The Truth and Reconciliation Commission of South Africa was the fruit of a political compromise. The terms of the compromise both made possible the Commission and set the limits within which it would work. These limits, in turn, defined the space available to the Commission to interpret its terms of reference and define its agenda. This paper takes the compromise legislation that set up the TRC as a historical given and focuses attention on the TRC's interpretation of its terms of reference.

The TRC claimed to be different from its predecessors, whether in Latin America or Eastern Europe. It would practice neither impunity nor vengeance. It was determined to avoid not one but two pitfalls: on the one hand reconciliation turned into an unprincipled embrace of political evil and, on the other hand, a pursuit of justice so relentless as to turn into revenge. To do so, the Commission was determined to address both ‘victims’ and ‘perpetrators’, not just one of them.

This double determination was first written into South Africa's Interim Constitution that paved the way for the legislation that set up the TRC. First, there would be no blanket amnesty. Amnesty would be conditional. It would not be a group amnesty. Every perpetrator would have to be identified individually, and would have to own up to his or her guilt – the truth – before receiving amnesty from legal prosecution. Second, the victim who is so acknowledged would give up the right to prosecute perpetrators in courts of law. Justice for the victim would thus not be criminal but restorative: acknowledgement would be followed by reparations. In sum, individual amnesty for the perpetrator, truth for the society and acknowledgement andreparations for the victim – this was the pact built into the legislation that set up the TRC.

The Act, however, did not clearly define the ‘victim,’ and therefore, the ‘perpetrator’. The Commission would have to do it. This paper argues that the single most important decision that determined the scope and depth of the Commission's work was its definition of ‘victim,’ and thus, ‘perpetrator’. Without a comprehensive acknowledgement of victims of apartheid, there would only be a limited identification of perpetrators and only a partial understanding of the legal regime that made possible the ‘crime against humanity’ – and unfortunately there was. From this perspective, the paper identifies two key limitations in the Commission's Report.