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Part I: Truth commissions; Truth and justice, June 2006, Daan Bronkhorst

Deel:

The ‘truth commission’, which entered the stage in Argentina and Uganda in the early 1980s, has become an international phenomenon. In dozens of countries some kind of initiative has been taken to account for a past of repression, civil war, armed strife and most importantly, wholesale human rights violations. New truth commissions are in the making, have been announced or are under discussion.

  • What are they?
  • Have they been successful?
  • Do they provide an alternative for trials?
  • Is there an emerging international of truth commissions?
  • Do non-governmental ‘truth commissions’ produce better results?
  • Does the ‘truth’ contribute to reconciliation and reconstruction?

Part I of this Guide is based on the experiences of over 50 truth commissions and similar bodies that have been in operation since the 1970s, and on the ever growing body of literature on truth commissions and related forms of ‘transitional justice’.

WHAT A TRUTH COMMISSION IS

There is no clear-cut definition of what constitutes a true truth commission. It is a body set up to come up with the truth. It is generally only labelled a truth commission if it is an official body. It can be installed by order of the president, such as the National Commission on Truth and Reconciliation in Chile, 1990-1991. It can also be established by parliament, such as the South African Commission (1995-1998) or the German Enquete Kommission which reported in 1995. Or it can be a commission under the auspices of an intergovernmental organization, such as the commissions in El Salvador (1992-1993) and Guatemala (1997-1999) which were sponsored by the United Nations.

Some commission have had a quite narrowly defined area of research. The Chilean commission dealt only with cases of extrajudicial executions (arbitrary killings) and ‘disappearances’ (secret abductions), committed either by the state or by armed opposition groups. In contrast, the South African commission dealt with a very broad range of violations including killings, torture, threats, racist attacks, demolition and gross discrimination. In Germany, the commission dealt with many thousands, if not millions of individual people being persecuted, spied upon, pushed out of their jobs for political reasons, and some of them killed when trying to cross the border. Its reports have already totalled thousands of pages, and new reports continue to be issued.

The phenomenon of the truth commission has as yet not been defined in international conventions or declarations. The following is a working definition:

A truth commission is a temporary body,
set up by an official authority (president, parliament) to
investigate a pattern of gross human rights violations committed over a period of time in the past, with a view to
issuing a public report, which includes
victims' data and recommendations for justice and reconciliation.

INTERNATIONAL LEGAL STANDARDS

An array of international conventions and declarations conditions the operations of truth commissions and the character of transitional justice.

The Genocide Convention and the UN Convention against Torture stipulate that those responsible for gross human rights violations should be brought before a domestic or international court. This provision is also included in the UN Declaration on Protection from Disappearances, the UN Principles on Effective Investigation of Extralegal Executions and the Inter-American Convention on Forced Disappearances.

The International Covenant on Civil and Political Rights with its First Optional Protocol, monitored by the Human Rights Committee, as well as the European Convention on Fundamental Rights embody a wide range of rights, including the right to petition and the right to remedy for victims of violations.

The ‘Joinet’ Principles (1997) on impunity state that alternative institutions should ‘not supplant the justice system’. The ‘Van Boven-Bassiouni’ Principles (1997) on remedies and reparation state that ‘reparation should include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition’. The Paris Principles (1991) deal with national human rights institutions. Key requirements are independence, pluralism in membership, adequate powers of investigation and sufficient resources.

The Statute of the International Criminal Court (1998) is now the strongest convention as regards the obligation to prosecute gross human rights violators, specifically for genocide, crimes against humanity, and war crimes which are part of a systematic pattern.

THE CHARACTER OF NON-JUDICIAL MECHANISMS

The essence of alternative accountability mechanisms is that they should supplement individual criminal trials. There are inherent risks in the non-judicial approach, such as:

  • They easily blend into acceptance of alternatives to prosecution.
  • Fair trial standards cannot be applied to informal processes.
  • They are easily influenced by political and social factors.
  • Standards developed for such mechanisms may be a form of ‘codifying compromise’.
  • Their emphasis is often on collective rather than individual accountability.
  • They may inhibit further discussion about the past by making a particular ‘truth’ official.

Non-judicial mechanisms are being been used in particular to address abuses committed by:

  • Lower chain commands structures and individuals, such as conscript soldiers and NCOs
  • Collaborators
  • Informers
  • Those who did not prevent abuses, e.g. a nurse working at a torture centre
  • Child soldiers and juvenile offenders.
  • ‘Non-state actors’

Truth commissions are a relatively new phenomenon among the non-judicial mechanisms. They have attracted much attention by tackling crimes not only committed by ‘lower’ perpetrators, but by the highest in command as well.

TRUTH COMMISSIONS AND TYPES OF REPRESSION

It is evident that the character of a truth commission is influenced, if not defined, by the character of the repression or civil strife which it is supposed to deal with. Repression can take various forms. One could distinguish:

  • ‘Sharp’ repression: it characterized many of the Latin American regimes of the 1970s and 1980s - a system of human rights violations that was targeted at individual opponents, such as members of left wing parties, trade union leaders and human rights activists. These people were struck with particular acrimony: they were arrested or abducted, tortured and killed. In some countries this went on for years on a large scale (Argentina, Chile, Peru), in other countries it was more incidental (as in the December 1988 killings in Suriname).
  • ‘Blunt’ repression: as under the communist regimes of Central and Eastern Europe up to 1990, and in the one-party governments such as those of Indonesia, Kenya and Libya. Many people were oppressed, screened and harassed. Many people too were picked up for questioning, and quite a few of them were sent to prisons or labour camps.
  • ‘Total’ repression: where a government has struck with gross violence at wide sectors of society or mass numbers of individuals from ethnic, national or political groups, as in the Democratic Kampuchea (1975-1979), Uganda under Idi Amin (1971-1979), Iraq (1979-2003) and Rwanda during the 1994 genocide.
  • ‘Chaotic’ repression: where the state did not control the entire territory or was collapsing, and both government and armed opposition groups committed abuses on a large scale. In much of the 1980s and 1990s, this was the situation in countries including Afghanistan, Sierra Leone, Congo, Mozambique, Sudan and Colombia.

Quite a few countries showed a mixture of types of repression. Under the apartheid regime of South Africa for example, there was sharp repression against political activists and blunt repression against the black majority as a whole; there were also instances of chaotic repression in areas where the state was fighting armed opposition groups. In Indonesia during the 1990s, there were selective arrests of trade union leaders and activists, ‘blunt’ heavy censorship and control by the ruling Golkar party throughout the country, and chaotic repression in regions such as East Timor, Aceh and Papua.

The different types of repression may lead to different kinds of accountability after the violence has abated. After sharp repression, there remain clearly identifiable perpetrators such as the generals of a coup d'état, the torturers and guards in concentration camps, the military commanders who ordered massacres in villages. After the demise of a blunt system, the responsibilities are more difficult to point out. There is the overall responsibility of the (communist) party or ruling class, its members and functionaries, the judges who were screened and instructed by the regime, the mass of ‘informal informers’, and more. In very general terms, truth commissions reporting on a sharp regime (Argentina, Chile) could operate more quickly and show more results than those of the blunt regimes in Eastern Europe. Situations of total and chaotic repression were often concluded by a conclusive war, a truce or a peace treaty. None are favourable for the work of a truth commission, as parties tend to obfuscate or ‘balance out’ responsibilities for gross human rights violations, and as the new political situation is often far from stable.

A TRUTH COMMISSION WITHIN THE POLITICAL AND JUDICIAL FRAMEWORK

Truth commissions can be set up for good or for bad reasons. Frequently there is a mixture of the two. Ideally, a truth commission is an honest approach to deal with a legacy of past human rights abuses. It is effective as a tool for reconciliation. It is part of an overall system of ‘conciliation’. A bad reason for setting up a truth commission is that it might preclude trials of those most responsible for flagrant and systematic abuses.

The four main instruments for a government in solving conflicts are investigation, mediation, arbitration and adjudication.

  • Investigation covers all government efforts to research and publish the facts of unlawful executions.
  • This normally involves an official statement about the events themselves, disclosure of a substantial part of the facts and revelation of the identities of those responsible.
  • Individuals or official bodies may be appointed to undertake a special investigation into past abuses. A government may establish a special commission for the purpose, such as a ‘truth commission’ or a commission of inquiry with narrower terms of reference (see ‘Other forms of official investigation’).
  • Mediation covers all attempts to encourage dialogue with adversaries and international bodies.
  • Governments may enter into talks with opposition (or victim) groups.
  • They may respond to reports and requests by national or international human rights and humanitarian organizations. A government may sanction visits by the International Committee of the Red Cross, or by NGOs such as Amnesty International.
  • They may discuss these matters within intergovernmental organizations, and allow these organizations to investigate the situation. Mediation may take the form of an official referral to a United Nations body, for example the UN Working Group on Disappearances and the Special Rapporteurs.
  • Arbitration implies an ‘out of court’ settlement. It covers all government attempts to redress or compensate for gross human rights violations, short of judicial proceedings against perpetrators.
  • Governments can provide for material compensation for victims and their dependents (see also Part V - Reconciliation).
  • They can take disciplinary measures against military and police officers.
  • Some governments have used administrative, traditional or specially designed councils and other bodies to deal with perpetrators (see ‘Community-based and traditional systems of justice’).
  • Adjudication involves judicial proceedings against, and convictions of, perpetrators at the highest levels of responsibility (junta members), and at the level of the direct responsibility (who pulled the trigger?) (see ‘Various forms of trials’).

VARIETY OF CHARACTERISTICS

Truth commissions have shown a wide variety of characteristics:

  • Authority: They are established by presidential decree, by law, by a parliamentary decision, or as the result of a peace accord.
  • Mandate: They investigate a wide array of violations over a period of twenty years or more, or investigate a selection of violations over a shorter period.
  • Agents: They focus on violations committed by government agents only, or deal with abuses committed by various factions.
  • Composition: They are composed of nationals and/or foreign individuals, from three up to over twenty persons. (Work discipline may be exemplary, as in Chile, or notoriously sloppy, as in Chad).
  • Judiciary: They include or are connected to judicial bodies which rule on prosecution or amnesty, or do not pronounce themselves on adjudication.
  • Duration: They may take only months to finalize operations, or work for many years on.
  • Purpose: They may or may not have the expressed purpose to foster reconciliation, propose reforms, install prosecution and award compensation.
  • Sources: They may base their work mainly on domestic sources (Chile, Germany, Morocco) or strongly on foreign sources (Guatemala, El Salvador, East Timor, Sierra Leone).
  • Burden of proof: They may base themselves on ‘hard’ cases including court findings (Chile), or on ‘more evidence to support than contradict the findings’ (El Salvador).
  • Report: They issue a report which may or may not contain an overall historical account, a clear-cut inventory of cases, a set of recommendations, a list of all or selected perpetrators, etc. Some reports, such as the Argentine Nunca Más (1984) were bestsellers, while others were not published or went largely unnoticed.
  • Recommendations: Some commissions produced only basic recommendations, while the Chilean commission's report had over 70 pages of recommendations.
  • Costs: The costs of the truth commissions may vary from under US$ 1 million (Chile) to over US$ 35 million (South Africa). Lustration initiatives can be much more costly (Germany spends over US $ 130 million a year).
  • Follow-up: A truth commission may be followed up by an ‘ombudsman’, a permanent human rights commission, an international monitoring institution, a human rights ministry or department - or there may not be any follow-up.

EXAMPLES OF MAJOR TRUTH COMMISSIONS

A dozen major truth commissions illustrate the variety:

Argentina: National Commission on the Forced Disappearance of Persons (‘Sabato Commission’), 1983-1984.

  • Set up by presidential order; 16 members, 60 staff.
  • Mostly closed sessions.
  • Dealt with ‘disappearances’ enforced by security forces from 1976-1983 (7 years).
  • Report: lists nearly 9,000 victims, plus testimonies and recommendations.
  • List of perpetrators prepared, but not made public.

Chile: National Commission on Truth and Reconciliation (‘Rettig Commission’), 1990-1991.

  • Set up by presidential order; 8 members, 60 staff.
  • Closed sessions, plus public information sessions.
  • Dealt with extrajudicial executions, ‘disappearances’ and kidnappings by government agents and armed opposition from 1973-1990 (17 years).
  • Report: detailed account of nearly 3,000 cases, plus many recommendations.
  • Did not pronounce on individual responsibilities of perpetrators.

El Salvador: Commission on the Truth (‘UN Commission’), 1992-1993.

  • Established by UN-sponsored peace accord; 3 members (all foreign), 40 staff.
  • Closed sessions.
  • Dealt with extrajudicial executions, ‘disappearances’ and other abuses by government agents and armed opposition from 1980-1991 (11 years).
  • Report: broad account with many examples of mass murders.
  • Published selected information on individual perpetrators.

Germany: Commission of Inquiry for the Assessment of History (‘Eppelman Commission’), 1992-1994

  • Established by parliament; 36 members.
  • Public sessions to hear academic papers.
  • Dealt with gross human rights violations and other forms of repression in German Democratic Republic from 1949-1989 (40 years).
  • Report: books totalling some 15,000 pages. Files of former security apparatus opened for individual consultation by the ‘Gauck-Behörde’.
  • Information on persecutors and informers disclosed in files.

South Africa: Truth and Reconciliation Commission (‘Tutu Commission’), 1995-2000.

  • Established by parliamentary adoption of law; 17 members, 300 staff.
  • Open sessions with hearings of 2,000 victims, also perpetrators and witnesses; closed sessions dealing with total of 21,000 victims.
  • Dealt with all abuses committed under the apartheid regime, 1960-1994 (34 years).
  • Report: five volumes account with many examples, plus many recommendations.
  • Perpetrators named and heard - they could apply for amnesty.

Guatemala: Commission for Elucidation of the Past, 1997-1999.

  • Established by UN-sponsored peace accord, 3 members (1 foreign), 200 staff.
  • Closed sessions.
  • Dealt with all abuses committed during civil war, 1962-1996 (34 years).
  • Report: book-length report on characteristics of civil war.
  • Perpetrators not named, but majority of atrocities attributed to security forces.

Peru: Truth and Reconciliation Commission, 2001-2003

  • Established by the government, 9 members, 150 staff.
  • Open and closed sessions.
  • Dealt with killings in war against Shining Path guerrillas, 1980-2000 (20 years).
  • Report: 9 volumes, documenting 69,000 dead, of whom 54 percent killed by guerrilla.
  • Some information on individuals responsible.

Morocco: Equity and Reconciliation Commission, 2004-2005

  • Established by the King, 17 commissioners.
  • Heard from 16,861 people in mostly public sessions.
  • Dealt with forced disappearances and arbitrary detentions, 1956-1999 (43 years).
  • Report: 592 people were killed, of whom 322 people shot dead by government troops, 174 died in arbitrary detention.
  • No perpetrators named.

East Timor: Commission on Reception, Truth and Reconciliation, 2002-2005

  • Established by government and UN, 7 commissioners.
  • Heard 7,000 victims.
  • Dealt with violations under Indonesian occupation 1974-1999 (25 years)
  • Report: details of torture cases, at least 102,800 died (approximately 10% of the present population).
  • Names named of key Indonesian military leaders.

Sierra Leone: Truth and Reconciliation Commission, 2000-2004

  • Established by parliamentary act under UN auspices, 4 domestic and 3 international commissioners.
  • Public hearings, 7,000 testimonies.
  • Dealt with human rights violations since 1991 (10 years).
  • Report: 1,500 pages plus 3,500 pages of transcripts of testimonies
  • No perpetrators named.

Ghana: National Reconciliation Commission, 2002-2005

  • Established by parliamentary act, 9 commissioners
  • Heard 2000 victims, 79 perpetrators.
  • Dealt with human rights violations 1957-1993 (36 years).
  • Report: recommends reparations for 3,000 victims.
  • Perpetrators subpoenaed to testify.

Liberia: Truth and Reconciliation Commission, 2006-

  • Established by peace agreement under UN auspices, 9 members, 3 international advisers.
  • Hearings follow South African model.
  • Will investigate crimes committed between 1979 and 2003 (24 years).
  • Report due 2008 or 2009.
  • Will name but not try suspects.

Another promising truth commission had a chequered history. In Nigeria, the Special Human Rights Commission (‘Oputa Panel’) heard hundreds of victims and some perpetrators between 1999 and 2002, but its findings were not made public that year. Following the presentation of the report to the president in 2002, a number of court cases were instigated against the commission. In 2005, Nigerian human rights group released the report. Its 98 pages deal with ‘Nigeria's colonial past, the cult of the head of state, the military in government, minority rights in Nigeria, human rights violations by agents of the state such as the police, security forces, the military and the ministry of justice and corruption in the Federal and State governments and business community’.

MORE EXAMPLES OF TRUTH COMMISSIONS

The major truth commissions listed above are often counted as ‘success stories’ - even if they had significant faults, as is explained below (see ‘How expectations did not materialize’). There have been some 25 less prominent truth commissions since the 1970s. Some were relatively successful, some abortive. Most were either a partial success or a complete failure.

  • Uganda, 1974-1975: Commission of Inquiry into Disappearances. 1,000-page report published (in few copies only), no details on individual cases.
  • Bolivia, 1982-1984: Commission of Inquiry into Disappearances. Documented 155 cases of ‘disappearances’; aborted before it could publish a report.
  • Guinea, 1985. Commission of Inquiry. No report.
  • Uruguay, 1985. Parliamentary Investigative Commission on ‘Disappeared’ Persons. The report had to be substantially changed under political pressure, and was never officially presented.
  • Zimbabwe, 1985. Commission of Inquiry. The report was not disclosed.
  • Uganda, 1986-1995. Commission of Inquiry into Violations of Human Rights (‘Oder Commission’). A report was published after nine years, but had very limited distribution.
  • Philippines, 1986-1987. Presidential Committee on Human Rights. Report never published.
  • Nepal, 1990-1991. Commission of Inquiry on the 1960-1991 Period. The report was published in 1994, with very little publicity. Two commissioners had already resigned in protest.
  • Chad, 1991-1992. Commission of Inquiry on Crimes by Habré c.s. Report said 40,000 were killed, detailed 4,000 cases, named some perpetrators. Little follow-up due to political and military developments.
  • Ghana, 1993-1994. Commission on Human Rights and Administrative Justice. Failed investigation into killings of early 1980s.
  • Sri Lanka, 1994-1997. Four Presidential Commissions of Inquiry into ‘Disappearances’. Reports (of greatly varying quality) published, with some follow-up regarding the prosecution of perpetrators.
  • Burundi, 1995-1996. Commission to Investigate Killings in Coup Attempt 1993 (‘Nikken Commission’, under UN auspices). Report published, but overtaken by the reality of mass killings since. In November 2001 it was again announced that a truth commission ‘would be set up’
  • Haiti, 1995-1996. National Commission on Truth and Justice. A truth commission of seven, including three international experts, heard 5,500 witnesses. Report made public one year later, issued in book-form some years later.
  • Ecuador, 1996-1997. Truth and Justice Commission. Established to investigate at least 176 cases of human rights abuses over 17 years; aborted.
  • Malawi, 1999. A five member Human Rights Commission was installed five years after the constitution had enacted such an institution.
  • South Korea, 2000. The nine member Presidential Truth Commission on Suspicious Deaths was installed to investigate the death of civilians opposed to past authoritarian regimes.
  • Sri Lanka, 2001-2002. Presidential Truth Commission. The 3 member commission on ethnic violence in 1981-1984 handed over its report to the president in April 2002.
  • Panama, 2001-2002. A Truth Commission set up by order of the president, to investigate human rights violations in the period 1968-1989, documented 110 cases of extrajducial executions and ‘disappearances’.
  • Lebanon, 2001. A Commission of Inquiry into ‘disappearances’ was first set up in early 2000, with little result. A second commission was operative from 2001.
  • Serbia, 2001. The president established a 19-member Truth and Reconciliation Commission to investigate war crimes committed in Slovenia, Croatia, Bosnia and Kosovo since 1991. Some years later, the commission had just vanished.
  • USA, 2004. Seven members were appointed to the Greensboro Truth and Reconciliation Commission, charged with looking into the shooting deaths of five protestors and wounding of ten others by the Ku Klux Klan and the American Nazi Party on November 3, 1979. The report is expected in 2006.

Fairly developed truth commission proposals have been circulating in:

  • Suriname: A truth commission proposal was elaborated from the mid-1990s by independent lawyers and human rights activists in the country; one high level prosecutor was assigned as head of the potential truth commission, but no operations have come to fruit.
  • Namibia: Demands, including from parliament and the Council of Churches of Namibia, to establish a truth commission were adamantly opposed by the president. German-born Pastor Siegfried Groth produced Namibia: The Wall of Silence (1995) about atrocities committed by the Swapo ruling party. A church group produced the List of Namibia's ‘Missing Persons’.
  • Bosnia: There has been a serious effort to establish a Truth and Reconciliation Commission, by the Citizens’ Association for Truth and Reconciliation of Bosnia and Herzegovina. A draft law was prepared, but never adopted.
  • Indonesia: A truth and reconciliation commission was first proposed at the National Commission on Human Rights in 1998. It was urged by 36 NGOs in 1999. A draft bill was produced in early 2000, more drafts followed during 2001.
  • Somalia: A truth commission was asked for by a coalition of NGOs, in October 2000.

‘LUSTRATION’ INITIATIVES

‘Lustration’ (cleansing) is a non-judicial mechanism of individual accountability, which was used by various countries in Eastern Europe during the 1990s. Some of these initiatives are ongoing, others are being developed (as in the Northern Balkan states). No comprehensive report was produced by most of the governments a number of governments have argued that this is unnecessary, as everyone already knew the truth. Individuals, however, are given access to documentation on their past persecution, and can apply for compensation. ‘Lustration’ has similarities with the ‘denazification’ processes, and actions against collaborators, in the aftermath of World War II in Germany, the Netherlands, Belgium, France etc.

> For an overview see Part II – Lustration.

HOW EXPECTATIONS DID NOT MATERIALIZE

Many truth commissions were suggested but never took off, or were debated but never really materialized, or were doomed to fail from the outset, or failed miserably in their results.

There have also been cases where a truth commission was started, worked for some time and published some kind of report of its findings, but was not heard from since. This happened, as listed above, in countries including Bolivia, Guinea, Zimbabwe, Ghana, the Philippines and Ecuador. In Haiti a commission was active in 1994-1995 and a report was prepared but took many years to reach even the most interested part of the public. East European countries including Bulgaria, Poland, the Czech Republic and Albania have at one point in the early 1990s started preparing an official account of human rights violations under the previous socialist regimes, but these efforts were thwarted and only fragments of their findings became public - and were the subject of much controversy. All in all, there have been more many aborted plans for truth commissions or missed opportunities as there have been actual commissions.

Even the major ‘success stories’ listed above have been substantially criticized:

  • Argentina and Chile dealt with ‘disappearances’ and killings only, and left the greatly larger number of cases of torture and political imprisonment out of their findings. Chile's report was very sound in documenting individual cases, but the list included in the Argentine report had considerable flaws.
  • Of the South African Truth and Reconciliation Commission, researcher Anthea Jeffery noted that ‘fewer than 10 percent of victim statements were made under oath. Many depended heavily on hearsay and almost none was corroborated. Of the 7,127 amnesty statements, only 102 were confirmed as accurate. Worse, the TRC proceeded on the basis that there were four different kinds of truth - factual truth, narrative truth (including perceptions, stories and myths), social truth (established by discussion and debate) and restorative truth (that which heals victims by acknowledging their suffering).’
  • The El Salvador commission detailed only a small percentage of all killings, and named a rather arbitrary selection of alleged perpetrators.
  • The German ‘Enquete-Kommission’ working under parliamentary auspices in 1992-1994 did not so much establish a newly found truth as collate thousands of documents. It was largely construed as an academic effort, without much effect on public opinion or the public’s awareness of the past.
  • The Guatemala commission, in 1997-1999, was heavily impeded by political struggle. The non-governmental Recovery of Historical Memory Project (REMHI), undertaken by the Human Rights Office of the Archbishop of Guatemala, was a better representation of the ‘truth’. But a devastating political blow was dealt to this project: in April 1998, within 48 hours after officially offering the project's findings to the government, bishop Juan Gerardi's head was smashed with a piece of concrete by unknown assailants.
  • In late 2005, after the truth commission’s report was published, the Moroccan Association for Human Rights published a list of alleged torturers it thinks should face trial. They include members of Morocco's current administration. The association also queried the truth commission’s figures, stating that 1,500 people had been killed in the protests of 21 March 1965 and between 500 and 1,000 in the protests of 1981.

OTHER FORMS OF OFFICIAL INVESTIGATION

In dozens of countries, human rights institutions have been established as a temporary or more permanent watchdog. These have included a ministerial or departmental ‘ombudsman’, a public prosecutor, a ‘human rights defender’, a ‘national commission’, or similar body with some such title.
For example, in Paraguay the Centro de documentación y archivo and UNESCO administer the archives of Paraguay's former Political Police under the presidency of Alfredo Stroessner (1954-1989), which were discovered from 1992 onwards. In Mexico, the president created the Special Prosecutor's Office in November 2001. One and a half years later, Human Rights Watch noted that ‘the office had yet to produce significant results’.

NON-GOVERNMENTAL ‘TRUTH COMMISSIONS’

The work of official truth commissions would generally have been greatly restricted, or outright impossible without recourse to a bulk of data collected by NGOs. In many countries, major reports by domestic and international human rights groups have preceded the establishing of a truth commission, or an attempt to set up a commission. Much of that documentation has been produced or summarized by international NGOs, such as Amnesty International and Human Rights Watch.

The term ‘truth commission’ has not always been reserved for official institutions only. These are some examples of NGO initiatives which have produced major ‘truth’ reports:

  • Brazil: An official truth commission was never established, but church activists and lawyers produced Numca Mais (1985), a best-selling report mainly based on reports of hearings before military courts.
  • Uruguay: While the parliamentary commission in Uruguay produced few results, the non-governmental Nunca Más report (1985) has remained the most exhaustive account of eleven years of military government.
  • Colombia: There is a ongoing project named Nunca Más: Crimenes de lesa humanidad
  • Chile: Based on documentation of the Vicaría de la Solidaridad, a three volume book entitled Forbidden Memory, issued in 1989 by a coalition of NGOs, contains chapters in which names of perpetrators and other responsible individuals are mentioned.
  • Guatemala: Before the 1999 report of the official Commission for Elucidation of the Past, a church-based NGO, REMHI, had already (in 1998) published Guatemala: Never Again. This is a report of over 1,400 pages dealing with the fate of some 1.44 million victims of human rights violations - people killed, ‘disappeared’, tortured, evicted, widowed or made orphans.
  • Bosnia: Human Rights Watch published testimonies on the war in Bosnia, War Crimes in Bosnia-Hercegovina (2 volumes, 1992-1993). It contains many cases of atrocities and ample references to identified members of the army and paramilitary units who were involved in killings, torture and rape.
  • Russian Federation: Since the late 1980s the NGO Memorial has been documenting victims of repression from the Lenin and Stalin periods, and present day patterns of human rights violations such as in Chechnya. The organization has dozens of local chapters.
  • Cambodia: With regard to Democratic Kampuchea Cambodia (under the Pol Pot regime, 1975-1978), the Genocide Studies Program at Yale University set up the Cambodian Genocide Databases which contains records on over 3,000 primary and secondary documents and an index of more than 20,000 Khmer Roue military and political leaders. The Documentation Center of Cambodia in 2005 published documentary evidence that claims to implicate seven senior Khmer Rouge officials for devising and implementing policies of mass execution, torture and other crimes. The 153-page volume, Seven Candidates for Prosecution, widely available inside Cambodia, uses archival evidence to dissect Khmer Rouge command and control structures.
  • China: There are no human rights groups that can freely report within China, but both Amnesty International (AI) and Human Rights Watch (HRW) have intensely documented individual victims and patterns of repression. Among many other reports, AI published China: No one is safe. Abuse of power, torture, executions and China: Repression in the 1990s. A directory of victims (both from 1996). HRW issued Detained in China and Tibet: A directory of political and religious prisoners (1994).
  • Rwanda: In 1993, the International Commission of Investigation on Human Rights Violations was set up by a coalition of four NGOs. A report was published, but overtaken by the reality of the 1994 genocide. In September 1994, within months after the genocide, African Rights published a report of 800 pages, Death, Despair and Defiance, which documented many cases and included the names of 213 individual perpetrators.
  • Nigeria: A number of human rights groups has been reporting on violations, including the Civil Liberties Organisation (Behind the wall: A report on prison conditions in Nigeria, 1991) and the Committee for the Defence of Human Rights (an Annual report on the human rights situation in Nigeria, since 1995).
  • Zimbabwe: NGOs including the Justice and Peace Committee released a report in 1997, documenting the repression in Matabeleland and other regions in the 1980s.
  • Turkey: Since 1991 the Human Rights Foundation of Turkey has been publishing the annual Turkey human rights report: A survey of sample cases.

There also have been cases of political groups setting up commissions to investigate abuses committed in their ranks. They include two ANC-sponsored commissions in South Africa: the 1992 ‘Skweyiya’ Commission and the 1993 ‘Motsuenyane’ Commission.

CONDITIONS FOR A TRUTH COMMISSION

Three conditions seem to be basic to a relatively successful official truth commission.

  1. A certain level of official support or acquiescence is eeded. Where this is not the case, preparations and debates may last indefinitely or the commission's results are not followed up.
  2. A truth commission stands the best chance of producing anything substantial if one party, generally the previous government, has been a much more far-reaching violator than the other parties combined. If various parties have committed atrocities at a large scale, demands for dealing with the past will tend into the direction of negotiations, mediation and reconciliation, not in clearing up responsibilities for past abuses.
  3. The success of a truth commission is heavily dependent on a true ‘transition’ to rule of law. It will not have any significant effect if the situation in which it was originally established, generally conditions of relative peace and security, has meanwhile deteriorated or sunk to previous hostility levels.

There are many more detailed prerequisites for truth commissions to operate well (see Checklist).

THE ‘TRUTH’ OF A TRUTH COMMISSION

Truth is a very elusive concept. Since ancient times philosophers have argued what it is, how it can be tested and how refuted. Take a simple truth: a person can either be alive or dead. If dead, he can have died of illness or old age, or have been the victim of a violent attack. The attack may have been committed by an individual criminal or by a person or persons acting as agents of the state or a political group. In the latter instance, the case can be dealt with by a truth commission.

The truth of such a case is hardly ever as simple as it may seem at first sight. Was the person an innocent victim, a terrorist or anyone falling between those two poles? Was he killed outright by a bullet in the head, did he perish in a camp or prison, or due to dire circumstances in his home village? Was he deliberately targeted or rather the victim of an indiscriminate act of violence? Was the killer acting of his own behalf, on order of superiors, in the understanding that this was what had to be done, or arbitrarily dealing with the situation in the knowledge that he would not be punished? It is evident that when a definite condition such as death can raise so many questions, there are many more questions about what may or may not constitute ‘persecution’, ‘repression’ or ‘discrimination’ in cases of harassment, cruel treatment, police violence, dismissal from employment and so on.

On the other hand, truth is one of the most simple terms of everyday human life. We do strongly hold some things to be true. Many people are prepared to wage their life or liberty for the truth. Courts prosecute, judge and condemn people every day in every society for things which are by all standards construed to have truly happened and truly be the responsibility of the defendants.

An elegant definition of truth has been offered by the German philosopher Jürgen Habermas. Truth, he says, is something which we are aware of in three aspects:

  • It is factual, corresponding with something that really happened or exists.
  • It is normative, corresponding with a sense of what we feel is just.
  • It is conveyed in a truthful manner, with honesty and sincerity.

Truth commissions function well if they comply with all three aspects of the truth. They should state facts, not just guesses. They should report according to standards of international law or morality, and may rightly call a murder a crime, but not put murder on the same level as the barring of someone from employment on political grounds. Third, they should present their findings in a truthful and honest way. If they cover up all the tricky issues or veil all the ultimate responsibilities, the report will not be believed even if the facts themselves are true. This also applies to individual testimonies. Winnie Mandela may have spoken the truth in the South African truth commission's hearings, but few in the audience have had the feeling that she really told how things had happened.

FORENSIC INVESTIGATION

Methods used in forensic investigation for the purpose of identifying victims of state repression have now become widely accepted. They have been standardized in such guidelines as the 1991 Minnesota Protocol and the 1999 Istanbul Protocol.

Forensic medicine includes a number of specializations:

  • Dactyloscopy (finger, foot and hand prints).
  • Forensic odontology (jaw and teeth).
  • Forensic pathology (scars, illnesses, internal autopsy)
  • Forensic anthropology (skeleton data).
  • Reconstruction techniques, photographic supra-projection (faces from skulls).
  • Matching techniques including DNA identification, for example to match the DNA of (grand)parents with that of presumed offspring adopted by other families.

The United Nations employs forensic experts on a regular basis, e.g. to collect evidence for the international tribunals on the former Yugoslavia and Rwanda. Physicians for Human Rights has collected and investigated forensic evidence in countries and regions including Bosnia, Cyprus, Croatia, Georgia, Kosovo, Yugoslavia, Brazil, El Salvador, Guatemala, Honduras, Mexico, Kenya, Liberia, Nigeria, Rwanda, Sierra Leone and Iraqi Kurdistan. It has cooperated with national initiatives (who often worked internationally as well) such as the Equipo Argentino de Antropología Forense (EAAF), the Guatemalan Forensic Team, the American Association for the Advancement of Science, the Danish Committee of Concerned Forensic Scientists and others.

NAMING NAMES OF PERPETRATORS?

Ever more lists of names related to human rights violations are being compiled and published, with increasing degrees of factual accuracy. They are being issued by non-governmental organizations, ‘truth commissions’, and official human rights institutions. They are also part of the work of international tribunals. Each initiative taken by any group or commission may prompt more naming efforts by other organizations. For instance, the Yugoslavia tribunal was offered a list of over 11,000 persons who went missing during the war in Bosnia. The list was prepared by the International Red Cross. Hard technology is another contributing factor: the use of computerized databases and electronic communication now facilitates an unprecedented quantity and quality of name lists.

A wide variety of sources is available for identifying the perpetrators:

  • Testimonies of victims and survivors, refugees, journalists, and other witnesses.
  • Reports of fact-finding missions by domestic and international organizations.
  • Official documents ordering, explicitly or by assumption, abuses to be committed by identifiable persons or units.
  • Lists of units and commanders stationed in or responsible for a certain area during the period that gross human rights violations were committed there.
  • Reports on people with political or military authority who have publicly encouraged attitudes and actions that may be directly linked to the violations perpetrated thereafter, or who after the fact have failed to condemn such violations and bring those responsible to book.
  • Material and forensic evidence that connects victims to certain agents, means and methods used in the abuse.
  • Testimonies from former or current agents of the security apparatus.
  • Documentation of judicial proceedings before domestic and international courts.

The question as to whether and when to include names of perpetrators is now being debated - at times intensively - within the human rights movement. The chief argument in favour of naming perpetrators is that such a policy might counter the prevailing sense of impunity in nearly all countries where gross human rights violations have been or are being committed.

The arguments against adopting such a policy by a non-judiciary body, such as a truth commission or an NGO, are pertinent as well:

  • Guilt is being surmised outside of the legal process.
  • The principle of bilateral audience is not observed.
  • Human rights provisions related to fair trial are not guaranteed. Criminal evidence should be assessed by an independent judicial body, which evaluates the many possible grounds for excuse, exception, or exclusion which individuals may adduce.
  • Research on perpetrators strains research capacities, possibly leading to inaccurate representations of a particular level of responsibility.
  • Legal liabilities may be an unwelcome corollary of public reporting on criminal responsibility.

As a guideline for naming the names of perpetrators by non-judicial bodies the following principles could apply (they are derived in analogy from the Geneva principles of legitimate warfare):

  • Limitation: Public identification of perpetrators should be limited to those individuals with a clear responsibility for the acts committed.
  • Distinction: The allegations should reflect a specificity, in the sense that those with a high degree of responsibility are distinguished from those whose involvement was less significant.
  • Proportionality: The importance of public naming of perpetrators should be weighed against the consequences for the perpetrators themselves, their relatives, the victims and their relatives, and the population that may be affected by the future acts of those denounced.

In terms of a practical policy on naming perpetrators, non-judicial bodies such as truth commissions and NGOs might pursue three minimum strategies:

  • To report on official investigations by judicial bodies, including domestic and international trials, where the names of defendants are being made public.
  • To report on the institutions, units and networks of those responsible for human rights violations and the command and control structures of the repressive apparatus, while referring to individual names where appropriate. A wealth of material is now being produced by independent institutions on military, police and security transfers, and on political and military patterns behind human rights abuses.
  • To hand over to the judiciary, either a domestic or international court, on basis of confidentiality, information on perpetrators which has been gathered in the process of the investigations or hearings.

TRUTH COMMISSIONS AND RECONCILIATION

Reconciliation has been the key word in the work of many truth commission efforts. That seems reasonable enough. One cannot imagine any dealing with a violent past which does not request a level of forgiving, forgetting and straightforward amnesia. People have to form governments, speak justice, teach schools, build houses and make newspapers again after every period of mass violence. And many of them, by omission of an inexhaustible pool of professionals and capital owners, have to be the same people that did these things before.

Whatever the shortcomings of truth commissions and the accountability process that they are part of, the value of end results such as some level of stability and relative peace is not to be underestimated. A stand-off or truce may not redress all wrongs or heal all wounds, but it may save many lives. This is a cold comfort. But there is one more hopeful prospect for those who feel societal morality should be comprised of more than this. When a state of relative security has been reached, the room for accounting seems often to be growing through the working of human conscience and social pressures, instead of diminishing under the weight of oblivion.

There is no standard model of reconciliation. But there are minimum requirements.

> For a listing of these requirements, see Part V – Reconciliation.

THE FUTURE OF TRUTH COMMISSIONS

The experiences of truth commissions have been highly varied. Some experts have emphasized the commissions’ results and predict that many more truth commissions will be set up in the years to come. Others have warned that truth commissions may be used as a way out into facile justice, and have advocated a much more widespread use of domestic and international criminal law. It is in particular the example of the South African Truth and Reconciliation Commission, with its appealing presentations before an international television audience, that has prompted quite a few governments to install a similar institution. The South African commission however had some serious flaws and pitfalls, and most of its ‘imitations’ have given a poor performance.

A truth commission stands a reasonable chance of success only if it clearly demarcates its mandate and area of operations from the outset. Within its limitations, the Chilean commission may have been the most consistent commission of all. It focused on in-depth investigation of all individual cases of political killing and ‘disappearance’, but only those. It did not venture into other areas of violations or other tasks (including that of accusing those responsible) which the commission might not have been able to deal with fully.

A truth commission may be a mere eyewash, or at best a temporary palliative, unless political circumstances allow an immediate future of rule of law. This was not so for the truth commissions in the Philippines (1987), Chad (1992) or Burundi (1996). Nor may it be the case in countries such as Sierra Leone, Sri Lanka or Colombia.

A truth commission cannot forgo the meting out of a modicum of formal justice. No transitional state will be able to deal with all those who were involved in the apparatus of gross human rights violations. Should Germany have prosecuted all members of the former GDR communist party? Yet if those most conspicuously behind the repressive system remain with impunity - be they Augusto Pinochet, Jorge Videla, Radovan Karadzic or Desi Bouterse - the price of ‘reconciliation’ will just be too high for society at large.

New models of ‘truth commissions’ may well arise. It can be a model in which there is less emphasis on formal reporting, and more space for either negotiations or prosecutions. It can be a model of a more ‘juridical’ nature, more closely connected with national and international adjudication. It can also be a model which is more politicised: in countries such as Angola, Afghanistan, Cambodia, Liberia, Sierra Leone, Colombia or Palestine the uncovering of historical truth may be considered not to be so vital for the larger process of negotiations and peace building.

While the contributions of truth commissions to justice, reconciliation and rule of law have often been ambiguous, their main significance so far may have been that at least some of them showed that it is possible to disclose the facts in a consistent, encompassing and truthful manner. It would be good advice for any government to use truth commissions primarily for what is their primary service, that is unveiling the truth.

SUMMARY: STRONG AND WEAK POINTS OF TRUTH COMMISSIONS

Strong:

  • Opportunity to establish ‘truth’ in a wider sense than only the legal sense.
  • Opportunity to establish broad accountability where the task to establish individual accountability would seem overwhelming (in terms of financial costs, energy, legal intricacies, societal unrest).
  • Victim centred - opportunity for victims to express themselves.
  • May uncover evidence not recoverable in ordinary criminal court proceedings.
  • Collective, symbolic effort of the nation may strengthen national feelings of self-esteem and coherence.
  • Opportunity to attract attention of international community and lay bare international connections.
  • Reform-oriented - opportunity for recommendations on a wide variety of measures of reparation, compensation and prevention.
  • Open-ended process - no closure restrictions as in legal process.
  • Can prepare documentation for trials, and can support claims for compensation and reparation through government measures or civil suits.
  • Relatively low costs, compared to trials.
  • Attract publicity, create awareness.

Weak:

  • Risk of ‘easy justice’ - generally no individual legal accountability is established.
  • The broader the mandate, the more debatable the ‘truth’ that results from the commission's work - truth is by definition partial.
  • Selective approach towards abuses may imply ignoring other abuses.
  • Often collective focus, which may curtail or under-represent individual rights and claims.
  • Often limited powers of subpoena and access to information.
  • Heavily dependent on political decision-makers - it is easy to interrupt or abort the project, with impunity.
  • If naming perpetrators, truth commissions do not uphold international standards of fair trial (e.g. the right of defendants to confront accusers).
  • Potential witnesses may be reluctant to testify if they are not guaranteed protection against reprisals.
  • Testimonies may not help victims in terms of psychological relief, or compensation and other benefits.
  • A truth commission may preclude trials, may convey the impression that perpetrators go scot-free - some truth commissions were immediately followed up by overall amnesty, other commissions did not cancel previously ruled amnesty provisions.
  • Effects of the commission's report may easily be overtaken by political strife and continuing violence.
  • Often unclear who is responsible for outcome and follow-up of the truth commission.
  • Official ‘truth’ and lustration laws may inhibit discussion of the past in general.

CHECKLIST: PREPARING FOR A TRUTH COMMISSION

I For setting up a non-governmental ‘truth commission’

Documentation.

  • Use all relevant domestic and international NGO reports.
  • Interview individual victims, members of political groups, local communities, committees of relatives and survivors, etc.
  • Consult with national and international experts, including UN Special Rapporteurs.
  • Put claims to declassify information of government bodies, national or foreign, on basis of ‘freedom of information’ acts.
  • Use forensic investigation and other matching techniques.

Mandate.

  • Weigh advantages of either wide investigation of many types of violations over long period (resulting in broad picture with selected details on individuals), or focused in-depth investigation of particular victim groups.
  • Where possible, attempt to record (exhaustive) lists of individual victims.
  • Review wide historical, political, military etc. context of repression and armed conflict.
  • Decide on whether or not to include references to individual perpetrators.

Staff.

  • Staff should include persons from various groups among the victimized population.
  • Staff should be assisted by experts, national or foreign, in areas such as (international) law, data processing, forensic investigation, history, psychological counselling, women's issues.
  • Psychological stress and exhaustion among staff is particular concern.

Security.

  • Protection of both interviewees and interviewers is often serious concern.
  • Assistance can be asked from international NGOs, foreign governments and embassies, 'escorts’ (Peace Brigades International) or private institutions.
  • Copies of documentation, interviews, interim reports etc. to be stored at safe places, if necessary abroad.

Report.

  • Include ample quotes of victims, survivors and dependents so as to convey a direct awareness of what happened.
  • Include recommendations (legal, social, institutional, military, educational, commemorative) on repair and the prevention of recurrence.
  • Present report in public and ceremonial event.
  • Issued report in more than one language if the society is strongly divided in language groups. Publication of English translation or summary enhances international interest.

Budget.

  • Often large input of volunteers.
  • Major costs include travel, data processing and production of report.
  • Budget can be supplied by international organizations, foreign donor organizations, embassies.

II For setting up an official truth commission

Support.

  • Some expression of ‘will of the people’.
  • Official endorsement.
  • Public participation and consultation.

Documentation and investigation.

  • Use official documents (government, judiciary, security service), intergovernmental sources (e.g. UN Special Rapporteurs and Working Groups) and non-governmental sources.
  • Interview victims, survivors, dependents, national and international actors.
  • Ask for expert views (history, law, political and social science).
  • Gather international expertise on truth commissions, as through conference or visits..
  • Use forensic investigation.

Mandate.

  • Period and types of abuses to be investigated have to be clearly set, in terms as precise as necessary.
  • Decision on which actors to investigate (abuses only by government, or also by opposition groups).
  • Draw up lists of victims, venues of atrocities etc.
  • Review context, as objectively as possible.
  • Decide on whether or not to name perpetrators, either individually or in terms of command chains, security units etc.
  • Investigation should not be restricted to state boundaries.

Powers and proceedings.

  • Right of subpoena may be desirable, but risk of legal procrastination.
  • Use both public and closed (investigation) sessions, with guarantees of public explanation and accounting of the proceedings of the commission.
  • Public hearings may help sharing the process, but entail risk of ‘show-offs’ and publicity-oriented distortion; some persons will be very reluctant to testify in public due to shame or painfulness.

Duration.

  • Speed is of the essence. Commissions and staff have to give evidence of intense commitment.
  • Deadline for each stage should be set, to be extended only under particular circumstances.
  • Investigation period should generally not extend one year, unless warranted by time-consuming public hearings etc.

Commission members.

  • Nationals to be preferred; foreigners to be included if an international organization is involved.
  • Staff can be paid or voluntary (generally being a commissioner will be a full-time task for at least several months).
  • Expertise (legal, social, political, historical, psychological) should be represented among commissioners.
  • Commissioners, even if from an explicit political background, should be of high personal standing and have a reputation of objectivity.

Staff.

  • Staff should be paid.
  • Involvement of foreign experts is often necessary.
  • Minimum is few dozen staff members.
  • Security and protection against stress are important concerns.

Report.

  • Beware of long delay between finalizing of investigation and presentation of report.
  • Report should be publicly endorsed by government.
  • Report to be presented in ceremonial event with optimum publicity and outreach.
  • Findings should be made available in books, newspaper articles, radio and television documentaries, internet etc.
  • Report should include widest possible array of concrete recommendations to prevent recurrence of abuses.

Follow-up.

  • Victims, survivors and dependents should have access to relevant (personal) documentation gathered by the commission.
  • Commission should help remove obstacles for, and actively facilitate the exertion of rights to compensation and reparation.
  • The temporary truth commission should be followed-up by a more permanent institution to deal with new information, claims, corrections, public awareness etc.

Budget.

  • Should include significant input of the national government as a token of commitment, even if the commission is largely funded by international donors.
  • Should provide for travel and other expenses of those who testify, and of staff and commissioners.

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