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/ 98 / Chapter 4 Indemnity in the TRC 4.1 Our detours complete, let’s return now to our point of departure, and formulate in succinct terms the understanding of the TRC that results. On the one hand, the apartheid state’s deployment of indemnity jurisprudence not only put indemnity jurisprudence into crisis, but also produced the very conditions under which it became necessary to devise an institution like the TRC. In the 1992 speech that is widely considered to have introduced the very idea of a Truth Commission into South Africa’s political transition, Kader Asmal argued against “the exoneration of those guilty of crime,” observing that“time and again the apartheid state has bestowed immunities both prospective and retrospective, on police and military action, and in so doing has debased criminal law and encouraged state lawlessness.”1 Hardly has there ever been a more concise and precise summary of the crisis of indemnity jurisprudence under apartheid. If the main purpose of the TRC was, as José Zalaquett put it, to investigate “human rights violations which were ostensibly illegal under the laws of apartheid but were nevertheless committed by the regime to preserve the system,”2 then the crisis of the indemnification convention has to be considered as a condition for the “culture of impunity” the TRC Report so unequivocally criticized.3 The hallmark of this crisis—­ the illegalization of legality itself—­ authorized the debasement of law and the state lawlessness that, in turn, required the invention of an institution like the TRC. On the other hand, however, indemnity jurisprudence also provided the TRC with the most direct and concrete precedents for the amnesties it offered . In its initial draft, the TRC Bill was a simple extension of what, in 1977, parliamentarians from all parties called the “principle of indemnity.”4 It was a classic Diceyan attempt to provide retroactive protection from civil and criminal prosecutions to those who violated the laws passed by Indemnity in the TRC / 99 the apartheid state’s own sovereign parliament. That in the revisions of this legislation the ANC insisted that the TRC’s mandate“extend beyond the issue of indemnity to harness‘the cleansing power of truth,’”5 implies that the TRC’s amnesty provisions alone were not sufficient to abrogate indemnity jurisprudence. As we shall see in what follows, the opposite, in fact, would seem to be true. What then do we get if we put these two sides of indemnity jurisprudence together? Not only was indemnity jurisprudence doubly critical for the TRC’s genesis; it also,as such,provides an interpretive standpoint that allows us to dialecticize the TRC’s practice. Only by recalling indemnity jurisprudence do we become able to understand that the TRC itself reused the very power whose abuse it criticized in the apartheid state. To understand the genealogy of indemnity is to understand the limit at which the juridical“subject” that was the TRC (its legal status,that is to say,as a“juristic person”that was vested with the power to indemnify) entered into a relation of identity with the very same juridical “object” the TRC proposed to investigate, censure, and finish (namely, the“culture of impunity” the TRC as a whole sought to criticize and to end). And it is only with reference to this limit, in turn, that we become able to name the dialectical extremes that together defined the transitional mechanism at the core of the TRC. From this perspective, the unprecedented audacity and even genius of the TRC was not at all that it discovered a“golden mean”between vengeance and forgiveness. Nor was it that the TRC charted a “middle way” between the “victor’s justice” of Nuremberg, on the one hand, and Latin American blanket amnesties, on the other. It was that the TRC attempted to put an end to indemnity jurisprudence by reiterating that same jurisprudence in an exceptionally salutary way. It was that the TRC tried to turn a version of the techniques and juridical powers proper to martial law into the juridical basis for an exposure and criticism of the conditions under which it became possible for the agents of martial law to commit illegal, intolerable, and inhuman acts in the first place. To this interpretative standpoint there corresponds, in turn, a new norm for evaluating the success or failure of the TRC. This is a norm that must be distinguished from the excessively normative discourse of transitional justice, which is derived from a mix of watered...

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