generally those who are very far from Judaism and its ethos (and in my opinion there is real substance to the claim that many of them are probably influenced indirectly by Christian ethical ideals, even if these underwent secularization along the way).

Does This Disqualify the Mechanism?

So the obvious conclusion would now seem to be that, as Jews committed to the Torah, we must reject the model of a Truth and Reconciliation Commission. After all, this is a Christian ethos, no?

My answer to that is negative. Even if someone does not agree with this model, let him kindly present arguments against it. I do not accept the disqualification of a thesis or an argument by means of slogans and labels. In my view, such proposals and models must be examined on their own merits, and not rejected with the claim that they are Christian or Buddhist. If it is correct, I will accept it even if it is a Christian act; and if not, it should not be accepted even if this is Judaism at its best. These labels, like labels in general, are a substitute for substantive arguments.

This reminds me of a common, but highly objectionable, practice among our cousins, the philosophers (in fact, these are academics in the field of philosophy. Most of them are not philosophers), whereby every time they hear a claim or argument they explain why it is Humean, Kantian, Marxist, sophistic, Pythagorean, positivist, and so on. The response is always a labeling of the argument. You will not extract from them, even with a tractor, a substantive consideration that addresses the matter itself. Try getting from them a statement for or against, or an enumeration of this or that advantage or disadvantage. Instead, they label.

There was a group in the Stop Here, Think forum, in which I participated in the past, that forbade its members from raising any philosophical labels whatsoever. Why is it interesting whether something is Kantian or Marxist? Say whether it is right or wrong, and why. Incidentally, in my view this is one of the main reasons for the feeling that philosophy does not progress, and that no conclusion can be reached there on any question. That is patently untrue, but this deplorable practice of academics in philosophy plays a considerable role in creating that mistaken impression. You can raise a completely absurd argument, but it will be presented as a legitimate possibility because it is Marxist or Kantian. Others can reject an excellent argument in exactly the same way, because it is Marxist or Kantian. It is simply impossible to talk with these people. Try it and see.

On the issue itself, I am indeed very skeptical on the practical level, but if I saw a chance for such a model to materialize, I would be very happy and certainly would not reject it out of hand.

Forgiveness in Jewish Law: One Who Admits Liability for a Fine Is Exempt

Does Jewish law really advocate let judgment pierce the mountain ("let judgment pierce the mountain," that is, let strict justice take its course)? In tractate Sanhedrin 6 there is a lengthy discussion of the question of compromise (whether it is permitted, forbidden, or even a commandment to split the difference—that is, to make a compromise in judgment). Among other things, the following saying is brought there:

Rabbi Eliezer son of Rabbi Yose the Galilean says: It is forbidden to compromise, and whoever compromises is a sinner, and whoever blesses the one who compromises is blaspheming; of this it is said, “The robber who blesses blasphemes the Lord.” Rather, let judgment pierce the mountain, as it is said, “For the judgment is God’s.” And so Moses would say, “Let judgment pierce the mountain.” But Aaron loved peace and pursued peace, and made peace between a person and his fellow, as it is said, “The law of truth was in his mouth, and injustice was not found on his lips; he walked with Me in peace and uprightness, and turned many away from sin.”

Thus, even according to Rabbi Eliezer, who holds let judgment pierce the mountain, there is room for a model of compromise and peace (that is Aaron as against Moses). To conclude this column, I would like to bring here a source in Jewish law that points in such a direction.

In Jewish law it is accepted that if a person committed an offense and deserves punishment, repentance will not help him escape the punishment. Repentance helps him achieve atonement in the heavenly realm, but with punishments imposed by a religious court, let judgment pierce the mountain (see my article on this here). But there are several exceptions to this rule, and it seems to me that the main one is the rule that "one who admits liability for a fine is exempt" (see Ketubot 43a and parallels).

When Reuven comes and admits that his innocuous ox gored his fellow's ox, he is exempt from payment (as a matter of Jewish law, liability for half-damages caused by an innocuous ox is a fine; see Bava Kamma 15a). At first glance, what is being said here is that confession is not sufficient to impose a fine. On its face, this seems to be an extension of the rule that does not allow self-incrimination—a person cannot render himself wicked ("a person cannot render himself wicked") (see Sanhedrin 9 and parallels). But the amoraim Rav and Shmuel (see Bava Kamma 74b-75a and parallels) disagreed on the question of what the law is when a person admitted liability for a fine and then witnesses came. Suppose Reuven came and admitted that his innocuous ox gored Shimon's ox, and now two witnesses come and testify that Reuven's ox did indeed gore Shimon's ox. According to the conception presented above, it is clear that Reuven should be liable for the fine, for even if his confession is not enough to obligate him, here we should obligate him by virtue of the testimony. In practice, we rule that he is exempt even in such a situation. That means the confession is not merely insufficient to obligate him; it is itself a factor that exempts him from the fine.

How can this rule really be understood? Why should confession exempt one from a fine? Some wanted to explain this by saying that perhaps the confessor knew about the existence of the witnesses, and therefore hurried to confess—in other words, this was not a genuine confession. He rushed to get ahead of the witnesses and confessed in order to exempt himself from the fine (see there 75a: he saw witnesses on the verge of arriving, "he saw witnesses on the verge of arriving"). But this explanation seems strained to me, since if he really sees witnesses who are about to arrive, the Talmud says explicitly that according to all opinions he is not exempt from the fine. The dispute exists only in a situation where we have no indication that he knew about those witnesses. True, one could say, somewhat strainedly, that this is an extension: even if we do not know that he knew, we suspect him. But it seems to me that there is no need for such strained explanations, and that there is a much simpler explanation.

Why indeed, if he saw witnesses on the verge of arriving and confessed, is he not exempt from the fine? One could say that they penalized him by not allowing him to be exempt, in order to encourage him to make a genuine confession as part of the process of repentance. But this implicitly assumes that the purpose of the fine is to obtain a genuine confession and cause him to repent of his evil path. If one assumes this explanation, then it can be formulated better: if he sees witnesses on the verge of arriving and confesses, there is no sincere repentance here, and therefore he is not exempt from the fine. That is, the assumption is that confession exempts one from a fine not because there is self-incrimination here that is not accepted, but on the contrary precisely because the confession is accepted. Once he has confessed, he is a penitent, and we exempt him from the punishment (a fine, as distinct from monetary compensation, is a punishment). This is the explanation of why confession not only does not suffice to impose a fine, but actually exempts one from it. And from here the conclusion follows on its own that even if witnesses later came and testified, he is still exempt if he confessed beforehand, for he is a penitent. We pardon him the punishment.[3]

Back to the Truth and Reconciliation Commission

Does this remind you of the Truth and Reconciliation Commission? There too, confessing the truth exempts a person from punishment. Clearly, even if there were testimonies against them, they would be exempted from punishment (if there had been no evidence, they could not have been summoned before the commission or accused at all). Our conclusion now is more radical. This is not merely a pragmatic consideration, as we assumed above, but something correct on the substantive level as well. Even from the standpoint of morality and justice there is certainly room to exempt offenders from punishment. If they have repented, why punish them? They are already in a state in which they can say to us: I am another person, and not the same person who committed those acts ("I am another person, and not the same person who committed those acts") (see Maimonides, Laws of Repentance 2:4). Why punish a person who no longer exists?

True, in the Jewish-law case we are speaking of a sincere confession whose purpose is to return from the sin, and such a confession is indeed an act of repentance, and it is fitting that it exempt a person from punishment. But in South Africa, many of the confessions were not sincere. This was the defendants' way of freeing themselves from punishment.[4] They knew that confession was a means of escaping punishment once it was already clear to them that there was evidence against them. Therefore, in that case pragmatic considerations were needed in order to justify the exemption. But where there is a sincere confession of the acts and genuine remorse, there is justification for forgoing punishment also from the standpoint of justice and fairness, beyond the pragmatic consideration. In such a situation, the offender's judgment should be left to God.

Incidentally, in my aforementioned article I presented the view of the author of Beit She'arim, who maintains that repentance helps exempt a person even from all the ordinary punishments of a religious court (and not only from a fine). True, this is an isolated view, but in my opinion it has a place in Jewish law, and the proofs against it should be rejected. This is not the place for that.

[1] I can already see the comments about Christian cruelty over the years. Not relevant, friends. We are speaking about an ethos. An ethos has power, even in a community that does not implement it. All the more so since sometimes they do implement it.

[2] True, this is derived from the verse Do not curse a leader among your people (see Bava Batra 4a and parallels).

[3] From here it follows that there is a difference between the rule a person cannot render himself wicked and one who admits liability for a fine (= self-incrimination in monetary penalties). In the first case, the confession is not accepted even on the factual plane. A person is not believed in order to convict himself. In the second case, his testimony is accepted (the admission of a litigant is like a hundred witnesses—"the admission of a litigant is like a hundred witnesses"), but no punishment is imposed on him by virtue of his confession.

[4] Some argue that this is the reason repentance is not accepted with regard to punishments imposed by a religious court, because human beings have no way of knowing whether it is genuine repentance. In my aforementioned article I refuted that claim.