Student’s Name
University
Truth Commissions as Mechanisms to Deliver Societal reconciliation and Restorative Justice in Transition.”
“Truth commissions are ineffectual, unrealistic and outdated as mechanisms to deliver societal reconciliation and/or restorative justice in transition”
Critically discuss, with reference to a case study or studies of your choice.
City and State
Date of Submission
Introduction
Generally, the truth commission refers to a formal body established for the investigation of reports concerning a trend in past abuses of human rights. Truth commissions are a form of “transitional justice” deployed after a country has had a change in governing regimes, especially when the switch is from a tyranny to a democratic form of government. Conversely, the truth and reconciliation commission is a recently developed notion that is used to describe all truth commissions. Some researchers have stated that the latter term is misleading and inaccurate because most of the truth commissions have not prioritised reconciliation in terms of their operations and their desired outcomes.
Several truth commissions will have reconciliation as an explicit objective; others will have it as an implied objective while others have dismissed it as impractical and unattainable, for instance, in a country such as Argentina and Sri Lanka. Nonetheless, some kind of reconciliation or restorative truth-finding has been a focal point for many of the body, thus used as a justification of implementing a truth commission. Peace negotiations that are focussed on societal transitions will formally discuss the significance of having a truth commission. Notably, these truth commissions are fundamentally distinct as others will involve courtroom trials, others will function distinctively, and others will fundamentally have different objectives.
Transitional justice, in general, involves the procedures followed by post-conflict societies to handle past wrongs against human rights and focus on achieving the rule of law principle. This will encompass judicial and non-judicial approaches which are typically started at a position of political transition into societal stability from the point of violence and repression. Some researchers have indicated that transitional justice is an undertaking achieved in the long run such that more than one generation experiences the reforms in regards to human rights within the post-conflict society. Truth commissions are among the commonly used types of transitional justice in conjunction with criminal prosecutions, repatriation strategies, boosted security systems, and memorialisation efforts. Each of these plays a distinctive role in achieving transitional justice.
Nonetheless, truth commissions have proven to be unique in achieving transitional justice due to bearing particular traits. The truth commissions will focus on the previous events and not the current, the future, or any potential societal development. The commissions will also carry out investigations on various abuse patterns that have occurred in a particular defined duration and not one specific event or the whole history of a country. These commissions are temporary in nature, such that they last from six to twenty-four months and will produce a report that describes the findings of their investigations. These commissions typically have the newly created and developed state provide formal sanctions, grant them authority, and empower them to undertake their functions. Sometimes, these commissions could also be enforced by the armed opposition in case there is an negotiated arrangement that happened in the peace or transition agreement.
After their undertakings, these commissions are to provide public reports with information obtained from victims and even from the perpetrators. They will also provide recommendations to the discussed issues, which will aid in enhancing transitional justice and reconciliation. It is typical to have truth commissions set up to examine events that have recently happened in a definite duration or investigate several events that have ended in the recent past. Most of the events that are investigated usually are politically motivated, for example, abuses and regression that politically targeted particular people groups. These politically motivated acts are done to gain or maintain political power while discouraging any prospective political hindrances. The implementation of the truth commissions is mainly to protect human rights.
Notably, while truth commissions continue to be implemented to achieve societal reconciliation and restorative justice in transition, others have indicated that the commissions do not reach them. To this effect, this research paper intends to look into the claims that “truth commissions are ineffectual, unrealistic and outdated as mechanisms to deliver societal reconciliation or restorative justice in transition.” The discussion will look into various commissions that have been implemented in several countries, their achievements in relation to these objectives and determine whether indeed the truth commissions are ineffective in regards to these two objectives.
The Implementation of Truth Commissions
Over fifty countries have adopted truth commissions since their inception in the 1970s and 1980s by Argentina, Bolivia, and Uganda. They are considered a fundamental mechanism in the investigation and documentation of past violations while also offering proposals to achieve a better future in terms of societies transitioning from the alliteration of atrocities. The truth commissions will provide plausible solutions to challenging dilemmas due to the various processes they carry out. Generally, the steps they undertake include: investigating to establish the truth on a particular past, creating a formal record of the history, granting authority to an individual who has earned it and not the blanket amnesties, providing “free space’ to victims who had no voice previously, providing the perpetrators with an opportunity to square the guilt, propose reparations to individual victims and communities, disclose information on crimes and events that would have been concealed, offering mechanisms to hold the perpetrators accountable and promoting reconciliation.
While international law is not in favour of the non-prosecution of gross human rights violations, truth commissions have become a common choice due to the incapacity of the conventional criminal justice system to deal with a considerable number of abuses to human rights successfully. A need is there for alternative methods to deal with the violations. The democracies that are recently emerging from conflicts and oppressive governments are not in a position to prosecute the abuses that could have happened in the past due to dysfunctional justice systems. Lacking evidence for prosecuting the crimes considering their sophisticated nature that makes the concealment of crimes possible, prosecution expenses, and time constraints, among other reasons. Some situations have had abuses taking place on large scales such that there is no successful prosecution to handle the whole process. Therefore, the implementation of a truth commission is due to the fact of new transitional governments facing the problem of restoring peace while trying to achieve social cohesion and societal development. The government is mandated to have a method in which the past oppression will live together in the society but also have the past abuses addressed for democratic ethos. Nonetheless, the transitional governments are evidently in a dilemma of amnesia or trials. The commissions do provide a better alternative n compared to the trials and amnesia.
Truth commissions are considered to fill the limitations brought about by trials since their purpose in the transitional democracies will not be met by the hearings or other judicial inquiries. Trials will focus on personal perpetrators leaving out the costumes and various underpinnings from either the cultural, political, and social-economic aspects that brought about the abuses initially. Even for the situations where there are attempts in implementing trials, there is always a limit in the convictions. For instance, the trials of Nuremberg on Nazi Germany dealt with 85885 prosecutions only to achieve 7000 convictions. These truth processes will take care of trials’ shortcomings, but the former cannot be considered trial substitutes.Furthermore, the truth commissions emerging in a post-transition context illustrate weak transitional governments as the regime leaving is still strong on-ground through negotiated amnesties. This makes it an improbable cause to embark on trials. The Commission also has support from the community of human rights due to the available avenues to institute and implement the global human rights norms within the domestic jurisdictions.
The significance of the restorative roles played by the truth commissions in transitional justice, it was proposed that a permanent global truth commission be set up after the king of the International Criminal Court. Supporters of this mechanism indicate that strategies dealing with human rights violations must not solely be focussed on the prosecution. A more expansive approach needs to be implemented, which will address the rights and needs of the victims. Particular values provided by the truth commissions make them desirable in building peace, which is not availed by the conventional justice systems.
In fostering reconciliation, different truth commissions undertake the role in various ways. While others try to heal individual relations between perpetrators and their communities, some will choose to contribute to the state and institutional reforms to restore civic trust. Others will prefer to analyse the causes of the conflict, provide compensation to victims, or secure justice for the victims. Notably, many understood the goal as a long-term process that cannot be achieved through a truth commission alone within a limited duration. The commissions are considered to aid in creating better conditions for reconciliation purposes through encouraging reforms within institutions and changes in the state’s political culture. Restoration of dignity to those that were affected considerably by the violence, then reconciliation is hence achieved. Some commissions that have looked into societal reconciliation include the East Timorese Commission on Reception Truth and Reconciliation, which creates community reconciliation proceedings. These programs entail cooperating with traditional authorities in the indigenous communities. The offenders would come before their communities to repent and ask to be considered community members again. However, communal reconciliation was only for the perpetrators of crimes that did not get to the levels of severe human rights violations. Another Commission was the Peruvian Truth and Reconciliation Commission that conceived reconciliation as a political process in the reconstruction of the states. It provided a number of policy recommendations to reform state institutions whose actions contributed or led to the violation of human rights. With the achievements they achieved in reconciliation, the truth commission would concentrate on the typical function of strengthening democracy.
Another objective that commissions are considered to effectively achieve the provision of a public platform for the victims. A society that is seeking to achieve transitional justice will need to ensure victims and their families have a platform to narrate their experience and have a testimony that is publicly acknowledged. When the victims tell their stories and receive sympathy for their traumatic experience, they earn respect as individuals with dignity compared to prior to telling their stories where they get treated with contempt. This platform also has a fundamental public character; this is because it allows the exposure of human rights abuses, which are typically preferred to be put in secret to be further enforced through violence and intimidation, leading to extensive terror campaigns. Truth commissions have demonstrated doing well in this objective, depending on the number of testimonies taken and their contexts.
Research conducted on some truth commissions implemented in Ghana, Sierra-Leone, and South Africa indicated that they do perform some of the functions hence a suitable mechanism for transitional justice and reconciliation. In Sierra Leone, dispute its Commission facing structural issues such as having very few dedicated employees, the institution was able to reach and put up an inclusive, participatory platform for the primary stakeholders, especially the marginalised groups. The Commission achieves an expressivist justice for the victims such that public perceptions on certain behaviours were explicitly created in the crimes against the historically marginalised groups. The Commission put extensive efforts in dealing with particular experiences of women that had undergone sexual violence and the children that had been affected by the violence. The institution formed a partnership with the United Nations Development Fund for Women (UNIFEM) in the provision of women institutions and the Commission’s employees with proper training on psychosocial practices concerning witness protection when it comes to dealing with rape and sexual violence victims. The Commission allowed the victims to testify in public or private, which allowed them to collect enough information. Several gender-sensitive measures would be implemented during the hearing, such as support and trauma counselling; thus, the victims gained more confidence. The Commission is considered to make proper strides in promoting healing and reconciliation, even if this objective was at odds with achieving accountability.
Criticisms on Truth Commissions
According to the International Institute for Democracy and Electoral Helpance, there are several reasons as to why truth commissions are not utilised in achieving societal reconciliation and transitional justice. One of them is the fear of a continuous or renewed war or violence. This is because of the perception that revisiting the past crimes and wounds would bring out fresh memories of the hurt that was experienced; this could bring out further violence. Another reason is if the Commission is established during an ongoing conflict. It becomes virtually impossible to achieve neutrality.it is challenging to have a victim and witness engage in an intensely armed conflict situation as they also fear for their security, it becomes challenging for the Commission to gain any reliable and equal access to all required respondents who are to provide vital information. The lack of political interests from the respective leaders to the Commission as the latter seeks the truth; then, the latter will find it difficult. This is exacerbated when vital non-governmental institutions fail to put pressure on these leaders to play their roles. A state may have other urgent priorities or inadequate capacity, such as resources needed for the Commission. The state would choose to focus on the survival of its people and its reconstruction after experiencing extensive destruction. Notably, some may improvise alternative mechanisms that will have them avoid facing past crimes, or they already have community-based strategies that are proving to be effective in responding to the violence. These reasons could indicate why societies undergoing a transition phase would relinquish a formal search of the truth and focus on implementing non-governmental mechanisms. However, the research by International Institute for Democracy and Electoral Helpance indicated that any decision that is against seeking the official truth should be treated with considerable skepticism especially if the parties supporting the move could have an interest in preventing any kinds of investigation.
The Truth Objective In Achieving Transition Justice
Nonetheless, in determining whether the truth commissions are ineffective, unrealistic and outdated, it is prudent to consider their impact on distinct elements of transitional justice. One of the elements of truth was a society that is seeking to deal with the challenge of transitional justice; the nation will need to investigate, establish and publicly report the truth about past crimes. The truth will encompass the forensic truth or hard facts encompassing the moral and legal rights that were infringed, the victims, the method, the places and the reasons the moral significance of individual accountability will also prompt the identification of the individual or institution perpetrators to the public domain. Emotional truth should also be pointed out where the psychological and physical impact on victims from the atrocities they suffered is also highlighted. A commission such as South Africa’s Truth and Reconciliation Committee was able to make its operations public and transparent, collected testimonies from distinct locations in the country and the citizens could access the proceedings. The Commission chose to publicly conduct their activities to gain more truth and achieve goals such as public deliberations.
However, it is typical to have truth commissions conduct their operations in private while seeking the truth while trying to safeguard witnesses and get the fact. While the Commission will gain this truth, it limits the public’s accessibility to the information. Some commissions may even identify the perpetrators but will not go to the extent of truth discernment specifically the identified overall patterns the general causes and consequences to the atrocities. Other commissions may face other limitations when it comes to truth revelation. For instance, they cannot extensively analyse the cases and are forced to choose a few to conduct an extensive investigation in a shorter duration. The commissions carry out trials to subpoena nor conduct any cross-examination of witnesses, search and seize evidence not to have an independent corroboration to witness testimonies. All these challenges imped the Commission’s capacity to achieve the absolute truth on the events investigated.
While these are complicated issues when it comes to achieving truth for transitional justice, most truth commissions have indicated that the question of “one truth or many” raised the most significant concern. While many forensic truths can be relatively uncontroversial, the Commission’s members and its citizens could differ when it comes to the general interpretive patterns. Different commissions will choose to handle the differences in interpretations distinctively. Chile’s Commission employed vague or ambiguous terms for unanimity at the expense of precision; others decided to strive for agreement but will still point out issues that are still in contention. Another approach is to have the unresolved disagreements as either majority or minority judgments which is a practice used by the United States Supreme Court. Notably, while the methods used in handling the differences are considered respectful in societal pluralism and can lead to further deliberation, they severely undermine the authoritative and collective character affiliated to a truth commission especially in producing a final report.
The Objective of Accountability and Punishment In Regards to Transition Justice
Another objective in achieving transitional justice encompasses accountability and punishment of all individuals and groups responsible for past atrocities and implementation of proper sanctions to them. Currently, there are various concerns on responsibility and punishment such as whether the assignment of accountability should happen, the degree and level of responsibility in respect to the process of offering material support and the concealment of atrocities, the comparison of “sin of commission” to the “sin of omission”, the extent in which groups are responsible for the crimes among others. Failure to have a nuanced view of accountability or responsibility, the society falls in a morally objectionable dilemma of whitewash and amnesia or the demonisation of members to the opposition group. The concerns also arise in relation to sanctions where questions of which type should be enforced for particular violations, the theory of criminal punishment incorporated, how different the punishment is from revenge among other issues.
The first glance into truth commissions would make one believe that they do not contribute to accountability and sanctions. Truth commissions have been designed to be the morally second-best alternative, especially when guilt and punishment attributions are due to fears of legal prosecutions, further dividing the society that needs to be healed. Legal trials are also considered to jeopardise the new and incomplete democracy through the provocation of an authoritarian or military takeover. Furthermore, societies always choose truth commissions in cases of amnesty or other regulations that had been imposed by a previously authoritative government to protect itself and their functionaries constitute a significant block to taking a legal route. Conversely, some have defended the claim of truth commissions not being a moral second best, but an advanced body is going beyond penal and retributive justice into restorative justice. The commissions are chosen to rehabilitate the perpetrators and victims and have the relationships improved based on equal concern and respect.
The judgment of incompatibility of truth commissions in achieving accountability and sanctions is wrong for several reasons. One of them is when the Commission identifies the perpetrators; it contributes to ending an impunity culture where rights’ violators are not held accountable. For instance, Argentina’s Commission named the perpetrators who were subjected to social stigmatisation. Another reason is that the commissions have demonstrated compatibility with trials and punishments. Chile and Argentina have criminal proceedings after the public publishing of their commissions’ reports. The countries chose to have a just transition through the formal investigatory bodies; thus, there was no need to forgo trials and punishment. South Africa ensured the trials and the commissions collaborated due to the threat of the former being a powerful incentive for the atrocity suspects to apply for amnesty and testify. The collaboration was considered a potent force that flushed out previous operatives that had chosen to have a wait and see attitude. The third reason is that the truth commissions have a direct contribution to judicial processes where the offenders will be held responsible and have sanctions imposed on them. For instance, the commissions in Argentina and Chile proposed to have particular persons prosecuted by respective judicial authorities. Since they also provided proof to be used in the legal processes. South Africa’s truth commissions denied the amnesty requests. They insisted on the prosecutions of individuals who have infringed the rights of their citizens with political intentions and caused disproportionate harm to others’ political objectives. Those that had not applied for amenity were also subject to legal prosecutions and civil lawsuits.
Truth commissions are fundamental in making remedy proposals to cases of violation of rights, thus transforming the judicial system and increasing the probability of fairness in future legal processes and punishments. Therefore, the ability and success of the truth commission to get the truth make the mechanism compatible with contributing to assigning responsibility and imposing legal or other sanctions. While the commissions have no predetermined merit to address the causes and effects of systematic abuses or any related contours of collective responsibility, the trials are more practical to hold responsible parties accountable for the atrocities they caused. It is essential to avoid the “truth justice” debate as commissions and trials continue to play distinct and supplemental functions to achieve the several objectives of transitional justice.
The Rule of Law in Transitioned Societies
Societies that have achieved transitional justice need to be compliant to the respective rule of law, which is considered one of the enduring Nuremberg legacies. The rule of law will entail respecting the due process, procedural fairness, publicity and impartiality. The rule of law is fundamental in a new and delicate democracy that wants to differentiate itself from previous authoritativeness, institution bias and the “rule of the gun”. The rule of law is typically applied through a country’s courts and other judicial bodies. Notably, truth commissions can also demonstrate and strengthen a country’s rule of law. This is because they depend on it to the extent of legislation or constitutional provisions that will authorise their operations. Nonetheless, bias against one side in a previous conflict or dictatorship is a possibility even in a duly constituted investigatory body. For the victims to be encouraged to narrate their experiences, the commissions will typically fail to give the suspected parties nor their legal persons the right to confront and not conduct cross-examination of their accusers.
Conversely, the commissions may enforce the rule of law to the point that they are publicised, investigations are done on all the conflict sides, identify methods in which the offenders may also be victims and implement measures to mitigate bias occurrences. One of the measures to have one of its members to represent the different political factions and those that have a fairness reputation. The parties that write the final report should be vigilant to avoid any unintentional bias whether against a particular race, class or ideology. The Commission is to respect the due process when individuals called before it is treated equally and impartially. Conducting hearings that avoid the “kangaroo truth commission” becomes successful and demonstrates respect towards the rule of law in their manner.
Victim Compensation in Transitioned Societies
Individuals and groups that had their rights infringed need to receive a form of compensation, repatriation or restitution whether it is an income, have the medical costs covered, or obtain other opportunities. The truth commission is expected to contribute to the compensation matter depending on their scope of the mandate and their duration. For instance, in Chile, an entity distinct from its truth and reconciliation commission facilitated the compensation of survivors of rights infringement. This was achieved after the latter body completed its functions within a relatively shorter duration. A longer duration was needed for making a decision on the criteria to be followed to compensate, identify and treat the respective harms that arose from the violations. This is because some of these consequences happen long after they were inflicted. While the Commission is expected to achieve more than one aim, for instance, truth, there should not be expected to carry out many things.
Truth commissions have however been criticised for failing to provide the necessary support to those who had testified. Many of those who gave testimonies to the Commission have indicated suffering from flashbacks, insomnia and depression without receiving material support from the Commission. Some also stated that they had not received material or any other form of compensation which they had been promised thus considered themselves expendable to meeting the Commission’s functions. While some would state that such criticisms are to be directed to the respective government and not the Commission, the latter still has a responsibility to help in pushing the compensation of victims on time and adequately.
Kenya and Liberia Truth Commissions
Research respondents on the operations of truth commissions in Kenya and Liberia indicated being skeptical on the institution’s outset. The respondents pointed out various reasons for their scepticism. One of them was constraining transitional contexts. In Kenya and Liberia, the commissions carried out their processes. At the same time, the individuals affiliated with the violation of human rights and other crimes still had political and economic powers in a severely balkanised polity. The continued influence from these influential persons and the politics of accommodation would render the commissions ineffective in dealing with impunity. Another reason was that the process was victim-dominant and one-sided. While the Commission insisted on the accent of reconciliation, which also indicates mutuality, the perpetrators of the violations and other crimes tend not to engage in truth commissions. The process is then considered a victim-dominated strategy that lacks fruitful engagements between the victims and offenders. The perpetrators that come forward, which is sometimes forcefully will deny knowing any of the related violations or completely deny taking responsibility for their stated actions. Others will use lawyers to protect them hence challenging the Commission’s ideal notion of being a non-adversarial space for encounters between victims and offenders and any kind of reconciliation. This explains the reasons for the few encounters between victims and offenders in a truth commission’s framework. If the Commission is unable to facilitate the encounters, then there is a question on the capacity to achieve restorative justice and performing reconciliation.
From the 1990s, impunity and the effects of mass violence have increased the need to have measures that are multi-faceted and comprehensive in achieving transitional justice. Nonetheless, it is no longer considered adequate to implement truth commissions without considering their connections to other transitional justice mechanisms. A complete package of complementing measures is what many scholars are advocating for. This is because transitional justice contains distinct areas such as truth, justice, reparation, amnesties, non-recurrence guarantees, among others. These separate areas need their particular focus, have their benefits and limitations, and the truth commissions cannot achieve them all. Notable, some of these measures can overlap each other, causing tension between them. For instance, when prosecutions are being undertaken while simultaneously seeking the truth. The latter functions need careful crafting of various factors arising from the social, political, economic and legal aspect to steer clear of anything that will impede the transition itself. Another concern that arises in transitional justice institutions is that some optimal combinations and timings could occur to amalgamate the institutions with various mechanisms.
Analysis of the Truth Commissions in terms of their Effectiveness and whether they are Realistic.
This research had the mandate of analysing truth commissions in various countries and see how they have performed on multiple aspects, specifically in achieving transitional justice and societal reconciliation. This analysis would primarily focus on their implementation from the initial times, the successful ones and those that did not meet their requirements. The study clearly illustrates the fact that it is misleading to indicate that truth commissions are ineffectual, unrealistic and outdated as mechanisms to deliver societal reconciliation or restorative justice in transition. This is because various commissions have demonstrated a capacity to play significant functions in transitional justice and societal reconciliation which would not be achieved without their existence.
Issues such as reconciliation, implementation of the rule of law, accountability and punishment that are part of a society in transition have been boosted by the work done by the truth commissions. It is due to truth commissions that individuals, especially the victims, can give their accounts of what they experienced. This allows them to heal, meditate and dialogue since they have expression spaces for approbation, remorse and pardon whole working towards handling the underlying conflict causes. Nonetheless, on such a matter, there is a criticism of the truth commissions on the extent they should go in terms of achieving restorative justice as a process and not an outcome. Furthermore, the truth commissions have not been doing remarkably well in terms of finding extensive truth due to various barriers such as lack of resources, political support, among other causes. Additionally, the truth commissions have been seen not to provide proper medical support to the victims, especially after they open up. This puts that latter group at risk of suffering various mental disorders. It is essential that truth commissions set up the right strategies to ensure that the victims are compensated rightfully.
Notably, the commissions need to be implemented with various alternative mechanisms to complement each other and achieve their desired objectives. The main goal is to see a society achieving transitional justice and reconciliation. Therefore, a truth commission collaborating with the trials would ensure that the victims are getting healed and compensated. At the same time, the perpetrators held accountable for their role in suppressing and violating human rights. Therefore, it is wrong to indicate that truth commissions are becoming ineffective, outdated and unrealistic in achieving transitional justice and societal reconciliation.
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