The Scholar: St. Mary's Law Review on Race and Social Justice


Strict adherence to the rule of law provides the strongest protections against gross human rights violations. The aftermath of South Africa’s Truth and Reconciliation Commission, TRC, demonstrates how few protections exist without the rule of law. By exchanging truth for justice, the Commission harmed, and continues to harm, the true victims of apartheid and failed to achieve the national unity and reconciliation promised. Truthful confessions based on voluntary disclosure cannot equalize the overarching systematic disparities required for reconciliation to take root and grow. Instead of amnesty in exchange for voluntary disclosure, South Africa should follow the traditional notions of justice by allowing criminal prosecutions for violations of law. South Africa’s government must review TRC’s policies on criminal and civil indemnity and must actively pursue and prosecute offenders who refused to engage in the truth telling process. If the government cannot provide both, the people of South Africa must appeal to the United Nations to create a tribunal with the International Criminal Court of Justice to adjudicate apartheid claims. However, the international community's current refusal to utilize any of the many human rights instrumentalities available to intervene deals a further blow to the rule of law. Until the laws governing gross human rights violations are constantly and unconditionally adhered to, and the institutions enforcing the laws are strengthened, only minimal protections against those violations exist. Gross human rights violations will not be eradicated until the international community recognizes, adheres to, and vigorously reinforces treaty obligations premised on the rule of law.

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St. Mary's University School of Law