Truth and reconciliation commissions: instruments for ending impunity and building lasting peace.

The past two decades have been a period of intense political change across the world. Dictatorial governments fell, through either military victory or a transition to democratic government, and civil wars ended in many countries across South America, Eastern Europe and Africa. One commonality of these situations was the widespread use of violence, including disappearances, murder, torture, rape and illegal detentions to clamp down popular demands for democracy and human rights and for self-governance.

Post-conflict, newly-established or interim governments were faced with the dilemma of addressing the past and its State-sponsored abuses while preparing for the future by building a democratic society based on the rule of law. In many cases, this dilemma was further compounded by peace agreements that provided some kind of amnesty for former oppressors or by former elites granting themselves amnesties before the transition. (1) Moreover, perpetrators of past crimes and their sympathizers often continued to occupy positions of power in government, including the judiciary, police and military, making prosecutions difficult. And this problem was often exacerbated by a lack of evidence. In response to these unfavourable circumstances for providing justice to victims, a non-judicial approach was adopted in numerous States undergoing transition.

Truth commissions were established to officially investigate and provide an accurate record of the broader pattern of abuses committed during repression and civil war. The Commission of Inquiry into the Disappearances of People in Uganda was the first to be established to investigate abuses and make recommendations. Since then, there have been more than thirty truth commissions worldwide, including in Argentina, Chile, Timor-Leste, El Salvador, Guatemala and more importantly South Africa. Their success is highly remarkable. "Truth commissions today", according to Jose Alvarez, Professor of International Law at Columbia University, "are inescapable tools in establishing the truth of past crimes and a means for victim recompense and instruments to promote peace and reconciliation." Most recently, the United Nations Secretary-General's report on "The rule of law and transitional justice in conflict and post-conflict societies" praised them as "a potentially valuable complementary tool in the quest for justice and reconciliation" and in "restoring public trust in national institutions of governance".

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Truth and reconciliation commissions, unlike traditional courts, focus primarily on the victims and rely heavily on their accounts. They provide a forum for survivors to tell their stories and suffering through private or public hearings. Such accounts form an integral part of the commission's analysis of the broader pattern of abuse, usually in a comprehensive final report, and in many cases have led to criminal prosecutions and dismissal of perpetrators from government positions. Despite these commonalities, there are no set principles that dictate the nature and scope of the commissions. They differ widely, depending on the nature of the conflict and the political will to address past abuses in a specific context. For example, the truth commissions in South America, particularly in Argentina and Chile, had a limited mandate to investigate crimes committed during military rule or civil war, including politically motivated detentions and disappearances. They did not have the power to subpoena witnesses and had little or no access to military and police files. Others, like the El Salvadorian and South African commissions that had access to such files, faced non-cooperation from the police and military or found that relevant documentation had been destroyed, thus compromising their investigation. Despite these serious shortcomings, truth commissions have proved to be very successful in compiling the testimony of thousands of victims and bringing the truth to light. Their reports led to the first official acknowledgement of past crimes and suffering endured by victims after years of denial and silence. They also paved the way for future criminal prosecutions, institutional reforms and reparation programmes for victims. The limited political will during the establishment of these commissions was thus overcome by the particular dynamics of their work.

The South African Truth and Reconciliation Commission (TRC), on the other hand, had a much more complete mandate. Established through the National Unity and Reconciliation Act of 1995, it remains the prime example of its kind. Its creation was the result of a thorough review of previous mechanisms worldwide, taking into account their shortcomings and best practices. Also, the views and expectations of the South African civil society were taken into consideration, thereby conveying a sense of ownership. It was designed to initiate a process of reconciliation in order to unify the country after decades of racial and ethnic segregation. It considered that "the telling of the truth about gross human rights violations, as viewed from the different perspectives, facilitates the process of understanding our [South Africa's] divided pasts, whilst the public acknowledgement of untold suffering and injustice helps to restore the dignity of victims and afford perpetrators the opportunity to come to terms with their own past." (2) The coming to terms with the past was seen as fundamental to promotion of national reconciliation and for building a new South Africa.

The TRC had a broad mandate and the tools to fulfil it. It could conduct formal investigations, including forensic, subpoena witnesses to testify, recommend reparations for victims and, most controversially, grant amnesty to those who disclosed the full nature of their crimes. It was one of the first commissions to hold both closed and public hearings, where virtually all victims could tell their stories and perpetrators could disclose the truth about the crimes they had committed. These disclosures brought to light the dimension of the gross human rights violations systematically carried out by police and security forces, as well as by armed groups fighting for equal rights. The TRC also investigated the responsibility of the media, the private sector and the judiciary in strengthening apartheid, and thus addressed the oppressive system in all its aspects and provided a comprehensive account of events. Of all such commissions, the TRC probably came closest to telling "the truth".

One element seen as crucial to this success was the Commission's power to grant amnesties to perpetrators who fully disclosed their crimes. Unlike in a regular court or other such commissions, the perpetrators had a real interest in revealing the whole truth, since this was considered their ticket to freedom. But many in South Africa regarded this as too high a price for the truth. Richard Wilson, a critic of the amnesty process, notes in his book, The politics of truth and reconciliation in South Africa, that there was a "dissonance between popular understandings of retribution punishment and the version of restorative justice proposed by national political figures". (3) In the meantime, international opinion emerged against granting permanent amnesties in certain instances. UN Secretary-General Kofi Annan in September 2003 said: "There should be no amnesties for war crimes, genocide, crimes against humanity or other serious violations of international human rights and humanitarian law." The TRC was further criticized for limiting the scope of its work to the victims and perpetrators of violent crimes, thereby excluding systemic aspects of the oppressive regime which affected the lives of many more people. At the same time, the Government was also blamed for not being proactive enough in prosecuting perpetrators.

The latter problem can be addressed by complementing truth and reconciliation commissions with appropriate judicial mechanisms. The recent truth-seeking processes in Timor-Leste and Sierra Leone had supportive judicial processes. Special courts were established to prosecute the perpetrators, while the truth commissions provided the victims with a forum where they could narrate their experiences and make sense of their lives during the past conflict. These commissions adopted a more forward-looking approach and made extensive recommendations for peace-building and reintegration into society of those accused of less grave crimes. These examples show that the establishment and operation of truth and reconciliation commissions can be very responsive to lessons learned from the past and continue to evolve, while taking into account the needs of the particular post-conflict situation.

Despite their varying mandates, powers and results, these commisions try to fulfil certain fundamental purposes in post-conflict societies:

Address the needs of victims. The truth commissions provide a forum for victims to recount, often for the first time, their experiences and suffering. These accounts serve as an official acknowledgment of their suffering and the gravity of the crimes committed against them, which were previously denied or not widely known. Such acknowledgement, experts believe, is more vital than just a mere knowledge of the crimes and affirms that the crimes were wrong and the trauma and suffering of the victims were no longer ignored, thereby aiding them to come to terms with their past. Archbishop Desmond Tutu, Chairperson of the TRC, stresses that it is through acknowledgement that victims "can be empowered and can have their human and civil dignities rehabilitated" (see UN Chronicle, Issue 4, 1996, page 4). It also helps the society to better understand the victims and be more sympathetic towards their needs. Furthermore, truth commissions often make recommendations for reparations and other benefits for the victims and suggest ways for reintegration and reconciliation.

Clarify, document and establish the truth. The truth commissions, through analyzing the testimony of victims, establish the truth about gross human rights violations, which were often denied by the Government. Who were the victims? What were the injustices done to them? Why were these crimes committed and by whom? Commission reports clarify, document and publicize the tortured past, opening it to wide public discussion. This documentation becomes part of the national consciousness and helps to build a culture of respect for human rights and to prevent such crimes from happening again. It also reduces the potential for future denials about the past and conflict over such contention.

Help to establish the difference between the present and former governments. The newly-elected and transitional governments in post-conflict societies need to establish their credibility, particularly in upholding human rights principles. By setting up and supporting the truth commissions and their findings, new governments underscore their commitment towards human rights, addressing the impunity of previous regimes and more transparent governance, to both their people and the international community. Along with other peace-building measures, including institutional reforms, this strengthens human rights and the rule of law in the post-conflict society.

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Promote peace and reconciliation. Some truth commissions are designed to promote peace and reconciliation and initiate a peace stabilization process. Priscilla Hayner, cofounder of the International Center for Transitional Justice, explains in her book that many proponents of truth commissions believe that full truth would lead to reconciliation and that it is important for the victims to know "whom to forgive and what to forgive them for". (1) The truth about the past helps the community to understand the gravity of the suffering that conflict had brought on all parties, thus reinforcing the need for peace. However, opinions on how best to achieve peace and reconciliation vary from society to society; some might support retributive justice processes, while others might be open to reconciliation. To better assess the situation, commissions often rely on civil society organizations' expertise to access the needs of victims and their attitudes towards peace and reconciliation.

Recommend structural reforms. Truth commissions, through investigation of abuse patterns of the past, are in a position to evaluate institutional responsibility. They can assess the flaws and weaknesses in the judiciary, police, military and other government structures, and make recommendations for reforms. Implementation of reforms depends on the political will, support and pressure of the international community and local civil society, as well as on Governments.

The commissions' success in addressing gross human rights violations during conflicts, promoting peace and reconciliation and strengthening democracy has led them to be recognized as vital instruments for peace-building and the promotion of transitional justice in post-conflict societies. The United Nations plays an active role in supporting and promoting transitional justice, while respecting the need for national and local ownership. In the Secretary-General's report on the rule of law and transitional justice, it is recognized that it needs to "eschew one-size-fits-all formulas and the importation of foreign models, and instead base our support on national assessments, national participation and national needs and aspirations". The United Nations should involve local organizations to assess the needs of a particular post-conflict society and adapt truth commissions to meet that--be it the need for establishing the truth or a means to prosecute perpetrators. Further, local organizations are in a better position to evaluate and advise on the root causes of a conflict, and suggest ways and means to strengthen peace and democracy through transitional mechanisms and structural reforms.

Mr. Alvarez points out that at the same time some fragile peace process could depend upon granting amnesties to former perpetrators. However, the statute of the International Criminal Court (ICC) stipulates that perpetrators of war crimes should be held accountable. It also specifies that if nations are "unwilling and unable" to prosecute, the ICC prosecutor could step in. This, Mr. Alvarez warns, could lead to future tensions and "undermine some peace processes and transitional governments". Therefore, the United Nations should resolve these tensions concerning granting amnesties in a worst-case scenario and also with the ICC mandate to prosecute known criminals of war. Furthermore, transition measures also need to be strengthened with other peace-building and development measures, including disarmament, demobilization and reintegration programmes and micro-financing, to prevent conflicts from surfacing or reoccurring, as well as to promote a culture of deliberation and human rights.

Jillian Edelstein kindly provided the photographs from her book Truth & Lies (Granta 2001), the result of a four-year project photographing people who appeared before the South African Truth and Reconciliation Commission. A native of South Africa, she graduated as a social worker before starting her career as a photojournalist in 1981.

Notes

1 Unspeakable Truths: Confronting State Terror and Atrocity, Priscilla B. Hayner, 2001, page 12.

2 Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report, (Macmillan reference limited, 1998).

3 The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State: Legitimizing the Post-Apartheid State, Richard A. Wilson, Cambridge University Press, 2001, page 25.

By Paavani Reddy, for the Chronicle