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Friday 19 December  
Unspeakable truths: truth commissions and transitional justice
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Hilversum, Netherlands
Hilversum, Netherlands

Unspeakable truths: truth commissions and transitional justice

Published on : 20 October 2010 - 9:33am | By International Justice Tribune (IJT 115)
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Truth commissions have gained steady ground as a mechanism to deal with past atrocities. In 2009 alone, five commissions were set up. Geneva-based expert Priscilla Hayner studied over 40 truth commissions established since the 1970s to record the 'unspeakable truths' about human rights abuses.

By Thijs Bouwknegt

Are truth commissions global phenomena?
You find them spread out almost evenly between the Americas, Africa and even in Asia. There have also been some commissions in Europe - such as in the former Yugoslavia. In North America there have also been such commissions, like in North Carolina and now in Canada, which is looking into treatment of indigenous populations going back several generations.

Five commissions were established last year. The most recent is the Truth and Reconciliation Commission for Thailand, which intends to look into events earlier this year, and also go back a number of years to try to understand the polarisation in the country.

The first one I documented, ironically, was a commission set up in Uganda in 1974 by Idi Amin, who himself was an abusive dictator. He set it up thinking he could somehow whitewash what had taken place, but it worked fairly independently and people still see its report as quite an important marker as to what took place.

The most successful commissions were in South Africa, Guatemala, Peru, East Timor and Morocco. They each undertook quite a sophisticated and complex exercise of truth seeking and engagement of the community. This included public hearings, reaching out and holding public communities sessions. But in-depth investigations also took place.

There were a handful of commissions that were set up as TRCs, but never really got underway with their work. One example was the commission created out of the 2002 peace accords in the Democratic Republic of Congo. The exercise was doomed to begin with, and it never properly undertook its work. Another was in the Federal Republic of Yugoslavia under President Kostunica, which was never given the political support, budget and independence to undertake its work well, and really wasn’t able to accomplish anything before it ultimately closed down.

What is the role of truth commissions in transitional justice?
It’s one leg of a multi-legged stool. These various legs, judicial or non-judicial approaches, ultimately should work together. Truth commissions should not be seen as an alternative to, or something you would do instead of, other mechanisms such as trials or reparations for victims. All of these things may take place, either simultaneously or sequentially. A truth commission may provide much more solid grounding for prosecutions, but I am not sure that one approach should actually wait for another to conclude.

There are various ways in which you can have a dual process of a judicial and a non-judicial entity, both looking at patterns of mass crime and looking into the most responsible persons. That is likely to raise questions about access to information, sharing of information, access to individual persons. Those things can not be entirely avoided. They need to be looked at in advance, and one must find ways to manage them fairly and carefully. Kenya is the first country to have a truth commission underway while the ICC is engaged at the same time. We will see if there are questions raised along these lines: how they are raised and how they are managed.

What is your main concern now?
Truth commissions are often set up due to the desire and lobbying by victims groups and human rights advocates at the national and local level. But one concern could be the rapid expansion of their use. There is an initial inclination to turn too quickly to some of the most well-known examples such as South Africa.

What is necessary for a successful process is to first step back and consider whether it is appropriate for the country, and if it is the kind of commission that is wanted. More rigorous attention needs to be given to what happens after the truth commission, so that its long-term impact will be seen. Very often, recommendations are not implemented.

The array of contexts in which these bodies are being considered is impressive and important. Sometimes they are not even created but at least they were considered, like in the US. It somehow opens up the possibility of looking back.

The demand to know and the discomfort with hidden history is almost universal. This history sort of remains alive, even if it cannot be addressed immediately. But the desire to somehow put to rest parts of history, at least through acknowledging what took place, seems to be very common. We should not expect time to entirely take away that demand.

What would be your advice to ICC prosecutor Luis Moreno Ocampo?
To urge him to think carefully about how he considers and requests information from mechanisms such as truth commissions. While it is true that information within a commission’s archive is likely to be of great interest to his office, providing the information may compromise the actual process of the commission itself.

And for him to actually approach it not from just a criminal justice question, but as a much broader justice question: the actual possibility - not just the right - of a wide range of people to come forward in the truth seeking exercise and provide their story.

I think in most cases those people who come forward, certainly those who are victims, would probably welcome the idea of their testimony being shared with an international prosecutor. But is also raises the question of how much can be shared with the defence council if there may be any exculpatory information in the commission files.

(*) Priscilla Hayner was co-founder of the International Center for Transitional Justice and served as program director and director of its Geneva office. She recently published the second edition of 'Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions'

 

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