By
Eric Brahm
June 2004
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Many Timorese want answers from those who caused their loss and suffering. With answers, people can start the healing process and close this horrible chapter in their lives. -- Xanana Gusmao And the truth will set you free. |
Since the mid-1970s, an unprecedented number of states have attempted the transition to democracy. One of the significant issues many of these states have had to deal with is how to induce different groups to peacefully coexist after years of conflict. Particularly since the early 1990s, the international human rights community has advocated truth commissions as an important part of the healing process, and they have been suggested as part of the peace process of virtually every international or communal conflict that has come to an end since.
Advocates of truth commissions (as well as other forms of transitional justice such as war crimes tribunals) argue that some reckoning with the past is necessary in order for former opponents to look to a peaceful shared future. This essay will discuss the evolving practice of truth commissions and explore claims made on their behalf. They are increasingly seen not as weak substitutes for trials, but as having unique benefits and as superior to trials in some respects.
What is a Truth Commission?
Truth commissions are generally understood to be "bodies set up to investigate a past history of violations of human rights in a particular country -- which can include violations by the military or other government forces or armed opposition forces."[1] Hayner delineates four main characteristics of truth commissions. [2]
- First, they focus on the past. The events may have occurred in the recent past, but a truth commission is not an ongoing body akin to a human rights commission.
- Second, truth commissions investigate a pattern of abuse over a set period of time rather than a specific event. In its mandate, the truth commission is given the parameters of its investigation both in terms of the time period covered as well as the type of human rights violations to be explored.
- Third, a truth commission is a temporary body, usually operating over a period of six months to two years and completing its work by submitting a report. These parameters are established at the time of the commission's formation, but often an extension can be obtained to wrap things up.
- Fourth, truth commissions are officially sanctioned, authorized, or empowered by the state. This, in principle, allows the commission to have greater access to information, greater security, and increased assurance that its findings will be taken under serious consideration. Official sanction from the government is crucial because it represents an acknowledgment of past wrongs and a commitment to address the issues and move on. Furthermore, governments may be more likely to enact recommended reforms if they have established the commission. The table below provides a brief summary of truth commissions created through early 2004.
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aWhile Germany conducted a truth commission consistent with the definition adopted here, it focused on the former East Germany. Comparative regional measures do not exist for the pre- and post-unification East. Because comparisons cannot be made, the case is not included in the analysis. bRwanda is included because the commission was granted quasi-official status and received some cooperation from authorities. cAlthough the commission issued its report in 1998, it continued to work on the granting of amnesty and making reparation recommendations. Sources: (Hayner, 1994; Bronkhorst, 1995; Hayner, 2001; USIP, http://www.usip.org/library/truth.html). |
A number of other bodies have also been created to serve the similar function of investigating the past. In some instances, non-governmental organizations (NGOs) have sometimes created their own truth commissions where governments have failed to create one. For example the archbishop of Sao Paulo, with the support of the World Council of Churches, investigated human rights abuses under Brazil's military regime when the government refused their calls for a formal inquiry. Other commissions of inquiry have examined individual events.
Truth commissions also need not be national in scope. The Greensboro Truth and Community Reconciliation Project in North Carolina created a Truth and Reconciliation Commission in May 2004, to examine racially motivated killings by the Ku Klux Klan and the American Nazi Party in 1979.[3] Nor need they be governmental at all. South Africa's African National Congress created two commissions in the early 1990s to investigate the internal activities of its own organization.
When Are Truth Commission Created?
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Mark Amstutz, a professor at Wheaton College, describes the factors behind South Africa's remarkable transformation focusing in particular on the role of moral leadership. |
Many new democracies are confronted with a legacy of state-sponsored terror and armed insurgency. The dilemma for many new governments is that, while they are young and often weak, it must attempt to restore peace by bringing former enemies together. In order for society to move forward, it must find a way for former combatants to live together. Purges or trials for the losing side may put a decisive end to the conflict in some cases. In other instances, nothing is done to address past crimes. Many conflicts, however, end somewhere in between, where pressure for accountability is great, but past conflict has either co-opted or decimated the judicial system and perpetrators of human rights abuses retain significant power. In other words, where there is a relatively even balance of forces at the transition, truth commissions are more likely.[4] International pressure also makes truth commissions, or some other form of accountability, more likely, especially as international human rights norms have grown.
As truth commissions have become more common and have gained more adherents, they have been argued to have alternative, inherent benefits of their own and should not be seen as simply a second best option to criminal prosecution. As such, in a number of recent cases, for example East Timor and Sierra Leone, truth commissions have been created alongside tribunals.
Inside the Truth Commission Process
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Mark Amstutz, a professor at Wheaton College, describes South Africa's Truth and Reconciliation Commission and its conditional amnesty provision in particular. |
Recognizing each case has been unique in some respects, this section will review some of the generally common elements of truth commission creation and operation.
Establishment of a Truth Commission
There is general agreement that, if a commission is to be established, it should happen soon after the governmental transition in order to aid in this process. Witnesses and evidence will only become more difficult to find over time. Truth commissions are typically created by presidential decree. It may be more effective to have the legislature create the body because it is seen as a more democratic body, but this has been extremely rare. While it appears the parliamentary creation of a truth commission may aid in its legitimacy, there are simply not enough cases available to conclude this with certainty.
Composition of the Commission. How a truth commission will function is highly dependent on who is appointed to the commission. A number of commissions set up by new presidents were in fact highly partial. In Chad, for example, it became apparent that the truth commission was used to discredit the old regime and legitimize the new one. Where the commission is highly representative of all sides of the conflict, however, the outcome may be too inconclusive. In the case of Chile, the transition was not a clean break with the past and segments of the old regime maintained significant power. The truth commission contained an even split between Pinochet supporters and opponents, but the military still rejected the commission's findings. What has been perhaps the most common method is to appoint well-respected members of society to commissions. Being perceived as above politics makes them an ideal choice, though they need not be strictly impartial. It would be difficult to remain so after living through such an experience. In some extreme cases, governments have sought foreigners to form the commission. In the case of El Salvador, for example, the violence was seen as so polarizing that no Salvadoran could fairly assess what had happened. The UN secretary-general, with the agreement of the parties to the peace accords, selected a former Colombian president, a former Venezuelan foreign minister, and a former president of the Inter-American Court of Human Rights to conduct the truth commission.
The Mandate. When a truth commission is established, it is given a specific mandate by the authority that created it. The mandate covers such things as the commission's length of operation,[5] the time period open to investigation by the commission,[6] and what crimes are open to investigation.[7] Ideally, the commission's mandate should allow it to explore a broad range of activities in order to provide a more complete picture of the past. However, political calculation often enters in.
The Operation of Truth Commissions
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Mark Amstutz, a professor at Wheaton College, describes how truth-seeking can be a crucial part of social healing after conflict. |
Simply put, the truth commission's main goal is to establish what happened in the past. Truth commissions do not normally have the power to prosecute. They can make recommendations for prosecution, but this is quite rare. Commissions usually do not even "name names". Often, when a truth commission has been established, the perpetrators of the abuses have been granted amnesty. Because of this, there may appear to be a conflict between finding the truth and administering justice. Finally, the ability of a truth commission to successfully conduct its mission depends on the resources it has at its disposal.
Truth vs. Justice? A central question of truth commissions is whether their search for truth is incompatible with bringing human rights violators to justice. Truth commissions do not have the power to punish, nor should they. In contrast to the courts, truth commissions do not have the same standards of proof or evidence. Where the rule of law is so eroded, courts may not be functioning or the sheer number of cases would overwhelm the system. Justice may be served in a few select cases, but the process of seeking truth will serve the greater number of people. Where the court system is functioning, it may be heavily tainted by the abusive regime and not trusted by the population to administer justice. This does not preclude, however, the use of their reports in trials and issuing warrants.
Despite the tendency to avoid assigning individual responsibility, some commissions have "named names" where a preponderance of evidence existed and have recommended that these people be brought to trial. The revelation of names has also led to cases of accused individuals being victims of vigilante violence.
In terms of facilitating healing, trials also focus on the perpetrator rather than the victim. Truth commissions, however, are not adversarial like court proceedings, thereby providing a more comfortable environment for victims.
The Question of Amnesty. With human rights violators often still playing prominent roles in society, a question facing transitional states is whether to grant amnesty to promote reconciliation. This is usually not a decision truth commissions can participate in. Repressive regimes often grant themselves immunity to prevent future prosecution. Amnesties have also been passed after truth commissions to prevent their findings from reigniting conflict. Within five days of the release of the report in El Salvador, a sweeping amnesty law was passed to prevent anyone from being tried. A number of the top military leaders were eased out of the government, but they were given full pensions.[8] The South African Truth and Reconciliation Commission (TRC) was granted the most power in being authorized to grant amnesty in exchange for testimony. It had a committee to corroborate testimony, judge the political motivation of the crime, and make decisions as to whether the complete truth had been revealed.
Public Hearings. One variable in commissions' operation has been whether its proceedings are public. Early truth commissions had little public testimony due to the fear of retribution. The South African commission was the first big departure from this trend and, in general, it has been more common in Africa. Making the commission public does risk security and unchecked accusations. However, public proceedings also lend the commission greater public legitimacy. The public can see how the commission is operating and there is less opportunity to suppress the commission's findings.
Evidence. Truth commissions seek to collect evidence from a variety of sources. Information from official sources may exist. However, it may be destroyed or the commission may lack the power to subpoena it. Government cooperation is highly variable. The military, in particular, is often less than forthcoming with information. Files are destroyed. Events may have taken place far in the past, which makes finding information extremely difficult. Yet, often records remain. Pressure and popular will is often decisive in determining whether commissions gain access to this information. The commission staff must also have expertise in collecting forensic evidence. Perhaps, the most crucial and most powerful form of evidence is through interviews. Victims telling their stories play a central part of the commission's mission. Particularly where reparations are involved, the poor may have particular incentive to come forward. However, linking fears of reprisals often inhibit the willingness of victims to cooperate.
Resources. In order to complete its task, a truth commission must be granted sufficient resources. This is not an easy proposition for transitional states, many of which are poor to begin with and face tremendous rebuilding costs after restoring relative peace. Most truth commissions find themselves short of the resources necessary to conduct a full investigation. The commission needs to hire a staff to conduct interviews and collect data. A crucial variable for the success of a commission is the size of its staff. The South African TRC, for example, was given a staff of three hundred and a budget of $18 million per year for its two-and-a-half year existence.[9] By contrast, due to lack of office space, Chad's truth commission was forced to set up its headquarters within the former secret detention center of the security forces.[10] Investigators also need to reach remote areas to interview witnesses and visit sites of key events. This is often not easy due to poor infrastructure. Sources of financial support may be available from the international human rights community, but this may raise questions for some about the legitimacy of the commission.
Findings: The Truth Commission Report
The commission's final report is its legacy. It is a summary of the key findings. Patterns of abuse are outlined. Most importantly, the commission's report provides recommendations for rebuilding society. One of the key aspects of the report is the highlighting of the institutional factors that facilitated the abuse of human rights. Recommendations often center on judicial, military, and police reform. Some observers argue the implementation record of reform recommendations is often poor.[11] Reforms are often debated for years, may require legislation or a constitutional amendment, and may become overshadowed by other issues as time goes on.
In order to have maximum impact on society, the report should be widely disseminated. It seems unlikely a truth commission can be considered a success if its findings are not made public. It is important that the entire population has access to the findings to better understand the trauma they have experienced. If a report is kept out of public view, it will raise suspicions about the government's role in the violence.
Truth commissions also make recommendations for reparations to be given to victims of state terror. It is impossible to put a price tag on the suffering that victims have endured, but reparations are another sign of the government's commitment to healing old wounds. Reparations may take the form of cash payments or pensions. It may also include free access to health care and psychiatric treatment. Due to resource constraints, however, these more direct payments are rarely adequate. Symbolic reparations, through public memorials or national remembrance days, are often part of commission recommendations.
International Role
The international community can be of great help in supporting transitional justice. In general, the international community can give advice to the new government. Veterans of past truth commissions have increasingly become persuasive advocates and teachers for other countries seeking to learn from past experiences.[12] Because domestic civil society is often weak, international support of this kind is also helpful. States and NGOs often financially support the operation of commissions. Recently, international institutions have become more involved in the actual running of truth commissions. The Guatemalan and Salvadoran peace accords called for truth commissions under the auspices of the United Nations. The government of Burundi asked the United Nations to set up a commission of inquiry in 1995 because it did not feel it was strong enough to do so itself.[13] The international community can be helpful by acting as a neutral arbiter pressuring all sides to compromise.
The international dimension is not entirely positive, however. Of the case thus far, there has generally been little truth commission investigation of the international role in civil conflict. Relying on international assistance to conduct the commission can also have negative effects. They may lack knowledge of the domestic environment. If they are heavily involved in the administration of the commission, they will invariably go home perhaps minimizing the intended impact on society. It is also easier to dismiss the process as a foreign imposition.
Strengths and Weaknesses
Margaret Popkin and Naomi Roht-Arriaza describe four main goals for truth commissions.
- Truth commissions seek to contribute to transitional peace by "creating an authoritative record of what happened;
- providing a platform for the victims to tell their stories and obtain some form of redress;
- recommending legislative, structural or other changes to avoid a repetition of past abuses; and
- establishing who was responsible and providing a measure of accountability for the perpetrators."[14]
On a basic level, truth commissions uncover the details of past crimes. In many cases, they serve to officially acknowledge what many already know about the past. In this difficult time, it is a way for a new government to establish legitimacy by espousing democratic ideals, the rule of law, formal legal equality, and social justice. As such, although they investigate the past, truth commissions are as much about looking forward as back. They are part of an attempted social transformation to bring about a more peaceful society. Desmond Tutu explains the reason for the Truth and Reconciliation Commission (TRC) this way: "While the Allies could pack up and go home after Nuremberg [war crimes tribunals following WWII], we in South Africa had to live with one another."[15] Societal reconciliation is an often-professed goal of truth commissions, but almost always beyond its reach at least for a truth commission on its own.
Furthermore, it is argued that they can provide a deterrent for the future and end collective denial. Although lacking in power, truth commissions represent a signal by the new government to domestic and international audiences that they intend to make a break with the history of impunity. While not all have held public proceedings, they have often received strong media attention, which gives them a greater opportunity to influence the national psyche. Participation on the part of significant political actors may signal a commitment to peace as do proceedings that discredit those associated with past crimes on all sides of the conflict. Truth commission advocates argue that calling perpetrators to account, even in a weaker venue like a truth commission, reveals the vulnerability of those once in power and knowing these acts have been firmly denounced is empowering to the general public. Although naming names of those responsible has been rare, it is not difficult to identify those in charge of institutions criticized by the commission. Findings may discredit those responsible.[16] In short, the logic of truth commissions is that exposing the factors that allowed these crimes to occur goes a long way toward preventing their recurrence. At the same time, certainly not all are satisfied with foregoing retributive justice.[17]
More significant, however, is delivering what has become known as restorative justice. The process of coming to terms with the past can have great psychological benefit for those seeking trauma healing. By providing official acknowledgment of past crimes, the process helps restore dignity to victims. Sometimes describing the terrible details can bring peace. A truth commission offers victims a chance to finally tell what happened to them: "The chance to tell one's story and be heard without interruption or skepticism is crucial to so many people, and nowhere more vital than for survivors of trauma." [18] Advocates of truth commissions often point to research on crime victims. In many cases, being able to tell their story is tremendously therapeutic for victims of violence. Truth commissions can assist in the healing process by the fact that the listener has official status.
The therapeutic benefits, however, warrant further examination. While telling one's story and hearing details of loved ones' fates are sometimes beneficial, for other victims, these experiences have quite different effects, bringing back old anger and triggering post-traumatic stress. The benefit a crime victim receives from retelling their story is often part of a long-term treatment process. With a truth commission, however, a victim usually has only a few minutes and few resources for follow-on care. In terms of the impact on the general populace, the evidence is also mixed. At the individual level, data is relatively scarce with the notable exception of South Africa. Where the data do exist, the ability of a truth commission's findings to soothe negative feelings is mixed. A survey conducted in South Africa revealed that two-thirds of the respondents felt the truth commission process had harmed race relations and made people angrier.[19] In El Salvador, by contrast, a poll after the commission's conclusion indicated widespread acceptance of the commission's findings.[20]
Despite positive potential, truth commissions have sometimes served merely as a means of legitimizing new governments. While they are generally associated with regime transitions, that transition need not be toward democracy. The 1986 Ugandan commission and the case of Chad are emblematic of truth commissions being used mainly as a tool to discredit the previous regime. In other cases, such as Uganda's 1974 commission, it seemed not to be a sincere attempt to rectify the past, but rather a flimsy effort to placate international pressure. Furthermore, in places such as Zimbabwe and Haiti, the publication of the commission's report was hindered or completely stopped because it was too critical of the new government. In Bolivia and Ecuador, commissions were disbanded before completing their work because the investigations became too politically sensitive. Clearly, the commissions cannot be solely blamed for this -- the political will to act on their findings did not exist.
In sum, the general population, as well as human rights advocates, often expect too much from truth commissions. First, they may have an impossible mission. The needs of victims may be incompatible with the needs of society. Second, it is argued they do not go far enough to deal with the past or generate reconciliation. They do not have the power to punish and have no authority to implement reforms. Third, wiping the slate clean benefits those who have committed human rights violations. This damages victims' self-esteem and denies them justice. Finally, erasing history is difficult. At minimum, truth commissions pursue different types of truth. They investigate the details of specific events while at the same time attempting to explain the factors and circumstances behind the gross human rights violations the state experienced. In short, truth commissions often seem asked to do too much with too little.
It bears repeating that truth commissions are but one component of an effort to bring about peace. It would be unfair to judge their success solely on the future stability of the new regime or on some measure of future levels of violence or adherence to the rule of law. There are too many other variables involved in determining whether domestic tranquility will be maintained. At the same time, researchers need to do a better job of determining what impact truth commissions have and under what circumstances they might be most effective. Claims of their utility are often based on anecdotal evidence. Survey research is one avenue that should be further explored,[21] although for past cases one can only now draw on vague recollections. No pre- and post-tests are possible. Another avenue to explore is greater comparative work. Truth commission experiences have certainly been compared, but if one is interested in trying to identify what impact the commission itself has had, it would seem important to include transitional societies that did not conduct truth commissions as well.
The Future of Truth Commissions
Truth commissions are very much in favor within the international human rights community for ending civil conflict. They are clearly not necessary, however, for one can point to a number of cases of relatively peaceful transitions to democracy in which the past has not been systematically examined. In places like Mozambique and Cambodia where there appears to be a consensus that the past should be left alone, that sentiment should be respected.[22] There is a sense there that rehashing the past will bring a return of violence. There is also a lack of political interest in investigating the past and there are other urgent priorities such as rebuilding. The rebuilding process itself may help reconciliation by focusing energies toward a common goal.
Despite the growing prevalence of the truth commission phenomenon, we do not yet have a clear understanding of their effectiveness. Studies have typically described operations, but it is not clear whether truth commissions have effects or that there are other factors causing an impact. Evidence is often anecdotal. Many of the existing comparative studies focus on a few prominent cases, namely Argentina, Chile, El Salvador, South Africa, and Guatemala. Most of the lessons learned from truth commission experiences have thus been drawn from only a small number of cases. Still, they are intuitively appealing and have many supporters in global civil society. The growing body of international human rights law is increasingly recognized as containing an obligation to deal with past crimes. As a result, the pressure to examine a legacy of human rights abuses is likely to remain strong.
[1] Priscilla B. Hayner, "Fifteen Truth Commissions -- 1974 to 1994: A Comparative Study." In Human Rights Quarterly, Volume: 16 Issue: 4. 1994, p. 558.
[2] Priscilla B. Hayner, Unspeakable Truths. New York: Routlege, 2001, p. 14.
[3] http://www.greensborotrc.org/
[4] Barahona de Brito, A., P. Aguilar, et al. (2001). Introduction. The politics of memory: transitional justice in democratizing societies. A. Barahona de Brito, C. Gonzalez Enriquez and P. Aguilar. Oxford, Oxford University Press: 1-39.; Hayner, Priscilla B. (1999). In Pursuit of Justice and Reconciliation: Contributions of Truth Telling. Comparative Peace Processes in Latin America. C. J. Arnson. Washington DC, Woodrow Wilson Center Press: 363-383.Pion-Berlin, David. (1994). "To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone." Human Rights Quarterly 16(1): 105-130.;
[5] This has typically been six months to two years.
[6] This will of course vary based on the nature of the conflict the commission is examining, but may also be shaped by political considerations to make one side appear more or less responsible.
[7] Truth commissions' mandates often restrict investigations to particular type of human rights violations or to violations that took place in particular locations. In Chile, for example, the commission was only permitted 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." (from the Chilean Commission's Final Report). Thus, their mandate did not include investigating cases of torture unless the victim died. Those who survived were not categorized as victims by the truth commission.
[8] Priscilla B. Hayner, Unspeakable Truths. New York: Routlege, 2001, p. 40.
[9] Ibid., p. 41.
[10] Ibid., p. 58.
[11] Ibid.
[12] For example, The International Center for Transitional Justice,http://www.ictj.org/, was established by former South African TRC member Alex Boraine with help from the Ford Foundation.
[13] Hayner 2001, p. 67.
[14] Quoted in Christie, Kenneth (2000). The South African Truth Commission. New York, St. Martin's Press, p. 61.
[15] Desmond Mpilo Tutu, No Future Without Forgiveness. Doubleday, 2000., p. 21.
[16] Such shaming has sometimes led to vigilante justice, however.
[17] See, for example, Reed Brody (2001). "Justice: The First Casualty of Truth?" The Nation, April 30.
[18] Minow, Martha (1998). Between vengeance and forgiveness : facing history after genocide and mass violence. Boston, Beacon Press.
[19] Hayner 2001.; Tepperman, Jonathan D. (2002). "Truth and Consequences." Foreign Affairs 81(2): 128-145.
[20] Popkin, Margaret L. and Naomi Roht-Arriaza (1995). "Truth as Justice: Investigatory Commissions in Latin America." Law & social inquiry 20(1).
[21] On public sentiment in South Africa, see Gibson, James L. (2004). Overcoming apartheid: can truth reconcile a divided nation? New York, Russell Sage Foundation.; Gibson, James L. and Amanda Gouws (2003). Overcoming intolerance in South Africa: experiments in democratic persuasion. New York, Cambridge University Press.
[22] Hayner 2001.
Use the following to cite this article:
Brahm, Eric. "Truth Commissions." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: June 2004 <http://www.beyondintractability.org/essay/truth-commissions>.
