TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

As Afghanistan makes its transition to a post-Taliban government, it will have to decide how to deal with the atrocities and human rights abuses of the past few years. My guest Paul van Zyl is helping with that process. He's the program director of the International Center for Transitional Justice, which is headquartered in New York. Van Zyl is a lawyer from South Africa. At the age of 25, he was the executive secretary of South Africa's Truth and Reconciliation Commission, and was the main witness in the trial against former President P.W. Botha. His job now is to help emerging democracies develop ways of dealing with the human rights abuses of past regimes. This can range from prosecuting individual perpetrators to trading amnesty for confessions about torture, murder and other state-sponsored violence. Truth commissions can gather the stories of victims so that victims are heard and their suffering is acknowledged. Van Zyl thinks this kind of truth telling would be helpful for those who were victimized by the Taliban.

Mr. PAUL VAN ZYL (Program Director, International Center for Transitional Justice): Well, I think that one of the ways in which repressive rule is sustained and atrocious human rights abuse is perpetuated is by hiding from the public the real human consequences of that abuse. I think many people can drum up a range of ideological justifications for human rights abuse, but when they're confronted with an ordinary person telling their story of unspeakable acts of torture or terrible systemic human rights abuse of the type experienced by the women in Afghanistan, people begin to find that intolerable because it's so difficult to defend the level of depravation, the denial of basic rights.

And I think by placing those stories in the public discourse, we can't help but be moved by them, we can't help but be reviled and object to that form of treatment. And I think that that's extraordinarily important. Human rights abuse thrives when you have a culture of silence which conceals it, and it becomes much more difficult to conduct abusive policies when it's brought out into the open.

GROSS: I imagine for a lot of people if they publicly tell their stories, particularly, like, in an official setting, that then they want some kind of justice. They want to know that the person responsible for their suffering is going to be punished for it; that there'll be some justice. Do you think it's important to have that kind of follow-through afterwards?

Mr. VAN ZYL: I think it certainty--that any process of dealing with mass atrocity and systemic human rights abuse must attempt to incorporate some element of justice and prosecution, and that's a cardinal principle and one that I think we should always try and achieve. I think there are two important caveats to that.

Firstly, victims are as complex and diverse as any other group of human beings and, therefore, stemming from my experience at the South African Truth Commission, I was profoundly moved by the wide range of responses that victims had to atrocity. Certainly some wanted justice; in fact, some wanted revenge. They wanted to be able to personally revenge themselves upon those people responsible for abuse. Other people just wanted the truth. Others wanted an apology. Others wanted to discover the fate and the whereabout of their loved ones. Some mothers just wanted the red sweater that their son was wearing the day he disappeared. And that's all they wanted. So I think that it's important to listen to victims, because they have a range of different expectation.

Having said that, it's also important to look at what your country can reasonably achieve. Often societies emerging from mass atrocity have weak judicial systems, and their capacity to prosecute hundreds if not thousands of perpetrators is often very limited. So we have to tailor our justice policies in such a way that they are realistic; that they don't raise unrealistic expectations amongst survivor communities.

GROSS: What's your analysis so far about Afghanistan and the ability there to prosecute the people who are responsible for state-sponsored human rights abuses?

Mr. VAN ZYL: I think there are significant challenges in Afghanistan in that regard. Firstly the process of establishing a broad-based, inclusive, multi-ethnic government in Afghanistan is going to be complicated by the almost certain inclusion in that government of some people who have less than stellar human rights track records. And, therefore, if one is going to call upon that government to prosecute people responsible for human rights abuse, one has to recognize that there may be a limited appetite for that amongst some people in that government.

GROSS: Well, let me see if I understand what you're saying. That some of the warlords who were in power before the Taliban might be in power again after the Taliban, and some of their records were pretty bad in terms of human rights. So these are the people you're talking about who might be in power after the Taliban, and how can you prosecute the Taliban and let the new leaders' human rights abuses go unremarked?

Mr. VAN ZYL: Absolutely. I think that there is--people who themselves have bad human rights track records are often fairly reluctant to embark on either wide-scale inquiries about human rights abuse, or a robust series of prosecutions for fear of where they may eventually land up and who they might point a finger towards. I also think that notwithstanding the very encouraging developments about the treatment of women and the relative position of women in Afghanistan, I think there is still a rather powerful residual bloc of people who are fairly weak on women rights, to say the least. And, therefore, any attempt to deal with the terrible crimes committed against women might run into some form of political resistance from the new government as well.

GROSS: Well, the crimes committed against women range from execution to just forcing all women to wear burqas and to not work, to have just profoundly restricted lives. Do you think something like forcing women to wear a burqa is something that a truth and reconciliation commission should contend with or would be able to be contend with? It's such a widespread form of discrimination or abuse.

Mr. VAN ZYL: Well, I think that's why a truth commission would, in fact, be an interesting idea in Afghanistan, because it will be able to deal with the real full range and the complexity of the different modes of human rights abuse which occurred in Afghanistan. You wouldn't be able to prosecute somebody in a court of law for forcing a woman to wear a burqa, but I suspect that you may be able to elicit from women their views on that experience. And there may be a complex set of views about that. I suspect that many people's instinctual response will be deep resentment at having it--you know, such a ritual imposed upon them as opposed to them having allowing to embark in such a ritual based on their own free choice. But I think that that's, you know, at one end of the scale.

The denial of health care, the denial of education and the denial of ability to work for a whole category of educated, sophisticated women of Afghanistan, I think it is a form of abuse and a form of denial which demands airing. And those stories should be told. And I think their stories will be very useful, not just for Afghanistan, but for all of Islam, because I think what's at stake here is a broader question about the role of women in Islam in general. And by providing articulate, capable women who have suffered this form of abuse with a platform to tell their stories, that might embolden women throughout the Islamic world who are fervent believers in Islam, who believe it should be an important progressive great world religion, but who are firmly opposed to some of the more patriarchal tendencies within it to be able to gain a platform, and I think that could truly be transformative.

GROSS: You said that you're opposed to acts of vengeance. Where do you draw the line between vengeance and justice?

Mr. VAN ZYL: Well, I think that justice is something which occurs within the framework of the rule of law. It is an instrument where we bring to bear rules that we as a society have agreed upon. We bring those to bear against people who have violated those rules. We do so in a fair way, in a dispassionate way. We build in sufficient due process guarantees so that we aren't perpetrating an injustice ourselves in seeking to pursue justice. Why I'm opposed to vengeance is, firstly, because vengeance almost always happens outside of the framework of the rule of law, and, therefore, very often--or runs the inherent risk in targeting those people who are innocent.

But secondly, I think it's an unproductive mode of dealing with the past because it leads often to recriminations and reprisals and increases the cycle of violence. And what we're seeking in so many of the societies in which we work is break that cycle of violence and replace it with a new mode of governance and a new mode of dealing with disagreement; where people can disagree within a democratic framework as opposed to having to resort to violence.

GROSS: You said that people have come to the realization that unless you develop sophisticated strategies to deal with the past, it comes back to haunt you. Have you seen examples of that?

Mr. VAN ZYL: Well, in almost every country in which we work, those countries which have sought to bury the past and not deal with it--take Chile, for example, where the outgoing Pinochet regime secured for themselves a blanket amnesty, really threatened the new democratic forces. That the only way to ensure a return to democratic rule in Chile was to provide General Pinochet and the armed forces with a fairly broad and comprehensive amnesty. And in the course of that, they thought that they had bought a social peace and stability. And 10 years later, 15 years later, the question of Pinochet looms large over Chile. The arrest in Britain and the subsequent debate that that caused really did poison relations in Chile. And it's only by, in fact, confronting that legacy of abuse that I think the Chileans have managed to move on.

And unless you develop proactive strategies to deal with the past, the past comes back to haunt you on its own terms; not on terms of your choosing. And that almost invariably means that the past is dealt with in a less healthy and a less constructive way, and in a way that's more damaging and destabilizing.

GROSS: My guest is Paul van Zyl, program director for the International Center for Transitional Justice. We'll talk more after a break. This is FRESH AIR.

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GROSS: My guest is Paul van Zyl. He is program director for the International Center for Transitional Justice, which is consulting to many countries, including Afghanistan. He's a South African lawyer who at the age of 25 was the executive secretary of South Africa's Truth and Reconciliation Commission. The commission began in 1995.

GROSS: The South African Truth and Reconciliation Commission, which is where you got your first experience with this kind of transitional justice--that commission gave amnesty to many perpetrators of crimes in return for their confessions to those crimes; basically, traded truth for amnesty. Looking back, do you think that that's been effective in helping to heal the country, or do you think it's created a lot of resentment that some people who confessed to terrible human rights abuses are now free and comfortable?

Mr. VAN ZYL: You know, Winston Churchill once said that democracy is the worst form of all governments, except all others. And I often think that the South African Truth Commission was one of the worst ways to come to terms with our past, except all others. And by that I mean at its very core was a series of very, very difficult and heart-wrenching trade-offs that you had to say, 'Well, in order for this country to move forward to democracy, in order for a very powerful white regime to be incentivized to relinquish power and hand over to a democratic government there was going to have to be an amnesty arrangement.' They insisted upon an amnesty arrangement. And Nelson Mandela and the leaders of the liberation movement appreciated that it would be very difficult to secure that transition without amnesty.

And in that context what we could have done is simply said, 'All right, there's an amnesty for human rights abuse in South Africa. That's a political fact. Let's move on. Let's not--let's think about economic growth. Let's think about tourism. Let's not look at the human rights abuse that occurred during apartheid.' And I think there was a wise determination amongst the political leadership and amongst human rights organizations that that would be profoundly unproductive for South Africa.

And so coupled with the political reality of an amnesty was a truth-seeking process which sought to uncover the full extent of human rights abuse that occurred in South Africa. And I think that we succeeded by and large in discovering who was responsible for human rights abuse, who were the victims, who at the highest levels of government gave the orders. We discovered where victims who had been disappeared, whose bodies had been burned and thrown into rivers. We discovered the fate of victims. And we prompted over a period of three years a real deep, introspective soul-searching on behalf of all South Africans. That truth and that transition to democracy came at a terrible price. And the terrible price was the granting of amnesty to people responsible for horrendous crimes.

If we could have had it any other way, I think we should have tried to avoid the amnesty. I'm not sure in the South African context that that amnesty could have been avoided, and, therefore, I think the truth commission was a necessary and important supplement, which gave victims a voice and which foregrounded human rights abuse.

GROSS: Are most of the people who confessed to human rights abuses at the South African Truth and Reconciliation Commission--are they now outcasts, or are many of them still holding important positions?

Mr. VAN ZYL: The majority of people who admitted to acts of torture and murder and other gross violations of human rights abuse have retired from their positions in government or in the police force or in the security force, and no longer occupy prominent positions of power and status in South Africa. The sheer social stigmatization that occurred as a result of having--in the full glare of television cameras, having to confess having tortured people and having poisoned people and having committed other horrendous crimes really reduced people's capacity to play leading and influential roles in our society. They still live off handsome pensions. They're aren't sitting in jail as they should be. But I think their capacity to influence present policy has been significantly, if not totally, diminished.

GROSS: Are you recommending to many countries now that they don't give amnesty?

Mr. VAN ZYL: I think it's one of our strongest policy prescriptions in the work that we do around the world, is that amnesties really should be avoided at almost all costs. Amnesties are profoundly unhealthy. They undermine the rule of law. They breed cynicism. They're an insult to victims of human rights abuse. And I think as a real principle, one wants to try and oppose amnesties at almost any cost. At the same time, there are those societies in which people responsible for abuse still hold tremendous power and influence. And one has to then think very carefully about how it is that such persons can be incentivized to leave office or relinquish power and turn power over to democratic forces.

And so I think one must be careful not to be too doctrinaire and too rigid in the real world because one can, firstly, subvert the will of the majority of people in a particular country if it is their determination--let me give you an example: Burma. In Burma you have a very powerful regime with one of the largest per capita militaries in the world--and you have no real prospect--no realistic prospect that democratic forces will be able to reacquire power other than through a process of negotiation. And it's going to be very difficult to get the Burmese regime to leave power without making some painful compromises.

Now Aung San Suu Kyi, Nobel Peace Prize winner and a woman of great moral integrity, has recently been arguing that there may have to be some form of amnesty in Burma in order for the military to be incentivized to leave power. Would I stand in judgment on Aung San Suu Kyi and say that what she is suggesting is unprincipled and immoral? I think that would be unprincipled and immoral. At the same time, I think one can provide people like Aung San Suu Kyi and the Burmese opposition movement with a rich array of comparative experience of how other societies have sought to achieve transition without necessarily giving an amnesty; how they'd sought to balance the real politic of having to deal with powerful people on the one hand with a range of creative strategies on the other hand, which preserve the possibility of accountability at some point.

GROSS: Paul van Zyl is the program director for the International Center for Transitional Justice, which is headquartered in New York. He'll be back in the second half of the show. I'm Terry Gross. And this is FRESH AIR.

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GROSS: Coming up, Paul van Zyl talks about testifying against former South African President P.W. Botha, when van Zyl worked on South Africa's Truth and Reconciliation Commission. And we talk with Leila Ahmed, the author of "Women and Gender in Islam," and a memoir about growing up in Egypt.

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GROSS: This is FRESH AIR. I'm Terry Gross, back with Paul van Zyl. He's the program director for the International Center for Transitional Justice, which helps emerging democracies develop systems for dealing with state-sponsored violence of the recent past. Van Zyl was the executive secretary of South Africa's Truth and Reconciliation Commission.

When you were the secretary of South Africa's Truth and Reconciliation Commission, you were the main state witness in a trial against former President P.W. Botha. He was on trial for committing atrocities carried out by government security forces. How did you end up being the main witness?

Mr. VAN ZYL: I was due to question P.W. Botha when he was subpoenaed to appear before the Truth Commission, and we subpoenaed him to appear before the Truth Commission, but he declined to appear. So he was prosecuted, and this is ironic, not for the horrendous crimes that he had alleged to have committed, but for the rather technical accusation of failing to respond to a subpoena issued by the Truth Commission.

My role as the chief state witness was to set out the case against P.W. Botha all the evidence that we had collected during the work of the Truth Commission, which tended to indicate that he was responsible for gross violations of human rights. And on that basis to provide the court with the basis upon which we wished to question him, to say, 'Look, here is this horrendous record of apartheid regime. Here is the man who sat at the pinnacle of the apartheid regime. We want to question him and he refuses to be questioned. And that should be rightly condemned as a violation of the law.'

GROSS: What was the outcome?

Mr. VAN ZYL: He was convicted at the first instance. And then, on...

GROSS: Convicted of refusing to show up?

Mr. VAN ZYL: Correct. And then he was acquitted on a very narrow technical point before a court of appeal. But I think as Archbishop Tutu said, the process of having him prosecuted was, 'he got his comeuppance,' as the archbishop said. Firstly because he appeared before a black magistrate, which was exquisitely ironic that here was the leader of the apartheid regime having to appear in the dock before a black magistrate, a man who he had previously denied some of the most fundamental rights.

And secondly, we were provided, the Truth Commission was provided, with an opportunity, and I testified for over two and a half days, to set out the case against him. And that case was reported extensively in the media, and that case essentially went unanswered because had he appeared before the Truth Commission, he would have had an opportunity to respond to our questions, but since he was being prosecuted in a court of law, he had no opportunity to do so. So I think it was very damaging for his reputation. And I think it reveals the real price of the arrogance of undemocratic leaders who believe that they should never have to answer any questions about their conduct, regardless of the consequences of their conduct.

GROSS: What was like for you at the age of 25 to be the main witness against the former president of your country, a president who ruled over the country during apartheid?

Mr. VAN ZYL: It was fairly nerve-wracking, to tell you the truth. The day before the trial started I went bungee jumping because I thought that I should try and submit myself to the most terrifying experience I could possibly subject myself to, and after that it would be a piece of cake. Strangely enough, I prepared harder for those two days of testimony than I had for almost anything else prior to that. And so when I finally took the stand, I felt very calm and very confident. And I also was cognizant of the enormous responsibility in presenting a case in a calm way, in a way that was unbiased, that didn't seem as though we were out to get him, but to really let the facts speak for themselves.

And it was interesting. On the first day that he arrived in court, as he walked into court, even though he was the accused, the entire court rose and got to their feet, which tells you something--including black people who were in the court--which tells you something about the psychology of power. But by the end of the trial, he wandered in and out like a really almost insignificant old man. I think his reputation had been very severely tarnished, and he had been unmasked for what he was and for what his regime was, and I consider that to be extraordinarily important.

GROSS: Did he stare at you while you were giving your testimony?

Mr. VAN ZYL: He stared fairly ferociously, and I think he was particularly angry that I was somebody who had an Afrikaans last name and seemed to come from the Afrikaans community, which was a community that he regarded as unflinchingly loyal to the apartheid regime. And so I think he was doubly angry and regarded it as an act of betrayal that somebody who was both white and had an Afrikaans last name would testify against him.

GROSS: Was it hard for you to not get emotional while you were making your presentation?

Mr. VAN ZYL: I obviously wanted to get emotional because--given my experience. I have colleagues who I worked with in the student movement who were assassinated. I have a professor at my university who was a friend of the family--was assassinated. I've seen firsthand the real consequences of human rights abuse in South Africa. And therefore when you're testifying about the conduct of the former head of that government, it's not just about a narrow assembling of technical facts. It's about blood and guts. It's about people's lives. And so there was a very strong impulse to be emotional.

Before I testified, Archbishop Tutu's press secretary, a man by the name of John Allen, who I respect enormously, I think stressed the importance of not allowing this to appear as though the Truth Commission was a body staffed by emotional hotheads who had preconceived ideas; that we were sober-minded, that we were serious, that we took our responsibility enormously importantly. And so I think that that caused me, on many occasions, not to rise to the bait and not to become angry, especially in the face of some rather searing cross examination where I might have done otherwise if I was in a conversation in a bar or at a party.

GROSS: My guest is Paul van Zyl, program director for the International Center for Transitional Justice. He was the executive secretary of South Africa's Truth and Reconciliation Commission. We'll talk more after a break. This is FRESH AIR.

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GROSS: My guest is Paul van Zyl, program director for the International Center for Transitional Justice. He was the executive secretary of South Africa's Truth and Reconciliation Commission.

What are some of the mistakes that you've learned from the South African Truth and Reconciliation Commission, or from other truth commissions that you've worked with in other countries, mistakes that you're applying now to the countries that you're working with? The mistakes you're learning from is what I meant to say.

Mr. VAN ZYL: Right. The first mistake is not to presume that a truth commission is appropriate in every context. And I think there are a range of settings where a truth commission is not appropriate and not helpful.

GROSS: An example?

Mr. VAN ZYL: Well, for example, there is some debate right now, for example, in Mexico about whether it would be useful to have a commission, partly because I think many people believe that prosecution should take precedence. I happen to believe in the Mexican context it would be incredibly important to have a commission, but one has to listen carefully to those who say, 'We shouldn't allow a truth commission to be established as a substitute for some form of criminal prosecution for those people responsible for torture or those people responsible, for example, for the recent death of Digna Ochoa, a very prominent Mexican human rights lawyer and activist.

So I think the first thing is to say that truth commissions should never be introduced into a country as a sop for justice, to say, 'Here. We're introducing a truth commission because truth commissions are the soft option. They're appealing, they're telegenic, and they avoid the very hard questions that prosecutions might.' These things ought to be run together and they ought to be complementary.

GROSS: Other mistakes you've learned from?

Mr. VAN ZYL: I think sometimes you have to be cognizant of questions of culture, that it's interesting that in many of the countries where truth commissions have been most successful there have been strong elements of a Christian underpinning. And what some people have argued is that the mode of inquiry and public disclosure and confession and repentance len...

GROSS: Bearing witness.

Mr. VAN ZYL: Bearing witness. Exactly--lends itself to a cultural or religious context that is primarily Christian. Now I'm very wary of those kinds of generalizations, and I think that you get yourself into all sorts of trouble when you make those kinds of sweeping statements. I think there are a range of primarily Christian countries which have been appalling at looking at their past. But I use that example because I think it's important to be very, very sensitive to local cultural practices, local cultural traditions and to formulate your strategies for dealing with the past in a way that doesn't impose a blueprint taken from one society and simply impose it on another society.

GROSS: You have participated in truth and reconciliation commissions in several countries, very actively in South Africa. How do you prevent yourself by being totally overwhelmed by the inhumanity that people are capable of? And how do you prevent yourself from just being incredibly pessimistic and cynical about human beings?

Mr. VAN ZYL: Well, actually I think that most of the truth commission experiences that I've witnessed or participated in have actually made me profoundly optimistic about human beings in a paradoxical kind of way. Firstly, because they've illustrated our enormous power to transcend adversity. People who have suffered unspeakable suffering have been able to emerge stronger, have been able to testify with a great sense of dignity and composure, and who have been able to survive. And so I constantly marvel at the sheer strength of people and their capacity to carry on.

I also think that truth commissions have a capacity to be profoundly transformative, that when a nation engages in a deep and genuine and profound act of soul-searching, it has a capacity to change that nation, to change its cultural practices, to change its institutions, to change the way the police do business, the way the intelligence organizations collect information, the way the legal profession is practiced. And that capacity for transformation, I think, is incredibly inspiring because you can do one of two things when you confront mass atrocity. You can wash your hands and shrug your shoulders and say, 'This country is desperate and hopeless,' or you can say, 'Step by step, inch by inch, we are going to try and rebuild the society and assist in the rebuilding of the society.' And that's about optimism. That's not about pessimism.

GROSS: Well, I want to thank you so much for talking with us. Thank you.

Mr. VAN ZYL: Great pleasure.

GROSS: Paul van Zyl is the program director for the International Center for Transitional Justice, which is based in New York.