Transitional Justice - Truth Commissions

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Definition: "truth commission"

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While there is no completely accepted common definition – Priscilla Hayner’s definition is the most commonly used:

A Truth Commission is:
1. is a temporary body, focused on the past with the aim of concluding with a final report
2. investigates a pattern of events that took place over a period of time.
3. engages directly and broadly with the affected population, gathering information on their experiences.
4. is officially authorized or empowered by the state under review.

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5 aims of a truth commission

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According to Hayner, a truth commission may have some or all of five aims:

1.To discover + formally acknowledge past abuses in order to "lift the lid of silence and denial from a painful history". To do this, a truth commission will produce large number of interviews with victims.

2.To respond to specific needs of victims: fundamental difference between trials and truth commissions is the that TCs have focus the victims. They are given a public voice which can have a "healing" effect.

3.To contribute to justice and accountability: A commission can help contribute to accountability for perpetrators. Many TC’s pass their files to prosecuting authorities, and in cases where the country has a functioning judical system and sufficient political will, it can lead to trials for the perpetrators.

4.To outline institutional responsibility and recommend reforms: TC's often seek to evaluate the institutional structure or existing laws and to outline the weaknesses in such and how they could be changed to prevent abuses from happening again.

5.To promote reconciliation and reduce future conflict: By laying out the truth, there is that hope that this will lead to reconciliation and reduce conflict in the future. However there is also the possibility that truth-telling could increase tensions.

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Why do we speak of a trade-off between truth and justice?

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A range of empirical evidence suggesting a trade-off between truth and justice:

In many contexts, has been either an explicit or implicit link between an agreement for a truth commission and an agreement or hope that there would be no trials. =we therefore continue to see perpetrators + well-intended policy makers in the search for “reconciliation” suggesting that a truth commission is a useful compromise solution to demand for justice during a fragile transition period.

While South African amnesty-for-truth arrangement to perpetrators having commited serious crimes has not been employed elsewhere, there exist several examples which have been flirting with other forms of immunity in many cases. Several truth commissions – e.g. in Morocco, Chile, have been prohibited from either naming perpetrators or playing any role in what might lead to prosecutions.

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Why trade-off between truth and justice is a unrelevant debate

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Although there still exist evidence suggetsing trade-offs taking place and the human rights environment has raised great concern between a trade-off between truth and justice, these concerns have significantly diminished. This is because = the actual role and impact of TCs, no matter original intention, have shown that TCs have not hat the effect of damaging of weakening criminal justice (Hayner). Tayler argues: “This (bt truth and justice) false duality has become obsolete”. It is suggested that quite on the contrary, many truth commissions have made significant efforts to try to advance prosecutions and thus instead contributing to justice.

How can we understand that no such trade-off takes place? Arguably, there are two main reasons for this.

1) In those countries in question, it is very difficult to reach justice in the courts = successful prosecution of rights abusers after repression is very rare, and when it happens it is often low level soldiers being prosecuted, rather than the higher officials who planned or directed the abuses. Why is that? There are many reasons = often because: - a barely functioning judicial system, - Corrupt officials or - Lack of concrete evidence

2) Because evidence has show that truth commissions often have as a main aim to contribute to justice, and this has also been the cases in several cases.

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2 ways in which a TC can contribute to justice

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Lets consider 2 ways in which a TC can contribute to justice:

1.Provide information to support prosecutions: A TC can most directly strengthen justice through its large collection of information, which can be forwarded to the prosecution authorities.

o AGENTINA AS EXAMPLE: after the Military regime of Argentina (1976-1983) had been responsible for the disappearance of thousands of civilians, the newly elected government established a truth commission to investigate the abuses of the junta.
• The commission collected files from NGOs and took over 7000 statements in 9 months documenting the disappearance of over 8000 people.
• As the commission concluded its work (published in a book which became a best-seller) it handed over its case-filers to the prosecutors, allowing them to quickly build 9 cases against 9 of the most senior members of the ex-regime and furthermore all in all to build over 700 individual cases.
• According to the chief prosecutor, the timing and nature of the trials would have been impossible without the information from the commission.

2.The role of the judicial system during repression and recommending judicial reforms: A TC can help explore the role of the judicial system during the repression in e.g. allowing abuses to take place – this is something that is difficult to do for the courts but also by other state bodies.

o CHILE AS EXAMPLE: Several truth commissions include much space in their investigations and reports on the role of the judicial system in allowing for abuses during repression. In Chile, the courts had independence during the Pinochet regime, but did nothing to stop the abuses taking place. The Chilean truth commission report included a whole chapter on the courts neglect under military rule.

Having investigated the role of the courts, many truth commissions also recommend judicial reforms including the commission in Chile. It recommended a range of changes to strengthen the judicial system and promote respect for human rights. Some of which where later implemented.

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Range of Truth Commissions

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Hayner includeds 40 truth commissions from 1974 to 2009 in her book.

They have a variety of aims, rules, constraints and budgets. Some have been more effective and influential than others.

She singles 5 out as the "strongest":

South Africa
Guatemala
Peru
Timor-Leste
Morocco

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Case-study of Timor-Leste 2002-2005: the commission for reception, Truth and Reconciliation

Context

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After 25 years of harsh rule by Indonesia, Timor-Leste was finally granted the opportunity in 1999 to vote for independence or autonomy.

The pro-independence vote won by a large majority despite threats of violence by Indonesian-backed militias. Because of the result, the militias reacted violently - looting and burning down towns and cities, killing aprox 1400 civilians and forcibly moving many people across the border to west timor.

The UN governed Timor-Leste during the transition period through the UNTAET.

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Timor-Leste - Commission for Reception, Truth and Reconciliation (CAVR)

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In Timor Leste, the truth commission for reception, truth and reconciliation (CAVR) created in 2001.

CARV were to examine HR abuses from 1974 to 1999:
-it had full powers of subpoena, and with police help had the power to collect information from any location in the country.
-It had a 2,5 year mandate
-It recieved 7700 individual statements
-It had a staff of 300 where most where nationals.

In addition to CAVRs truth-seeking functions, the commission was also crafted to facilitate the return of low-level perpetrators. The commission offered a bargain: those persons involved in less serious crimes could admit and apologize for their crimes and agree to undertake community work, or make reparatory payments - as a means of facilitating their return.

The CAVR also led to a range of special initiaitves e.g.:
- Carried out a retro-spective mortality survey in order to asses the number of deaths as result of the conflict
-they developed a reparations scheme providing 200$ to some of the victims of the conflict.

The commission concluded its work with a report, which had found that at least 100.000 + Timorese died as a result of the Indonesian occupation and that 85 % of crimes were attributed to the Idonesian security forces.The report thus allocated responsibility and further came with a range of recomendations.