Tek Narayan Kunwar
The end of the conflict in Nepal is only the first step among many on the path to creating a peaceful and prosperous Nepali society. In this article, the author deliberates on one of the next steps in this process: reconciliation through a truth and reconciliation commission. He reasons that TRCs are an effective mechanism to bring about individual and community healing. He discusses the philosophy behind restorative justice and provides a definition of a TRC. The objectives and dynamics of TRCs are presented as well as a discourse on its religious, socio-cultural, psychological, economic, political, and juridical dimensions. The author comments on the contentious issues of justice such as forgiving and forgetting, amnesty, reparations, accountability and reintegration, apology, naming names and hearings. He finally concludes the article with an analysis of the strengths and weaknesses of TRC mechanisms.
1. Background
Justice is not merely a technical enterprise for the courts. Justice concerns what is just or right with respect to the allocation of value in society. Therefore, justice is generally understood to mean what is right, fair, appropriate and deserved. Justice is achieved when an unjust act is redressed and the victim feels whole again. Justice is something that is dependent on many factors, such as the societal understanding of what is meant by the term, the fairness of the process by which it is to be achieved, the responses of victims, and the ‘correctness’ of the outcome.
In his dialogue The Republic, Plato uses the character of Socrates to argue for a single account of justice which covers both the just person and the just city-state. Justice is a proper, harmonious relationship between the warring parts of the person or a city.[1] It is widely believed that to build tolerant societies in countries that have been torn apart by violent struggles, the inter-group conflicts of the past must be dealt with. New experiments have been made in this discourse and some of them have been more successful. ‘Restorative justice’ that provides balanced justice through a truth and reconciliation commission has been widely successful.
Since the mid 1970s, many states have attempted to make the transition to democracy. If transitional justice is undertaken with a balanced approach, it can create a harmonious future in an injured society. One of the significant issues many of these states have had to deal with is how to induce different groups to peacefully co-exist after years of conflict. Over the last decade, the concept of reconciliation has been increasingly discussed as a method to prevent further conflict in war-torn societies. Since the early 1990s, the international human rights community has been advocating the use of truth commissions as an important part of the healing process. In fact, they have been suggested as part of the peace process in almost every concluded international or communal conflict.
In the case of South African, the Truth and Reconciliation Commission (TRC) provided the opportunity for victims to recount their stories, to be heard and acknowledged and to eventually be compensated to a certain extent.[2] 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 come together and create a shared and peaceful future.
New Zealand was the first developed country which introduced this method of dealing with crime into its justice system. First trialed in Argentina and Uganda in the 1980s, TRCs came to be an international phenomenon. Now, around 34 countries have established commissions to deal with and recover from past human rights violations. The mandates of the TRCs have been different from country to country. In Chile and Argentina, the TRC was limited to investigations of extrajudicial executions and forced disappearances regardless of whether the perpetrator was the state or an armed resistance group. On the other hand, the TRCs in South Africa, Guatemala, and El Salvador, carried wide mandates that extended to almost all types of gross violations of human rights. Of these TRCs, the South African Truth and Reconciliation Commission (1995) was the most important TRC and was given the widest mandate. It is renowned as a model TRC.
Thus, a TRC is an important mechanism to establish a harmonious, balanced, peaceful and just society. Via a TRC, the rights of victims and their families can be restored by revealing the truth behind past incidents. A TRC does not only try the perpetrator, but it also obtains the real truth about the pattern of past human rights violations. This means that policy and institutional changes can be implemented. With these changes, it is believed that reoccurrences of these same violations can be prevented in the future.
2. Restorative Justice: The Way Of Social Harmony
Restorative justice is a value-based approach to responding to conflict. It maintains a balanced focus on the person harmed, the person causing the harm, and the affected community. This is an alternative approach. It is a response to crime that focuses on restoring the losses suffered by victims, holding offenders accountable for the harm they have caused, and building peace within communities. Moreover, it gives the offenders the chance to understand the real impact of what they have done and to do something to repair the harm.
Tony Marshall says, “restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.”[3] Restorative justice focuses on transforming relationships harmed by wrongdoing. This process gives victims the chance to tell perpetrators the real impact of their crime, to get answers to their questions and to receive an apology.
According to John Haley, “restorative justice is a process through which remorseful offenders accept responsibility for their misconduct … and in response allows the reintegration of the offender into the community. The emphasis is on restoration: restoration of the offender in terms of his or her self-respect, restoration of the relationship between the offender and victims, as well as restoration of both the offenders and victims within the community.”[4]
Restorative justice does not force a situation to fit the theory. Rather, as a theory, it is open and flexible enough to apply at various levels and for contextual imperatives. Braithwaite recognizes this in his reply to restorative justice’s two questions. To the who question, he replies, ‘restorative justice is about restoring victims, restoring offenders and restoring communities. To the what inquiry, he suggests ‘whatever dimensions of restoration matter to the victims, offenders and communities affected by the crime.’[5] Jennifer J. Llewellyan and Robert Howse argue that restorative justice practices associated with the TRC do achieve the various instrumental goals in question better than criminal trials and punishment. However, punishment is an intrinsic requirement for restoration of the moral order.[6]Stuart Wilson reveals that “restorative justice aims to repair the relationship between the victim and the wrongdoer. This involves a fourfold commitment: first, a recognition of the damage done by a violation; second, the expression of remorse for the wrong committed; third, a willingness to try to ‘make good’ the violation- through reparation or restitution; and fourth, to achieve forgiveness and reconciliation between the victim and wrongdoer.”[7]
Scholars agree on the view that without justice, there can be no peace. Such peace can be achieved only by using the restorative justice mechanism. They also believe that lawyers and courts do not have the sole power to render justice. Hence, there are varieties of means and methods of dealing with legacies of human rights violations. At this juncture, restorative justice appears as an alternative approach, a response to the crime that focuses on restoring the losses suffered by victims, holding offenders accountable for the harm they have caused, and building peace within communities. This type of justice can be created by the TRC mechanism. Therefore, the restorative justice is an umbrella notion. In particular, it preserves the intrinsically social dimension of the moral intuition that ‘something must be done’ in response to the offence.[8] It asserts the logical necessity of re-integrative measures. Under this concept, the truth and reconciliation process has been developed as a unique transitional justice mechanism which is able to establish durable peace in a post-conflict society.
3. Defining Truth Commission
There is not one commonly accepted definition of a TRC. One certain point however, is that the commission is created during a political transition to handle gross violations of human rights or crimes against humanity. A truth commission is generally understood to be a “body set up to investigate past violations of human rights in a particular country including violations by the military, other government forces or armed opposition forces.[9] Such commissions have a mandate to discover the facts of the violations, whether they be the entirety of the truth or at least a portion of it.
Truth commissions allow victims, their relatives and perpetrators to give evidence of human rights abuses, providing an official forum for their accounts. In most instances, truth commissions are required by their mandate to provide recommendations on steps to prevent a recurrence of such abuses. They are created, vested with authority, sponsored, and funded by governments, international organizations, or both.[10]
As described in the Truth and Reconciliation Act of 2000 in Sierra Leone, truth telling was to be the primary means by which the TRC pursued the five goals of its mandate: “to create an impartial historical record of violations and abuses . . . , to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered.”[11] In this way, if we look at the commissions existing in a variety of countries, it becomes noticeable that they differ in name, mandate, and authority, depending on the type of human rights crimes being examined. Even with these stark differences, the various commissions share one common characteristic which is to resolve human rights violations.
Priscilla B. Hayner delineates the following four main characteristics of truth commissions.[12] First, they focus on the past. Second, truth commissions investigate a pattern of abuse over a set period of time rather than a specific event. 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. And, fourth, truth commissions are officially sanctioned, authorized, or empowered by the State. According to Hayner’s view, the TRC focuses its investigation on past crimes. Their sole aim is to obtain a comprehensive picture of human rights crimes and violations of international law during a specified timeframe and without focusing on just one case. Furthermore, they have a limited time of service usually finishing with the completion of a report. Finally, they have authority to access information from all institutions, and provide legal protection to witnesses.
Truth commissions should not be deemed to be a substitute for the prosecution of the four jus cogens crimes of genocide, crimes against humanity, war crimes and torture. Although these commissions may run in conjunction with prosecutions, their role is to establish a record of what has happened, and to disseminate this information widely at both the national and international level.[13] Internationally, South African Truth and Justice Commission provided a powerful example of a country seeking to come to terms with the horror of its past and seeking to heal the wounds and move forward.
4. Objectives Of TRC
Robert I. Rotberg and Dennis Thompson contend that “Never again!” is a central rallying cry of truth commissions and one about which perpetrators and victims can agree. The notion of “never again” captures the response of societies that are recovering their own balance, their own dignity, and their own sense of integrity. Truth Commissions are intended to be both preventive and restorative.[14] Allan and Allan claim that “it is inevitable that, for some of them [testifiers], psychological dysfunction and emotional pain will follow.”[15] The authors point to the fact that the usual aim of truth commissions is to focus on collective rather than individual experiences, a factor that might be anti-therapeutic. “We still await studies about the psychological impact of truth commissions…” states another scholar.[16] However, as Hayner writes, “the central aim of a truth commission is not therapy.”[17] Nevertheless, many truth commissions do aspire to function as a therapeutic tool for society. In this process it is important to remember the individual suffering behind the stories and to ensure that the appropriate care is given.
Margaret Popkin and Naomi Roht Arriaza also describe the four main goals of truth commissions. Firstly, truth commissions seek to contribute to transitional peace by “creating an authoritative record of what happened. Secondly, they seek to provide a platform for the victims to tell their stories and to obtain some form of redress. Thirdly, truth commissions seek to recommend legislative, structural or other changes to avoid a repetition of past abuses. Fourthly, they attempt to establish who was responsible for the injustices so the perpetrators can be held accountable.”[18]
In view of Christie Kenneth, the first and general aim of truth commissions is to officially investigate and provide an accurate record/analysis of the broader pattern of abuses committed during repression and civil war.[19] Inherent to this investigation is hearings of the victims and perpetrators stories. In that sense a truth commission can also be seen as a non-judicial approach to achieve some form of justice to victims as it provides a forum for victims, as well as perpetrators to give evidence of human rights abuses. The subsequent report forms the first official acknowledgement of past human rights abuses people have suffered.
Truth and reconciliation commissions can not prosecute and try alleged human rights abusers and so justice is not actually done. In this way, truth commissions are particular in their scope, form, and mandates. Nevertheless, many commissions attempt to achieve a number of goals. Firstly, truth commissions attempt to obtain official knowledge from individual victims by permitting them to submit statements. Secondly, the TRC can focus its attention on certain incidents during a period of time in which the violations were committed in order to make historical corrections according to what actually happened. Thirdly, the TRC focuses public attention on human rights violations and through this increases general awareness of the social and individual loss that results from human rights violations. Fourthly, the TRC can investigate the consequences and nature of systematic and institutional human rights violations. It helps to prevent the reoccurrence of human rights violations. Fifth, the commission gathers in depth information on human rights violations and their impact on victims. The Commission can then make recommendations on ways to help victims face and overcome their experience. Finally, the commission may also gather information about individual human rights perpetrators and their role in human rights abuses. They may give recommendations that the perpetrators need to be removed from public positions or give factual evidence for indictments in a court of law.
It is important to note the view of Kadar Asmal that “more important than criminal prosecutions (of which there have been several and will be more) is the acknowledgement of today’s indebtedness to those who were wrongly vilified, tortured, maimed and killed yesterday. In particular, justice includes the undoing of past unjust criminal prosecutions as much as it includes the establishment of new findings of criminal guilt (by the courts) or moral and political responsibility (by the Truth and Reconciliation Commission) today”.[20]
According to T. A. Borer, one of the goals of the TRC is the promotion of a human rights culture. He questioned how we measure this. Another goal of the TRC was to “restore the dignity of victims.” He argues again, how do we define dignity? How do we measure it? In the absence of serious methodological work, such questions will remain unanswered, and no meaningful assessments of the TRC can be undertaken.[21]
5. Reconciliation: Key dynamics Of Healing
There can be many different views of the meaning of reconciliation. In general, reconciliation is a societal process that involves mutual acknowledgment of past suffering and the changing of destructive attitudes and behaviour into constructive relationships that promote sustainable peace. Reconciliation involves justice, recognition and healing. It is about helping all victims move forward with a better understanding of the past and how the past affects the lives of survivors today.
Priscilla Hayner argues that reconciliation implies building or rebuilding relationships today that are not haunted by the conflicts and hatreds of yesterday.[22] In her view, it seems that the present relation building should not be negatively affected by past evils. Some scholars define reconciliation as a psychological process for the formation of lasting peace. During this process, past rivals come to mutual recognition and acceptance, have vested interests and goals in developing peaceful relations, feel mutual trust, positive attitudes as well as sensitivity and consideration of the other party’s needs and interests. Hayner believes reconciliation can be as simple as getting back to ‘normal’ life after the troubles are over. But it has become unnecessarily theorized and idealized in recent years. Reconciliation as a policy objective really came into its own in the species of commission of inquiry known as the ‘truth and reconciliation commission’.
The International Institute for Democracy and Electoral Assistance (IDEA, Stockholm) identifies reconciliation as “a process through which a society moves from a divided past to a shared future.[23] In relation to this definition, the development of democratic norms in the post conflict society is fundamental for this route, as structural injustice creates the basis for new conflict. In the process of reconciliation, peaceful co-existence, trust and empathy evolve within this framework of democracy for sustainable peace.
Robert F. Drinan argues that the term “reconciliation” sounds peaceful and reasonable, but how do you reconcile a history in which you and everyone you know have been cheated, defeated, and dehumanized? What do you do to obtain the human rights stolen from you?[24] To get answers on his inquiry we have to take a look into the South African example. It employed a combination of techniques available to balance the desire for a peaceful resolution to an awful problem. It has used the power to grant amnesty in exchange for the revelation of truth.[25] It was an experiment with noble aspirations. No matter whether it would be a model for other countries or not, it has made a great impact in this discourse.
In sum, reconciliation is more about socio-political psychology. By altering the socio-political psychology of a state in conflict, the community can be safeguarded from further political violence. The reconciliation process should be prepared to handle further injustices in post-conflict situations. The door of forgiveness must remain open to the perpetrator. Reconciliation then is the ability to forgive or forget political bitterness for the sake of creating a better political system in the future. In short, reconciliation stresses reaching that final goal, rather than criminal prosecution. Therefore, reconciliation emphasizes to overcome the distrust or animosity between perpetrators and victims and strive to regain a friendship or goodwill by pleasant behaviour.
Truth commissions and other mechanisms to expose the truth are based on a more restorative function for criminal justice. Admitting the truth is often the first step to make changes within society. Reconciliation as a conflict handling mechanism requires some core elements. At first, honest acknowledgment of the harm or injury of each party has inflicted on the other is foremost. Secondly, sincere regrets and remorse for the injury should be given in this process. Thirdly, readiness to apologize for one’s role in inflicting the injury is also an important step. Fourthly, a willingness of the conflicting parties to ‘let go’ of the anger and bitterness caused by the conflict is necessary. A commitment by the offender not to re-offend is also a significant element in this process. Moreover, a sincere effort to redress past grievances that caused the conflict and compensate the damage caused to the extent possible is required. Entering into a new mutually enriching relationship is imperative to bring the individual and community together for a brighter future. Consequently, reconciliation then refers to this new relationship that emerges as a consequence of these processes. What most people refer to as ‘healing’ is the mending of deep emotional wounds generated by the conflict that follow the reconciliation process.
Experiences show without doubt that the TRC has re-awakened painful memories and practices that call into question how much healing actually takes place in its work. By asking victims to retell their stories after so many years, by entrenching long-buried conflicts, by reopening old injuries and by its incapacity to provide long-term care and support, the TRC at times seems to be an instrument for anger and pain, rather than a vehicle for healing and reconciliation. However, in its overall contribution to reconciliation and healing in the country, the TRC helps thousands of people in a multitude of ways at the macro level.
Interestingly, the manner in which the TRC accomplishes that work is a relevant inquiry here. It can be seen in four folds. Firstly, the TRC normalize the symptoms of trauma and exposure to gross violence. It makes it socially acceptable to talk about pain in public, to mourn the loss of loved ones with displays of emotion and to seek counseling in order to overcome the traumas of the past. By building up public awareness of the consequences of trauma and suffering, the TRC inevitably assists survivors in grappling with their pain and possibly removed some of the stigma of mental health.
Secondly, the TRC obviously generates a platform for survivors to experience the humanity of their perpetrators through amnesty hearings. Regardless of the outcome of the hearings, survivors have the chance to see their perpetrators as humans, placed in an entirely new relationship of power where the balance is tipped in favour of the victims.
Thirdly, the TRC has the power to effect healing through its emphasis on the prevention of future human rights violations.
Fourthly, the TRC has the potential to remove some of the most powerful cues and reminders of the human rights violations of the past which can contribute to sustaining survivors’ trauma. It can recommend changing the names of notorious security centers, prisons, and torture facilities. And, the TRC can propose the creation of parks, monuments, and other symbols of reconciliation. It could help victims and survivors to heal their hurt and injured souls.
In addition, the TRC can recommend reasonable reparations for the victims. By dismantling the symbols of past repression, the TRC can help facilitate healing by rendering those symbols impotent and constructing new reference points with new meanings.
In conclusion, these are only a few of the numerous ways in which the TRC as a national instrument of reconciliation has the potential to contribute towards individual healing long after its work is finished. The positive benefits of reconciliation for the healing process both at a national and an individual level is readily apparent. There is definitely an important role that national reconciliation can play in the healing process for survivors of political violence. More specifically, reconciliation can remove some of the key stressors that perpetuate trauma for survivors of socially organized violence. Furthermore, reconciliation ends conflict which exacerbates ongoing trauma, removes cues and reminders which trigger painful memories and can be an interpreted as a victory for victims on both sides. These are important social byproducts of reconciliation.
6. Dimensions Of Reconciliation
According to substantial research from the literature, we could find six different dimensions of reconciliation. These dimensions are religious, socio-cultural, psychological, economic, political, and juridical.
6.1 Religious Dimensions
The term ‘reconciliation’ has strong religious connotations. In Christianity, reconciliation between God and humanity through Jesus is a fundamental theme. Historically, within Christianity there has also been a division between Eastern and Western traditions regarding the view of sin and thus also of reconciliation. The Eastern Orthodox Church considered sin from a relational perspective, emphasizing the breaking of loving relations between God and man or between human beings. Western Christian traditions (Catholicism and Protestantism) were in the past more influenced by the Roman legal tradition and focused thereby on the legal dimension of sin – seeing sin mainly as disobedience of the law of God. Today, however, the Western traditions have shifted from this preoccupation with normative moral rules to considering sin and reconciliation from a relational point of view.[26]
One approach to the Bible’s concept of justice is that it can be seen as interpersonal reconciliation, which focuses in particular on the issues of compassion, mercy and forgiveness.[27] Interwoven in the theological context of reconciliation is also the notion that human justice is limited. Justice can never achieve full retribution for the victims, especially not for the dead, but the theologian hope is that victims will be vindicated after death. Reconciliation is from this point of view seen as the “ultimate fulfillment of justice”, requiring forgiveness.[28]
In the Buddhist tradition, compassion rather than forgiveness is stressed. The fundamentals of the Buddhist Middle Path are acceptance, tolerance, and above all, compassion. There are no examples as yet of a Buddhist country officially working for reconciliation after internal conflict. However, in Cambodia ongoing negotiations are being held between the government and the UN on how to deal with the country’s conflict-filled past.[29] In a paper on the pursuit of justice and reconciliation in Cambodia after the atrocious regime of the Khmer Rouge, Wendy Lambourne states that some Cambodians she interviewed were skeptical of replicating the “Christian concept” of truth commissions as they are based on “confessing and forgiving”.[30] One interviewee explained that it would not be applicable to Cambodian tradition where, in accordance with Buddhism, people who have committed crimes will always be held responsible for them – there is no God who will ultimately forgive. Another interviewee argued on the same lines but drew the opposite conclusion, saying that it would be easy for Cambodians to forgive because they believe the perpetrators will be punished in the next life.
6.2 Socio-Cultural Dimensions
Culture is the rich and complex blend of beliefs, attitudes, and behaviour regarding everything from food to art to politics and religion in a certain society. Culture shapes how we perceive ourselves and others.[31] Violence, fear and hatred during war result in the modernization of old myths[32] and stereotypes to explain one’s own or some other group’s gruesome behaviour – and thereby justify whatever atrocities are committed. After the war, the societal and cultural fabric is drenched with these beliefs. They can be seen in how history is described, how the language is used, in education, the media, theatre etc. In order to live in peace, these beliefs must be questioned and transformed. Unfortunately there is no universal technique for this. The search for sustainable peace in a society after conflict must begin from its own roots, importing from outside whatever can be of use, but basing that society’s transformation on its own unique set of traditions and cultural heritage.
In the South African Truth and Reconciliation Commission (TRC), the African notion of ubuntu held an important meaning. Ubuntu means that humanity is intertwined, a person is a person through other people, we are human because we belong. Through this concept, Desmond Tutu argued that “even the supporters of apartheid were victims” and “the oppressor was dehumanized as much as, if not more than, the oppressed.”[33] The misconduct of one person reduces everyone’s ubuntu while good deeds increase the ubuntu and well-being of all. Thus, reconciliation was part of restoring ubuntu in both victims and former perpetrators, for everyone is linked together. In this way, the TRC brought together its mission for national reconciliation, which often used Christian vocabulary, with the traditional African cultural heritage in the attempt to pave the way for reconciliation.
In Caritas International’s handbook Working for Reconciliation a “Tool Box for Keeping a Cultural Perspective in Reconciliation Work” is proposed.[34] The recommendations include the following: to identify cultural dimensions to the conflict (e.g. ideology, religion, social inequality), to identify cultural realities that impact negatively (prejudice and fear etc) or positively (shared values regarding cooperation and similar reconciliation customs) on the resolution of the conflict and to explore traditional or cultural methods for reconciliation. Thus, it needs to support local and national culturally grounded initiatives for reconciliation. Reconciliation that follows these guidelines will have the highest legitimacy and sustainability in the long run.
6.3 Economic Dimensions
Studies show that post-civil war societies are significantly more likely to experience civil war again than societies with no prior experience of war. Barbara Walter argues that two factors are imperative for war to reoccur and these are both related to the individual citizen’s incentives to go to war. The two factors required are; firstly, people feel that continuing life in the current condition is worse than the possibility of death in war; and secondly, there is a closed political system that does not permit change, except by use of violence.[35] Walter’s study of civil wars suggests that improvement in the economic well-being together with increased political openness significantly decreases the risk of once again experiencing war. Walter writes “conflict begets conflict not because violence makes poor countries poorer or undemocratic governments more autocratic, but because individuals in these countries fail to experience any improvement over time.”
On the same lines, Collier and Hoeffler argue that negative economic growth rates are the primary source of civil war.[36] Furthermore, studies show that war greatly strains the economy, “so that there is the potential for a trap – a cycle of economic deterioration and repeat conflict.”[37] There is also the risk of spillover effects in neighbouring countries, leading to instability in the region and the risk of expanding the conflict.
It must now be considered how the economy relates to reconciliation. Economic development seems essential for peace, and peace is essential for reconciliation. Furthermore, and more specifically, in the work of truth commissions around the world economic compensation has become of utmost importance. “Reconciliation must go hand in hand with economic justice,” states Alex Boraine.[38] Survivors of atrocities and injustice have often not been given access to education, jobs, housing, and medical care. When the time comes for building a new and peaceful society, the gaps are vast between former perpetrators and survivors regarding all areas. As Robert I Rotberg writes: “Reparations and compensation strengthen the rule of law, reconciliation, and the overall process of institutional reform.”[39] Money can never compensate the death of loved ones but can help a surviving family build a better life as well as serve as “…an official, symbolic apology.”[40]
The truth commissions in Argentina and Chile have given the most substantial economic reparations for victims.[41] Other countries’ commissions have recommended financial compensation for victims but the governments have failed to provide resources and expedite this crucial step in reconciliation. For example, in South Africa testifiers in the TRC had been promised economic compensation, but the monetary help was rarely handed over to the victim. This led to renewed anger and feelings of humiliation for the victims.
For reconciliation, economic justice is crucial. Thus, economic compensation must also reach those who do not take part in a truth commission. Supporting micro finance projects, joint market days, and other economic projects in order to reduce gaps and compensate suffering is thus central to reconciliation.
6.4 Political Dimensions
Is a state of reconciliation politically desirable? Timothy Garton Ash argues “…the reconciliation of all with all is a deeply illiberal idea.”[42] Whether this is so or not of course depends on how reconciliation is defined. If reconciliation demands no conflict, no differences, and only love, harmony, and unity – then reconciliation is probably both illiberal and impossible. If we use our definition from above: “Reconciliation is a societal process that involves mutual acknowledgment of past suffering and the changing of destructive attitudes and behaviour into constructive relationships toward sustainable peace” this neither implies lack of conflict nor total harmony. Rather, it refers to a process after atrocities and injustice that builds a future by remembering the past, handling conflict without violence and respecting the rights of all society’s members.
In the first systematic attempt to study reconciliation on a national political level, Long and Brecke have examined the presence or absence of ‘reconciliation events’ after civil conflict and the subsequent relations between former adversaries.[43] Reconciliation events are defined as including: firstly, a meeting between senior representatives of the former opposing factions; secondly, a public ceremony, covered by national media; and thirdly, ritualistic or symbolic behaviour that indicates peace. By studying all countries that experienced civil war in the 20th Century, Long and Brecke found that for countries in which a reconciliation event took place, 64 % did not return to violent conflict. However, among countries that had not experienced a reconciliation event, only 9 % did not return to war. This supports the notion that political attempts at reconciliation after internal conflict are essential in the quest for peace.
A good example of politically symbolic behaviour indicating peace is an official apology by the Government. An official apology has been an increasingly common phenomenon in recent years. German Chancellor Willy Brandt was one of the first political leaders to offer an official apology, when he fell to his knees in the Old Jewish Ghetto in Warsaw in 1970 and gave an apology for Germany’s atrocities during World War II. The Pope has apologized for the Catholic Church’s past maltreatment of the Jewish people; the IRA has apologized for having killed civilians in its 30-year anti-British campaign and in 2001 the Japanese Prime Minister Koizumi expressed remorse for the Korean suffering under Japanese rule during World War II. The UN Secretary General Kofi Annan apologized to Rwanda for the UN’s inability to act and prevent the 1994 genocide; former US president Bill Clinton did the same. In Sweden, the Government and the Church are working for reconciliation with the Swedish Saami, a minority living in northern Sweden who have been subjected to discrimination for centuries.[44] In Australia, an official report Bringing Them Home titled ‘Bringing Them Home’ published in 1997, described how up until the 1970s aboriginal children had been stolen from their families and were placed in white Australian families and raised by them so that they assimilated with ‘white Australia’. The Australian population was outraged by this report. The government has not officially apologized for its past conduct, but an annual “Sorry Day” is now held on May 26, and “sorry books” were distributed around the country for the public to sign. Within a year hundreds of volumes were filled with signatures from over 100,000 Australians.[45] Finally, in February 13, 2008, Australian Prime Minister Kevin Rudd apologized in parliament to all Aborigines for laws and policies that “inflicted profound grief, suffering and loss.”[46] In this way, the official acknowledgment of and expression of remorse for past wrongs has an entirely new role in today’s world politics.
After internal conflict, in which the state has been an actor, initiatives should be encouraged to increase the awareness among top-level leaders of the importance of official self-reflection and an acknowledgement of past atrocities committed by the state. After acknowledgment of past injustices, governments should be encouraged to provide compensation. Governments need to take political responsibility for reconciliation by enacting example laws and increasing reconciliation education.
6.5 Psychological Dimensions
Individual traumatic experiences do not disappear if they are not revealed to others. As Hamber writes: “…psychologically, sleeping dogs do not lie; past traumas do not simply pass or disappear with the passage of time.”[47] Psychological trauma research has shown that it is of great importance to heal traumatic wounds in order for life to continue without the trauma becoming cemented as a physical and/or mental disorder. Victims of torture and other human rights violations often have a feeling that no-one would believe them if they told their story – just as they often have been told by their perpetrators.[48] Official acknowledgement of past atrocities and injustices is important when working with an individual traumatic experience because it validates past experiences and helps restore dignity and self-esteem. Telling one’s story to someone who listens is of greater importance than one might first imagine. However, to speak of traumatic wounds, which often have left feelings of deep humiliation, shame and guilt, is difficult and painful. Therefore the manner in which the talking and listening is performed is of great importance.[49] It is also important that the victim is aware that revealing their experiences does not lead to instant healing.
During truth commission hearings, victims must recall and relive traumatic experiences in a public environment. Usually, victims have only one opportunity to testify and most likely they will not meet the commissioners they are speaking to again. In South Africa, the TRC had the objective of uncovering past atrocities in order to achieve healing and reconciliation in the nation. The objective of healing led to much debate among psychologists in South Africa.[50] Some expressed their support, others were skeptical and some considered it to be more harmful than beneficial. Alfred Allan cautions the belief that witnessing in a commission would lead to healing. He refers to studies showing that some individuals, both victims who testified and staff members who listened to the testimonies were further traumatized by the experience of participating in the TRC.[51]
He argues that even though some individuals who gave testimony believed the experience was cathartic, this does not necessarily imply that it was therapeutic. He states that “the question remains whether the process brought about an enduring change for the better, or merely a short-term symptomatic relief” and then he suggested more research in the area.[52] Similarly, Swartz and Drennan argue that it is not clear today if emotional self-exposure, even in a clinical setting, automatically has a positive effect on mental health.[53] Allan warns the “myth” that testifying in a TRC is a healing process can involve risks. For example, survivors may be misled into testifying due to the belief that it will be good for them. There is also the risk that governments believe in the myth and will fail to arrange for treatment needs and another risk that the belief may deprive people in grave need of adequate treatment.[54]
Allan and Allan claim that “it is inevitable that, for some of them [testifiers], psychological dysfunction and emotional pain will follow.”[55] The authors point to the fact that the aim of truth commissions usually is to focus on collective rather than individual experiences. This aim might actually be anti-therapeutic. “We still await studies about the psychological impact of truth commissions…” states another scholar.[56] Moreover, as Hayner writes, “the central aim of a truth commission is not therapy.”[57] Many truth commissions do nevertheless aspire to function as a therapeutic tool for society. In this process it is important to remember the individual suffering behind the stories and ensure that appropriate care is given.
National initiatives for psychological rehabilitation are much more important. How this is designed depends on the country’s tradition, history, and culture. However, during and after truth commissions, some sort of psychological support programs for victims, perpetrators, as well as staff is crucial in order to avoid further suffering and generate the best circumstances for reconciliation.
6.6 Juridical Dimensions
The question of how to deal with the atrocities of the past in a country emerging from internal conflict is critical and enormously complex. Should there be tribunals to punish perpetrators? Should amnesty be granted in order to avoid disturbing a fragile peace? Alternatively, should a truth commission be established to ensure that the past will be acknowledged and not repeated and dignity restored to the victims and survivors? What does the justice versus stability equation look like and what is best for the process of reconciliation? Rama Mani states that there are three dimensions of justice that must be taken into account in peace building after internal conflict:
Firstly, The rule of law: the apparatus of the justice system must be restored as it has usually broken down and lost all legitimacy during the war. The rebuilding of the rule of law also “may serve as an indication to combatants and civilians in war-torn societies of a return to security, order, and stability.”
Secondly, Rectificatory justice: addressing the injustice and pain that has been suffered by people during conflict. This is important from three distinct perspectives: by international law countries are bound to prosecute past abuses; politically it is needed to establish legitimacy and stabilize peace; and psychosocially it aids to understand and heal trauma.
Thirdly, Distributive justice: “addressing the underlying causes of conflict, which often lie in real or perceived socio-economic, political or cultural injustice” in order to prevent further violence.[58]
In this process of building a new justice system that adheres to the dimensions above, a country must then decide in what way will it deal with the crimes of the past and what justice will it use. This decision is central to the discussion of reconciliation. There is a strong consensus that, as Professor Daniel Bar-Tal puts it, “justice is indispensable for reconciliation.”[59] Within the literature on reconciliation, there has been much discourse in recent years concerning retributive versus restorative justice.
Retributive justice, also called criminal, procedural, or legalistic justice, focuses on crime as the violation of law. Crime is, one could say, a matter between the perpetrator and the state. Punishment and suitable compensation to the victim is decided upon by the criminal justice system, transferring “the individuals” desire for revenge to the state or official body.”[60] Although being the most commonly seen form of justice in the world today, retributive justice is a fairly recent idea historically, with roots in the Middle Ages.[61]
Restorative justice, on the other hand, which is also known as transitional or reparative justice, focuses on crime as a conflict between individuals, whilst also focusing on the injuries crime inflicts on all parties: the victim, the perpetrator and the society.[62] The interest of the justice system here is to reconcile and heal conflictive relationships in order to end the vicious cycle of crime, revenge, and recurring crime. This is done inter alia by an official acknowledgment of the past, publicizing the names of perpetrators (seen as a form of punishment in itself), formalized apologies and compensation to victims.[63]
Restorative justice systems can be traced back several thousands of years. There are Babylonian and Sumerian Codes from around 2000 BC with instructions for how conflicting parties should proceed to bring about the restoration of broken relationships and order in society.[64]
The dilemma for a country in the transition from conflict to peace is to find a balance between the moral desire for restoration, which inherently involves compromise and the legal desire for retribution, which innately carries the risk of silencing the past (as war criminals will seek to avoid punishment by withholding certain truths). As one scholar poses, how is it possible to accommodate “individual criminal responsibility and national reconciliation?”[65]
A budding trend can be seen in countries attempting to deal with a conflictive past and promote reconciliation, namely the combination of these two forms of justice. In Rwanda, offences committed during the genocide in 1994 have been graded according to severity. The most severe criminals, such as organizers and leaders of the genocide, are to be tried in the conventional courts, including the International Criminal Tribunal for Rwanda.[66] The perpetrators of slightly less serious crimes however will be tried in traditional community courts, called the gacaca[67] courts. In this way it is hoped that the involvement of the population in the trials will promote a process of reconciliation. Similarly, in South Africa the TRC gave amnesty to those who confessed to having been part of the apartheid rule. The accounts helped paint a picture of the past and finding the truth was seen as more important than attempting to achieve legal justice, also considering the fact that “full justice is not always possible in a society in transition.”[68] In East Timor a similar method of blending restorative and retributive justice is being used in the Commission for Reception, Truth and Reconciliation.[69] Restorative justice, including (retributive) prosecution for certain crimes holds promise for the future.
Therefore national initiatives for restorative justice needs to include support for truth commissions and tribunals, securing reparation and compensation (medical, psychosocial, economical) for witnesses, educational programs in trauma and human rights, documentation of testimonies and secret files. Prosecution and punishment of severe crime is also important for restorative justice. Thus, supporting actors in the retributive justice system, such as the police, prisons and the formal legal institutions is also of great importance for reconciliation.
7. Some Contentious Issues Of The TRC Mechanism
The following discussion relates to some experiences that were obtained from the literature, which are contentious issues of reconciliation. These issues are related to forgiving and forgetting, amnesty, reparations, accountability and reintegration, apology, naming names and hearings.
7.1 Forgiving And Forgetting
The experience in Sierra Leone was an exemplary example of forgiving and forgetting past traumas. Its people had a long historical experience of reintegrating combatants, reworking relationships and rebuilding moral communities. Research conducted by Rosalind Shaw proves that Sierra Leonean people did not wait for the TRC before working to rebuild their lives and social communities. While the reintegration of ex-combatants was problematic in many areas, people in different parts of the country developed and adapted techniques of healing, reintegration, and reconciliation, sometimes with the input of NGOs and religious groups.[70]
According to these findings, people and communities are engaged in a variety of processes of social recovery. People had been talking about the violence when the violence was present, but once the violence stopped, healing took place through practices of social forgetting. Social forgetting is a different process from individual forgetting, in that people still have personal memories of the violence. But speaking of the violence, especially in public, was viewed as encouraging the return of violence.[71] Thus, the researcher concludes that social forgetting “unmakes” past violence and “remakes” ex-combatants as new social persons. It is not a panacea but a practice that enables and sustains ongoing process of healing and social recovery.[72]
7.2 Amnesty
Amnesty is a legislative or executive act by which a state restores those who may have been guilty of an offence against the state to the position of innocent persons. It is more than a pardon. 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 that truth commissions can participate in. However, amnesty is often necessary to allow truth commissions to operate with impunity without fear of reigniting the conflict once the ‘real truth’ of the conflict is discovered. For example, within five days of the release of the report in El Salvador, a sweeping amnesty law was passed to prevent anyone from being tried. In South Africa, the TRC gave amnesty to those who confessed to having been part of the apartheid rule. However, the amnesty process was often the subject of scrutiny and criticism.[73] Nevertheless, the Committee believed that, in all facets, the amnesty process made a meaningful contribution to a better understanding of the causes, nature and extent of the conflicts and divisions of the past.[74] It is established that “full justice is not always possible for a society in transition.”[75] In East Timor a similar method of blending restorative and retributive justice is being used by the Commission. However, it is not necessary that all TRCs have given the same power of yielding amnesty. As required under international law, the Commission can not recommend amnesties or similar measures of impunity with respect to crimes under international law. International human rights bodies have consistently affirmed that the establishment of a truth commission does not relieve states from their obligation to prosecute crimes breaching international law.[76]
7.3 Reparation
The issue of monetary reparations is of paramount importance for impoverished survivors of violence. Ruth Picker affirms: “not providing timely and adequate reparations endangers the credibility of the process. It fundamentally violates victims’ sense of justice to see the lives of the perpetrators untouched by the transgressions while their own lives have been severely disrupted.”[77] As R. I. Rotberg writes: “reparations and compensation strengthen the rule of law, reconciliation, and the overall process of institutional reform.”[78] Money can never compensate the death of loved ones but it can help a surviving family build a better life as well as serve as “…an official symbolic apology.”[79] Simply speaking, reparation means compensation that is given or received for an insult or injury. This is a sensitive and ambiguous topic during the course of TRC proceedings. Sometimes some victims and survivors may perceive reparations as a cheap effort to buy guilt and pain.
7.4 Accountability vs. Reintegration
In transitional justice, it is believed that local techniques of post-conflict healing, reconciliation and reintegration removes the need for justice and accountability. Here Ruth Picker argues that a distinction should be drawn between the need to make states and leaders accountable for mass violence on the one hand and the treatment of rank-and-file perpetrators on the other.[80] If most survivors of the violence want some form of retributive justice against the latter, then a truth commission or TRC is unlikely to be an adequate response.[81] On one hand, Human Rights Law places obligations on a State to punish human rights violators and the rule of law notion never exempts the accountability of a gross human rights abuser. On the other hand, retribution may increase the possibility further conflict in the war-torn society. In such a transitional phase transitional justice needs to balance prosecutions and reconciliation.
7.5 Public Or Private Hearings
Investigations by a truth commission may be legitimately confidential as long as the final report is released to the public. When fairness and neutrality can be generally assured, which may in some cases require international sponsorship or an international observer, then private investigations may be preferred.[82] There is a tendency in Africa to receive testimony and interview witness in public. Often, the proceedings are broadcasted live on the radio or television. Indeed, international human rights organizations such as Africa Watch have argued that as a general rule, investigations should be public “in order to safeguard their impartiality”[83] Also, public hearings sometimes seem quite risky. Most commissions even reported that some witnesses hesitated or refused to testify for fear of reprisal.
7.6 Naming Names
Few issues have attracted as much controversy in truth commissions as the question of whether a commission should publicly name those individuals found to be responsible for human rights crimes. The debate concerns two contradictory principles, both of which can be strongly argued by human rights advocates:[84] (1) Due process requires that individuals receive fair treatment and are allowed to defend themselves before being pronounced guilty. Due process is violated if a commission report names individuals responsible for certain crimes. Therefore, no names should be named. (2) Telling the full truth requires naming persons responsible for human rights crimes when there is undeniable evidence of their culpability. Naming names is part of the truth-telling process, even more so when it is clear the judicial system does not function well enough to guarantee that they will be prosecuted.
8. Strengths Of The TRC Mechanism
8.1 Legitimacy
Truth commissions uncover details of past crimes and officially acknowledge the past. It contributes to establishing transitional peace by creating an authoritative record of what happened in the past and what should be done in the future. 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. 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.”[85]
8.2 Healing Through Reconciliation
Reconciliation heals a nation and individuals as well. By learning about the truth of past atrocities, a nation can honestly debate why and how these terrible crimes could happen. It is noteworthy that as Greensboro TRC mentioned “There comes a time in the life of every community when it must look humbly and seriously into its past in order to provide the best possible foundation for moving into a future based on healing and hope.”[86] At this point, truth, healing, hope and reconciliation are long-term goals that must take place across what are currently deep divides of distrust and skepticism in a community.
8.3 Better Than Litigation
If the goal of healing individual and societal wounds in post-traumatic situations is performed morally and practically, Minow suggests that the truth commission method might be more beneficial than a criminal prosecution. Litigation “is not an ideal form of social action.” Trials have procedural pitfalls. If resisting the dehumanizing of victims is a societal objective, trials are inadequate. Hence, for public acknowledgement of what happened and who did what to whom, a truth commission provides a safe and effective setting for explicating the truth. In this context, the trade of amnesty for testimony is justifiable.[87]
8.4 Preventing Conflict In The Future
The aim of truth commissions is to expose the factors that allowed crimes to occur and in doing so help to prevent their recurrence. Yet everyone is not always satisfied with foregoing retributive justice.[88] Truth commissions represent a signal to domestic and international audiences by the new government that they intend to make a break with the history of impunity. While not all truth commissions have held public proceedings they have often received strong media attention, which gives them a greater opportunity to influence the national psyche.[89] It focuses on the harm caused by crime, repairing the harm done to victims and reducing future harm by preventing crime, requires offenders to take responsibility for their actions and for the harm they have caused, seeks redress for victims, recompense by offenders and reintegration of both within the community is achieved through a co-operative effort by communities and the government.
8.5 Restorative Justice
The TRC process helps restore dignity to victims and perpetrators as well. Often describing the terrible details of crimes can bring peace. The truth commission encourages victims to open their past pains. “The chance to tell one’s story and be heard without interruption or skepticism is crucial to so many people and is so vital for survivors of trauma.”[90]
8.6 A Key Alternative
In comparison, a commission of inquiry charged with investigating and reporting human rights violations may seem a pale and inadequate substitute. International human rights activists and scholars also argue that criminal prosecution is the best response to atrocities and that truth commissions should be used only as an alternative when such prosecutions are not possible.[91] Following this view, truth commissions become an important alternative because practical reasons such as evidentiary difficulties, political ramifications and other concerns often interfere with or prevent prosecutions.
8.7 Therapeutic Benefit
The TRC process of coming to terms with the past can have great psychological benefits for those seeking trauma healing. In many cases, being able to tell their story is tremendously therapeutic for victims of violence. Truth commissions can assist in the healing process because the listener has official status.
8.8 Not As Adversarial As A Court
Truth commissions are not adversarial like court proceedings, thereby providing a more comfortable environment for victims. In this respect, Mark Embriet believes that restorative justice provides a very different framework for understanding and responding to crime. Crime is understood as harm to individuals and communities, rather than simply a violation of abstract laws against the state. Those most directly affected by crime such as victims, community members and offenders are therefore encouraged to play an active role in the justice process. Rather than continuing the current focus on offender punishment, restoration of the emotional and material loss resulting from crime is far more important.[92] In summary, restorative justice through TRC mechanisms involves a different way of responding to crime than the formal justice mechanism that courts of law offer.
8.9 Pragmatic Solution
There are strong voices in favour of restorative justice through truth commissions. Firstly, accountability is often about revenge and is therefore unproductive. Secondly, it is often more helpful if society’s resources are directed towards the future rather than past injustices which can not be changed. Moreover, the question about who to investigate or prosecute, how far back to go and what to investigate or prosecute leads to arbitrary decisions and often leads to public unrest. Likewise, there are other more constructive ways of going about things. No punishment is adequate for some of these crimes. So, there is still doubt about whether it is beneficial to victims. Anyway, the risk of an unfair process that does not provide due process may violate the rights of accused persons and it may cause new problems.
8.10 Not Beyond International Standards
Amnesty International (AI) agrees that in situations of political transition, truth commissions can play an important role in providing a full account of past human rights violations, contributing to their investigation and eventual prosecution, preventing their repetition, and ensuring that victims and their relatives are provided with full reparations (including restitution, compensation, satisfaction, rehabilitation and guarantees of non-repetition).[93] But, AI neither supports any kind of amnesty nor excludes the possibility of prosecution too.
8.11 South African Success
TRC examines the context, causes, sequence and consequences of past atrocities and it makes recommendations for community healing around the tragedy. In the words of TRC Chairperson Archbishop Desmond Tutu,[94] “Our nation needs healing. Victims and survivors need healing. Perpetrators are, in their own way, victims of the apartheid system and they, too, need healing.” The ultimate objective of the TRC, it would seem, is to heal ‘victims’, heal ‘perpetrators’, and heal ‘the nation.’ It should be noted that TRC does not always mean an all encompassing amnesty.
9. Weaknesses Of The TRC Mechanism
9.1 Danger Of Misuse
Despite its potential, truth commissions have sometimes merely served 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 Chad Truth Commission are examples 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 the TRC did not make a sincere attempt to rectify the past, but made a rather flimsy effort to placate international pressure.[95] 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 failure as the political will to act on their findings did not exist.[96]
9.2 Encouragement Of Post-Traumatic Stress
The commission process may re-ignite victims’ old anger and may trigger post-traumatic stress. 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.[97] Martha Minow views that the notion of healing seems foreign to the legal world that conducts prosecutions. Emotional and psychological healing did not figure prominently in national and international responses during the decades after the Holocaust. Yet healing recurs in contemporary discussions, perhaps reflecting the popularization of psychological ideas over the course of the twentieth century.[98]
9.3 Undermines The Rule Of Law
The basic principle of rule of law is that ‘no person is above the law.’ According to this notion, everyone is accountable for his/her actions that breach the law. The notion of a TRC sometimes goes against this principle. Aryeh Neier argues that the truth and reconciliation process and amnesty in particular, undermines support for the rule of law. He further says, “when the community of nations shies away from responsibility for bringing to justice the authors of crimes against humanity, it subverts the rule of law”. Therefore, it is worth considering whether attitudes toward the rule of law or towards legal institutions correlate with views of the truth and reconciliation process.[99] These criticisms stem from supporters of retributive justice rather than restorative justice. Again, Mary Albon reveals that the use of criminal trials through the rule of law framework provides for making those responsible for unspeakable conduct accountable, for deterring future violations and for gathering a formal public record so that the attempt to destroy groups of people cannot succeed in destroying their memory.[100]
9.4 Affects International Obligations
Internationally, all States have an obligation under international law to prosecute and punish perpetrators of crimes such as genocide, crimes against humanity, war crimes and other crimes that breach international law. Moreover, victims have a right to an effective remedy such as having the perpetrator punished and to receive reparations. Hence, this criticism is based on the deterrence principle which attempts to prevent conflict by educating society about the consequences of breaking the law.
9.5 Lack Of Accountability
The TRC process is based on feelings, compromises and non judicial hearings. It cannot break cycles of violence and impunity. There are some strong reasons why the accountability (criminal justice) route should be followed. First of all, restoring law and order and establishing the rule of law in a country requires a strong accountability enforcing mechanism. This mechanism is obviously a court of law. This system breaks cycles of violence and impunity by holding individuals accountable. A rule of law approach helps to make a break with the past and enable society to be transformed. In addition, it creates a new legal order to mend the war torn society.
10. Conclusion
In a post-conflict society, the challenges faced are many. Deep-rooted conflicts impact negatively on almost every area of political and social relations. Hayner notes that in this respect truth commissions can play an imperative role. She further advocates “Truth commissions are very much in favor within the international human rights community for ending civil conflict. They are clearly not necessary, however, one can point to a number of cases of relatively peaceful transitions to democracy in which the past has not been systematically examined.”[101]
Despite the growing prevalence of truth commissions, 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 the desired effect or whether there are other unknown factors making an impact on post-conflict societies. Evidence is often anecdotal.[102] 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.[103]
Nevertheless, a number of commissions have been a notable success. Their investigations have been welcomed by survivors of violence and human rights advocates alike. Their reports are widely read and their summary of facts is considered conclusive and fair. Such commissions are often referred to as having a “cathartic” effect in society, as they fulfill an important step in formally acknowledging a long- silenced past.[104] The reality is that truth commissions are not magic elixirs, either for individuals or societies.[105] They are only one among many mechanisms necessary for comprehensively dealing with a legacy of human rights violations.In this way, TRCs are an effective mechanism to bring about individual and community healing. This often results in the reconciliation of divided communities, which allows a society to move forward towards a better and brighter future.
¡ District Judge, Kathmandu District Court, Nepal.
[1] See Justice as a harmony, http://en.wikipedia.org/wiki/Justice (visited on 29-4-2008).
[2] Jennifer J. Llewellyan & Robert Howse, Institutions for Restorative Justice: The South African Truth and Reconciliation Commission, University of Toronto Law Journal, (1999), p 356.
[3] Tony Marshall, Restorative Justice: An Overview, 5 (London: Home Office Research Development and Statistics Directorate, 1999).
[4] John Haley, Crime Prevention through Restorative Justice: Lessons from Japan, in Restorative Justice: International Perspectives, 352 (Burt Galaway and Joe Hudson eds., Monsey, NY; Amsterdam, The Netherlands: Criminal Justice Press and Kugler Publications, 1996).
[5] Jennifer J. Llewellyan & Robert Howse, Institutions for Restorative Justice: The South African Truth and Reconciliation Commission, 49 University of Toronto Law Journal, 373 (1999).
[6] Id.
[7] Stuart Wilson, The Myth of Restorative Justice: Truth, Reconciliation and the Ethics of Amnesty, South African Journal on Human Rights, 544, (2001).
[8] See Footnote 7, p. 379.
[9] Priscilla B. Hayner, Fifteen Truth Commissions — 1974 to 1994: A Comparative Study, in Human Rights Quarterly, Volume: 16 Issue: 4. 1994, p. 558
[10] Truth Commissions Digital Collection, http://www.usip.org/library/truth.html#tc (visited on 3-28-2008).
[11] February 2005/Special Report No. 130 RETHINKING TRUTH AND RECONCILIATION COMMISSIONS: LESSONS FROM SIERRA LEONE, http://www.usip.org/pubs/specialreports/sr130.html (visited on 3-28-2008).
[12] Priscilla B. Hayner, Unspeakable Truths, 14 (New York: Routlege, 2001).
[13] Priscilla B. Hayner, Fifteen Truth Commissions-1974 to 1994: A Comparative Study, 16, Human Rights Quarterly, 597, 607 (1994).
[14] Robert I. Rotberg and Dennis Thompson (ed.), 3 Truth v. Justice: the Morality of the Truth Commissions, (Princeton University Press, 1997).
[15] Allan and Allan, the South African Truth And Reconciliation Commission as a therapeutic tool, BEHAVIORAL SCIENCES AND THE LAW, 18, 459-477.
[16] Dirk Kotzé, Reviews: Truth Commissions and Formulas, (International Studies Reviews 4, No. 1, 2002).
[17] Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, p. 139.
[18] Quoted in Christie, Kenneth, The South African Truth Commission, 61 (New York, St. Martin’s Press, 2000).
[19] See Paavani Reddy, Truth and Reconciliation Commissions Instruments for ending Impunity and Building Lasting Peace, (United Nations Chronicle on-line Edition Issue 4, 2004).
[20] Kader Asmal et. al., Reconciliation through Truth: A Reckoning of Apartheid’s Criminal Governance, 13 (David Philip Publishers Cape Town, 1997).
[21] Tristan Anne Borer, Reconciliation in South Africa: Defining Success, KROC INSTITUTE OCCASIONAL PAPER 20: OP:1, March 2001, p. 3.
[22] Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, p 161. (New York, NY: Routledge, 2001).
[23] David Bloomfield, Reconciliation: An Introduction, in Reconciliation after Violent Conflict: A Handbook, 4 (David Bloomfield ed., Stockholm: International IDEA, 2003).
[24] Robert F. Drinan, S.J., The Mobilization of Shame, 176 (Yale University Press, New Haven & London, 2001)
[25] Id.
[26] Stanley S Harakas, Forgiveness & Reconciliation: An Orthodox Perspective, in Forgiveness and RECONCILIATION: Religion, Public Policy & Conflict Transformation, (Raymond G. Helmick and Rodney Lawrence Petersen ed., Philadelphia: Templeton Foundation Press, 2001).
[27] Biggar, Making Peace or Doing Justice: Must We Choose, p 17.
[28] Id.
[29] Since 1997, the UN has worked for the establishment of an ad hoc international criminal tribunal in Cambodia for the Khmer Rouge period (1975-1979). Due to differing views between the UN and the Cambodian Government of how such a tribunal should be composed, none has been established to date. However, there are several nongovernmental organisations working for documentation of the genocide, justice and reconciliation in Cambodia, for example the Yale University based Cambodian Genocide Program, the Documentation Centre of Cambodia, and the Centre for Social Development.
[30] Wendy Lambourne, Domestic Politics, International Obligations and the Pursuit of Justice and Reconciliation in Cambodia and East Timor (A paper presented at the 43rd Annual ISA Convention, New Orleans, Louisiana, USA, 2002).
[31] Starken, Working for Reconciliation: A Caritas Handbook, p 78 ( Caritas International, 2002).
[32] Stuart J. Kaufman, Modern Hatreds: The Symbolic Politics of Ethnic War, Cornell Studies in Security Affairs (New York: Cornell University Press, 2001).
[33] Tutu, No Future without Forgiveness, (Doubleday, 2000).
[34] Starken, Working for Reconciliation: A Caritas Handbook, pp 78-84 ( Caritas International, 2002).
[35] Barbara F. Walter, Does Conflict Beget Conflict? Explaining Recurring Civil War, (2002).
[36] For reference, See Collier and Sambanis, Understanding Civil War – a New Agenda, p 8.
[37] Id.
[38] Alex Boraine was deputy chair of the South African Truth and Reconciliation Commission 1995-1998. The quote is from his introductory speech at the Stockholm International Forum: Truth, Justice and Reconciliation, April 23-24, 2002.
[39] Robert I. Rotberg, Truth Commissions and the Provision of Truth, Justice, and Reconciliation, in Truth V Justice: The Morality of Truth Commissions, 12 (Robert I. Rotberg and Dennis Thompson eds., Princeton, N.J.: Princeton University Press, 2000)
[40] Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, p 170 (New York, NY: Routledge, 2001).
[41] Id., pp 170-82.
[42] Peter Digeser, Political Forgiveness 14 (Ithaca, NY: Cornell University Press, 2001).
[43] Long and Brecke, War and Reconciliation: Reason and Emotion in Conflict Resolution, (Published by MIT Press, 2003)
[44] Bo Andersson, Försoning För Att Kunna Börja Om: Svenska Kyrkan, Sveriges Samer Och Uppgörelsen Med Det Förgångna [Reconciliation in Order to Begin Again: The Swedish Church, Swedens Saami, and the Settlement of the Past], in Samhällets Demokratiska Värdegrund: En Fråga Om Mångfald, Olikhet Men Lika Värde [the Democratic Values of Society: A Question of Mulitplicity, Difference but Equal Value], Bo Andersson ed. (Göteborg: Värdegrunden, 2000).
[45] Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, p 17. (New York, NY: Routledge, 2001).
[46] Australia apology to Aborigines, available at http://news.bbc.co.uk/2/hi/asia-pacific/7241965.stm (visited on 25-3-2008).
[47] Hamber, Remembering to Forget: Issues to Consider When Establishing Structures for Dealing with the Past, p 57 ( Londenderry: University of Ulster/INCORE, 1998)
[48] Lone and Montgomery Jakobsen, Edith, Treatment of Victims of Torture, in An End to Torture: Strategies for Its Eradication, Bertil Dunér ed. (New York: Zed Books, 1998).
[49] Daniel J. Christie, Richard V. Wagner, and Deborah Du Nann Winter, Peace, Conflict, and Violence : Peace Psychology for the 21st Century (Upper Saddle River, N.J.: Prentice Hall, 2001); Brandon Hamber, “Conclusion: A Truth Commission for Northern Ireland?,” in Past Imperfect: Dealing with the Past in Northern Ireland and Societies in Transition, 84 (ed. Brandon Hamber, Derry/Londonderry: INCORE, 1998).
[50] Cheryl de la Rey and Ingrid Owens, Perceptions of Psychosocial Healing and the Truth and Reconciliation Commission in South Africa, Peace and Conflict: Journal of Peace Psychology 4, no. 3 (1998).
[51] 81 Alfred Allan, Truth and Reconciliation: A Psycho-legal Perspective, Ethnicity and Health 5, no. 3-4 (2000).
[52] Id, p 198.
[53] Leslie Swartz and Gerard Drennan, The Cultural Construction of Healing in the Truth and Reconciliation Commission: Implications for Mental Health Practice, Ethnicity and Health 5, no. 3-4 (2000).
[54] Allan, Truth and Reconciliation: A Psycholegal Perspective Routledge, (part of the Taylor & Francis Group Ethnicity and Health, Volume 5, Numbers 3-4, 1 August 2000 ).
[55] Allan and Allan, the South African Truth And Reconciliation Commission as a therapeutic tool, BEHAVIORAL SCIENCES AND THE LAW, 18, 459-477.
[56] Dirk Kotzé, Reviews: Truth Commissions and Formulas, International Studies Reviews 4, no. 1 (2002).
[57] Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, p 139. (New York, NY: Routledge, 2001).
[58] Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War 88, (Cambridge, UK: Polity Press 2000).
[59] Daniel Bar-Tal, professor of psychology at Tel Aviv University, speech held at the “Stockholm International Forum: Truth, Justice and Reconciliation”, April 23-24, 2002.
[60] M. Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence, 26 (Beacon Press 1998)
[61] Mica Estrada-Hollenbeck, “The Attainment of Justice through Restoration, Not Litigation: The Subjective Road to Reconciliation,” in RECONCILIATION, JUSTICE AND COEXISTENCE: THEORY AND PRACTICE, 6 (ed. Mohammed Abu-Nimer, , MD: Lexington Books, Lanham 2001), p 67. Malden, MA: Polity Press, Blackwell Publishers Inc., 2002).
[62] See Howard Zehr, “Restorative Justice,” in PEACEBUILDING: A FIELD GUIDE, ed. Luc Reychler and Thania Paffenholz 74 (Boulder: Lynne Rienner Publishers, 2001). and Estrada-Hollenbeck, “The Attainment of Justice through Restoration, Not Litigation: The Subjective Road to Reconciliation”.
[63] Alex Boraine, introductory speech at the “Stockholm International Forum: Truth, Justice and Reconciliation”, April 23-24; Minow, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE, p 23 (Beacon Press 1998).
[64] Estrada-Hollenbeck, “THE ATTAINMENT OF JUSTICE THROUGH RESTORATION, NOT LITIGATION: THE SUBJECTIVE ROAD TO RECONCILIATION,” p 75(M 2001).
[65] Carsten Stahn, “Accommodating Individual Criminal Responsibility and National Reconciliation: The U.N. Truth Commission for East Timor,” AMERICAN JOURNAL OF INTERNATIONAL LAW 95, no. 4 (2001).
[66] It was created on November 8, 1994 by the United Nations Security Council in order to judge those people responsible for the acts of genocide and other serious violations of the international law performed in the territory of Rwanda, or by Rwandan citizens in nearby states, between January 1 and December 31, 1994.
[67] The Gacaca (pronounced “gachacha”) Court is part of a system of community justice inspired by tradition and established in 2001 in Rwanda, in the wake of the 1994 Rwandan Genocide, when between 400,000 and 1,000,000 Rwandans, mostly Tutsi, were slaughtered.
[68] Alex Boraine, “Truth and Reconciliation in South Africa: The Third Way,” in TRUTH V JUSTICE: THE MORALITY OF TRUTH COMMISSIONS, 147 (eds. Robert I. Rotberg and Dennis Thompson, Princeton, N.J. Princeton University Press, 2000).
[69] Stahn, “Accommodating Individual Criminal Responsibility and National Reconciliation: The U.N. Truth Commission for East Timor,” The American Journal of International Law, Vol. 95, No. 4 (Oct., 2001), pp. 952-966.
[70] Rosalind Shaw, RETHINKING TRUTH AND RECONCILIATION COMMISSIONS: LESSONS FROM SIERRA LEONE, Special Report for United States Institute for Peace, 9, 2005.
[71] Id.
[72] Id.
[73] SOME REFLECTION OF THE AMNESTY PROCESS, Report of the Amnesty Committee, South African Truth and Reconciliation Commission, Vol. 6, Sec. 1, Chapter 5, p. 84.
[74] Id, p. 90.
[75] Alex Boraine, “Truth and Reconciliation in South Africa: The Third Way,” in TRUTH V JUSTICE: THE MORALITY OF TRUTH COMMISSIONS, (ed. Robert I. Rotberg and Dennis Thompson) (Princeton, N.J.: Princeton University Press, 2000), p 147.
[76] See Amnesty International, Truth, justice and reparation: Establishing an effective truth commission (AI Index POL 30/009/2007), June 2007, 18.
[77] Ruth Picker, Victims’ Perspectives about the Human Rights Violations Hearings, Research report written for the Centre for the Study of Violence and Reconciliation, February 2005, p. 17. http/www.csvr.org.za/papers/pappick.htm. (viewed on 12 June 2008 ).
[78] Robert I. Rotberg, “Truth Commissions and the Provision of Truth, Justice, and Reconciliation,” in TRUTH V JUSTICE: THE MORALITY OF TRUTH COMMISSIONS, (ed. Robert I. Rotberg and Dennis Thompson) (Princeton, N.J.: Princeton University Press, 2000), p 12.
[79] Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, p 170. (New York, NY: Routledge, 2001).
[80] Id. 11.
[81] Id.
[82] See Supra Hayner note 79, p. 647.
[83] Id.
[84] Id.
[85] Desmond Mpilo Tutu, NO FUTURE WITHOUT FORGIVENESS, 21 (Doubleday, 2000).
[86] Greensboro Truth and Reconciliation Commission, Executive Summary, Presented to the residents of Greensboro, the City, the Greensboro Truth and Community Reconciliation Project and other public bodies on May 25, 2006, p. 2.
[87] See supra Rotberg note 78, p. 16.
[88] Eric Brahm, Truth Commissions (Knowledge Base Essay), 2004, http://www.beyondintractability.org/ essay/truth_commissions/ (visited on 26- 04-2008).
[89] Id.
[90] Minow Martha, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE. (Boston, Beacon Press, 1998).
[91] E. g., Mary Albon, “Truth and Justice: The Delicate Balance-Documentation of Prior Regimes and Individual Rights,” in Transitional Justice, I, 290 (Kritz (ed.)) 1992, Harvard University Press.
[92] Mark Embriet, “Avoiding the Marginalization and ‘McDonaldization’ of Victim-Offender Mediation: A Case Study in Moving Toward the Mainstream” in Restorative Juvenile Justice: Repairing the Harm of Youth Crime, 213 (edited by Gordon Bazemore and Lode Walgrave) (Monsey, NY: Criminal Justice Press, 1999).
[93] Amnesty International, Document: Nepal: Reconciliation does not mean impunity: A Memorandum on the Truth and Reconciliation Commission, http://www.amnesty.org/en/library/asset/ASA31/006/2007/en/dom-ASA310062007en.html (visited on 25-4-2008).
[94] Tom Winslow, Reconciliation: The Road to Healing?, Track Two, Vol.6, No. 3&4, December 1997.
[95] Eric Brahm, Truth Commissions (Knowledge Base Essay), 2004, http://www.beyondintractability.org/essay/truth_commissions/ (visited on 26- 04-2008).
[96] Id.
[97] Priscilla B Hayner. “Truth and Consequences” 81 (2) FOREIGN AFFAIRS 128 (2001).
[98] Martha Minow, “The Hope for Healing: What Can Truth Commissions Do?”, in TRUTH V. JUSTICE, 241 (Robert Rotberg and Dennis Thompson (ed.)). (RI Rotberg – 2000).
[99] James L. Gibson, “The truth About Truth and Reconciliation in South Africa”, INTERNATIONAL POLITICAL SCIENCE REVIEW (2005), vol 26, No.4, p. 350.
[100] Id p. 236.
[101] Priscilla B Hayner. “Truth and Consequences” 81 (2) FOREIGN AFFAIRS 128 (2001).
[102] Eric Brahm, Truth Commissions (Knowledge Base Essay), 2004, http://www.beyondintractability.org/essay/truth_commissions/ (visited on 26- 04-2008).
[103] Id.
[104] Hayner, Fifteen Truth Commissions-1974 to 1994: A Comparative Study, 16 Human Rights Quartely 600 (1994).
[105] Id.