Truth and Justice: The Role of Truth Commissions in Post-Conflict Societies

Law of Nationbuilding Seminar – Spring 2009

Katherine Woody

Table of Contents

Introduction. 2

Part I: Definition of a Truth Commission. 3

Part II: Comparative Analysis of Truth Commissions and other Forms of Transitional Justice 8

A. Goals of Truth Commissions, Generally. 9

B. Goals of Traditional Criminal Justice Systems. 11

C. The Issue of “Easy Justice”: the Example of the South African TRC.. 13

D. The Effect of Impunity on the Development of Post-Conflict Societies: The Examples of Guatemala and Cambodia. 15

E. Logistical Hurdles for Truth Commissions. 20

F. Political Influences on Truth Commissions. 22

G. Truth Commissions Impair the Rights of the Victim and the Duty to Prosecute. 24

H. Summary of Truth Commission Obstacles. 25

Part III: The Truth-Justice Dichotomy and Truth Commission Alternatives. 25

Conclusion. 28

Introduction

“Truth is truth. It is not, in and of itself, social reform, institutional transformation, or political reconciliation.”[1]

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.

Part I: Definition of a Truth Commission

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.[2] 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.[3] 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.[4] The term “truth and reconciliation commission” has increasingly been used to generically describe all truth commissions.[5] 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.[6] Reconciliation has been an explicit goal in several truth commissions (Chile, South Africa, Peru, and Sierra Leon), an implied goal in most others, and dismissed as “impractical and unattainable” in a few states (Argentina and Sri Lanka).[7] However, some sort of reconciliation or restorative truth-finding has been central to most of these bodies and has been used as a justification for implementing a truth commission instead of other types of transitional justice.[8] In fact, the possibility of holding a truth commission is often one of the terms discussed and brokered in the peace negotiations leading up to societal transitions.[9] Moreover, truth commissions are fundamentally different from courtroom trials and function with different, though not necessarily divergent goals.[10]

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.[11] 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.[12] 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.[13]

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.[14] 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.[15] 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.[16]

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.[17] This was the case in Chile; the National Commission on Truth and Reconciliation in Chile was created by presidential decree and completed its work from 1990-1991. In other states, the parliament has voted to establish the truth commission.[18] The South African Truth and Reconciliation Commission, which worked from 1995-1998, was created by a vote of the country’s legislative body. Still other truth commissions are created under the auspices of an intergovernmental organization, such as the United Nations.[19] The UN established commissions in El Salvador (1992-1993) and Guatemala (1997-1999).

Moreover, truth commissions can be focused either narrowly or broadly at past abuses. For example, in Chile, the commission only investigated cases of extrajudicial executions and forced disappearances.[20] By contrast, in South Africa, the TRC investigated and elicited testimony on a wide range of human rights abuses, including murders, torture, threats, racist attacks, demolition and gross discrimination.[21]

Truth commissions in practice vary widely in their structures, mandates, goals, and achievements.[22] 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.[23] 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.[24] 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.[25]

This 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 Brazil in 1985, a coalition of church activists and lawyers produced Numca Mais, a report documenting abuses based on testimony and hearings before military courts.[26] Likewise, in the international NGO Human Rights Watch published a report on war crimes in Bosnia.[27] The report, War Crimes in Bosnia-Hercegovina, contained information on human rights abuses committed by military and paramilitary units and indentified individuals accused on murder, torture, and rape.[28] Finally, the atrocities committed in Cambodia under the Khmer Rouge regime from 1975-1978, have been documented by Yale University’s Genocide Studies Program, which set up a database containing 3,000 documents and an index of more than 20,000 Khmer Rouge leaders.[29] In 2004, the Documentation Center of Cambodia published its second edition of a report, Seven Candidates for Prosecution: Accountability for Crimes of the Khmer Rouge, which contained evidence to implicate seven senior Khmer Rouge officials.[30] Although these examples of efforts in Brazil, Bosnia, and Cambodia are not the type of truth commission this note analyzes, they are important tools in the nation-building process and compliment other forms of transitional justice.

Part II: Comparative Analysis of Truth Commissions and other Forms of Transitional Justice

There are four primary instruments used by governments to solve conflicts: investigation, mediation, arbitration, and adjudication.[31] 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.[32] 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 Argentina, commission staff visited detention centers and also the statements of victims were collected all around the world in Argentinean embassies and consulates.

Another major goal of most truth commissions is to pave the way for truth and justice in the new society.[33] 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.[34] 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.[35]

Likewise, the more amorphous goal of “reconciliation” is often attempted.[36] 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.[37] 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.[38] Moreover, truth commissions typically aim to reinforce the process of political transition and lay a foundation for the new political order.[39] 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.”[40] Moreover, the truth-seeking process can help create a common public sphere in which the society can restructure the fractured political community.[41]

Additionally, truth commissions aim to provide an opportunity for individual victims to tell their stories and obtain official acknowledgment of their suffering.[42] 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.[43]

B. Goals of Traditional Criminal Justice Systems

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.[44] Criminal justice aims to achieve: retribution, deterrence, rehabilitation, and restorative justice.[45] 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.[46] Deterrence on the other hand is based on the idea of prevention and can be divided into “individual” deterrence and “general” deterrence.[47] 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.[48] 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.”[49] Rehabilitation efforts are evaluated based on recidivism rates. Restorative justice is the theory that victims deserve to be compensated for wrongs committed against them.[50] Under the community-wide theory of restorative justice, crime is a conflict, and criminal justice mechanisms are the means to solve that conflict.[51] The goal of society-wide restorative justice is reconciliation of the offender and victim, as well as among members of the communities at large.[52]

Criminal trials focus on judgment about responsibility and guilt.[53] 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.[54] 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.[55] 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.

C. The Issue of “Easy Justice”: the Example of the South African TRC

Unlike trials, truth commissions are criticized for providing “easy justice.”[56] 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.[57] In South Africa, the Commission was empowered to grant amnesty for perpetrators of gross human rights violations under the apartheid state.[58] The amnesty program was administered in the hopes that it would perpetuate truth, reconciliation among neighbors and the country as a whole, and acquiescence to the new political order by individuals in power under the apartheid state.[59] Amnesty is a dangerous tool because society’s expectations of justice and retribution, which are standard in the criminal justice process, go unsatisfied.[60] Moreover, failure to provide “justice” for hideous human rights abuses leads to the perception that the new regime lacks legitimacy and may actually be perpetuating impunity.[61] Failure to prove its legitimacy may be a fatal flaw for a new state.

In South Africa, leaders in the African National Congress traded amnesty for peace in the bargaining leading up to political transition.[62] This, they argued, was necessary to obtain majority rule in South Africa, and apartheid leaders were more than willing to accept amnesty in exchange for power-sharing in the emerging South African state.[63] Many saw this arrangement as allowing white South Africans to literally “get away with murder” and further entrench their privileged position in the troubled society.[64] In South Africa, as in other states who have offered amnesty through truth commissions, there is an assumed causal model for how amnesty ultimately leads to truth and reconciliation.[65] The framers of the South African TRC accepted the theory that if perpetrators were granted amnesty, they would come forward and confess their crimes. This information would advance the truth-seeking process and would illuminate some of the “black holes” in South Africa’s apartheid history. In turn, knowing the truth was assumed to facilitate societal reconciliation and a common understanding of the events of the past. Finally, this nebulous concept of “reconciliation” was thought to promote statewide democratization. There is much debate over whether this framework achieved any of its major goals in South Africa and elsewhere. And although many agree that knowing the truth is an important step to democratization, few would posit that truth alone can bring about reconciliation.[66] The hypothesized process of transformation from truth to stems from the process of developing a common and shared memory to further a sense of unity and reconciliation.[67] The mutual sense of identity as “a traumatized people” would then be used to move toward the future and prevent repeating the mistakes of the past. However, there is more than one stark problem with this reasoning: not everyone in the new state is actually part of the “traumatized people.” Many are in fact the traumatizers, and by allowing amnesty for serve atrocities like repugnant human rights abuses, including murder, rape, and torture, the population is further divided along the old division of victim and the perpetrator, but after the grant of amnesty, the victim is further injured and less prone to forgive.

In June 1994, Amnesty International sent a letter to then-South African president Nelson Mandela.[68] 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 Guatemala and Cambodia

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 Guatemala and Cambodia. In Guatemala, 36 years of internal conflict ended in 1996 after 40,000 enforced disappearances and 200,000 deaths, 90 percent of which were committed by the military, according to the Commission on Historical Clarification, sponsored by the UN. The Commission also identified at least four specific acts of genocide committed by the army against Mayan indigenous people that the military considered a support base for the guerrilla insurgency.

During peace negotiations, both the government and the insurgents agreed to the establishment of a truth commission, specifically a body that would have no judicial power.[69] This entrenched almost absolute impunity for the crimes committed during the violent and repressive years of conflict. Moreover, in Guatemala as in other post-conflict societies, the civilians and members of the military who were responsible for large numbers of human rights abuses maintained power in the government, either de jure or de facto.[70] As a result, the post-conflict Guatemalan government was weak and ineffective in the realm of criminal justice. The impunity for human rights abuses that occurred before the peace negotiations spilled over into generalized attitudes of impunity, corruption, and self-dealing among authorities in the new state. Military and paramilitary authorities under the old regime morphed into criminal gangs, trafficking in drugs and human slaves and perpetuating a culture of violence and hostility in the new Guatemalan state.[71] The new criminal networks acted with disrespect for the rule of law and an expectation of impunity. In this regard, Guatemala exemplifies the danger of allowing impunity for past crimes and how the failure to force perpetrators to account for their actions begets additional impunity in the new state.

In Cambodia, the brutal Khmer Rouge regime captured the capital city, Phnom Penh, in April 1975. Over the next four years, an estimated one-fourth of the population was killed under the brutal policies of the communist regime. Scholars estimate that between 1.5 and 3 million Cambodians perished due to overwork, starvation, and state-sponsored murder.[72] The regime mostly targeted groups of Cambodians that it saw as a threat to its power, mainly, officials of the previous regime, ethnic minorities, religious leaders, teachers, students, and other educated members of society. With the atrocities largely ignored by the international community, it was not until the Vietnamese invasion in January 1979 that the violence came to an end. The Khmer Rouge fled power quickly and Vietnam installed the opposition power in government, however, with military support from China and other Southeast Asian states, the Khmer Rouge remained active and relatively popular in some of Cambodia’s rural provinces.[73] The Khmer Rouge also formed a coalition with other non-communist resistance forces and created a “government in exile.”[74]

Fighting between 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.[75] The Paris Agreements, signed in October 1991, brought together the four major political factions in Cambodia at the time. The Khmer Rouge were included in the negotiations and maintained a status and power in the country, largely based on their popularity the rural regions of the country and continued diplomatic support from China.[76] The UN Transitional Authority in Cambodia (UNTAC) moved into to normalize government functions in the country and establish free and peaceful elections. However, UNTAC had no authority to try or punish those responsible for gross human rights abuses under the Khmer Rouge.[77]

Many individuals 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.[78] 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.[79] This policy educed the defection of thousands of Khmer Rouge soldiers and military commanders.[80] 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.[81] Ieng Sary accepted immunity in exchange for promising to promote peace between the Khmer Rouge guerillas entrenched in rural Cambodia and the country’s government.[82] Today, Cambodia is a society with deep lasting scars from a brutal and almost unimaginable chapter in its past. A generation of war, revolution, and systematic atrocities has left the country devoid of a significant educated class and few prospects for sustainable development. The atrocities of the Khmer Rouge created a traumatized society ill-equipped to govern and susceptible to corruption and continued impunity. These realities have hampered nation-building efforts and retarded economic and social development. The government’s inability or unwillingness to effectively pursue and prosecute Khmer Rouge members that committed unspeakable violence has led many in contemporary Cambodia to believe that the Khmer Rouge will emerge free of accountability because they have largely benefited from what has become a culture of impunity in the country.[83]

One major human rights organization in Cambodia, LICADHO, published a report detailing devastating and ongoing effects of judicial impunity in the country. LICADHO reported that impunity was the “single most important area in which the country needs to make progress” and that despite UNTAC intervention and more than 15 years of international aid flowing into the country, the “primary function of the courts” continues to be persecution of political opponents and other critics of the government, perpetuation of impunity for state actors and their associates, and protection of the economic interests of the rich and powerful.[84]

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.

E. Logistical Hurdles for Truth Commissions

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.”[85] 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 abuses in Chile has never been performed.[86] Of the 3,400 cases submitted to the Chilean commission, 2,920 cases were determined to fit within its mandate.[87] Selective investigation of certain kinds of cases can fuel the implication that other types of abuses are being ignored. In Peru, the truth commission has been accused of excluding from its final report accounts of more than 200,000 state-sponsored forced sterilization of low-income indigenous women committed by the oppressive and violent regime.[88]

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.[89] 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 returned to Argentina for that sole purpose.[90] The South African TRC collected the testimony of 21,000 victims and witnesses, 2,000 of which appeared at public hearings to tell their stories.[91] The TRC collected so much testimony that four hours of live coverage was broadcast over national radio each day.[92] The sheer volume of data that must be collected, organized, sorted, recorded, synthesized, and published is overwhelming to say the least. Furthermore, potential witnesses may be reluctant to testify if they are not guaranteed protection against reprisals.[93]

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.[94] 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.[95]

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.[96] Researchers have noted that possibly fewer than 10 percent of the victim statements submitted to South Africa’s TRC were made under oath and many were composed of little more than hearsay.[97] Moreover, only 102 of the more than 7,000 amnesty applications have been confirmed as accurate.[98] Thus, the power remains with perpetrators who may voluntarily disclose their sins or wait in silence, with the realistic hope that they will never be pursued in a court of law.

F. Political Influences on Truth Commissions

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.

There are many instances of leaders of the previous regime complicating or interfering with the truth commission’s work. For instance, in Chile, leaders of the former military regime, including Augusto Pinochet himself, positions of authority after the transition.[99] Additionally, in 1978, Pinchot had instituted an amnesty law to protect himself and others from prosecution for human rights abuses occurring after the military coup of 1973.[100] The Chilean truth commission was also prevented from publishing the names of specific perpetrators in its report.[101]

In 2003, Peru’s Truth and Reconciliation Commission faced threats and aggression from political opponents in advance of the release of its public report.[102] Before the commission could release its final report, opposition leaders demanded investigations of the commission, called for its findings to be kept secret, and argued that the commission should have been dismantled entirely.[103] A federal prosecutor also opened an investigation into twelve members of the commission for “advocating terrorism” after accusations that a video played during a public hearing of the commission was objectionable.[104] In fact, the “objectionable” portion of the video showed four perpetrators of the previous regime confessing their actions and showing remorse.[105]

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.

G. Truth Commissions Impair the Rights of the Victim and the Duty to Prosecute

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.[106] 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.[107] 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.[108]

Therefore, states have a duty to prosecute certain atrocities, including genocide, torture, and crimes against humanity.[109] The Genocide Convention requires state parties to prosecute individuals accused of genocide, in either a national or international tribunal.[110] The language of the Convention Against Torture also requires states to submit cases to competent authorities for prosecution.[111]

Thus, the truth commission model impairs not only the rights of the victim but also the principles of international law.

H. Summary of Truth Commission Obstacles

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.

Part III: The Truth-Justice Dichotomy and Truth Commission Alternatives

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.[112] 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.[113] 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.[114]

Moreover, trials can also facilitate societal catharsis when the human drama of atrocious events unfolds in public.[115] Criminal prosecutions contribute to advancing respect for the rule of law and create common norms about justice for renewed societies.[116] Finally, the judicial process also helps build or rebuild essential administrative and judicial functions in the new state.[117]

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.

In this vein, “hybrid” bodies have attempted to strike this balance to varying degrees. In Rwanda, the “gacaca” court system was adopted as an alternative to the cost and delay inherent in more formal justice mechanisms. In 1994, Rwandan Hutus murdered 800,000 Tutsi in the span of just 100 days.[118] Tens of thousands participated in the killings, creating a massive backlog for justice systems and a unique challenge for the new Tutsi-led government.[119] More than 80,000 in the tiny country stood accused of murder and other human rights atrocities, so the government turned to the traditional village justice system of gacaca courts.[120] Gacaca means grass, and the courts are so named because they meet outside in villages.[121] The courts met in local villages, and communities come together to confront the accused and allow victims to tell their stories and in many cases receive acknowledgements and apologies from their perpetrators. The village courts also had real adjudication power and could issue sentences for as long as 25 years of imprisonment.[122] There were, however, significant procedural shortcomings in that the accused were not always accompanied by lawyers and many of the judges had little legal training. Notwithstanding its severe limitations, though, the gacaca courts provided a unique blend of truth-seeking and justice, satisfying the two major goals of transitional justice, at least in part.

Conclusion

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.

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[1] 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., Princeton University Press 2000).

[2] Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity 5 (Routledge 2001).

[3] Id. at 23.

[4] Id.

[5] Id.

[6] Id.

[7] Christopher K. Connolly, Living on the Past: The Role of Truth Commissions in Post-Conflict Societies and the Case Study of Northern Ireland, 39 Cornell Intl. L.J. 401, 410 (2006).

[8] Id.; Truth Commissions: A Comparative Assessment 13-38 (Henry J. Steiner ed., World Peace Found. 1997).

[9] Hayner, supra n. 2, at 5.

[10] See Hayner, supra n. 2, at 7; James L. Gibson, Overcominig Apartheid: Can Truth Reconcile a Divided Nation? 258 (Russell Sage Found. 2004).

[11] Sang Wook Daniel Hun, Transitional Justice: When Justice Strikes Back – Case Studies of Delayed Justice in Argentina and South Korea, 30 Hous. J. Intl. L. 653, 655 (2008).

[12] Id. at 675-76.

[13] Hayner, supra n. 2, at 14.

[14] Daan Bronkhorst, Truth and Justice: A Guide to Truth Commissions and Transitional Justice 6 (2d. ed., Amnesty Intl. 2006).

[15] Hayner, supra n. 2, at 17.

[16] Id.

[17] Bronkhorst, supra n. 14, at 5.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Connolly, supra n. 7, at 404.

[23] Hayner, supra n. 2, at 17.

[24] Id. at 17, 299.

[25] Id.

[26] Bronkhorst, supra n. 14, at 14.

[27] Id.

[28] Id.

[29] Id.

[30] Stephen Heder & Brian D. Tittemore, Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge (2d ed., New Preface 2004).

[31] Bronkhorst, supra n. 14, at 8.

[32] Hayner, supra n. 2, at 24.

[33] Id. at 29; Connolly, supra n. 7, at 404; Rodolfo Mattarollo, Truth Commissions in Post-Conflict Justice 295, 302 (M. Cherif Bassiouni ed., 2002).

[34] Hayner, supra n. 2, at 30.

[35] Connolly, supra n. 7, at 404; Truth Commissions: A Comparative Assessment, supra n. 8, at 22-23.

[36] Hayner, supra n. 2, at 30.

[37] Connolly, supra n. 7, at 410.

[38] Id. at 404; Hayner, supra n. 2, at 30-31.

[39] Connolly, supra n. 7, at 410; Ruti G. Teitel, Transitional Justice 69 (Oxford University Press 2000).

[40] Teitel, supra n. 39, at 69.

[41] Truth Commissions: A Comparative Assessment, supra n. 8, at 17.

[42] Hayner, supra n. 2, at 28.

[43] Connolly, supra n. 7, at 404; Truth Commissions: A Comparative Assessment, supra n. 8, at 16-17.

[44] Jamie Rowen, Social Reality and Philosophical Ideals in Transitional Justice, 7 Cardozo Pub. L. Pol’y & Ethics J. 93, 111 (2008).

[45] Miriam J. Aukermann, Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice, 15 Harv. Hum. Rights. J. 39, 44 (2002).

[46] Id. at 53-54.

[47] Id. at 63.

[48] Id.

[49] Id. at 71.

[50] Id. at 77.

[51] Id.

[52] Id.

[53] Frank Haldemann, Another Kind of Justice: Transitional Justice as Recognition, 41 Cornell Intl. L. J. 675, 705 (2008).

[54] Id. at 706.

[55] Id.

[56] Bronkhorst, supra n. 14, at 21.

[57] Gibson, supra n. 10, at 258.

[58] Id.

[59] Id. at 259.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] Mamphela Ramphele, Citizenship Challenges for South Africa’s Young Democracy, 130 Daedalus: J. of the Am. Academy of Arts and Sciences 1, 11 (2001).

[65] Gibson, supra n. 10, at 6-7.

[66] Brandon Hamber & Richard Wilson, Symbolic Closure Through Memory, Reparation, and Revenge in Post-Conflict Societies, Centre for the Study of Violence and Reconciliation.

[67] Id.

[68] Bronkhorst, supra n. 14, at 54.

[69] Naomi Roht-Arriaza, Symposium: Post-Conflict Studies and State-Building, Making the State Do Justice: Transnational Prosecutions and International Support for Criminal Investigations in Post-Conflict Guatemala, 9 Chi. J. Intl. L. 79, 83 (2008).

[70] Id. at 80.

[71] Id. at 80-81.

[72] Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy 238 (Clarendon Press 1997).

[73] Id. at 239.

[74] Id. at 240.

[75] Id.

[76] Id.

[77] Id.

[78] Id.

[79] Id.

[80] Id.

[81] Id. at 241.

[82] 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.

[83] Ratner, supra n. 72, at 242.

[84] Human Rights in Cambodia: The Charade of Justice 5, LICADHO: Cambodian League for the Promotion and Defense of Human Rights (LICADHO 2007).

[85] Decree Establishing the National Commission on Truth and Reconciliation, Supreme Decree No. 355, Chile, April 25, 1990, reprinted in Krinz, Transitional Justice, vol. 3, 102.

[86] Hayner, supra n. 2, at 36.

[87] Id.

[88] 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).

[89] Hayner, supra n. 2, at 34.

[90] Id.

[91] Id. at 42.

[92] Id.

[93] Bronkhorst, supra n. 14, at 20.

[94] Sang Wook, supra n. 11, at 677.

[95] See Seth Mydans, Corruption Allegations Affect Khmer Rouge Trials, N.Y. Times (April 9, 2009).

[96] Bronkhorst, supra n. 14, at 20.

[97] Id. at 13.

[98] Id.

[99] Connolly, supra n. 7, at 405.

[100] Hayner, supra n. 2, at 35.

[101] Connolly, supra n. 7, at 405.

[102] 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).

[103] Id.

[104] Id.

[105] Id.

[106] 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).

[107] Id. at 880.

[108] Id. at 867.

[109] 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).

[110] Convention on the Prevention and Punishment of the Crime of Genocide, Arts. 4, 6 (Jan.12, 1951), 78 U.N.T.S. 277.

[111] 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.

[112] Connolly, supra n. 7, at 406-07.

[113] Id. at 408.

[114] Id.

[115] Rowen, supra n. 44, at 96.

[116] Id.

[117] Id. at 96-97.

[118] Rwanda's Grass Courts, N.Y. Times (July 10, 2004).

[119] Id.

[120] Id.

[121] Id.

[122] Id.