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By Michelle Parlevliet*

Since the mid-1970s, a growing number of states have tried to come to terms with a legacy of gross human rights violations committed in their recent history, whether during military or authoritarian rule or in the course of an armed conflict. An approach which has steadily gained prominence in this respect is the investigation and recording of past atrocities by so-called truth commissions. Some twenty such commissions have operated across the world in the last fifteen years of which those in Chile, Argentina, and South Africa, have become the most widely known.¹

Without much international attention, a truth commission recently completed its work in Guatemala and investigations continue in the southern provinces of Sri Lanka. The establishment of a commission is being discussed in Suriname, where violations committed in the 1980s continue to haunt society. In Indonesia, the fall of Suharto has allowed civil society to take up the issue of confronting the past. A commission has been proposed for Bosnia-Herzegovina, one suggested for Northern-Ireland, and one called for in Namibia and Sierra Leone.

The recent proliferation of truthtelling bodies warrants a closer look as their establishment generally relates to addressing old conflicts and preventing new ones. This chapter introduces the concept of truth commissions and some of the major issues related to their use. It clarifies the rationale behind them, sets out their practices, and seeks to shed light on their role in furthering reconciliation. Attention is also paid to the challenges that truth commissions may encounter and to factors that might affect their impact and effectiveness. Given the complexity of the issues involved, an in-depth examination of these matters is, however, beyond the scope of this chapter.

Background

When countries move out of protracted periods of violence, societies and leadership alike need to decide whether and how to deal with the widespread human rights violations that have been committed. In considering whether to close the book on such abuses or to investigate and hold individuals accountable, ethical and political considerations need to be balanced: the demands of justice must be weighed against what is politically feasible. A tension is then often perceived to exist between the pursuit of both justice and peace, given the precarious nature of a political transition. It is feared that the former may jeopardize the latter when a democracy or peace agreement is still fragile.

Yet experience has shown that justice is part of the positive contents of peace and that addressing justice-related issues contributes to reconciliation in the long term. Consequently, accounting for past abuses is increasingly deemed important for the development of an enduring democracy or a lasting peace. Failure to do so may well lay the foundation for renewed violence by reinforcing a sense of impunity and resentment, allowing for conflicting versions of the past, and perpetuating enemy images. Redressing past violations, on the other hand, might reassert the rule of law, create respect for human rights, and legitimize structures of governance, thus altering the conditions in which serious crimes occurred.

Telling the truth originally surfaced as a way to deal with a legacy of abuses because the political circumstances often preclude prosecuting perpetrators. 'Bringing truth to light' at least ensured that knowledge of past crimes would be preserved. Truth is also viewed as a direct response to human rights violations because many of those evolve around secrecy and denial (disappearances, torture, killings by anonymous death squads.) Public acknowledgement of the truth is therefore as important as knowledge itself, for it counters the atmosphere of silence and deceit that facilitates such crimes.

Internationally, a 'right to truth' is now recognized for both societies and individuals. For the former, it is considered essential to avoid the repetition of crimes in the future. For the latter, it is part of an effective remedy for violations. This right is included in a set of principles prepared for the United Nations with a view to combating impunity (hereinafter the 'Joinet-principles.')²  Serving this right to truth, truth commissions are increasingly considered valuable in their own right, rather than a second-best option to prosecution. Their broad scope of inquiry, inclusive character, impact on victims, and forward-looking nature add greatly to this appreciation.³

Forms and Activities: Variations on a Theme

Truth commissions are remarkably flexible bodies. They appear in a wide variety of forms and sizes and new models continue to evolve as each situation presents its unique set of circumstances, constraints, and demands. The historical, political, and cultural context of a country is of major influence on the shape that a commission will take, precluding any easy categorization of the truth commissions existing to date.

Features
Truth commissions can be defined as official bodies that investigate, within a limited time-frame, past human rights violations in order to establish a comprehensive record of abuses that occurred in a particular country over a specific period of time. Their mandate is generally limited to serious violations. These are specified in detail or set out in broad terms, in which case the commission is left to interpret which abuses to include in its investigation. The Salvadoran Commission on the Truth, for example, was charged with investigating "serious acts of violence that have occurred since 1980 and whose impact on society urgently demands that the public should know the truth."⁴  Commissions may investigate violations by the armed forces of the state, those committed by the opposition, or both. Commissions are also charged with making recommendations aimed at reparation and prevention of future abuses.

Sponsorship
Most commissions to date have been state bodies, set up by parliament or the head of state. In El Salvador and Guatemala, commissions were established under auspices of the United Nations in the context of peace agreement between government and guerrilla forces. At times, human rights organisations or church institutions have undertaken projects that resemble such official commissions in the absence of any government effort.

Focus
The primary focus of truth commissions is on victims and relatives. As a result, few restrictions are placed on participation and much emphasis is placed upon on providing opportunity to victims to relate their accounts. In fact, only in South Africa did the commission receive significant information from perpetrators, owing to its capacity to grant amnesty in exchange for disclosure about past crimes. Activities may be conducted in public or private depending on security considerations, the mandate of a commission, and the national context. While increasing the transparency of a commission, publicity may draw it into the political arena more easily.

Quasi-judicial
As quasi-judicial bodies, truth commissions do not make findings of criminal responsibility, their reports do not have judicial effects, and their powers are limited. Two issues have been particularly controversial: whether to name names, and whether to investigate abuses by both governmental and oppositional forces. Traditionally, the concept of human rights violations has been restricted to acts of the state. Critics charge that investigating crimes committed by the state and by non-state actors (such as armed opposition forces) equates them, thus downplaying the gravity of the former.⁵  On the naming of perpetrators, many consider the truth to be incomplete without individualizing responsibility and argue that it is the only way to break a cycle of impunity. Others are concerned over due process protections for those named. Generally, the terms of reference have left it to commissions to decide whether to name names.

Reporting
Truth commissions compile comprehensive final reports which usually are widely released to the public. These reports establish the societal and political context, explain the historical background, indicate the overall pattern of abuses, and lay out institutional responsibilities. Some list all cases brought to a commission's attention, others detail some cases illustrative of general trends. Extensive recommendations are made, outlining needed reform (such as restructuring the police, strengthening civilian command over the military, human rights education) and suggesting reparation measures (compensation, access to health care and education, renaming of public spaces.) Most commissions have made recommendations regarding the prosecution of perpetrators, irrespective of concurrent amnesty measures.

Follow-Up
Following the publication of a report, some heads of state publicly accept responsibility for past wrongs and apologize to victims.

‘The past cannot be undone, but it may be possible to mitigate its negative impact on society.’

President Aylwin of Chile, for example, made a televised apology appealing for forgiveness and sent a copy of the report to the family of each victim named. A commission may also set other efforts to deal with the past in motion. In South Africa and Guatemala, a process of exhumations and reburials has begun, going some way in addressing the grief of relatives. The record of judicial follow-up is generally mixed. The evidence gathered by a commission may allow for the criminal prosecution of perpetrators. Yet in several countries, blanket amnesties were declared before a commission came into being; elsewhere, they were promulgated after the publication of a report. Individual perpetrators and the (former) military and political leadership often fail to take responsibility for past crimes. Nevertheless, in most cases society at large has acknowledged the abuses.

Limitations
The tense political environment in which commissions operate often place serious limitations on their activities. The balance of power between different political and societal actors during the transitional period determines the scope and depth of the truthtelling process. In Namibia, the government has resisted the establishment of a truth commission to avoid having its past behavior be scrutinized.⁶  The continuing dominance of the military in Guatemala ensured that the Historical Clarification Commission could not individualize responsibility nor provide the courts with the material it collected, despite strong pleas from national human rights organisations.⁷  Challenges truth commissions may face include lack of power and/or resources, intimidation of witnesses, and restricted access to information. The political parameters may also impede the implementation of recommendations.

Enhancing the Prospects for Reconciliation

While the contributions of truth commissions to reconciliation cannot be established in any precise manner, experiences to date suggest a number of ways in which commissions can enhance the prospects of reconciliation. These exist on social, factual, political, and moral levels.

• Social: Breaking the silence about the past and officially acknowledging what happened can be essential for healing the wounds that exist in society. It breaks through the fear and isolation generated by serious violations and undermines denial and deceit by those responsible. On victims, the official recognition of their pain can have a profound psychological impact. A truth commission gives them the opportunity to relate their experiences and be heard, which is a form of redress and rehabilitation. The process of truthtelling is therefore increasingly considered as important as its final product (the written record) as it allows people to become actively involved and to regain some authority and dignity. Thus, a commission can play a cathartic and empowering role.
• Factual: A commission can work towards a collective understanding of the past by creating a factual record that impedes future distortion or manipulation. It is not so much that one, definitive, account of events can be established which everyone shares; rather, a framework is established in which further discussion can take place. In evaluating different claims in light of the information gathered, a commission will find that some cannot be upheld while others are validated. In Argentina, it is a matter of public record that people were thrown into the sea from helicopters while still alive. In South Africa, it can no longer be denied that a systematic practice of torture in detention existed. Yet a truth commission is also valuable in exposing the many accounts that exist of what happened, thus revealing the complexity of reality. Challenging perceptions, it undermines a rigid black and white picture of the past.
• Political: A truth commission can help lay the foundations for a democratic culture of dialogue and participation in which disagreement is tolerated and dealt with through non-violent means. Commissions offer a voice to those previously voiceless and encourage pluralism by juxtaposing different versions of history. Addressing a legacy of violence draws people into debate - about citizenship, the organization of society, and the governing of the state. Establishing facts about particular events or prominent cases can also facilitate interaction in the public sphere between opposing parties by dispelling suspicion and discrediting old lies. The official nature of the commission serves to restore the state's legitimacy, signaling its commitment to break with the past and respect human rights.
• Moral: A commission can contribute to an awareness of fundamental values as it evaluates the past on the basis of a normative framework that evolves around human dignity and integrity. Investigating the past becomes a way for society to discover anew moral imperatives - to base itself on the very values it needs to survive, allowing for the recognition of a common humanity. "The tales of war," Krog puts it, become "part of an ethos relating to how people should behave towards one another."⁸  Truthtelling involves an examination of how conditions could arise that nurtured mass violence. Ultimately, it challenges people to reflect on their own role and responsibility, whether direct or indirect.

The positive impact of a truth commission in these areas can be significant. Yet a process of reconciliation is a complex one involving many aspects and taking place on a number of levels. A commission will encounter challenges in furthering reconciliation, three of which are discussed below.

Impartial?
The interpretation of principles such as 'impartiality' and 'evenhandedness' which guide a commission in its work, often prove divisive. 'Evenhandedness' means treating all violations fairly, but not necessarily apportioning equal blame across the board nor refraining from criticizing a political cause in the name of which abuses were committed. On the contrary, a commission cannot escape making moral judgements on the past as it makes its findings in light of human rights norms. It determines what was wrong and who was responsible. Findings may reveal one side to the conflict committed more abuses or was disproportionally victimized. Thus, while a truth commission can - and must - be impartial, it cannot be neutral. Those responsible for violations, anxious to protect themselves against adverse findings, point to this approach as proof of bias and argue that commissions should simply acknowledge that 'all sides committed abuses.' The tense environment in which a truth commission operates accelerates accusations of bias, thus intensifying the political wrangling around the body as some seek to trumpet its findings while others denounce them.

Archbishop D.M. Tutu and F.W. de Klerk (Former President of South Africa). Photo George Hallet.

Reconciling the Personal?

The primary contribution of truth commissions to reconciliation is on the national level, rather than on the individual or community level. Interpersonal reconciliation would involve bringing people together - which commissions are generally unable to do given their temporary nature, the numbers of people involved, and the sheer enormity of their task of compiling a comprehensive record within a short period of time. Also, such reconciliation requires repentance and acknowledgement of the harm inflicted by those responsible. Yet only to a limited extent have truth commissions to date been able to elicit genuine remorse from perpetrators and to prompt them to own up to their acts.

Affecting the Impact of a Truth Commission

If anything, experiences to date teach us that there can be no standard model for a truth commission nor a recipe for success given the extent to which a commission is shaped by the particular national context. Nevertheless, past experiences do offer insight into the factors which might affect the impact and effectiveness of a truth commission. Of these, the political parameters during the transitional period are probably the most fundamental. They may further include the following:

• Willingness to deal with the past and to share a common future (or a recognition of a need to do so.) Genuinely coming to terms with the past is an inherently difficult undertaking which raises controversial issues and poses painful questions. As such, external actors cannot impose a truthtelling process on a society; they can only support it once it is embarked on from within. It is important to note that one cannot simply assume popular support for dealing with the past. Neither is it sufficient that one part of a society supports such an initiative. In order for a commission to be legitimate and successful in its efforts towards reconciliation, it must enjoy the support and participation of all major constituencies.
• Support by the political and military leadership. This enhances the commission's authority and reach, and will influence the resources at its disposal, its ability to access information, and the extent to which effect is given to its findings and recommendations, whether judicial, institutional, or reparational. Such backing must not, however, affect the independence of a commission. Even in the absence of active support, a commission may still function effectively so long as outright interference or obstruction is avoided. The Chilean Truth and Reconciliation Commission, generally regarded in a positive light, operated despite Pinochet's continued command of the armed forces.
• Legitimate and feasible mandate. Several issues arise in this regard. The mandate of a commission should cover the most frequently experienced violations. The Uruguayan truth commission had a mandate limited to disappearances while torture and illegal detention were far more common during the period under investigation. Flexible terms of reference allow a commission to investigate abuses as it deems fit. The mandate of the South African Truth and Reconciliation Commission specified killing, abduction, and torture as gross human rights violations, yet also included the undefined category of 'severe ill-treatment.' This enabled the commission to look into crimes not covered by the other categories, such as rape and poisoning. Further, the Joinet-principles advocate that all abuses ought to be investigated, whether committed by governmental or non-governmental forces.⁹  A practical consideration regards the proportion between the period under investigation and the period of operation. The fact that the Accord on the establishment of the Guatemalan Historical Clarification Commission only provided six months (with a possible six-month extension) to investigate a 36-year period of armed conflict undermined the commission's credibility before it even came into being.
• Composition and procedures. The impartiality and representativeness of the commissioners will influence the acceptance of the commission amongst the public and political groupings. The Joinet-principles suggest that the public be informed of the criteria used for the selection of commissioners. The consultative procedure adopted for the appointment of commissioners, which included public nominations and public interviews of the nominees, enhanced the credibility of the South African TRC. Fair procedures are also important for ensuring just treatment of all parties.
• Public participation and strength of civil society. Involvement of the public and of civil society in designing the mandate ensures a general understanding of what commission is supposed to do. It also increases the democratic value of the truthtelling process. Thus far, South Africa has been the only country to undertake extensive public debate preceding the establishment of a commission but a trend may have been set, considering current developments in Indonesia and Suriname. Non-governmental organisations often have a wealth of information that will aid investigations. They can further be involved in collecting statements, providing information to the public, and supporting witnesses. The role of the media is also relevant in this regard, especially when a commission conducts its activities in public. While having the potential to extend a commission's influence and accessibility, reporting may undermine the truthtelling process if the media lack independence.
• Broader program of reform. Whether a commission can help overcome a legacy of past abuses is strongly influenced by the extent to which it is embedded in a broader process of social, economical, and political transformation. This is particularly so when large scale violence was accompanied by structural repression. In such situations, many consider reconciliation to be directly related to the division of resources and opportunities; truthtelling must then be complemented by a focus on socio-economic justice. While not able to institute change itself, a commission can contribute to reform through recommendations. These may encourage changes in the long term if the political and economical context do not allow for immediate implementation. For example, despite the fact that all members of the Salvadoran Supreme Court - which the truth commission had recommended be dismissed - refused to step down initially, parliament re-elected none of them when their term had ended. President Menem of Argentine may have first downplayed the report of the national truth commission in public, he later silently slashed the military budget.¹⁰
• Timing. Establishing a commission early on in a transitional period may allow it to seize the momentum for dealing with past violations to the full extent. However, then the political situation is still fragile and emotions easily run high. In Northern-Ireland, for example, some feel that the situation has not sufficiently stabilized yet for a truthtelling process to be undertaken at this point.¹¹  At the very least it seems that the violence should have abated before initiating a truth commission. The South African TRC has been less active in KwaZulu-Natal (where a large threat of violence remains), in part owing to fears that truthtelling might jeopardize the situation in the province.¹²

The above are but a few of the factors that influence the effectiveness and impact of a truth commission. An evaluation of these may indicate whether a truthtelling process represents a genuine commitment on the part of a government to deal with the past or is merely window-dressing, being a substitute for real change or used as an instrument to relieve international pressure to address human rights issues. Other factors of influence include logistical and practical matters, international support, access to outside sources of information, the level of fear amongst witnesses, and the role of external actors in the violence. (While possibly fraught with difficulties, the investigation of the latter could be particularly important in situations like Northern-Ireland.) The relative strength of such factors and the way in which they are linked together will depend on the specific circumstances of each case.

Conclusion

Truth commissions have become very popular in the last fifteen years and their prominence is unlikely to abate in the near future. As more insight is gained in their functioning and the ways in which they may affect societies, commissions are increasingly deployed in coming to terms with a legacy of violence. Truth commissions can set a longer-term process of transformation in motion, especially when accompanied by a program of reform. They generate a process of reflection that blurs the hard edges of perceived reality, highlights the need for addressing relationships and attitudes, and forces people to contemplate the organization of society and the governing of the state. The increased level of public involvement in establishing truth commissions is valuable in this respect, signifying how dealing with the past is a collective effort. A truth commission cannot institute change alone nor can it bring about reconciliation. Yet it may create an environment in which change and peaceful coexistence become possible. The past is here to stay, but truth commissions offer a way for society to process and manage it non-destructively based upon the recognition of human dignity and integrity.

^{1 For an overview of truth commissions, see Priscilla Hayner, “Fifteen Truth Commissions – 1974 to 1994: A Comparative Study,” Human Rights Quarterly, Vol. 16 (1994), p. 597-655; and Daan Bronkhorst, Truth and Reconciliation. Obstacles and Opportunities for Human Rights, Amnesty International (Amsterdam, 1995.) Return to Text}

^{2 Set of Principles for the Protection and Promotion of Human Rights Intended to Strengthen Action to Combat Impunity, U.N. Subcommission for Prevention of Discrimination and Protection of Minorities, 48th Sess., Annex II, Agenda Item 10, at 12, U.N.Doc. E/CN.4/Sub.2/1996/18, 29 June 1996 (Special Rapporteur Louis Joinet.) Return to Text}

^{3  Michelle Parlevliet, "Considering Truth: Dealing with a Legacy of Gross Human Rights Violations," Netherlands Quarterly of Human Rights, Vol. 16, No. 2, June 1998: pp. 141-174. Return to Text}

^{4  Report of the Commission on the Truth for El Salvador, From Madness to Hope: the 12-Year War in El Salvador, UNDoc s/25500/1993: p. 11. Return to Text}

^{5  In the classical understanding, acts of violence by non-state actors or private individuals are not violations of human rights because such rights historically arose in the relation between citizens and the state as a limit to state power. In this view, only the state can violate human rights. Applying the concept of human rights violations to acts by armed opposition forces then obscures the significance of violations by the state; it may also give undue status to non-state actors. Yet the Chilean National Commission on Truth and Reconciliation decided to investigate abuses by the state and by other political actors based on the argument that a broader interpretation of the term 'human rights' had evolved in public opinion, namely that there are basic norms of humane behaviour that all political actors should respect. See Jorge Mera, "Chile: Truth and Justice under the Democratic Government," in Naomi Roht-Arriaza (ed.), Impunity and Human Rights in International Law and Practice, Oxford University Press (Oxford, 1995): pp.171-184; and David Weissbrodt, "Non-State Entities and Human Rights within the Context of the Nation-State in the 21st Century," in: Monique Castermans-Holleman, Fried van Hoof & Jacqueline Smith (eds.), The Role of the Nation-Staute in the 21st Century: Human Rights, International Organisations and Foreign Policy, Kluwer Law International (The Hague/Boston/London, 1998): pp. 175-195: p. 194-195. Return to Text}

^{6  Lauren Dobell, "Review Article. Silence in Context: Truth and/or Reconciliation in Namibia," Journal of Southern African Studies, Vol. 23, No. 2, June 1997: pp. 371-382; Peter R. Baehr, De rechten van de mens. Universaliteit in de praktijk, Boom (Amsterdam, 1998): p. 148. Return to Text}

^{7  Richard Wilson, "Violent Truths: The Politics of Memory in Guatemala," Accord, Issue 2, 1997; and Frank LaRue, "Truth Commission Accord Fails to Address Concerns of Guatemalan Civil Society and the People's 'Right to Truth," Center for Human Rights Legal Action, 21 July 1994. Return to Text}

^{8  Antjie Krog, in Alex Boraine, Janet Levy, and Ronald Scheffer (eds.), The Healing of a Nation?, Justice in Transition, Cape Town (1995): p. 115. Return to Text}

^{9  See note 2. Return to Text}

^{10  Margaret Popkin and Naomi Roht-Arriaza, "Truth as Justice: Investigatory Commissions in Latin America," Law and Social Inquiry, Vol. 20, No. 1, Winter 1995, p. 79-116: p. 103; Lawrence Weschler in Truth Commissions: a Comparative Assessment, Harvard Law School Human Rights Program, 1996: p. 63. Return to Text}

^{11  Brandon Hamder, "Conclusion: A Truth Commission for Northern Ireland?," in Brandon Hamder (ed.), Dealing with the Past in Northern Ireland and Societies in Transition, INCORE, Londonderry (1998): 79-86. Return to Text}

^{12  Interview with Dr. A. Boraine, Vice-Chair of the South African Truth and Reconciliation Commission, 15 May 1998, Cape Town.}

^{*Michelle Parlevliet is Program Manager of the Human Rights and Conflict Management Training Program, at the Center for Conflict Resolution, South Africa. She previuosly worked in the Prosecuter's Office of the International Criminal Courtfor the Former Yugoslavia and as a researcher at the South African Truth and Reconciliation Commission. MA Political Science (University of Amsterdam, the Netherlands); MA International Peace Studies (University of Notre Dame, USA)}

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