Truth and Justice: The Role of Truth Commissions in Post-Conflict Societies
Law of Nationbuilding Seminar – Spring 2009
Table of Contents
“Truth is truth. It is not, in and of itself, social reform, institutional transformation, or political reconciliation.”
Truth and justice need not be diametrically opposed or mutually exclusive concepts in societies transitioning from violence to peace and from tyranny to democracy. However, truth commissions can complicate the transitional justice process and actually inhibit a non-confrontational changeover. Indeed, truth commissions are rarely as effective as other forms of transitional justice and may set up hurdles on the path to peaceful transition and nation building.
Part I will discuss the history of truth commissions and the societal circumstances leading up to and after the institution of various truth commissions. Part I will also discuss the meaning and common types of transitional justice.
Part II will explore how truth commissions compare to other forms transitional justice by evaluating the goals and characteristics of truth commissions. It will discuss the ways in which truth commissions may fail to meet their stated goals, and, specifically, it will elaborate on the goal of reconciliation of a fractionalized society and how truth commissions may aid or hinder that objective. Part II will then analyze how the objectives of truth commissions compare to the traditional goals of criminal justice systems and the range of obstacles that work against their success.
Part III will analyze the truth-justice dichotomy and discuss whether the two concepts are necessarily juxtaposed in transitional justice settings. It will also discuss how criminal prosecutions can promote and facilitate the truth-finding process in ways comparable to, or even superior to, truth commissions. Part III will also demonstrate that “success” in terms of transitional justice often has to do with how it is defined: either in terms of participants seeking “individual” truth or justice aimed at individual victims and perpetrators, or whether participants are seeking “overall” truth or justice aimed at the broader society. It will also explore alternatives to truth commissions, including hybrid truth-finding and criminal prosecution bodies.
In the most general sense of
the term, a truth commission is an
official body set up to investigate a report on a pattern of past human rights
abuses. It is one of several forms of “transitional
justice” often employed soon after a nation has changed governing regimes, most
often from some form of tyranny to some form of democracy. The term “truth commission” has been adopted
and come to be generally understood to apply to the types of bodies that
officially investigate a past pattern of abuses. On the other hand, the term “truth and
reconciliation commission” is a more recently developed notion and has gained
popularity based on the well known South African Truth and Reconciliation
Commission. The term “truth and reconciliation commission”
has increasingly been used to generically describe all truth commissions. Some scholars argue that the term is
misleading and inaccurate because many truth commissions have not held
“reconciliation” as a primary goal of their work and have not assumed that
reconciliation would result. Reconciliation has been an explicit goal in
several truth commissions (
Transitional justice, in general, encompasses the processes post-conflict societies use to address past human rights wrongs and move toward the principle of rule of law. It includes both judicial and non-judicial approaches and is usually initiated at a point of political transition from violence and repression to societal stability. Some scholars argue that transitional justice is a long-term undertaking, taking a generation or more to reform the human rights culture in the post-conflict society. The most commonly used types of transitional justice are: truth commissions, criminal prosecutions, reparations programs, security system reform in the move toward rule of law, and memorialization efforts. These types of transitional justice will be discussed in more depth in Part II.
Truth commissions stand apart from other forms of transitional justice in that they share certain characteristics that are for the most part unique to those bodies. Mainly, virtually all genuine truth commissions do the following: focus on the past instead of the present, the future, or the potential development of the society; investigate a pattern of abuses over a particular, defined period of time, rather than a specific event or a state’s entire history; are temporary in nature, most typically lasting only six months to two years; culminate in the submission or publication of a report documenting its findings; and are officially sanctioned, authorized, or empowered by the newly formed and developing state, and occasionally also by the armed opposition if such an arrangement is negotiated in the peace or transition agreement.
Most truth commissions produce a public report containing information gathered from victims, and in some cases perpetrators, as well as recommendations to enhance justice and reconciliation. Additionally, many truth commissions also: are created to examine relatively recent events or a period of events ending in the recent past; usually occur at the point of or just after a full-scale political transition; typically investigate politically motivated acts, such as politically targeted human rights abuses and repression that was used to obtain or maintain political power and discourage potential political challenges; and examine widespread abuses, usually including thousands of cases or a large section of the state’s population. Many truth commissions are also intentionally designated to be a central feature of the state’s transition program from one form of government to another or from a period of violence, such as civil war, to a period of peace.
Truth commissions may be established
by several different types of authorities.
Sometimes they are created by the new executive branch of government, by
an executive order of the state’s president. This was the case in
truth commissions can be focused either narrowly or broadly at past
abuses. For example, in
Truth commissions in practice vary widely in their structures, mandates, goals, and achievements. Thus, it is important to limit the scope of the types of truth commissions analyzed in this note. This analysis does not include so-called “historical truth commissions,” which are present-day official government inquiries into abusive practices by the state that occurred and ended in the distant past. For example, in 1996 and 1997, the Australian government investigated the forcible removal of aboriginal children from their families and their placement with Anglo families in an attempt to assimilate them into “mainstream” white Australian society. The report, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, published in May 1997, was composed by a permanent governmental human rights monitoring body and documented events and practices from 1910 to 1975.
analysis is also not concerned with informal “truth” reports published by
non-governmental organizations (NGOs). There
have been quite a few investigations and compiled reports of this nature,
assembled by local and international NGOs, such as Human Rights Watch and
Amnesty International. For example, in
There are four primary instruments used by governments to solve conflicts: investigation, mediation, arbitration, and adjudication. Truth commissions may draw a little from each of these areas in an attempt to satisfy their objectives, but they are usually not the most efficient or effective institutions to solve conflicts and perpetuate justice.
A. Goals of Truth Commissions, Generally
To analyze the success of truth
commissions, it is important to first examine and explain the goals of these
bodies. As the name suggests, truth
commissions are primarily used to clarify and officially acknowledge the truth
by conducting an official inquiry into the facts of the conflict and
establishing a record of past abuse. This fact-finding function is necessary in
post-conflict societies in order to establish an accurate and practically
undeniable record of the country’s history.
Moreover, it is necessary in many transitional governments to clarify
events of the past and begin to erode the culture of silence and denial that
obscures contentious and painful periods of history. Generally, the investigation procedure of the
tribunal is conducted by collecting statements and interviews of victims and
their families, as well as sometimes the statements and confessions of
perpetrators. Additionally, some
tribunals also utilize on-site investigations at places where abuses occurred
and, when available, official documents or records from the previous regime. In
Another major goal of most truth commissions is to pave the way for truth and justice in the new society. The commission may accomplish this in several ways: by creating records to serve as a foundation for criminal prosecutions or other judicial proceedings, by producing recommendations for institutional reforms, and by providing a basis for financial compensation to victims through reparations payments.
A third common goal of truth commissions is healing the wounds of past violence and preventing future conflict. By providing a “cathartic” experience for victims, truth commissions can help resolve family and society-wide unrest. Healing is often attempted on many different levels: by cleansing of individuals, through community-building, and by consolidation of political change.
Likewise, the more amorphous goal of “reconciliation” is often attempted. The success rate of reconciliation efforts may be difficult to measure. However, reconciliation is generally understood to include: a lack of bitterness in political and other public relationships, increased dialogue between former enemies based on the present rather than the past, and acknowledgement of a single, unified version of past events. Facilitating reconciliation between previously antagonistic segments of the community is thought to lead to not only a smoother transition to peaceful government but also to a greater respect for the rule of law. Moreover, truth commissions typically aim to reinforce the process of political transition and lay a foundation for the new political order. Scholars argue that a “historical inquiry and record that assimilates the evil past is necessary to restore the collective in periods of radical political change.” Moreover, the truth-seeking process can help create a common public sphere in which the society can restructure the fractured political community.
Additionally, truth commissions aim to provide an opportunity for individual victims to tell their stories and obtain official acknowledgment of their suffering. This may also include reparations programs or other attempts at restorative justice for victims. “Moral reconstruction” is also a goal best achieved on a societal level by tackling the difficult issues raised by past wrongs.
The goals of the traditional criminal justice systems vary from those of most truth commissions. Indeed, truth commissions that provide amnesty for offenders have a very different and opposing purpose of a trial. Criminal justice aims to achieve: retribution, deterrence, rehabilitation, and restorative justice. Retribution is premised on the relationship between punishment and culpability. It is the backward-looking concept that perpetrators “deserve” to be punished for their actions. Deterrence on the other hand is based on the idea of prevention and can be divided into “individual” deterrence and “general” deterrence. The “individual” variety seeks to prevent repeat offences by a particular perpetrator, while “general” deterrence is focused on inducing other citizens from committing crimes for fear of punishment. Theories of deterrence assume that the threat of punishment will be sufficient to prevent crimes from occurring. Rehabilitation, however, seeks to prevent crime by “curing” offenders of their “criminal tendencies.” Rehabilitation efforts are evaluated based on recidivism rates. Restorative justice is the theory that victims deserve to be compensated for wrongs committed against them. Under the community-wide theory of restorative justice, crime is a conflict, and criminal justice mechanisms are the means to solve that conflict. The goal of society-wide restorative justice is reconciliation of the offender and victim, as well as among members of the communities at large.
Criminal trials focus on judgment about responsibility and guilt. Truth commissions focus on collecting and assembling documented evidence of past abuses and making recommendations based on that information. Put another way, trials generally focus on perpetrators, not victims, while truth commissions focus on victims and sometimes view society as a whole as the victim. Criminal justice systems have the potential to help individual victims overcome feelings of powerlessness induced by their status as victim of a crime and of a perpetrator. Truth commissions are less efficient in this arena because they are mandated to focus on the overall view of the atrocities committed and not on the individual details and accountability.
There is some intersection between the achievable goals of the criminal justice system and those of truth commissions. However, it is evident that criminal prosecutions and other forms of transitional justice better serve the needs of post-conflict societies. Truth commissions have far too many factors working against them, making the truth-finding process often arduous and ultimately ineffective.
trials, truth commissions are criticized for providing “easy justice.” That is, providing little individual legal
accountability.” Moreover, some
tribunals provide amnesty for perpetrators who come forward and confess all of
their crimes. This was a controversial
feature of the South African Truth and Reconciliation Commission. In
In June 1994, Amnesty International sent a letter to then-South African president Nelson Mandela. Amnesty International opposed the grant of pardons and amnesty to perpetrators of serious human rights violations. The organization argued that “impunity negates the values of truth and justice and leads to the occurrence of future violations.” Amnesty International further argued that victims and their families have a right, recognized under UN human rights treaties, to full investigation and redress and that pardons should only be considered once perpetrators had been brought to justice.
D. The Effect of Impunity on
the Development of Post-Conflict Societies: The Examples of
Impunity is a major detriment to a burgeoning society. The fight against impunity is an essential battle in rehabilitating a culture of violence, corruption, and oppression. Failure to control the trend of impunity can have grave consequences for a newly developed government and can pose myriad setbacks and limitations to future evolution of the state. Moreover, when the problem of impunity spawns from a government sanctioned body and process, like a truth commission, citizens are apt to lose confidence in their new state and may believe that the “old ways” will continue to prevail in the new state.
The effect of
impunity on developing nations is illustrated by the narratives of
negotiations, both the government and the insurgents agreed to the
establishment of a truth commission, specifically a body that would have no
judicial power. This entrenched almost absolute impunity for
the crimes committed during the violent and repressive years of conflict. Moreover, in
the Vietnamese-installed government and the Khmer Rouge continued through the
1980’s and into the early 1990’s, until five permanent members of the UN
Security Council facilitated peace negotiations. The Paris Agreements, signed in October 1991,
brought together the four major political factions in
with suspected or proven ties to the Khmer Rouge were installed in the new
government, and at the same time, the Cambodian army continued low level
warfare with factions of Khmer Rouge guerillas in the rural provinces. Furthermore, the government began staging a
campaign to elicit defection of Khmer Rouge guerillas by offering amnesty and
positions in the Royal Cambodian Armed Forces. This policy educed the defection of thousands
of Khmer Rouge soldiers and military commanders. In 1996, the Cambodian government granted
amnesty to Ieng Sary, the Khmer Rouge’s second in command during the group’s
domination of the country. Ieng Sary accepted immunity in exchange for
promising to promote peace between the Khmer Rouge guerillas entrenched in rural
One major human
rights organization in
Thus, granting immunity to human rights violators—or even the simple inability or unwillingness of states to prosecute those individuals—perpetuates a culture of impunity in post-conflict states. Truth commissions that offer amnesty actually prolong impunity and, contrary to their stated purpose, actually inhibit true reconciliation between victims and perpetrators. Amnesty granted by truth commissions should be rejected as ad hoc legislation, and recognized for its real effects on the emerging state.
Logistical obstacles also greatly impair a truth
commission’s chance of success. For
instance, the broader the mandate, the more debatable the ‘truth’ that results
from the commission's work. Some
commissions are only tasked with investigating and documenting certain types of
abuses. For instance, the Chilean National
Commission on Truth and Reconciliation’s mandate was to investigate
“disappearances after arrest, executions, and torture leading to death
committed by government agents or people in their service, as well as
kidnappings and attempts on the life of persons carried out by private citizens
for political reasons.” The commission was not tasked with seeking
truth about reported cases of torture that did not result in death. The number of these cases was estimated at
50,000-200,000, though a proper investigation of this type of human rights
Moreover, truth commissions are commonly tasked with the
responsibility of collecting and assembling data from thousands or even tens of
thousands of sources. Some truth commissions
perform thousands of interviews, sometimes with individuals scattered across
the globe. The Argentinean National
Commission on the Disappeared staff took over 7,000 statements in nine months,
documenting 8,960 persons who had disappeared. The Commission did not hold hearings in
public but did inspect detention centers and interviewed exiles in Argentinean
outposts around the world, as well as took statements from individuals who had
The sheer logistical difficulty of documenting decades of human rights abuses is only compounded by the economic constraints and challenges faced by states emerging from oppressive regimes. International aid can provide a helpful boost, but many foreign states want to ensure that their aid dollars are not being squandered through inefficiency or being pilfered through corruption. Nations will often slow or halt funding when serious allegations of corruption or impunity arise.
Another type of logistical issue
faced by truth commissions is their lack of judicial power to compel discovery,
either through subpoenas to obtain documents or induce testimony under oath. Unlike courts, most truth commissions lack
the full power of the state government to enforce necessary processes and
procedures considered vital to the truth-finding process. Researchers have noted that possibly fewer
than 10 percent of the victim statements submitted to
Truth commissions rely heavily on political decision-makers in the emerging state and are susceptible to political strife and pressure to alter or abort their missions. The effects of the commission's report may easily be overtaken by political strife and continuing violence, and its recommendations, arguably one of the most important functions of a truth commission, may be derailed or ignored by political leaders in the new regime. Often unclear at the conclusion of a truth commission who is responsible for implementing the changes recommended and whose duty it is to monitor the progress and outcomes of those changes.
are many instances of leaders of the previous regime complicating or
interfering with the truth commission’s work.
For instance, in
Ultimately, political influences from perpetrators still in the government can have a real and lasting impact on what is deemed the collective memory of the country. A truth commission’s final report is supposed to detail the violence of the past so that the community can acknowledge and move past it, but inaccurate or incomplete versions of the “truth” may leave the society with many open wounds.
The collective focus of the truth commission process has a tendency to undermine individual rights and claims and relegates victims to mere conduits of information for the benefit of society as a whole. Moreover, numerous human rights conventions mandate that for severe human rights violations, such as genocide and torture, states have a duty to prosecute offenders.
An increased focus on victimology as of late in criminal justice systems has reemphasized the role of the victim in criminal law. The essence of the concept is that public criminal law should prevent the continuation of the victim’s moral and psychological damage, to the extent that this is possible. Thus, the law and judicial system should focus on the blamefulness of the perpetrator, so as to allow the victim the ability to reintegrate into society. This goal should be one of only a few primary focuses of institutions promoting transitional justice. In this regard, scholars argue, violations of human rights are not eligible for amnesty or pardons, nor are they subject to statutes of limitations.
Therefore, states have a duty to prosecute certain atrocities, including genocide, torture, and crimes against humanity. The Genocide Convention requires state parties to prosecute individuals accused of genocide, in either a national or international tribunal. The language of the Convention Against Torture also requires states to submit cases to competent authorities for prosecution.
Thus, the truth commission model impairs not only the rights of the victim but also the principles of international law.
The ad hoc nature of truth commissions, coupled with the fragile state of most post-conflict societies make truth commissions the least effective form of transitional justice. Truth commissions lack judicial significance and monumental logistical hurdles. Moreover, the perceived or realistic prolongation of impunity by truth commissions undermines their authority and success. Similarly, the political influences of members of the prior regime who still remain in the state may retard or derail the truth-finding process. Finally, truth commissions injure the rights of victims, and those that offer amnesty violate the international obligation of states to prosecute human rights offenders.
Post-conflict societies are faced with many challenges after emerging from oppressive regimes. There is the need to create financial and economic stability in the country, provide basic needs for citizens who have been displaced and have become internal refuges, and reestablishing diplomatic relations with other states. In the arena of transitional justice, however, the two most important goals and priorities may be “truth” and “justice.” Conventional wisdom may suggest that these two concepts are diametrically opposed or mutually exclusive, but in reality every form of transitional justice includes some measure of each. Indeed, there is a need to accomplish some degree of each because truth without justice and justice without truth are equally useless.
Truth commissions—often thought to provide truth but little justice—and criminal prosecutions—thought to provide justice but little truth—may actually each accomplish a little of both. Nonetheless, criminal prosecutions are much more apt to achieve the parallel goals of “truth” and “justice” in greater doses of each. Criminal justice plays an important role in establishing the truth. In reality, this has been a primary purpose for domestic criminal justice systems everywhere: to adjudge guilt or liability and assign an appropriate response based on the norms of the particular society. Criminal justice mechanisms are used to determine what happened, who is to blame, and what should be done in order to compensate the victim. To this end, testimony and evidence is meticulously gathered so that the most accurate outcome will result. The records of public court proceedings thoroughly document the events before the court and become useful and officially recognized repositories for truth.
Moreover, trials can also facilitate societal catharsis when the human drama of atrocious events unfolds in public. Criminal prosecutions contribute to advancing respect for the rule of law and create common norms about justice for renewed societies. Finally, the judicial process also helps build or rebuild essential administrative and judicial functions in the new state.
Nevertheless, the “success” of any method of transitional justice depends on whether the participants are seeking “individual” truth or justice, aimed at individual victims and perpetrators, or “overall” truth or justice, aimed more broadly at society. In the end, a balance of the two is needed to achieve real progress in society. It is important to have a common shared memory and sense of outrage about the past, but it is equally important for individual victims to feel comfortable again in society and to be spared additional pain or revictimization whenever possible.
this vein, “hybrid” bodies have attempted to strike this balance to varying
Truth commissions are admirable attempts by post-conflict states to achieve reunification and healing in the wake of unspeakable tragedies. However, the myriad limitations of the typical truth commission process proves that they are not the most effective transitional justice choice and their stated goals can be better achieved by other processes, mainly criminal justice systems. Truth and justice need not be contradictory goals. Truth is necessary find justice and justice is necessary to give meaning and purpose to the truth. The road of nation-building is long and arduous, and so it is essential that emerging states carefully choose the most valuable transitional justice tools; truth commissions are the least efficient of these tools and should be avoided in order to achieve true progress.
 Charles Villa-Vicencio & Wilhelm Verwoerd, Constructing
a Report: Writing Up the Truth, in Truth v. Justice: The Morality of
Truth Commissions 291 (Robert I. Rotberg and Dennis Thompson, eds.,
 Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity 5 (Routledge 2001).
Christopher K. Connolly, Living on the Past: The Role of Truth Commissions
in Post-Conflict Societies and the Case Study of
 Hayner, supra n. 2, at 5.
 See Hayner, supra n. 2, at 7; James L. Gibson, Overcominig Apartheid: Can Truth Reconcile a Divided Nation? 258 (Russell Sage Found. 2004).
Wook Daniel Hun, Transitional Justice: When Justice Strikes Back – Case
Studies of Delayed Justice in
 Hayner, supra n. 2, at 14.
 Daan Bronkhorst, Truth and Justice: A Guide to Truth Commissions and Transitional Justice 6 (2d. ed., Amnesty Intl. 2006).
 Hayner, supra n. 2, at 17.
 Bronkhorst, supra n. 14, at 5.
 Connolly, supra n. 7, at 404.
 Hayner, supra n. 2, at 17.
 Bronkhorst, supra n. 14, at 14.
 Stephen Heder & Brian D. Tittemore, Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge (2d ed., New Preface 2004).
 Bronkhorst, supra n. 14, at 8.
 Hayner, supra n. 2, at 24.
 Hayner, supra n. 2, at 30.
 Connolly, supra n. 7, at 404; Truth Commissions: A Comparative Assessment, supra n. 8, at 22-23.
 Hayner, supra n. 2, at 30.
 Connolly, supra n. 7, at 410.
 Connolly, supra n. 7, at 410; Ruti G. Teitel, Transitional Justice 69 (Oxford University Press 2000).
 Teitel, supra n. 39, at 69.
 Truth Commissions: A Comparative Assessment, supra n. 8, at 17.
 Hayner, supra n. 2, at 28.
 Connolly, supra n. 7, at 404; Truth Commissions: A Comparative Assessment, supra n. 8, at 16-17.
 Jamie Rowen, Social Reality and Philosophical Ideals in Transitional Justice, 7 Cardozo Pub. L. Pol’y & Ethics J. 93, 111 (2008).
 Miriam J. Aukermann, Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice, 15 Harv. Hum. Rights. J. 39, 44 (2002).
 Id. at 53-54.
 Frank Haldemann, Another Kind of Justice: Transitional Justice as Recognition, 41 Cornell Intl. L. J. 675, 705 (2008).
 Bronkhorst, supra n. 14, at 21.
 Gibson, supra n. 10, at 258.
 Mamphela Ramphele, Citizenship Challenges for South Africa’s Young Democracy, 130 Daedalus: J. of the Am. Academy of Arts and Sciences 1, 11 (2001).
 Gibson, supra n. 10, at 6-7.
 Brandon Hamber & Richard Wilson, Symbolic Closure Through Memory, Reparation, and Revenge in Post-Conflict Societies, Centre for the Study of Violence and Reconciliation.
 Bronkhorst, supra n. 14, at 54.
 Naomi Roht-Arriaza, Symposium:
Post-Conflict Studies and State-Building, Making the State Do Justice:
Transnational Prosecutions and International Support for Criminal Investigations
R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities
in International Law: Beyond the
 Despite the grant of amnesty, the government has since brought charges against him in the hybrid UN-Cambodian tribunal that is currently pursuing prosecutions of five former Khmer Rouge leaders.
 Ratner, supra n. 72, at 242.
Establishing the National Commission on Truth and Reconciliation, Supreme
Decree No. 355,
 Hayner, supra n. 2, at 36.
 Jocelyn E. Getgan, Untold Truths: The Exclusion of Enforced Sterilizations Form the Peruvian Truth Commission’s Final Report, 29 B.C. Third World L.J. 1 (2009).
 Hayner, supra n. 2, at 34.
 Bronkhorst, supra n. 14, at 20.
 Sang Wook, supra n. 11, at 677.
 See Seth Mydans, Corruption Allegations Affect Khmer Rouge Trials, N.Y. Times (April 9, 2009).
 Bronkhorst, supra n. 14, at 20.
 Connolly, supra n. 7, at 405.
 Hayner, supra n. 2, at 35.
 Connolly, supra n. 7, at 405.
 Human Rights Watch, Peru: Truth Commission Under Pressure, http://www.hrw.org/en/news/
2003/08/12/peru-truth-commission-under-pressure (August 12, 2003).
 Jesús-María Silva Sánchez, Doctrines Regarding “The Fight Against Impunity” and “The Victim’s Right for the Perpetrator to be Punished, 28 Pace L. Rev. 865, 879-80 (2008).
 Sang Wook, supra n. 11, at 680-81; Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2540 (1991).
 Convention on the Prevention and Punishment of the Crime of Genocide, Arts. 4, 6 (Jan.12, 1951), 78 U.N.T.S. 277.
 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 7 (Dec. 10, 1984), G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51.
 Connolly, supra n. 7, at 406-07.
 Rowen, supra n. 44, at 96.