U.S. needs truth and reconciliation commission

It may be time for a U.S. Truth and Reconciliation Commission to deal with America's legacy of slavery. Political analysts referred to the nation's "original sin" of slavery while discussing recent police killings of unarmed black men. Other incidents of race-based violence continue to plague U.S. society.

I teach law focusing on transitional justice and have worked with two national truth commissions. From 1996 to 2001, I was a consultant to the Truth and Reconciliation Commission in South Africa, which examined that country's legacy of racism, slavery and apartheid. From 2009 to 2013, I was one of three international commissioners on Kenya's Truth, Justice and Reconciliation Commission, which addressed human-rights violations committed over 45 years. Each was established by its respective government as an independent commission. Each panel had its challenges. Yet both shed light on the systematic historical injustices that, like it or not, defined each country.

Could a truth commission work for the United States? It would certainly help Americans confront the nation's past racial injustices. Truth commissions are designed to analyze the systemic context of historical offenses and trace their continuing effects today.

Truth commissions allow diverse constituencies to tell their sides of the story and examine the history and results of gross violations of human rights. Because they are not courts of law, the panels cannot legally prosecute or punish people. Both these attributes - taking a broad analytical view of historical injustices and their impact on today's society, as well as providing a safe place for people to discuss their experiences and perspectives - are crucial in any national conversation about the legacy of slavery.

My experience with the two commissions in Africa underscores the importance of who is chosen to lead the panel and the breadth of its mandate.

The commissioners must bring a diversity of skills. People not open to hearing the perspectives of others would do a poor job of fostering the national conversation required. Though it is important to have commissioners with a legal background, my experience shows it is also crucial to have people from other disciplines, including psychology, history, human rights, economics and racial and ethnic conflict.

It is also useful to bring in people from other countries. A number of commissions, including in Kenya, Sierra Leone and Guatemala, did this. It enriches the discussion, for example, to include people from Africa to address the legacy of slavery.

Who heads the commission is critical. South Africa was blessed to have Archbishop Desmond Tutu, who witnessed and suffered through apartheid. Perhaps the United States could turn to President Barack Obama. He has roots in Africa, and his family and ancestry embodies the country's complex racial history.

During Obama's recent trip to Africa, he pledged to do more involving U.S.-African relations after he leaves office. Leading a national, or even international, conversation on slavery and its legacy might be a smart way to start that engagement.

Apart from deciding who would staff such a commission, it is also key that the panel's mandate be broad enough to encompass the complexities of the history and legacy of slavery. At the same time its mandate should not be so broad that it becomes unfocused.

The South African truth commission's mandate, for example, was later viewed as too narrow. It did not closely examine the crime of apartheid - and so did not engage directly with the effects of institutionalized racism. The Kenyan truth commission's mandate, by contrast, was too broad. It was charged with examining not only criminal assaults such as assassinations, massacres and rapes but also violations of civil, economic and social rights. The mandate of a truth commission on slavery would need enough flexibility to explore the complexities of the problem and its legacy - but not so broad as to overwhelm the panel and ensure its failure.

The legacy of slavery is complex. There can, of course, be no first-hand testimony. Yet the United States is still influenced by the inheritance that slaves and slaveholders have bequeathed to us.

My experience in Kenya and South Africa taught me that most people cannot be reduced to the categories of good or bad. People responsible for the worst atrocities in each of the countries often had redeeming qualities. Some who perpetrated violations against others were themselves victims of injustice.

One of a truth commission's most essential functions is to separate the character of a person from the character of his or her actions. We often fall into the trap of wanting to reduce people to good or bad, innocent or guilty.

A person may be guilty of committing a terrible violation, for example, but we do a disservice by viewing him or her only through that single act. My experience taught me that people are more willing to acknowledge and address their own wrongdoing - or that of their ancestors - if they can be assured they won't be judged solely on those bad acts. Human beings are more complex, whether it is a 19th-century slaveholder or a person today on death row.

I am a descendant of slaveholders. My ancestor, Robert Carter, was one of the wealthiest landholders - and one of the largest slaveholders - in colonial Virginia. His wealth and power earned him the nickname "King" Carter. His descendants include two presidents - William Henry Harrison and Benjamin Harrison - five signers of the Declaration of Independence, Robert E. Lee and me.

King Carter's grandson, Robert Carter III, held hundreds of slaves and, like many of his contemporaries, administered what he labeled as "stern punishments" that today we would not hesitate to call a crime against humanity. Yet this same man freed more than 450 of his slaves in 1791 - the single largest act of emancipation by any slaveholder.

Carter's journey to this unprecedented act of defiance and liberation is complicated. In his youth, he did appear more compassionate with his slaves than many of his contemporaries. His conversion to an antislavery Baptist Church may have been the defining moment that compelled him to harness his spiritual beliefs into concrete action.

Yet many of Carter's contemporaries had exhibited the same traits. Some attended the same church. None of them, however, rejected slavery as Carter did.

For the 450 slaves and their families freed by Carter, it was an extraordinary, life-changing event. Carter was a racist who participated in one of the modern world's worst crimes against humanity. He also performed a profoundly generous act anchored in the ideals of liberty and freedom taking hold in the new United States.

Carter's act of freedom and liberation cannot negate his complicity in one of the worst crimes against humanity. They both define him as a person.

America's national debates about race are too often simplistic and polarizing. They produce copious amounts of heat and noise, but little light. We often fail to acknowledge the complexity of our history, both personal and collective.

Yet one now senses a shift in the public mood. The remarkably swift forgiveness from the families of those killed in the Charleston church - a more pure example of Christian love is hard to find these days - has shamed many of us to reflect rather than react.

The mobilization around removing the Confederate battle flag from government buildings has led to a tentative national conversation about how we memorialize and remember the Civil War, the war in which the promise of freedom anchored in the American Revolution was finally achieved. We are beginning to engage at a national level about the messages conveyed by statues and memorials to the Confederacy. It is a much-needed conversation.

Carter's contradictions are with us today. A country founded on ideals of freedom, liberty and human rights at the same time enslaved millions of people during most of its first century. There is no question that Americans have made progress in fulfilling the aspirational ideals that animated the founders of this country. There is also no question that the country still has a long way to go to acknowledge and address the violence and oppression that is a part of U.S. history.

A truth commission would not - and could not - solve the problems that America faces because of its original sin of slavery. The appropriate test for a truth commission is whether it furthers the nation's efforts to engage meaningfully with the present manifestations of past violations.

Refusing to recognize and engage with past injustices compounds the effect of that history and can even result in new injustices. Acknowledging such history can, if we choose, lead to a renewed effort for more Americans to address the legacy of slavery and racism that still runs deep in U.S. society.

© (c) Copyright Thomson Reuters 2015.