The TRC in Peru defined the concept of truth, this framework our work. Share our definitions:
"Truth" is a story ethically articulated. This is his first major dimension. The TRC is, as has been said, on human events in which they are involved will, intentions and the affections of actors, ie deals with moral facts. But it does, in addition, since the framework of ethical principles that have presided over its mission from its commitment to human rights, democratic values, justice, solidarity and honesty in the conduct of its investigations. The articulation ethics of the story is thus both its contents and its form: its content, to the extent that the TRC has interpreted the Developments in the light of the ethical principles identified; his way, in so far as it has pursued, also for ethical reasons, transparency in all aspects of the investigation. And by the same moral reasoning has deemed essential to take into account the other dimensions of the concept of truth.
"Truth" is a story scientifically supported. Many of the investigations carried out by the TRC had intended to establish a detailed and accurate record of the acts of violence, the conditions in which they occurred, its direct participants and the legacy they left behind. In all these cases, the TRC appealed to experts and the scientific and technical methods more updated, in order to ensure the greatest possible objectivity: reports criminological, judicial expertise, forensic anthropology, laboratory analysis, and so on. But this scientific dimension has been present equally in the work of analysis and interpretation of the causes of the incident, then requested the assistance of a wide range of scientists from different disciplines such as anthropology, sociology, history and psychology -
And the methodologies available, it has helped to clarify the process in question. It has thus taken a scientific background to the story ethically articulated.
"Truth" is a story contrasted intersubjetivamente. For the establishment of a truth practice, as understood in this report, it was necessary to clearly hear and process the voices of all participants. The TRC has placed special emphasis on this aspect of the truth, and therefore has focused its work on the organization of public hearings throughout the country. For ethical reasons strictly, it has been privileged testimony from the victims of violence, compared to which the whole country owes a debt of justice and solidarity. Additionally, we have arranged with the direct and indirect participants in those events-military members of subversive groups, political and opinion leaders, For the purpose of receiving testimony from everyone and hear their versions of what happened.
Finally, the TRC has publicly called on all Peruvians to provide its contribution to the clarification of the process-what actually has happened in many ways. As part of its ethical conception of things, and with the scientific support due, the TRC has verified and evaluated the participation and the version of the different actors involved. The resulting story is why "target" in the sense that it is based on a synthesis consistent and consistent between the experiences of various actors and the various sources, namely, has an objectivity always open to new contrastaciones intersubjective.
"Truth" is a story tacking thread narrative terms. The exhibition of the results of our investigation once contrasting testimony and analysis, leads the form of a coherent story in which events are linked with each other. The violent events, for more crude as they are, do not speak for themselves; the TRC interpreted in the light of the various dimensions referred to that charge its meaning. The story offered intended, as called for in the decree, establishing the facts in the context of social and historical processes to explain them properly. Thus, the story is the claim not only to register events, but also to explain their causes immediate and remote causes. It also, as far as possible, what has gone responsibilities, immediate and mediate the process of deterioration in our social life. Having paid special attention to the voices of the victims, and having collected the testimonies of many Peruvian and Peruvian eager to contribute to the reconstruction of our nation, the TRC hoped to be proposing a novel way of narrating our collective memory. In recommending equally institutional reforms as a corollary to the report, the TRC hoped to help "maintain peace and harmony among Peruvians'.
"Truth" is a story emotionally concerned. The facts before us are the work of human wills, and because they have caused pain and suffering of so many compatriots, the story that exposes must take into account the emotional dimension to them lies. And it must take into account not only because it is present in the actions and intentions that are the subject of our research, but also because the researchers and recipients of this story we also we open to understanding through our affections. The truth of which we speak is, therefore, while moral and emotional.
"Truth" is a story perfectible. The story of the TRC deals with events in the history of Peru and social processes associated with a memory conflicting and fragmented. We propose a narrative that retrieving our memory as a country, it is projected into the future, and should therefore be continued and enriched with the participation of civil society, the State and the agencies to be created to monitor compliance with the recommendations Report. The important thing is that the story itself contains the criteria for its continued development, we believe that there will be a place for him always welcome new testimonies of victims still unknown, as well as new perspectives for analysis or criticism that contribute to its continued rewriting.
For the articulation above of the different dimensions of the concept of truth adhered to, the TRC hoped that theirs will be a credible story. It is not only in the sense of fidelity to the facts, but mainly in the sense of being credible, credible to all Peruvians and Peruvian. The TRC hopes that the entire nation is in him a sense of what happened, and to be recognized both in the explanation of the causes on proposals for fundamental changes in our social ties.
Sofía, I agree with much of what you have to say and I think that the work of the Peruvian TRC was admirable. My only criticism is your end result: 9 heavy volumes! I wonder how many Peruvians actually read them and thus had access to the truth the commission uncovered. I know I still haven't made it through all of them :( (but I'm not Peruvian).
While the Argentine CONADEP was not a TRC per se (and the fact that it did not deal with the victims of summary execution or of political imprisonment and only dealt briefly with the causes of the repression, meant that Argentines do not have a whole story of what took place) - it made the right decision in coming up with a report that was concise (only one volume), well organized and well written. This has meant that the report has been widely read, both by its contemporaries and new generations, so that there is now in Argentina an accepted (in most circles) collective truth as to what happened vis a vis the disappearances.
I wish that future truth commissions would take the usability of their product into account and at least publish a well-written tome summarizing their findings in addition to any multi-volume report.
But please, don't let my comment take away from the amazing work you guys are responsible for - including helping create a social context in which justice begins to be possible.
The Peru TRC produced a summary report ,400 pages, also we produced summaries infive newsletters in spanish and quechua, but, the mayoriy of the people know the final report from the newspapers.
I have also heard that in Peru an educational curriculum has been developed to teach young people about the history, process of the TRC and the results. Is this correct? If so, what levels of the educational system does the curriculum reach?
Have there been other ways in which these processes have been incorported into educational systems?
There were several initiatives to include in the curricula of the schools the final report of the TRC. In fact my institution IDL, create with the department of education's Universidad Catolica teaching materials for all years of college. The ministry of education accept your checking in 10 regions of the country (there are 24), the process conclude but have not printed and distributed materials to all schools
is important to know that the project was nearly stopped by the ministry of defence, only with a letter from the minister of defense to theministry of education, they stop the project until defense review all documents!!!!
Indeed defense asked be changed some texts, the most comprehensive revision made at the primary level, impressive. In fact the changes were not as substantive as distorting the content
Regions of the country have the authority to decide their curriculum studies, some of the regions most affected by the conflict have regional laws to include this in the curriculum, but its institutions are very weak and not being implemented, all this work if one organization of civil society is behind this. There are some NGOs who do, but very few is not the same as it does educaccion ministry for the whole country
In fact it is giving more attention to the report of the TRC in the universities, many professors of different disciplines have included in his bibliography
Another interesting experience has been the formation of study groups the final report, to study the 9 volumes. This initiative was of the boys who were volunteers during the work of the TRC (1500) all of them from the university
Truth may be only one of the many elements in the pursuit of healing and reconciliation but its importance cannot be underestimated. For example, The creation a TRC in Sierra Leone, South Africa, Chile, Guatemala and the Commssion of Inquiry in Uganda was prompted by the fact that ignoring history leads to collective amnesia, which is unhealthy for the body politic. An unresolved past will inevitably return to haunt citizens. It is only by publicly and collectively acknowledging the horror of past human rights violations is it possible for a country to establish the rule of law and the culture of human rights.
Growing interest in truth commissions has produced little agreement as to their long term impact on a community’s democratic transition, post-conflict peacebuilding operations as well as political and social development. Although most argue they are beneficial, a growing chorus of critics see truth commissions as either ineffectual or dangerous. Despite these developments, it is unclear precisely what effect truth commissions have on transitional societies. Although the range of hypothesized effects has been wide ranging, one of the more common claims is that truth commissions contribute to a better human rights environment in the future. For many, of central import to a truth commission’s mission is to help advance the practice of protecting human rights. The expressed intent of most truth commissions is to lessen the likelihood of human rights atrocities reoccurring in the future. The commission’s work sheds light on past abuses and seeks to end the pattern of impunity. While they do not have prosecutorial power to punish those responsible for past crimes, commissions are designed to reveal how past violations of human rights were carried out. Although truth commissions may provide some accountability for the past, investigations are also intended to generate reforms to prevent a repetition of such behavior in the future.
For a community that has endured violence and conflict to come to terms with its past and to turn to its future, it is essential that the problem of impunity be addressed and the truth of the past be established to would serve as a national catharsis. that will finally result in the establishment of the rule of law and a culture of human rights. The past therefore, should not be abandoned, because a people who do not preserve their memory are a people who have forfeited their history. There can be no reconciliation if people refuse to accept that something was wrong and if there is no acknowledgement of the suffering it has undergone or of the ultimate responsibility for that suffering. The victimized population is often clear about what abuses took place and who carry them out. It should be acknowledged that the importance of truth commissions might be described more accurately as acknowledging the truth rather than finding the truth. The victims must feel that their suffering has been recognised and acknowledged. Perpetrators or beneficiaries of the oppression must also recognise that harm was done and that they benefited from it or were responsible for it. Victims and perpetrators must finally come to a common understanding of the country’s history; reconcile their stories as a basis on which to build a future, what Anjie Krog referred to as justice in it deepest sense. This is especially important in a situation where after a war, neither side has emerged victors and at the end of the coflict there has been no cahnge in government.
In addressing the problem of impunity to intiate true healing and reconciliatiaon, the TRC should take into acount these two measures:
Naming of names of individual perpetrators: This is one way to provide some measures of individual accountability for past violations. This is a powerful instrument at truth commission’s disposal. It addresses the need for full disclosure, justice and even revengeful desire to strip the perpetrator of his normal façade and prosperous future in the aftermath of gross human rights violations. While public identification is neither a criminal sanction nor a civil one, it can have negative effects on the reputation, career and political prospects of individuals.The individual naming of perpetrators and the exposure of their violations constituted punishment through public stigma, shaming, and humiliation. while taking this measure however, the TRC should be caution in making sure that the naming of individual perpetrators does not threaten the establishment of peace and reconciliation or even a new regime and rule of law.
An amnesty that permits prosecution to be foregone must not be allowed for complete impunity. In response to those who claim that the past should be left behind once a conflict is over, the victims of such acts should insist more and more that there can be no justice and no healing of society unless the truth is told, and unless violators are held accountable or confess their guilt and ask for forgiveness and give concrete sign of repentance. A concrete example for failed reconciliation and healing to come forth in a community where amnesty prevented accountability is the granting of blanket amnesty to the Rhodesian (post-colonial Zimbabwe) police and military personnel for human rights violations. Victims and survivors were not consulted, but rather watched powerlessly as many perpetrators of human rights violations went unpunished and even took on key roles within the Zimbabwean Army and secret services. As a consequence the need to forgive and forget was not internalized by the general public. Reconciliation and healing processes are ineffective as long as the vicious circle of impunity is not broken. The nasty reality is that in most post-conflict societies gross atrocities go unpunished, unacknowledged and without redress.
As Predro Nikken once stated; 'There is no doubt that the discovery of the Truth, which is the responsibility of independent persons, destroys that element which, while not useful in itself for eradicating impunity, fulfils at least a dual function. First, it is useful for society to learn, objectively, what happened in its midst, which translates into a sort of collective catharsis. And second, it contributes to creating a collective conscience as to the need to impede the repetition of similar acts and shows those who are capable of doing so that even if they may escape the action of justice, they are not immune from being publicly recognized as the persons responsible for very grave attacks against other human rights. In this regard, even though truth commissions do not constitute punitive mechanisms, they may perform a preventive function that is highly useful in a process of building peace and the transition to democracy.'
By investiagting and establishing the truth about human rights humanitarian law violations truth commssions fulfill the obligation imposed on state by international human rights law to investiaget and punish gross violations of human rights.
The effectiveness of a truth commssion in aiding heling and reconciliation depends on its mandates and how effectively, it can carry out those mandate. Effectiveness is however almost impossible to measure! - Florence
It is clear that every victim would want their perpetrators to be punished; however in a situation where there were massive human rights violations, it would be difficult to punish all the perpetrators. This is why I think the TRC process is legitimate and significant to the rehabilitation process. In Sierra Leone, the TRC played a significant role in the rehabilitation process. For instance, some victims expressed how relief and powerful they felt after facing their perpetrators, especially when their perpetrators showed remorse of their behavior. Similarly so, telling the truth is very significant to the healing and rehabilitation process regardless of the fact that most Africans believe in forgiveness, it is important to understand that there will be no forgiveness and reconciliation if the truth is uncovered. For example, the process of bringing both the victims and perpetrators to tell their stories contributed greatly to the rehabilitation process in Sierra Leone. Even though the mandate of the TRC is not to punish the perpetrators, but the fact that there is a mechanism or space for victims and perpetrators to face each other and talk about their experience, can be considered a leading path to justice.Neneh Barrie Sierra Leone
The South African Truth and Reconciliation Commission was, amongs others, an attempt to document the country's Apartherid history and facilitate reconciliation in a divided society. It is important to rememeber that the Commission's mandate was not to achieve reconciliation but as one ot the instruments established during the transition from oppressive apartheid rule to democracy, to promote reconciliation. Other societies have dealt with their iniquitous past in different ways, some more successfiully than others. The Commission depended on the stories, narratives of both victims and perpertrators. These stories depended on memory.
Human memory is never a collection of fixed, stored data that can be downloaded or accumulated for later use. There are many factors that impact on memory. Social conditions determine what is rememered and how events are recalled. Some thinkers have said that memory is not the same as history and memorialising is different from writing history. Understanding this we are able to distinguish between truth and untruth(lies).
If memory is difficult to unpack or understand, so too is truth. The South African Truth Commission referred to several 'truths' in its seven volume report. Firstly, personal truth which refers to the personal, individual story with the person's own interpretation of events. In this aspect of truth memory plays an important role. The second is factual or forensic truth. Thirdly, social or dialogical truth which is the context within which the personal or narrative truth is understood. Fourthly, a restorative or healing truth. The truth which the Commision had to acquire was to contribute to the healing of the nation and the restoration of the dignity of those who suffered injustice in the past.
While I think it is important to bear in mind that Truth Commissions are not only an attempt to document, remember, uncover the truth, it is also an opportunity to restore the lost dignity of everyone involved in the conflict. The processes and procedures adopted by the commission should be such that particularly the victims feel dignified by the process and that the humanity of perpertrators is restored.
While I think there is a great deal of merit to Marga's (among others') argument that a "truth and reconciliation commission" is better termed a "truth commission," your points about the need for a commission to adopt procedures that dignify the victims and humanize the perpetrators are good ones. I wonder if you have suggestions for what those procedures would look like concretely? In theory, your comments make perfect sense. In practice, I think there are times when procedures that are designed to humanize perpetrators can feel dehumanizing to victims. These tensions were some of the challenges we faced in Greensboro and I wonder if that was a common experience for other TRCs (or TCs or TJRCs, etc.)?
Jill Williams, Former Executive Director, Greensboro Truth and Reconciliation Commission
You ask an importnat question. We knew intuitively while establishing the TRC in South Africa that we had to dignify the victims. I guess we did it in many different ways. Firstly, we were convinced that we needed to start with the victim or human rights violations hearings first and much later in the process start the anmesty hearings. We felt that the anmesty hearings would attract media attention and not give the victims the ' airtime' they deserved.
Secondly,all our hearings were held with the victims ascending onto a stage. They were elevated above that of the audience, perhaps a symbolic way of dignifying them. Unusual for a judicial process remarked one of our leading legal minds in SA, Adv George Bizos. Like a Greek drama, he says with the audience playing the role of a chorus.
Thirdly, during the hearings the victims were not cross examined. We did ask questions of clarity, but in the main gave them the opportunity to tell their story from their perspective. There was a corroborattion process. which was done by investigators and researches- much like in your Greensboro process. We also encouraged them to bring documents, other evidence to the Commission to corroborate their stories. The victims were also supported by the Commission staff called "briefers". Paul and I have written about this and the notebook is available on the New Tactics website. in this process we were conscious of the fact the the testimony could re-evoke the trauma and tried as much as possible to minimise it during testimony.
Fourthly, when requested, we facilitated victim-offender mediation sessions. There were many such requests where the perpetator and victim came together to talk about the violation. Remember that in many of the cases victims and perpetrators came from communiites where they share a culture. So reconciliation between them is/was very important. You may have watched the documentary ' Long Night's Journey into day', a powerful movie about the work of the commission. This does give an insight , in small measure, of our attempt to dignify victims and humanize perpertrators.
I know that we may not have got it right; but at least there was an attempt.
And lastly, it is important to know that there is a relationship between amnesty and reparation. When amnesties are granted, it takes away the right of victims to charge wrongdoers criminally. Adequate reparations are very important. When I talk about reparations, I do not only mean compensation, or the monatary aspect, but an entire package of redress, reparation, restoration, rehabilitation, memorialisation(monument, memorials).
Perpertrators!! tough one. but if we believe that the perpetrator is part of our society then a strategy of reintegrating them into the commuity is an essential aspect of healing traumatised societies. Mozambique and other countries that had long protracted wars have done innnovative work with child soldiers, for example. Guns for skill programs was one such initiative to re -skill thee young men and in the process rehumanise them.
TRC in Peru, we took the decision to conduct public hearings of the victims, in which they counted us the truth and we only hear them, respecting their truth, which was not necessarily THE TRUTH, were not space research therefore not nor did they question the face with their perpetrators
In a moment of work a perpetrator asked us space in a public hearing, , it was a very strong discussion within the commission. Our final decision was to deny this spot the perpetrators to download their responsibilities. We decided that the discharge should be brought before the courts and the judges who would establecerieran the innocence or guilt of these people
We affirm that the area of public hearings was a space of dignity as victims and could not disturbed with potential perpetrators who wanted to download their responsibilities and certainly denieng the truths of the victims. We reaffirm that the TRC had at the heart of its mandate attention to victims
we gave them the opportunity to all those who feel attacked, the right to send us their written rebuttals and pledged to publish them in our final report. We do not receive any
But also prior to the publication of our final report, we sent a letter to each of the persons who would be appointed as responsible for human rights violations in our report, indicating exactly the case in which he atribuiamos some responsibility. Several of them, approached the TRC to give us his version, hearings were closed and indeed in some cases the TRC change his conclusion based on the evidence presented.
Terrorist leaders prisoners, they invite to give a statement to the country asking for forgiveness, we present 4 statements in different types of audiences we call political balance, which we invite all political parties. They were organized in a completely different format. Very interesting.
This deliberation of the Peru TRC over the request to provide a hearing to a perpetrator during a public hearing and decision to provide a different kind of hearing and response to perpetrators is very powerful. It points to the clear vision and goal of the TRC to provide the space and opportunity for victims to publicly declare their experience.
At the same time, the TRC showed its flexibility to provide a different public space for those leaders who wanted to ask the country for forgiveness and provided a separate balanced opportunity for that.
I found it especially interesting that the Commission did not receive any rebuttals from those who had publicly expressed they felt attacked. But when the Commission did provide information about to those who had been identified as violators, a number of them did provide the Commission with information that apparently altered the final report.
I think this kind of adherance to principles while showing flexibility provides a model to the country and communities that is necessary for moving forward.
Following up on a number of comments in this very useful discussion, I would endorse the general view that the value of truth commissions is that they are created, not with the presumption that there will be no trials, but to constitute a step towards knowing the truth and, ultimately, making justice prevail. Nevertheless, the institution of a truth commission should not be accepted as a substitute for the state's obligations, which cannot be delegated, to investigate violations committed within its jurisdiction, and to identify those responsible, punish them if necessary, and ensure adequate compensation for the victim.
The tension between aspirations for retributive justice for victims of oppression and the practical need for amnesties as a step towards reconciliation needs to be addressed at the outset of reconiliation and truth recovery processes. Drumbl has described this transition:
“Post conflict justice is terribly and terrifically complex. There are no simple solutions. Research suggests that lasting social order in societies roiled by internecine conflict is restored by a ‘forgiveness process’ characterised by truth telling, redefinition of the identity of the former belligerents, partial justice and a call for a new relationship.”
In addressing this tension, the objectives of political reconciliation should, in certain circumstances, as Tom Hadden as argued, be prioritised over punishment for past human rights violations, particularly for those perpetrators not in leadership positions and that any arrangements for amnesties, early prisoner releases or truth recovery processes should be transparent and subject to independent approval or international scrutiny.
I would argue that this utilitarian approach should be adopted and that through this non-prescriptive method of addressing accountability, human rights organisations can make an important and necessary contribution to the pursuit of a sustainable peace.
These pragmatic political considerations need to be included in peacebuilding activities and that resolving the underlying political or ethnic causes is key to ending conflicts.
The experience of Northern Ireland and the use of multiple strategies involving legal and political processes are noteworthy in this respect. As well as entrenching the rule of law by providing human rights and equality guarantees and reforming key institutions such as the police, other 'political' options were developed in Northern Ireland such as the granting of early prisoner release schemes as a way of facilitating the peace process that extended the boundaries of a strict rule of law approach.
Neneh Barrie, I really understand what you are saying, I quote you,
"It is clear that every victim would want their perpetrators to be punished; however in a situation where there were massive human rights violations, it would be difficult to punish all the perpetrators."
What is the meaning of Justice to Victims?
Crime hurts, physically, financially, and psychologically for weeks, months and even years after the crime occurs. Now this victims leave in the same communities, with their perpetrators. Their perpetrators are in the government in this country they have been hurt.(Like in Liberia)
There must be a place set up after TRC to helps victims cope with trauma and grief, ensures their rights are not ignored within the judicial system, advocates for change that will make a balanced justice system, and implements community programs for violence prevention. In Liberia what is happening, Former president Charles Taylor, is in Hauge and see the amount of money that is just going to his court case. If they can take half of that money and just put it for the victims it will be good. How long will it take to get justice victims in Sierra Leone? There must be fast way to respond to the victims need.
Restorative justice is one way to respond to a criminal act. Restorative justice puts the emphasis on the wrong done to a person as well as on the wrong done to the community. It recognizes that crime is both a violation of relationships between specific people and an offence against everyone the state.
Restorative justice programs involve the voluntary participation of the victim of the crime and the offender and ideally members of the community, in discussions. The goal is to "restore" the relationship, fix the damage that has been done and prevent further crimes from occurring.
Restorative justice requires wrongdoers to recognize the harm they have caused, to accept responsibility for their actions and to be actively involved in improving the situation. Wrongdoers must make reparation to victims, themselves and the community. In Liberia, Prince Johnson is a wrongdoer and is in the government of Liberia. Is that justice? Allowing him to work in the same country he as commited human rights abuses.
I really hate Prince Johnson in the government of Liberia.
There are so many tensions between Victims and Perpetrators in Liberia. Prince Yormie (or Yeomi) Johnson is a Liberian political and former military figure. He was elected to serve as a senator in the Liberian congress in the historic 2005 election. Johnson was born in Nimba County, in the east-central interior of the country. In 1990, Johnson was allied with Charles Taylor as part of the National Patriotic Front of Liberia (NPFL), which crossed the border from Côte d'Ivoire and began operations in Liberia on Christmas Eve, 1989. However, an internal power struggle resulted in Prince Johnson leading a faction of fighters which he named the Independent National Patriotic Front of Liberia (INPFL). In spite of ECOMOG opposition, INPFL forces captured most of the capital, Monrovia, late in the summer of 1990, and Johnson's supporters abducted President Samuel Doe at ECOMOG headquarters, the Free Port of Liberia. Although Johnson has recently denied killing Doe, there is no question that Doe was brutally executed in Johnson's custody on September 9, 1990, as the spectacle was videotaped and seen on news reports around the world. The video shows Johnson sipping a Budweiser as Doe's ear is dismembered. Ahmadou Kourouma also accused Prince Johnson of war crimes (abduction and torture of several Firestone's executives) in his book "Allah is not obliged". Shortly after Doe's death, Johnson allied with UN-supported ECOMOG peacekeepers in capturing the Liberian capital. Subsequently, Johnson briefly claimed the presidency of Liberia in the fall of 1990. His claims ended following the consolidation of rebel power by his rival Charles Taylor of the NPFL. In an attempt by the weak national government to reconstruct Liberian politics, the INPFL was recognized at a conference held in Guinea, where Amos Sawyer was elected president. However, Johnson was forced to flee to Nigeria in fear of rebel forces supporting Taylor. He returned to Liberia in March 2004, stating his intention to return to politics by running for a senate seat in Nimba County; however, he left Liberia again on 7 April, apparently due to death threats he had received from the country's dominant rebel group, the Liberians United for Reconciliation and Democracy (LURD). In the October 11, 2005 elections, Johnson contested and won a Senate seat representing Nimba County, despite having a reputation for wartime brutality and having committed gross human rights abuses. He is the chair of the Senate's defense committee. Can we have him prosecuted in Liberia? How long will take and how much money will the government spend on him? When he is working as Senetor in Liebira where he commited Human Rights abuses. Can his victims get justice? Which type of Justice will the victims get in Liberia? After the TRC after there must be a restorative Justice programs set up in Liberia. Will the government of Liberia really do? Thease are the thing we need to talk about when it comes to setting up TRC in Kenya.
All restorative justice programs have some common elements. They seek healing, forgiveness and active community involvement. The programs can take place at different times after a crime has occurred - sometimes after charges have been laid; sometimes after an accused has been found guilty of an offence.
Some examples of restorative justice programs include:
victim offender mediation;
family group conferencing;
sentencing circles;
consensus-based decision-making on the sentence; and
victim offender reconciliation panels.
Good restorative justice programs have well-trained facilitators who are sensitive to the needs of victims and offenders, who know the community in which the crime took place and who understand the dynamics of the criminal justice system. Did this ever happen in Sierra Leone or any other TRCs in Africa? Will it happenin Liberia after the TRC finish their work? It is not just setting up TRCs but after TRCs what can be done to help us rebuild our countries. These are questions Kenya have to ask.
Have we been able to punish the perpetrators of violence?
Kyle Lambelet, that is a good question you have asked.
In Africa after TRCs is there any perpetrators of violence been punuished?
In South Africa the TRC and its subsequent report have been widely criticized. Many in both the former ruling white elite as well as the Zulu-based Inkatha Freedom Party (IFP) have called the TRC a witch hunt.Many of apartheid’s victims believe the process failed them by both granting amnesties and failing to pay reparations.The minority of TRC supporters, led by Desmond Tutu, former Chairperson of the TRC, argue that the process has been both healing and necessary for the future of a South African society based on human rights. The idea of bringing to justice those within an authoritarian regime who committed human rights abuses during their tenure is not new. The evolution of a human rights paradigm and the development of mechanisms necessary for pursuing justice for the survivors of human rights abuses emerged at the end of World War II with both the Nuremberg and Tokyo tribunals. These tribunals have become the standard by which all others are measured. Duplications have been impossible, in large part due to the nature of the majority of transitions. As a result many varieties have emerged.
With roughly twenty commissions in more than fifteen countries over the past twenty-five years, it is evident that the "commission" has become an important transition tool. There are as many types of commissions as there are types of transitions. Each commission has its own limitations. The South African TRC is but one recent variation, albeit a variation that many viewed with high expectations. The TRC in its inception sought to alleviate the various problems and obstacles encountered by many of the recent commissions, particularly those in Latin America. Because South Africa’s TRC has been seen as an improvement over other experiments, it is legitimate to assess whether or not the goals of the TRC have been met and if this hybrid model has anything to offer other transitioning societies. Thus, two questions are addressed here. Is South Africa’s TRC a viable model for justice and reconciliation in a post-authoritarian society? What advantages and disadvantages does this model present? What can Kenya learn from South Africa TRC?
Neneh Binta Barrie, Was Sierra Leone been able to punish the perpetrators of violence?
NOTE: I am taking the liberty of moving Yav Katshung Joseph's comment on Truth Commissions and Prosecutions to within this TRC dialogue so that others will be able to comment on it as well. You can see the two comments placed on his posting by clicking on the link. Nancy Pearson, New Tactics Program Manager
Posted March 27th, 2008 by joseyav>> Posted publicly to: Business and Human Rights, Human Rights Education Exchange, New Tactics Community Members
INTRODUCTION
Truth commissions have been multiplying rapidly around the world and gaining increasing attention in recent years. They are proposed for different reasons and driven by diverse motives. They can be used firstly, for the purpose of national reconciliation and in the interests of the society; secondly, sometimes they can be used to avoid accountability or prosecution and merely to shield an offender from justice. Following recent outbreaks of violence in the aftermath of Kenya's presidential election last December, stakeholders continue to make strides toward peace. Parties have agreed among other things to a Truth, Justice and Reconciliation Commission, which will be established through an Act of Parliament. The Commission will inquire into human rights violations, including those committed by the state, groups, or individuals. This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions. It will also inquiry into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence. Other historical injustices shall also be investigated. The commission will primarily focus on events dating back to independence, December 12, 1963 up to February 28, 2008. However, it will as necessary look at antecedents to this date in order to understand the nature, root causes, or context that led to such violations, violence, or crimes. This gives us opportunity to share views on adequate truth commissions and their relationship with prosecutions.
TENSIONS BETWEEN TRUTH COMMISSIONS AND PROSECUTIONS
Very often, when a country wishes to move from dictatorship to democracy or from war to peace, various ways may be tried and these include trials in an international or national court of law and non-punitive approaches such as truth commissions. Thus, “…a country’s decisions about how to deal with its past should depend on many things: the type of dictatorship or war endured, the type of crimes committed, the level of societal complicity, the nation’s political culture and history, the conditions necessary for dictatorship to reoccur, the abruptness of the transition, and the new democratic government’s power and resources [1].” One may adds the “interests” of the country.
Different countries have chosen widely different strategies to deal with the past including prosecutions in one hand and, truth commissions and other non-punitive approaches, in the other. Although justice is crucial after violations of human rights, it may not be possible or practical. International tribunals are useful, but they are not the full solution. They are hugely expensive and can try only a small group of perpetrators, the most “responsible”. Ironically, many times, those who are tried are not the most responsible but the most “available” in the country. Therefore, justice becomes extremely selective and seems to be the way of granting de facto amnesty to those who fled the country and those responsible. Then come the necessity of other non-judicial mechanisms such as truth commissions not as a panacea for all the challenges of transition, or an alternative, but as a complement way to be used by broken societies, in order to bring the benefits of justice to the victims and to the political culture.
However, this is challenging and there are always tensions between the requirements of the criminal justice system and those of non-punitive approaches to gross and systematic human rights violations. Rightly, Charles Villa-Vicencio pointed out that, “the tension between justice and reconciliation and revenge, prosecution and amnesty is grounded as much in principled debate as in a tug-of-war between deep emotions, unresolved memories and uncertain futures. It is a tension that is best not collapsed into an attempted neat synthesis of a complex set of contradictions. The contradictions need to be sustained. The demands of the one side need to impact on the other. It is through honest encounter that opposing groups stand the best chance of knowing that they need one another. It is then that new possibilities begin to be imagined-and sometimes realised [2].
DOMESTIC TRUTH COMMISSIONS AND PROSECUTIONS: REACHING FORWARD
Truth Commissions are established to officially investigate and provide an accurate record of the broader pattern of abuses committed during repression, civil war and unjust periods. There have been more than thirty truth commissions worldwide, including in Sierra Leone, DRC, Morocco, and more importantly South Africa. “Truth commissions today”, according to Jose Alvarez, Professor of International Law at Columbia University, “are inescapable tools in establishing the truth of past crimes and a means for victim recompense and instruments to promote peace and reconciliation.”
Most recently, the United Nations Secretary-General’s report on “The rule of law and transitional justice in conflict and post-conflict societies” praised them as “a potentially valuable complementary tool in the quest for justice and reconciliation” and in “restoring public trust in national institutions of governance [3]”. The increased interest in truth commissions is, in part, a reflection of the limited success in judicial approaches to accountability, and the obvious need for other measures to recognise past wrongs and confront, punish or reform those persons and institutions that were responsible for violations. Successful prosecutions of perpetrators of massive atrocities have been few, as under-resourced and often politically compromised judicial systems struggle to confront politically contentious crimes. With an eye on building a human rights culture for the future, many new governments have turned to mechanisms outside the judicial system to confront, as well as learn from the horrific crimes of the past [4].
However, a truth commission should at the same time never be allowed to circumvent international human rights law or, more specifically, to ignore the punitive demands of the criminal justice.
Related to the South African case, where there was a Truth and Reconciliation Commission (TRC) with a possibility to grant a conditional amnesty [5] in exchange of a full disclosure and shown remorse, could we say according to the Rome Statute that, the TRC decisions or proceedings were taken for the purpose of shielding the person concerned from criminal responsibility?
One should take into account and acknowledge that the South African TRC was democratic and genuine. The purpose was not to shift or to hide someone or a group from prosecution. It was in the interest of peace, reconciliation, etc. In my view and for many others, the South African TRC was not there to shield perpetrators but to seek the truth for national reconciliation. South Africa acted in good faith; the TRC was established by the best efforts of negotiators to end violations of human rights. This is justice, to my view and I may say in the interests of the entire country/society, not in the interest of prosecuting some few and not others, and still walk free as if they were granted de facto amnesty.
Emphasising this argument, Juan Mendez, stated that:
“In most parts of the world, the South African example stands out as an attempt to achieve reconciliation and forgiveness without impunity. Others decry the fact that most perpetrators of the worst crimes of apartheid did evade justice. In my view, however, the South African exercise with truth, justice and reconciliation is notable for its insistence on hearing the victims, consulting with all members of society, allowing participation by all stakeholders, and conducting the exercise in complete transparency. It is in this sense that the South African example continues to inspire all those who decide to turn a page in a country’s history without forgetting the plight of those who suffered [6].”
Therefore, we may pause with Naomi Roht-Arriaza that, if perpetrators appear before an independent and democratic truth commission that hears applications for conditional and accountable amnesty, they should not face prosecution by the ICC. In this case, amnesty (conditional) is granted for the purpose of domestic reconciliation and not to shield him/her/(the perpetrator) from criminal prosecution [7]. However, can all truth commissions have the same purpose of not shielding perpetrators? It is important to draw the line in order to avoid some contradictions between truth commissions and prosecutions. The next point will deal with that.
THE QUESTION OF ADEQUATE TRUTH COMMISSIONS IN ORDER TO COMPLY WITH INTERNATIONAL STANDARDS
We should ask ourselves if all truth commissions should be considered as genuine and serve the interests of the country. As we may know, in some countries the purpose of a truth commission may be not genuine and reasonable. This is challenging and it will be useful to deal at the case-by-case level. Rightly, Professor James Crawford of the University of Cambridge has said in relation to Article 17 of the Rome Statute:
“I think there is a question about truth commissions, because you can’t say a priori which ones are a reasonable response to the situation, and which ones are a cover-up. It’s going to require extreme care by the prosecutor. There may be some problem there with the capacity to subvert those processes if they are reasonable, and we’ll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don’t necessarily involve prosecutions of individuals, so there’s no reason why the principle of complementarity ought not to cover an appropriately constituted truth commission [8]."
Moreover, Charles Villa-Vicencio, talking about truth commissions states that: “… They demand fewer resources than courts and, if designed properly, can provide some accountability [9].” Using the words such as “if designed properly”, meant that we may find some not properly designed and therefore, the need for benchmarks in order to comply with international law. Can we say that the South African TRC was able to provide accountability and was consistent with international law?
Despite some few critiques, the South African TRC is internationally recognised, and has been favourably endorsed by numerous international human rights organisations and commentators. The TRC was passed pursuant to a valid Act of Parliament and imposes a form of public procedure and accountability for the actions of perpetrators. It was the country's decision in favour of peace. This is not impunity because there was political consensus in South Africa that getting as much of the truth out as possible and having fewer, but more effective prosecutions, was a just result. Given that, this was what the majority of the public wanted, that is not impunity.
In this line, speaking on the relationship between the prosecutorial mandate of the ICC and the amnesty administered by the South African TRC, the Secretary-General of the United Nations has observed:
“The purpose of the clause in the Statute (which allows the Court to intervene where the state is ‘unwilling or unable’ to exercise jurisdiction) is to ensure that mass-murderers and other arch-criminals cannot shelter behind a State run by themselves or their cronies, or take advantage of a general breakdown of law and order. No one should imagine that it would apply to a case like South Africa’s, where the regime and the conflict which caused the crimes have come to an end, and the victims have inherited power.
It is inconceivable that, in such a case, the Court would seek to substitute its judgement for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future [10]”.
As noted, the South African TRC has been recognized and even endorsed as a valid means of dealing with crimes arising out of apartheid [11]. Moreover, state practice [12], international jurisprudence [13] and authors [14] confirm that the Rome Statute does not preclude a state from utilizing amnesty as an effective means of prosecution. However, what about the Congolese TRC?
In assessing if the Congolese TRC met some minimal requirements to approach legitimacy under international law, one can point out that the Congolese TRC was not created and operated transparently in order to sustain democratic legitimacy. There was a clear lack of citizen involvement in the creation and functioning of the TRC, and openness to ensure domestic legitimacy. There was no endorsement of the TRC and its work as a mechanism of transitional justice. Moreover, there are many critiques because commissioners came from different factions, and were not chosen by means of a process, which tried to ensure a democratic spirit and practice, and transparency. Therefore, it seems that the purpose of such a commission, was to be a “Truth Omission” instead of a “Truth Commission” and cannot encounter support by the international community [15].
In order for truth commissions to merit international legitimacy, Professor Crawford suggested that one possible test would be whether the procedure in question had been freely ratified by the successor regime, “so it’s not just a way that the generals can sign their amnesty on the way out of the door [16].” And for that, Charles Villa-Vicencio [17] helps us by saying that truth commissions needs at a minimum to incorporate the following:
- There needs to be convincing evidence that the majority of citizens endorse the provision as a mechanism of transitional justice; - The disclosure of as much truth as possible concerning the gross violations of human rights; - Accountability of those responsible for gross violations of human rights, recognising that this need not to be in the form of retributive sentencing by the state; - A mechanism needs to be put in place to provide a form of relief or reparation to victims whose rights are suspended by a qualified amnesty provision; - The suspension of prosecutions in a transitionary situation should not be a pretext for the abrogation of other requirements of international law; - A forum in which victims and survivors may tell their stories and questions; - Prosecutions should remain an option both during and after the TRC against those perpetrators who did not adequately participate in the process.
Although we agreed with Charles on these criteria, the last one seems not to be consistent. Truth commissions are not alternative to prosecutions, all are two sides of the same coin and should be used complementarily but sequencing for their success. Saying that “prosecutions should remain an option both during and after the TRC against those perpetrators who did not adequately participate in the process” seems to be too simplistic and could undermine the entire effort to heal the wounds of the nation and to fight against impunity.
In addition to satisfying the above minimum criteria for international legitimacy, a Truth commission should also be created and operated transparently in order to sustain democratic legitimacy. Citizen involvement in the creation of a truth commission, and openness to media coverage of its operations, are necessary to ensure domestic legitimacy [18]. And Juan Mendez put it clearly by saying:
“There are two conditions of legitimacy that we should insist upon for any program of transitional justice. First, transitional justice policy should be developed as part of an open, democratic debate, which includes consultation with and participation of the relevant stakeholders and full transparency of decisions. If decisions about how to reckon with the past are adopted exclusively by the parties to a conflict, without appropriate consultations with the victims of abuse or with society at large, the result will almost always generate dissatisfaction and rejection. Second, transitional justice policy should be contemplated in as comprehensive and holistic an approach as possible. This is not only because there will always be an ‘impunity gap’, meaning that many cases of abuse will not be resolved by trials, thus generating the need for a broader treatment of the universe of violations. It is also because the emerging principles in international law … establish that the obligations of the State are four-fold: to prosecute perpetrators, to unearth the truth, to offer reparations to victims, and to reform abusive public institutions [19].
CONCLUSION
In many transition periods two methods are used to establish record of grave human rights crimes following a conflict/war: prosecutions at national or international level and truth commissions with various names, which investigate situations and submits reports. Both of these two methods are not sufficient and therefore, the need to complement each other.
There is a growing demand for transitional justice mechanisms such as truth commissions, around the world. The problem however, it is to test if all those mechanisms imply good faith. Is the effort designed to generate more truth, more justice, reparations, and genuine institutional reform? If so, they are welcome. If the objective is to evade the State’s and society’s legal, ethical and political obligations to their people, they should be rejected. The answer should be found in the design of the process itself, but also in the degree of participation, consultation, and transparency that surrounds them (e.g. of South Africa).
Moreover, we should start by avoiding seeing truth commissions as an alternative to prosecutions. Even if many of them have been accompanied by grants of amnesty to the major perpetrators of human rights crimes, viewing truth commissions, as substitute for prosecutions is not a right way and can lead to contradictions. Therefore, we should try to consider truth commissions as complementary to national and international prosecutions, not to substitute them. They are two sides of the same coin: transitional justice. However, the processes must be sequenced in a way that one does not affect the effectiveness of the other. Accordingly, Scharf has said, “a country should not rush ahead with prosecutions at the cost of political instability and social upheaval or that every single perpetrator must be brought to justice, an impossible task in most countries that have experienced widespread human rights abuses. By documenting abuses and preserving evidence, a truth commission can enable a country to delay prosecutions until the international community has acted, or the new government is secure enough to take such action against members of the former regime [20].”
Furthermore, it may be useful to examine the utility of conducting prosecutions after Truth commissions as a means of uncovering more “truth” that was not revealed through the process. Because, like in the South African case, if those people who did not apply for amnesty or those whom the amnesty was refused, do not face trials, someone could say that there is de facto amnesty and therefore, the purpose of a TRC was just to shield some perpetrators. In this hypothesis, the process will violate the international law and will not be in the interest of justice (society as a whole). So, we should look on the possibilities to trials for those persons in order to avoid impunity, contradictions and allow the roots of a just society to take hold.
*Yav Katshung Joseph is a Human Rights lawyer and Lecturer at the Faculty of Law, University of Lubumbashi, Democratic Republic of Congo. ------------- NOTES
1] Tina Rosenberg, “Afterword: Confronting the Painful Past”, in Martin Meredith, Coming to Terms: South Africa’s Search for Truth, 1999, p 328
2] Charles Villa-Vicencio, “Reconciliation as Political Necessity: Reflections in the wake of Civil and Political Strife”, p.3
4] Priscilla Hayner, Same species, different animal: how South Africa compares to truth commissions worldwide, in Charles Villa-Vicencio and Wilhelm Verwoerd, “Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa” UCT Press, 2000, p34-35
5] Boraine, Alexander, “Amnesty in exchange for truth: Evaluating the South African model” in “A country Unmasked” Pgs 258-275
6] Juan E Mendez, “Transitional Justice in Historical Perspective”, Outline, Somerset West Conference, March 28, 2005 Inaugural Address
7] Naomi Roht-Arriaza, “Amnesty and the International Criminal Court”, International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Ardsley, New York: Transnational Publishers Inc., 2000) at 79.
9] Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, Pieces of the Puzzle: keywords on reconciliation and transitional justice, Cape Town, pp.89-90
10] Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, op.cit, p 91
11] Kader Asmal, International Law & Practice: Dealing with the Past and the South African Experience, 15 AM. U. INT.’L L. REV. 1211, 1228 (2000).
12] Azanian Peoples Organization (AZAPO) v. The President of the Republic of South Africa, 1996 (4) S.A.L.R. 671, at 30 (South African Constitutional Court);
13] Prosecutor v. Tadic, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1-AR72 (Oct. 2,1995) at 6
14] Leila Nadya Sadat, Universal Jurisdiction, National Amnesties, and Truth Commissions: Reconciling the Irreconcilable, in Stephen Macedo, Universal Jurisdiction: National Courts and the prosecution of Serious Crimes Under International Law (2003); Scharf, Amnesty Exception, supra note 33; John T. Holmes, The Principle of Complementarity, in 41-79 The International Criminal Court: The Making of the Rome Statute (Roy S. Lee., ed., 1999); Michael P. Scharf, Swapping Amnesty for Peace: Was there a Duty to Prosecute International Crimes in Haiti?, 31 TEX. INT’L L.J. 1, 4-5 (1996).
15] Critiques reside especially in the way of nomination and the issue of openness by involving civil society and other parties.
17] Charles Villa-Vicencio, Truth Commissions, in Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, op.cit., p 92
18] See Andre du Toit, “The South African Truth and Reconciliation Commission (TRC): Local History, Global Accounting”, in Politique Africaines 92 (2003), p7
19] J. Mendez, 1997. “Accountability for Past Abuses”, Human Rights Quarterly, 19, pp. 255- 282.
20] Michael P. Scharf, “The Case for a Permanent International Truth Commission”, in Duke J. Comp.& Int’Law, Vol.7:375, 1997,p399
A decade ago, I was in a pannel on Truth Commissions with the then South African ambassador to the Netherlands, who was describing the work of the SA TRC. He said that the granting of amnesties by the the TRC was a compromise arrived at, so that the country would not fall into civil war. In other words, it was amnesty or violence.
I don't know if this was indeed the case, but I have no reason to doubt him. In that case, it seems to make very little sense to copy a model that was imposed to begin with.
It also bears repeating that amnesties for gross human rights violations or crimes against humanity are violations of international law. And if the state violates the law, how can it ask anyone else to respect it?
The International Criminal Court (ICC) issued warrants of arrest for Kony and four other Lord’s Resistance Army (LRA) commanders - Vincent Otti, Raska Lukwiya, Dominic Ongwen and Okot Odhiambo - accusing them of carrying out massacres, mutilating their victims and kidnapping thousands of children to be used as fighters and sex slaves. Now, two years on, it finds itself at odds with Uganda's government, which first referred the case to it, but is now offering the rebels amnesty and protection if talks succeed. [2]
This brief examines this dispute and seeks to locate the debate about peace and justice in Northern Uganda.
Defining Justice
Defining justice is a difficult task. Is it justice in the narrow sense of criminal justice, or justice in the broader, restorative, sense? Talking about “justice”, one should note that it is a flexible concept. Justice in situations of transition is not self-defining. It is about what is required and what is possible in a given situation. There are different kinds of justice: retributive justice, deterrent justice, compensatory justice, rehabilitative justice, exonerative justice and restorative justice. [3]
Each has a time and a place in a given situation and no one model of justice covers all needs.
"Mato Oput" as Restorative Justice
It is important to note that restorative justice views crime essentially as a violation of people and relationships between people. Its primary objective is to correct such violations and to restore relationships. As such, it necessarily involves victims and survivors, perpetrators and the community, in the quest for a level of justice that promotes repair, trust building and reconciliation. It draws attention to the need to create a milieu within which all those implicated in crime come to realise the need to uphold the principles of the law, co-operating in an endeavour to discern the best way to achieve this. [4]
In other words, restorative justice is concerned with resolving crime and conflicts. It focuses upon the end result (harmonious community relations) and it is characterised by community participation that involves both the victim and the perpetrator, with a view to restoring rights that have been abused.
In fact, Mato Oput, which in the Acholi language literally means "to drink a bitter potion made from the leaves of the ‘oput’ tree" is one of the mechanisms for forgiveness and reconciliation among the Acholi people in Northern Uganda. The drinking of this bitter herb means that the two conflicting parties accept the bitterness of the past and promise never to taste such bitterness again. The payment of compensation follows the ceremony. The victim or his/her family is compensated for the harm done, for example, in the form of cows or cash. Is such kind of compensation is enough to satisfy people? It is believed by many Acholi that Mato Oput"can bring true healing in a way that formal justice system cannot.” [5]
It doesn't aim at establishing whether an individual is guilty or not, rather it seeks to restore marred social harmony in the affected community.
The question of using Mato Oput for gross violations of human rights: The Kony’s Case
The referral of the Northern Uganda conflict to the ICC in December 2003 and the subsequent issue of warrants of arrest for Joseph Kony and other four high-ranking LRA commanders, [6] have sparked considerable controversy in Uganda and in the international sphere. Not everybody welcomed these arrest warrants. On the one hand, proponents of prosecution argue that individuals who commit crimes against humanity should be punished for the sake of justice.
They say that it would be unprincipled - as well a dangerous message worldwide - for the prosecutor to submit to the demands of armed thugs who have been maiming, raping and killing with impunity. On the other hand, opponents of prosecution argue that the ICC should give peace a chance, as it is more important to save civilians than to judge perpetrators. Moreover, withdrawal by the ICC would not mean the end of accountability, they argue, but the beginning of indigenous justice processes.
This group prefers traditional justice to the ICC, and argues that modern justice will have a negative impact on the peace process in Northern Uganda. For them, the arrest warrants would make further peace negotiations impossible. This is a typical case of balancing peace and justice as the trend in Uganda now, is how to use the traditional form of justice named Mato Oput instead of the ICC.
Barney Afako (2002) states that: “The unacceptably high costs of civil war have caused Ugandans to re-assess approaches to resolving conflict. Among the Acholi of northern Uganda, the bitter experience of unending conflict has generated a remarkable commitment to reconciliation and a peaceful settlement of the conflict rather than calling for retribution against the perpetrators of serious abuses… This call for amnesty was underpinned by their faith in the capacity of the community and cultural institutions to manage effective reconciliation even against the background of serious offences. Many conflicts yield meaningful distinctions between victims and perpetrators. Yet the majority of Acholi recognize that most combatants in the LRA were forcibly abducted and have themselves been victims. This generates the realization that anyone could be subjected to the conditions that produced the perpetrators of the crimes experienced in the conflict. Combined with a profound weariness with the war and the suffering it has caused, this creates a moral empathy with the perpetrators and an acknowledgement that the formal justice system is not sufficiently nuanced to make the necessary distinctions between legal and moral guilt. As a result, most Acholi have decided to promote reconciliation through traditional mechanisms, rather than a retributive understanding of justice, to create conditions to end the war and reintegrate the community.” [7]
However, there are always tensions between the requirements of the criminal justice system and those of non-punitive approaches to gross and systematic human rights violations. Therefore, one could ask if the Mato Oput is an attempt by Uganda to justify or disguise impunity?
Answering to this question one should test if this Mato Oput mechanism implies good faith. That is true because restorative justice employs integral responses that focus upon redressing the harm to the victims, holding perpetrators accountable for their actions and engaging the community in a conflict resolution process. It is highly participative, is forward-looking and is based on values of respect for all participants and community empowerment.
Is the Mato Oput designed to generate more truth, more justice, reparations, and genuine institutional reform? If the objective is to evade the State and society’s legal, ethical and political obligations to their people, it should be rejected. If not, someone could say that the purpose of this Mato Oput mechanism is just to shield some perpetrators (Kony and others). In this hypothesis, the process will violate international law and will not be in the interest of justice (society as a whole).
Therefore, the answer should be found in the design of the process itself, but also in the degree of participation, consultation, and transparency that surrounds this Mato Oput mechanism.
How to conclude?
We conclude with a quote from Juan Mendez that “We need to be careful to counter attempts to disguise impunity with fanciful adjectives. ‘Restorative justice,’ for example, is a concept that in its proper setting is valuable and does have its place in a transitional justice policy. [8] Often, however, the term ‘restorative justice’ is used to advocate some alternative to criminal justice, to honest truth telling and full investigation of abuses. When used in such a way it is no more than an attempt to justify or disguise impunity.” [9] Suffice it to say that the paradox between peace and justice is an open question that we should all try to answer.
References
[1] Tina Rosenberg, “Afterword: Confronting the Painful Past”, in Martin Meredith, Coming to Terms:South Africa’s Search for Truth, 1999, p 328
[2] The ICC has insisted that Kony and four other LRA leaders must face justice, but the Ugandan government says it will convince the Hague-based court to lift the indictment… See UGANDA: Balancing forgiveness with justice. At: http://www.irinnews.org/report.asp?ReportID=55425&SelectRegion=East_Africa
[3] Charles Villa-Vicencio, “Restorative Justice”, in Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, Pieces of the Puzzle: keywords on reconciliation and transitional justice, Cape Town, p.33
[6] See The International Criminal Court, "Warrant of Arrest Unsealed Against Five LRA Commanders," ICC-20051014-110-En, 14 October 2005, available:http://www.icccpi.int/pressrelease_details&id=114&l=en.html They are accused of committing war crimes and crimes against humanity in Northern Uganda since July 2002
[8] Miriam J. Aukerman, “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice,” Harvard Human Rights Journal 15 (2002): 39-97; Pablo de Greiff, “The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted,” in The Age of Apologies, Mark Gibney and Rhoda Howard-Hassmann, eds. (forthcoming).
[9] Juan E. Méndez, “How to Take Forward a Transitional Justice and Human Security Agenda: Policy Implications for the International Community”, Cape Town, April 1, 2005
The road to justice for those of us working in Latin America has been harsh and slow. After a burst of energy after Argentina returned to democracy (which led to the initiation of hundreds of criminal procedures against human rights violators and the sentencing of the top junta leaders), we had blanket amnesties and pardons. The rest of Latin America followed this course, with amnesties appearing everywhere. There were truth commissions, but if they intended to bring reconciliation, what they got was more discord.
So we went abroad. Italy, France, Germany (where it didn't work out) and finally Spain. Then we had the incredible luck of getting Pinochet in England - and though he was ultimately let go, the mere possibility that he could be held accountable for his crimes, reawoke civil society's quest for justice in the whole continent. It's been a slow march since, but there were 190 sentences for human rights violations in Chile in the last few years. In Argentina I don't think we've gotten 5 (though there are 4,000 open cases). But the Argentine Supreme Court ruled recently that pardons for gross human rights violations and crimes against humanity violate international law, and are therefore inapplicable, a first. This week the first case for forced disappearances started in Guatemala. Peru is trying Fujimori, a constitutional president, for forced-disappearances. Uruguay has done the same with a military president. It's slow, very slow, but we're getting somewhere. And as I said before, it's better late than never.
Hopefully, countries like Kenya who are dealing with recent human rights violations won't have to wait so long.
It would be great if TRC's could also deliver justice, but unfortunately that doesn't seem to accord with the reality of most transitional settings. I agree that the potential contribution that a TRC can make is often confused and sometimes destroyed by mixing it up with justice- and especially with amnesty. Advocates who align themselves as pro or contra TRC's on the basis of favouring truth or justice often make it more confusing, as clearly, I think, we are looking for truth and justice. I continue to come across situations in which potential TRC's are overly influenced by the most well known model of South Africa, the exceptional case where justice was part of the model, and consequently transfer the idea of including amnesty as part of the process. Recent examples are the draft law for a TRC in Nepal, the draft law for a national TRC in Indonesia (struck down by the Constitutional Court but now resurfacing, again with amnesty provisions) and the Indonesia-Timor Leste Truth and Friendship Commission, which also has power to recommend amnesty.
In fact the vast majority of TRC's have focused on collecting the stories of victims and witnesses and writing up the findings which are supported by the information collected. Their operations have very little to do with perpetrators, who have little motive to be involved. Most post conflict situations do not have a group of perpetrators already in prison who are motivated to particpate by seeking their own freedom, as was the case in South Africa. The political reality also often means that powers such as search and seizure and subpoena, although theoretically valuable, are fairly impractical as powerful figures are unlikely to comply.
On the other hand, the collection and analysis of large numbers of victim testimonies can produce a record which has enormous weight, public hearings can stimulate an emotional catharsis on a national level, and other victim centred activities of a TRC can promote healing between individuals and factions. All of this can also lead to a broader recognition for the need for justice, but it oftern takes some years to germinate the seed.
[Posted by Patrick Burgess, current Asia Director for ICTJ)
We in Asia are following closely the experiences (and slow unfolding story on getting justice) in Latin America for our own source of experience. In Indonesia, President Soeharto's regime fell in 1998 but the old machinary is still intact. Ten years later, we have had not a single succesful conviction of perpetrators for serious crimes (except for one militia leader from East Timor convicted for crimes against humanity) despite a number of (unfair) trials. The mass killings and detention of 1965 (some say 500,000 to 1 million killed, and another 1 million imprisoned without trial for many years) is still completely denied by the state. So the work for truth and justice is long and trechearous and the opportunities seem to get smaller and smaller.
Indonesia had a law establishing a TRC but it was annulled by the Constitutional because some of its articles were against human rights principles (such as victims can get reparations when their perpetrators are given amnesty!) But the surprise part of the decision was that they did not strike down the problematic articles but then declared the whole thing annuled. And also now we have a flawed process with the Truth and Friendship Commission [TFC] for Indonesia and Timor-Leste (which I describe above). So even a little bit of truth is a highly contested process.
That is why it is very inspiring to read and hear about the slow but sure efforts in Chile, Argentina, it gives us a bit of hope...at a time of complete impunity.
During the three years I spent working on the East Timor TRC (the CAVR), I worked closely on a program which took a novel approach to the issue of justice vs truth. We were faced with a similar situation to that which was referred to in the dialogue yesterday in the Liberian context, in which the local legal system had very little capacity to provide justice. The UN had established the Serious Crimes Process, which eventually prosecuted over 80 ‘small fish’ (ie East Timorese militia members.) The ‘big fish’- mostly Indonesian military officers- had escaped over the border to Indonesia, where a subsequent judicial process resulted in 17 out of 18 charged being acquitted. However, the challenge of maintaining peace involved finding some solution for not only serious crimes but the many thousands of ‘lesser crimes’-burning houses, beatings, looting etc, which had been committed by members of the same communities as the victims. The struggling legal system, including fledgling police service, prosecutors and courts, could not keep up with even newly committed serious crimes such as murders, let alone these thousands of past, conflict-related less serious crimes, and the international eyes were focused on the elusive ‘big fish.’ In that context it seemed that nothing could be done about the less serious crimes, but in fact the anger over these acts threaten to ignite hundreds of communities in which the perpetrators and victims had previously lived together in peace.
In this context the TRC (the CAVR) did fulfil a very important function directly related to justice. It carried out a program called the Community Reconciliation Procedures, in which perpetrators of ‘less serious crimes’ (not murder, rape or torture) volunteered to take part in a process in their local villages, presided over by a Panel of local leaders and involving traditional spiritual and dispute resolution practices. The perpetrators were required to admit their crimes, face the victims and community and ask for forgiveness. The community and victims were able to ask questions, and eventually a solution was sought in which the perpetrators agreed to do some community service work or pay modest compensation to the victims. This agreement was registered with the court and when the work or payment was completed immunity from further legal action was established.
Approximately 1500 cases were completed in this way, over 18 months. When the program closed an additional 3000 individuals wanted to participate but could not. What was the motivation of these perpetrators, in a context in which there was actually no practical threat, no ‘stick’ from the dysfunctional legal system? The ‘carrot’ was the opportunity to explain themselves to their communities, to state not only what they had done but what they had not done (and thereby dispel rumours), to apologise, and ask for forgiveness. This allowed them to be received back into the community again, it was their ‘key’ to the door, painful, embarrassing, shaming, but necessary. And very importantly, as groups of perpetrators participated in the same communal hearings, it gave the communities a chance to examine the conflict as a whole. Each hearing was followed by a celebration, funded modestly by the commission, which was also extremely important.
Many criticisms could be leveled at this process. Purists claim the perpetrators should all have been tried and punished, that the ‘community service’ and compensation resembled amnesty as it was too lenient, that the perpetrators should have all have received legal counsel and representation first, that the victims did not receive sufficient reparations etc etc. I agree, in a perfect world, yes all of these should happen. But Timor, like so many other situations in the post conflict years, bears very little resemblance to a perfect world. In the end, in the heavy mud of trying to bring perpetrators and victims together in a context of anger, suspicion and hatred, the CRP’s provided an important, limited and partial solution. It worked in Timor because it was designed for Timor, shouldn’t be transplanted or copied as a whole, but the principles could provide some guidance for some other very imperfect but important partial solutions. It also raises the possibility that TRC’s can also create quite different processes for each different setting, in order to respond to the local context and challenges.
[Posted by Patrick Burgess, current Asia Director for ICTJ]
While it's true that tribunals are not necessarily the best tools for arriving at collective truth, and they don't necessarily give everyone the opportunity to tell their story - they sometimes can perform these functions even better than truth commissions, if for no other reason that they sit for longer.
For example, the criminal procedures against Argentine military in Spain involved hundreds of victims testifying, both in Argentina and Spain. The trials for truths that took/take place in several Argentine cities also had the same effect. In both cases, the procedures have approached a decade and have resulted in more comprehensive "truths" about the nature and mechanisms of the repression in specific areas that the CONADEP was able to gather. In addition, they have helped to arrive to "individual" truths, as to the likely fate of many of the disappeared. Plus in the Spanish case, the procedures led to a conviction and a ruling that foreign courts not only had universal jurisdiction over international crimes, but that they also could and should apply the figure of crimes against humanity internally. Its political and judicial effect will - IMHO - be great.
In this day and age, moreover, there are other methods for victims and witnesses to offer their testimony than truth commissions. The internet itself allows them to publish their testimony online and makes it available to much larger audiences than the unwieldy volumes of truth commissions do. Televised trials put at least some testimonies in front of the whole society. One of the things we do at Project Disappeared (http://www.desaparecidos.org/) is give families and victims a forum where to tell their stories. Most of this people have already testified before the CONADEP and sometimes before the courts, but they see value in having their words were practically everyone can access them.
This is not to say that truth commissions are not valuable. As I said before, I think they are essential for discovering and telling the global or collective truth - in particular, as in the case of Argentina, if they come up with a short, user friendly report :-)
The interesting issue of the use of technology for truth & justice work is raised in this discussion. The Liberian TRC has been exploring some innovations in this area, in a strong partnership with Georgia Institute of Technology, a university based in Atlanta, GA, USA. Liberians and others from around the world are able to submit statements online to the TRC: https://www.trcofliberia.org/statements. Moreover, video of TRC of Liberia public hearings are being uploaded to the site and are available for viewing from anywhere in the world: https://www.trcofliberia.org/memorials/video-galleries/video-gallery/pubilc-hearings/. The TRC also is working with GA Tech to develop mobile TRC kiosks that would run on generator power, and would operate with a user interface that takes into account the literacy and language issues in rural parts of the country. The kiosks are designed to take the TRC process into areas that may not have otherwise had access.The use of technology also raises serious issues however, particular with data security, confidentiality, and the ability of anyone to participate without extensive verification of their identity. Also, does the use of technology remove some of the important aspects of a TRC process, involving human to human contact in actively listening to and validating the story of one individual?Laura A. Young, JD, MPH
What an interesting aspect to the TRC process! I'm so glad that you brought this up. I didn't realize that the Liberia TRC was using technology in this way. It's very true that this technology can be very useful and make it easier to collect a large amount of information and interviews, but on the other hand, it brings up privacy and verification issues.
I find the ability to watch videos of the public TRC hearings very attractive. I can imagine that these videos will be an educational tool for human rights activists, stduents and others around the world.
I think collecting data from victims through the internet is an interesting idea, and might be a great starting point at least, from which to carry out more extensive interviews with participants. I hope that the participants know the security and privacy risks of participating through the internet!
-Kristin Antin / New Tactics Online Community Builder
The issue of using technology in the TRC or any justice system is very interesting, it makes it easier to collect significant amount of information and helps the public to get access to testimonies of both victims and perpetrators. However what I am concern about here is the safety of witnesses, It requires a lot of effort to make sure witnesses safety are not at risk. The Special Court for Sierra Leone do have witnesses testimony online, but the testimonies are distorted that no one could easily identify a witness by reading the story, their testimonies do not mention them by names but by TF numbers. In terms of healing, witnesses reported that testifying before their perpetrators helped greatly to move forward with their lives.
The use of technology in this process can be really fascinating.
This is a very interesting area of discussion that you've raised in the dialogue - particularly your question: "does the use of technology remove some of the important aspects of a TRC process, involving human to human contact in actively listening to and validating the story of one individual?"
It does seem that one of the greatest values of TRC processes is exactly this public opportunity for victims to tell their stories; have other people listen to their story; hear the stories of others and know that you are not alone in your loss and pain; and have this process acknowledged on a broad social level.
The technology you describe here, of providing a mechanism to reach a nations' Diaspora community, to reach those in far-flung areas is a great benefit. It seems to me there will need to be a way for these people who share their stories via the electronic kiosks to be provided with concrete proof that their story was recorded - for example getting a print-out of their story. But in addition to that, getting some of concrete result that shows they were part of the larger process and what recommendations and outcomes emerged from being an active participant in that process.
Do you know if there are mechanisms and plans in place for that kind of feedback? For example - will their be some kind of public unveiling?
I was very interested to read Dr. Dan McQuillan's recent blog post on internet.artizans titled '"There ain't no justice, just us" - war crimes impunity in the digital age.' In it, Dan looks at the ever-present issue of impunity for perpetrators of war crimes and gives a few ideas for how digital tech might be used to combat this painful trend. We have seen Ushahidi crowdsource and map instances of violence throughout Kenya after the 2007 elections - but justice for this violence was not guaranteed in this process. As Dan points out in his blog post, "more than 2 years later no-one in Kenya has been prosecuted for the crimes against humanity that it helped to map." How can we use digital technology, crowdsourcing, and other new innovative ideas to bring perpetrators to justice? Dan writes,
"My contention is that the real impact of digital comes from it's catalysis of horizontal process, social action that routes around institutional complicity. Could Ushahidi or something like it be used to convene activities of transitional justice - people-powered initiatives that take on the need to confront legacies of mass abuse? I'm not talking about the real-world equivalent of a Twitter lynch mob but holistic additions to criminal prosecutions that promote accountability and create just and peaceful societies. These would need to be more active than digital memorials. Perhaps we should apply the radical transparency of wikileaks to the archive of the war crimes court for the former Yugoslavia and pipe the results through citizen-up initiatives like we20?...The transparency of the digital age is not just about open data but the surfacing of suppressed histories as starting points for transformation."
What do you think?
Kristin Antin, New Tactics Online Community Builder
The issue of identity is a very difficult one to solve - it's less important when you have a memorial site, like ours, than when you have a judicial or quasi-judicial procedure where truth finding is the goal. But this is a problem that exists regardless. In Argentina, for example, there was a group of people who were disappeared and, while imprisoned in secret detention camps, were co-opted to work for the military authorities. Several continued to work for them even after they were freed, and have given corrupted testimonies to both the CONADEP and the courts. These are not cases in which the identities are a question, just the allegiances.
Encrypting all mail between the witness and the commission can alleviate worries of confidentiality and data security - in particular, in the case of witnesses who don't want to be identified.
Georgia Tech and the TRC are very aware of the data security issues, and I should have made clear that they are using the best available in technology to assure encryption, security, and confidentiality of information.
Reflections on Timor Leste (posted by Jose Caetano Guterres)
Comment originally posted by Jose Caetano Guterres
I would like to start my participation in the new tactics dialog by sharing with you on my experience with trc in Timor Leste. This reflection will be as a respond to the following questions:
What was your goal for using a TRC process? What were the expected or hoped for outcomes?
The goal of the TRC process in Timor Leste was to build peace foundation for Timor Leste to by conducting truth seeking on human rights violations that were happened in Timor Leste from 1974 - 1999. As we aware that Timor Leste has very dificult history that have been destryed relationships during 24 years conflict under Indonesian occupation. So, we need a procees to deal with our past and find ways to build peace as foundation for nation building.
Was this goal achieved? What were the actual outcomes?
This is very dificult question for me to reflect on the TRC process in Timor Leste. I found that TRC process in Timor Leste has rised lots of participatino and expectation of victims, family of victims to a chieve justice as promise. The report was about more then 2500 pages. It was about facts of human rights violations from 1974 - 1999 including 200 recomendations about dealing with past and prevent to not repeating human rights violations in the future. Timor Leste has good dream to build peace foundation as mentioned in number 1 but it has been no outcomes. It was just because since the report hand over to the President, National Parliements and UN up to date The State have doing nothing to the report. It was not debated officialy in the Parliement.
What were the challenges? What were the issues that the process could not address?
How is this affecting what is happening now in your country?I think during the implementation of the TRC process there was no challenges that faced by TRC. I can say that it was success full and victims and family of the victims has very much supporting the process. The only challenges is that this was the first ASian TRC that happened in Timor Leste. It was a new process that happened in a new country like Timor Leste. So we are like doin learning by doing. Even though in the end we feel success because people has been contributed to the process and tell the truth about human rights violations drung 24 years from 1974 - 1999. The other challenges was time. It was because we are dealing with 24 years of conflict but we only got 2.5 years to implement the big mandate of truth seeking and facilitating community reconciliation. But i also think that after the report was hand over another challenges that we are facing was political will from Timorese leadears to debate and implement these recomendations. Also political will of Indonesia and International community that were contribute to the conflict in Timor Leste from 1974 - 1999.
What are the 'lessons learned'? What would you do differently if presented with the opportunity to do the TRC process again?
For time been i think that TRC process is important for Timor Leste to deal with past and to bring justice to the people of Timor Leste. But first we need political will of Timorese leaders and International community to implement the recomendations mentioned in the report. If the leadersd are failed to implement the recomendation it means nothing for victims and we don't need another TRC process again. For me it will just like open wounds but no idea bout how to heal and recovered the wounds. This is a disaster for the Timor Leste.
What are the critiques surrounding this tactic? And how do we overcome these critiques?
The critics was TRC is only a project and it will just finished when it finished. It was then received many critics when the report was not debated or nothing of the report was implemented. For me it will be no way to overcome it it no political will to implement the recomendations.
Was there an international presence involved in the process? Were there challenges in having an international presence? Should there be an international presence? What are the issues surrounding international organizations leading this process versus a strictly indigenous process? How might these issues be addressed for future TRC processes?
During TRC process in Timor Leste i found many international staff presence and involved in the process. It Timor Leste was under UNTAET (United Nations Transitional Administration in East Timor) adminisration. It's also reflected the role of UN and International community during 24 years of conflict. UN have been involved in the process of rezolving Timor Leste's case since 1960's. Even though the international presence was to support in the formation and the implementaion of TRC process. Even the money that were used in implementing the mandat was come from international community. Timor Leste has not given any financial support to implement the project. This is also reflect the independency of TRC in Timor Leste. I think it was right since Timor Leste's case was an international case. So' we need international presence to involved in TRC process. Its also important for implementation of the recomendations in the future.
Who keeps the record of the TRC? It makes sense that whoever that is be the one who at least makes itself available to take more statements. In Argentina, for example, that is the Secretariat of Human Rights.
I think that's the real issue in Kenya. The post-electoral violence has stopped - but there is no reason to believe it will not come back if the underlying causes of the violence are not addressed. In Kenya, the idea is that the TRC would look at the violence and the causes of violence that have occurred since independence - and it would include a special look at the violations of economic rights.
Could a process which gives people the right to express their grievances in a neutral forum be catalystic for creating a context in which these grievances can be addressed (if there is the political will to do it, which is another question altogether)? I tend to think that this process is necessary, but that *now* is not the right time for it. The Kenya National Commission on Human Rights will issue a comprehensive report on this period of post-electoral violence in a few months, which will include recommendations about how to address those historical grievances (I imagine), and we'll see whether they are paid attention to now. None of the recommendations of past committees of inquiry and the like have been acted on.
Sophia (and others), I have a question for you. What is your opinion of the National Commission on Reconciliation and Reparation of Colombia and the work they are doing?
A number of questions have been asked about the South African TRC in the discussion so far. Rather than attempting to answer them directly, though the themes will no doubt re-emerge, I would like to take a step back for a moment linking to Marga's comment. To share what I understand to have been some of the context in which South Africa’s TRC was formulated, promulgated and implemented. The intention is to provide a contextual understanding from which to critically assess the South African TRC as one of South Africa’s mechanisms to constructively engage political conflict and contribute to political transition from in SA’s case, oppressive minority rule under apartheid to democracy.
As you will remember, the TRC was formulated in 1995 during negotiations by political leaders representing political parties who had been engaged in armed conflict for more than 30 years. These were the leaders of Apartheid State and previously banned liberation movement political parties. The background to these public negotiations was years of “secret talks” the State had with the leadership of band political parties spearheading the armed liberation struggle, in particular the ANC. By the mid 1980’s in the face of increasing pressures felt from the armed struggle, the international pressure in the form of sanctions and moral condemnation as well as pressure from the more liberal political opposition corners within the government, Apartheid leaders were force to seek a political solution the outcome of which was unclear.
The objective of these negotiations was to formulate a negotiated political settlement that would establish a path “a bridge” for South Africa a free democratic society based on equality for all, and in so doing shift political power. The negotiations were disrupted by the withdrawal of some political parties, they broke down around a number of vexed questions and were re-engaged and ultimately lasted approximately two years as the political leaders applied themselves (their minds, hearts, values and sense of justice from their various vantage points) to a range of heated and complex questions.
One such question was how to deal with the past. It was these former political enemies who were faced with the task of finding a way to do this that would be acceptable to all sides. A complex question, engaged with at a political level in the context of these negotiations. Agreement was not easy and by all accounts agreement was never reached. Rather it was in the final moments of the negotiation process that a political compromise was brokered. The result was The Promotion of National Unity and Reconciliation Act, Act No 34 of 1995 (www.doj.gov.za/trc/). It was this Act that promulgated the Truth and Reconciliation Commission. The overall objective was to restore the human dignity of both survivors and perpetrators and promote national unity and reconciliation.
Its mandate was threefold:
To establish as much truth as possible about the Gross Human Rights Violations (GHRV) that occurred under Apartheid rule from 1960 -1994. To hold public hearings so that the nature and extent of GHRV suffered is made public and acknowledged.
To provide amnesty to those responsible for these GHRV who meet the criterion for amnesty (full disclosure, acting in accordance to a clear political mandate, being a member of a recognised political organisation engaged in the armed struggle, that the GHRV committed was in line with the intended political objective). To hold public hearings for all amnesty applicants.
To provide support for all those going through the TRC process (statement givers and those appearing in the TRC’s public hearings)
This discussion thus has touched on a range of important and intriguing issues, I would like to focus on two main threads in the current discussion, namely;
What is the role of a Truth Seeking process in managing political conflict?
In what way does a Truth Seeking process need to be part of broader attempts to reach moral, political, social and other goals in order to constructively contribute to the management of political conflict?
Galuh, you have provided an excellent and certainly disturbing example of how a tactic -- such as the TRC process -- can be adapted to promote a goal that is counter to the values and benefits for which the tactic was intentionally created.
As you point out, TRCs are at the center and core a victim's hearing model. The powerful and positive force of TRC processes have been the recognition and empowerment of victims to find their voice, share their experience that builds a collective narrative for a country and community to address the previous status quo of silence and impunity, and plants the seeds for justice, if not actually providing some aspects of justice outright. (As others have already pointed out, the timeline for reaching certain kinds of justice - such as cases reaching conclusion in courts of law has often taken many decades.)
A TRC process that eliminates the accountability back to the victims is an intentional distortion of the tactic. The "truth" in this kind of process is meant to reinforce rather than dimantle the culture of impunity.
Are there counter processes being proposed from other sectors of civil society in Indonesia to balance and address this distortion?
Yes, the human rights groups in both Indonesia and Timor-Leste have been very active on this. In Jakarta and Dili, we held alternative public hearings [at the same hotel / or near the vicinity , on the same day or very near to the time of the "official" hearing] to ensure that the media heard other sources of the truth. I also testified before the CTF talking about the systematic sexual violence that took place in 1999 [then right after me, one of the generals said that what I said was complete lies!] ICTJ also wrote a monitoring report on the CTF [which you can download from our website].
Of course the work of the CTF is not yet finished. Some sources have said that the report will be a good report (ie. finding institutional responsibility) but I think the public hearings have made such damage, in that alleged perpetrators were able to say anything without being substantively challenged --and this was all covered by the Indonesian media. However, if the report is a good report, then it is a small step forward.
I don't know that the strategy for getting TRC's recommendations implemented - provided civil society agrees with such recommendations - is any different that the strategy to make the state comply with its human rights obligation sin general. You advocate for your position using all the activist tools at your disposal: dissemination of information, education of the populace, political activism, appeal to international institutions and other states, etc. Ultimately it's a political struggle, but not different than all the other ones.
And yes, in most cases there is a need for institutional reform. In cases of grave human rights violations, judicial systems have often failed and they need to be reformed. New institutions, such as human rights secretariats, human rights commissions or ombudsmen offices, and other bodies in charge of attending specific types of complaints, need to be created and properly funded and staffed. In the cases where the human rights violations resulted from military coups, the military usually needs to be reformed as well. The same is true of the police and the intelligence services. It's a huge job, and one that the government must undertake, under constant pressure from civil society.
While this is indeed the case, that implementation of TRC recommendations must be advanced using all similar mechanisms available in other human rights advocacy, TRCs have some unique characteristics. For one, there is a sufficient history at this point to make evident to all future TRCs that implementation is the critical post-TRC challenge. Accordingly TRCs can take this into account in their initial mandate, in their planning, and during their work. For example, the legislation establishing the Liberian TRC's mandate contains provision making the recommendations of the TRC "binding" on the government. It remains to be seen what kind of actual impact that provision will have, but it is at least a recognition of this issue in the pre-TRC as opposed to post-TRC era. Moreover, the work of a TRC builds constituencies, through the individual participation in the process, which can be educated about the ongoing need for their participation long into the future. The empowering aspects of the TRC can be transferred into ongoing democratic engagement and investment in the outcome of the TRC process. Finally, TRCs that build networks for outreach within civil society can be mindful of the importance of those networks in the post-TRC era, and build into their work the development of advocacy skills within those networks with the goal of post-TRC implementation advocacy. Easier said than done to be sure, but given the overwhelming evidence of problems with implementation no one should be caught unawares that this is an issue. Including for it in planning processes could be a powerful tool to get a jump start on implementation.
Laura A. Young
Wellstone Legal Fellow The Advocates for Human Rights
It'll be interesting to see to what degree Liberia will put into effect the recommendations of its TRC. Unless the recommendations are rather tepid, I don't see it happening without significant pressure from civil society and international actors. The pressure to maintain institutions as they are is too strong to be overcome by mere legislation without a fully committed government behind it. And governments that start committed to an ideal of truth and justice, do not necessarily stay so when confronted with internal pressure (this was the case in Argentina in the late 80's, when a comprehensive search for justice awoke the ire of the military and the possibilities of another coup - which led directly to the amnesty laws)
Of course, when a TRC is in itself an impunity instrument, those specific dangers will not be there - but any substantial reform will endanger interests who are not likely to take it without a fight.
It is easy to be overly enthusiastic when truth and justice processes start, but it's important to be aware of what the possible misshaps may be. And indeed plan - but as a HR advocate myself, I think that those plans will not come to fruition without the use of the common tools of HR advocacy.
When a TRC's mandate ends, implementation is left to the government, civil society and (sometimes) to the national human rights commission. But TRC recommendations are often unpaletable to the government ,and post-conflict civil society and national human rights commissions may be weak or non-existent. This can lead to slow - or even worse, no - implementation of the TRC's recommendations. There is no question that politicians and civil society should use every tool in their "human rights toolkits" to fight for implementation. But what about those of us outside of the country? Is there a role for us? Shouldn't we help with pushing for implementation of the TRC's recommendations if they are based on international human rights standards and the result of a serious and genuine TRC process? Part of what we are trying to do with the Liberia TRC Diaspora Project is raise awareness in the U.S. about the conflict and the transitional justice process in Liberia, as well as the experience of Liberians in the diaspora. Hopefully, we can use that awareness to generate long-term support from the Liberian diaspora , as well as the American public and policy makers, for implementing the TRC's recommendations.
I may be biased because while my organization works for human rights around the world, and in Latin America in particular, we are based in the US and Europe - but I think the job of being a human rights activist doesn't change based on where you are. The roles of "domestic" and "international" activists - to give them a name - are complimentary, and in the best of world both groups should work together. This should include working to implement the recommendation of the TRC, if those are in tune with their general human rights policy. International activists are particularly good at socializing information to an international audience and lobbying international governments and institutions (and of course, so much the better if they help fund human rights efforts at home) to put pressure on the domestic government to institure the necessary changes.
The work of the disapora should include helping to "round up" exilees to testify before the TRC and thus give it a more complete picture of what happened. For example, there were hundreds of thousands of Chilean exilees during the Pinochet dictatorship - without hearing their story, we can't really say we understand how the repressive apparatus of the Chilean dictatorship worked.
Having read through these posts once I returned home from the weekend, I am aware that there are many ways to work through a truth and reconciliation process. Using technical means offers new possibilities to include in these processes. Yes, it is not wise to begin such an effort while the violence or acts needing to be resolved are still taking place. There is value in the perspective of time. Here in Greensboro, the process began about 25 years after the event. As someone pointed out, we had one particular event which called for reconciliation, rather than ongoing conditions, so it was from a different perspective here than that of others'. That particular event, however, was one result of an ongoing culture of racism and economic injustice, which boiled over at times into major conflicts in our society, violent reactions which simmer and fester until some acknowledgement and resolution occurs. We can't necessarily have full reconciliation with all elements of society, but the movement toward forgiveness, hope of reparation in some cases, and healing a community or a state or nation can be a dynamic and progressive activity. I don't know how our process will reach resolution but none of our situations will find the same tactics and reconciliations, as I read the experiences of others in this group. I am in awe of the courage of the efforts I am reading about here in your comments.
Many in Greensboro have critiqued the T&R process as dealing with ancient history, an event that happened nearly 30 years ago. They argue that this isolated incident in the past has nothing to do with our present relationships. Most of these critiques come from people who have a vested interest in forgetting that past, it alows them to purge themselves of their complicity (or active participation) in the violence of Nov. 3rd, 1979. This critique is built on an assumption about time as linear and progressive. Events that are in the past don't have much to do with the present or future so it's best to just forget, or so the line of thinking goes.
One of the purposes behind creating a TRC here was to dispute this kind of linear understanding of time and to expose how one violent event is connected to a larger history of racist violence that continues to live in the present and, unacknowledged, continues to shape our common future. Just in the last year in Greensboro: the Police Department has been embroiled in a scandal involving racist surveillance of its own officers, an African-American city council member has had to defend herself against a racist attack launched by white members of council, and it has been exposed that the Special Investigations Unit of the GPD destroyed documents related to the events of 79. These are some of the more sensational occurences--the continued negative attitudes toward organizers for social change, the existence of economic and educational disparities between whites and communities of color, and the growing chasm between the rich and poor notwithstanding.
It seems to me that the T&R process provides both an opportunity to address the past, giving particular weight to survivors' experiences (which is of vital importance), as well as to expose the pasts living and vibrant connection to the present. I know there are other groups in the US who are interested in using the T&R model to address events that are even more than a century ago (see the Wilmington Race Riot Commission and Southern Truth and Reconciliation).
I think the T&R process may be a helpful model there too, though it may be highly modified. As Jill Williams has noted elsewhere, it is one tool in the toolbox.
In the Liberian diaspora, there are also people who respond that what happened between 1979 and 2003 is over and done. Why should we dig up the painful past? It won't bring anyone back. Perhaps this avoidance, on the part of victims as well as perpetrators and government representatives, is true for all post-conflict societies. But we have also encountered many in the diaspora who have come forward to give their statements precisely because they believe that the history that the TRC will create won't be accurate without their contributions. Many others have given their statements because they feel they need to speak on behalf of a loved one who was killed; otherwise, their loved one's story will be lost to Liberian history. As a statement taker, I have been deeply affected by the profound courage that so many Liberians have shown in being willing to relive the most horrible experiences in order to give statements in honor of the memory of their loved ones. Many of our statement givers, as well as our volunteer statement takers, have pointed out that there is an unexpected power in bearing witness in this way. It is impossible to bring someone back, but it needs to be acknowledged that it can be important for the statement giver to take this step to ensure that what happened to their loved one becomes part of the country's national history.
Why is it necessary to educate the community about the TRC process? (e.g., regarding mandates, parameters, interaction with other processes such as Criminal Tribunals, etc)It is necessary to educate the community about TRC process for various reasons and these are as follows:
It will simply address all the questions and expectations witnesses and potential witnesses may have about the process. For instance, victims in Sierra Leone expected the TRC to compensate them for their loss. They believed, the TRC was in the position to force the Government to address their concerns. If the TRC had explained at the beginning that, they will only make recommendation to the Government, and that they do not have the power to force Government to act, things would have been clear from the beginning.
It is important for victims to know that, their perpetrators may not face any punishment as a result of their testimonies, however the world would hear their stories and their stories will be acknowledged. This is important because, victims expected the TRC to punish their perpetrators after they have testified. In other to help them understand, the mandate of the TRC must be clear to them before they are invited to testify
Most Sierra Leone where not too clear about the difference between the TRC and the Court, they connected both as one, so as result, it was hard to get perpetrators to show up before the TRC because they thought they would be arrested immediately after their testimonies. For instance, most child ex-soldiers did not testify for the TRC because the mandate was not clearly defined to them at the beginning. This is very important aspect to consider when establishing TRC.
· What do you see as the most positive and / or actual outcomes from your TRC process?
The TRC played a significant role in the rehabilitation and reintegration process, some perpetrators where able to find some of the victims and asked for forgiveness which tremendously helped in the healing process.
What did you personally take away from being involved in the TRC process?
From being involved in the TRC process, I personally felt satisfied with the establishment of the TRC. After reading the final report, I was motivated to help victims and witnesses testify before the Special Court.
What “tips” or “lessons learned” would like to tell others who are considering using a TRC process?
One important aspect to consider is not to have both the TRC and the Court going on at the same time. This may hinder the progress of the TRC especially create fear in perpetrators to come forward and testify before the TRC. Due to administrative delay the TRC was still calling witnesses when the Court issued warrant of arrest of some of the perpetrators, as a result, some of the perpetrators refused to show up before the TRC. Even though they had agreed and were prepared to face the Commission. Sometimes this may prevent perpetrators to talk about the crimes they committed; they might be defensive and uncover the truth.
Q: What do you see as the most positive and/or actual outcomes from your TRC process?
A: The Greensboro community was educated about the Nov. 1979 event, or at least had the opportunity to learn in greater detail about that time. The efforts at that period in Greensboro's history in reference to both racism and to the economic inequalities in textile manufacturing in particular were joined and described in a dynamic and personal manner. The step by step detailing of events on Nov. 3 between the two groups, Klan-Nazi and Communist Worker Party members, were available to the general public in ways not done before -- even with the articles and books that had been written. Not to be discounted also is that this story was told again from a different perspective, and was shared with those who were not living here at the time. Thus the residents of the Greensboro community were educated of this recent past. This year, as we observe the Bi-centennial of Greensboro, it is fitting to have the Commission Report join other local histories.
Q: What did you personally take away from being involved in the TRC process?
A: I lived in a nearby town during the event addressed in the TRC Report. I did keep up with the events, but my understanding was limited to what was described about Nov. 3, 1979 in the Greensboro newspapers. I did attend one of the Commission hearings, the final one, and realized there was a story I had not been aware of through the media reports over the years. Upon moving to Greensboro after the Commission Report, and being invited to participate in the Task Force, my entire understanding and grasp of what lay behind the event and the subsequent repercussions was considerably changed and broadened. Now I am committed to working with the Task Force to develop the opportunities to see this city and area become more than what it has been, in the sense of having community and of working together for justice and reconciliation of all those who live here. Educating the community must be a continuing goal as the population is a changing one. The small efforts toward that by me are simply one piece of bringing reconciliation through acknowledging our past and making our future as a community fruitful and just.
Q: What "tips" or "lessons learned" would I like to tell others who are considering using a TRC process?
A: I believe there are others here who can respond more definitively than I. Because each TRC process is by necessity going to be defined by where it takes place, by the history of the need for such a process, and by those involved, there is no one-size-fits-all. There are, however, important lessons to learn from those who have gone through this process that can be applied. I believe what we have been sharing during this week supplies many of the lessons to be learned, and so I hope somehow this week-long conversation can be put together in ways that are helpful to others who are considering such a process.
As we are right in the middle of the Liberian TRC process, it is too early for us to draw conclusions about the impact. Once we complete the statement taking, the US public hearings and our report to the TRC, we hope to spend some time evaluating the impact of including a diaspora population in a transitional justice process and documenting the model that we have been developing with the Liberian TRC. Each TRC experience is and should be unique, and those who are considering setting up a TRC have a growing number of "lessons learned" to draw upon. It has been an honor for us to contribute in a small way to the development to the field of transitional justice. Hopefully, others will learn from our experience.
You can learn more about the Liberian TRC, including videos and summaries of testimony from the current public hearings phase, at www.trcofliberia.org. More information about the work of our nearly 500 TRC Diaspora Project volunteers in the United States, United Kingdom and Buduburam Refugee Settlement in Ghana, including a 7 minute video on statement taking, can be found at http://liberiatrc.mnadvocates.org/. The Liberian TRC Diaspora Project is only one of many areas of programmatic work at The Advocates for Human Rights. You can learn more about us and how to get involved at www.advrights.org.
The Chairman of the Liberian TRC, Cllr. Jerome Verdier, oftens states that the TRC is only the first step in the long process of reconciliation and accountability. I do believe that both education and implementation of the TRC's recommendations will be critical to long-term peace building in Liberia. The Advocates for Human Rights is committed to continuing to support transitional justice processes as a way to address past human rights abuses and ensure protection against future human rights abuses. This month, we will also publish a new curriculum called Road to Peace: A Teaching Guide on Local and Global Transitional Justice. http://www.advrights.org/Road_to_Peace.html
Kristin Antin, New Tactics Online Community Builder
Hello participants, a community member from Kenya is requesting information on healing communities in Kenya. Please add your ideas and experiences to this request by commenting on this online dialogue:
Comment originally posted by Sofia Macher
The TRC in Peru defined the concept of truth, this framework our work.
Share our definitions:
"Truth" is a story ethically articulated. This is his first major
dimension. The TRC is, as has been said, on human events in which they are
involved will, intentions and the affections of actors, ie deals with
moral facts. But it does, in addition, since the framework of ethical
principles that have presided over its mission from its commitment to
human rights, democratic values, justice, solidarity and honesty in the
conduct of its investigations. The articulation ethics of the story is
thus both its contents and its form: its content, to the extent that the
TRC has interpreted the Developments in the light of the ethical principles identified; his way, in so far as it has pursued, also for ethical reasons, transparency in all
aspects of the investigation. And by the same moral reasoning has deemed
essential to take into account the other dimensions of the concept of
truth.
"Truth" is a story scientifically supported. Many of the investigations
carried out by the TRC had intended to establish a detailed and accurate
record of the acts of violence, the conditions in which they occurred, its
direct participants and the legacy they left behind. In all these cases,
the TRC appealed to experts and the scientific and technical methods more
updated, in order to ensure the greatest possible objectivity: reports
criminological, judicial expertise, forensic anthropology, laboratory
analysis, and so on. But this scientific dimension has been present
equally in the work of analysis and interpretation of the causes of the
incident, then requested the assistance of a wide range of scientists from
different disciplines such as anthropology, sociology, history and
psychology -
And the methodologies available, it has helped to clarify the process in
question. It has thus taken a scientific background to the story ethically
articulated.
"Truth" is a story contrasted intersubjetivamente. For the establishment
of a truth practice, as understood in this report, it was necessary to
clearly hear and process the voices of all participants. The TRC has
placed special emphasis on this aspect of the truth, and therefore has
focused its work on the organization of public hearings throughout the
country. For ethical reasons strictly, it has been privileged testimony
from the victims of violence, compared to which the whole country owes a
debt of justice and solidarity. Additionally, we have arranged with the
direct and indirect participants in those events-military members of
subversive groups, political and opinion leaders, For the purpose of receiving testimony from everyone and hear their versions of what happened.
Finally, the TRC has publicly called on all Peruvians to provide its
contribution to the clarification of the process-what actually has
happened in many ways. As part of its ethical conception of things, and
with the scientific support due, the TRC has verified and evaluated the
participation and the version of the different actors involved. The
resulting story is why "target" in the sense that it is based on a
synthesis consistent and consistent between the experiences of various
actors and the various sources, namely, has an objectivity always open to
new contrastaciones intersubjective.
"Truth" is a story tacking thread narrative terms. The exhibition of the
results of our investigation once contrasting testimony and analysis,
leads the form of a coherent story in which events are linked with each
other. The violent events, for more crude as they are, do not speak for
themselves; the TRC interpreted in the light of the various dimensions
referred to that charge its meaning. The story offered intended, as called
for in the decree, establishing the facts in the context of social and
historical processes to explain them properly. Thus, the story is the
claim not only to register events, but also to explain their causes immediate and remote causes. It also, as far as possible, what has gone responsibilities, immediate and
mediate the process of deterioration in our social life. Having paid
special attention to the voices of the victims, and having collected the
testimonies of many Peruvian and Peruvian eager to contribute to the
reconstruction of our nation, the TRC hoped to be proposing a novel way of
narrating our collective memory. In recommending equally institutional
reforms as a corollary to the report, the TRC hoped to help "maintain
peace and harmony among Peruvians'.
"Truth" is a story emotionally concerned. The facts before us are the work
of human wills, and because they have caused pain and suffering of so many
compatriots, the story that exposes must take into account the emotional
dimension to them lies. And it must take into account not only because it
is present in the actions and intentions that are the subject of our
research, but also because the researchers and recipients of this story we
also we open to understanding through our affections. The truth of which
we speak is, therefore, while moral and emotional.
"Truth" is a story perfectible. The story of the TRC deals with events in
the history of Peru and social processes associated with a memory
conflicting and fragmented. We propose a narrative that retrieving our
memory as a country, it is projected into the future, and should therefore
be continued and enriched with the participation of civil society, the
State and the agencies to be created to monitor compliance with the
recommendations Report. The important thing is that the story itself
contains the criteria for its continued development, we believe that there
will be a place for him always welcome new testimonies of victims still
unknown, as well as new perspectives for analysis or criticism that
contribute to its continued rewriting.
For the articulation above of the different dimensions of the concept of
truth adhered to, the TRC hoped that theirs will be a credible story. It
is not only in the sense of fidelity to the facts, but mainly in the sense
of being credible, credible to all Peruvians and Peruvian. The TRC hopes
that the entire nation is in him a sense of what happened, and to be
recognized both in the explanation of the causes on proposals for
fundamental changes in our social ties.
Sofia Macher
Comment originally posted by marga
Sofía, I agree with much of what you have to say and I think that the work of the Peruvian TRC was admirable. My only criticism is your end result: 9 heavy volumes! I wonder how many Peruvians actually read them and thus had access to the truth the commission uncovered. I know I still haven't made it through all of them :( (but I'm not Peruvian).
While the Argentine CONADEP was not a TRC per se (and the fact that it did not deal with the victims of summary execution or of political imprisonment and only dealt briefly with the causes of the repression, meant that Argentines do not have a whole story of what took place) - it made the right decision in coming up with a report that was concise (only one volume), well organized and well written. This has meant that the report has been widely read, both by its contemporaries and new generations, so that there is now in Argentina an accepted (in most circles) collective truth as to what happened vis a vis the disappearances.
I wish that future truth commissions would take the usability of their product into account and at least publish a well-written tome summarizing their findings in addition to any multi-volume report.
But please, don't let my comment take away from the amazing work you guys are responsible for - including helping create a social context in which justice begins to be possible.
Comment originally posted by Sofia Macher
The Peru TRC produced a summary report ,400 pages, also we produced summaries infive newsletters in spanish and quechua, but, the mayoriy of the people know the final report from the newspapers.
Comment originally published by npearson
I have also heard that in Peru an educational curriculum has been developed to teach young people about the history, process of the TRC and the results. Is this correct? If so, what levels of the educational system does the curriculum reach?
Have there been other ways in which these processes have been incorported into educational systems?
Nancy Pearson, New Tactics Program Manager
Comment originally posted by Sofia Mancher
Sofia
Comment originally posted by Florence
Truth may be only one of the many elements in the pursuit of healing and reconciliation but its importance cannot be underestimated. For example, The creation a TRC in Sierra Leone, South Africa, Chile, Guatemala and the Commssion of Inquiry in Uganda was prompted by the fact that ignoring history leads to collective amnesia, which is unhealthy for the body politic. An unresolved past will inevitably return to haunt citizens. It is only by publicly and collectively acknowledging the horror of past human rights violations is it possible for a country to establish the rule of law and the culture of human rights.
Growing interest in truth commissions has produced little agreement as to their long term impact on a community’s democratic transition, post-conflict peacebuilding operations as well as political and social development. Although most argue they are beneficial, a growing chorus of critics see truth commissions as either ineffectual or dangerous. Despite these developments, it is unclear precisely what effect truth commissions have on transitional societies. Although the range of hypothesized effects has been wide ranging, one of the more common claims is that truth commissions contribute to a better human rights environment in the future. For many, of central import to a truth commission’s mission is to help advance the practice of protecting human rights. The expressed intent of most truth commissions is to lessen the likelihood of human rights atrocities reoccurring in the future. The commission’s work sheds light on past abuses and seeks to end the pattern of impunity. While they do not have prosecutorial power to punish those responsible for past crimes, commissions are designed to reveal how past violations of human rights were carried out. Although truth commissions may provide some accountability for the past, investigations are also intended to generate reforms to prevent a repetition of such behavior in the future.
For a community that has endured violence and conflict to come to terms with its past and to turn to its future, it is essential that the problem of impunity be addressed and the truth of the past be established to would serve as a national catharsis. that will finally result in the establishment of the rule of law and a culture of human rights. The past therefore, should not be abandoned, because a people who do not preserve their memory are a people who have forfeited their history. There can be no reconciliation if people refuse to accept that something was wrong and if there is no acknowledgement of the suffering it has undergone or of the ultimate responsibility for that suffering. The victimized population is often clear about what abuses took place and who carry them out. It should be acknowledged that the importance of truth commissions might be described more accurately as acknowledging the truth rather than finding the truth. The victims must feel that their suffering has been recognised and acknowledged. Perpetrators or beneficiaries of the oppression must also recognise that harm was done and that they benefited from it or were responsible for it. Victims and perpetrators must finally come to a common understanding of the country’s history; reconcile their stories as a basis on which to build a future, what Anjie Krog referred to as justice in it deepest sense. This is especially important in a situation where after a war, neither side has emerged victors and at the end of the coflict there has been no cahnge in government.
In addressing the problem of impunity to intiate true healing and reconciliatiaon, the TRC should take into acount these two measures:
Naming of names of individual perpetrators: This is one way to provide some measures of individual accountability for past violations. This is a powerful instrument at truth commission’s disposal. It addresses the need for full disclosure, justice and even revengeful desire to strip the perpetrator of his normal façade and prosperous future in the aftermath of gross human rights violations. While public identification is neither a criminal sanction nor a civil one, it can have negative effects on the reputation, career and political prospects of individuals.The individual naming of perpetrators and the exposure of their violations constituted punishment through public stigma, shaming, and humiliation. while taking this measure however, the TRC should be caution in making sure that the naming of individual perpetrators does not threaten the establishment of peace and reconciliation or even a new regime and rule of law.
An amnesty that permits prosecution to be foregone must not be allowed for complete impunity. In response to those who claim that the past should be left behind once a conflict is over, the victims of such acts should insist more and more that there can be no justice and no healing of society unless the truth is told, and unless violators are held accountable or confess their guilt and ask for forgiveness and give concrete sign of repentance. A concrete example for failed reconciliation and healing to come forth in a community where amnesty prevented accountability is the granting of blanket amnesty to the Rhodesian (post-colonial Zimbabwe) police and military personnel for human rights violations. Victims and survivors were not consulted, but rather watched powerlessly as many perpetrators of human rights violations went unpunished and even took on key roles within the Zimbabwean Army and secret services. As a consequence the need to forgive and forget was not internalized by the general public. Reconciliation and healing processes are ineffective as long as the vicious circle of impunity is not broken. The nasty reality is that in most post-conflict societies gross atrocities go unpunished, unacknowledged and without redress.
As Predro Nikken once stated; 'There is no doubt that the discovery of the Truth, which is the responsibility of independent persons, destroys that element which, while not useful in itself for eradicating impunity, fulfils at least a dual function. First, it is useful for society to learn, objectively, what happened in its midst, which translates into a sort of collective catharsis. And second, it contributes to creating a collective conscience as to the need to impede the repetition of similar acts and shows those who are capable of doing so that even if they may escape the action of justice, they are not immune from being publicly recognized as the persons responsible for very grave attacks against other human rights. In this regard, even though truth commissions do not constitute punitive mechanisms, they may perform a preventive function that is highly useful in a process of building peace and the transition to democracy.'
By investiagting and establishing the truth about human rights humanitarian law violations truth commssions fulfill the obligation imposed on state by international human rights law to investiaget and punish gross violations of human rights.
The effectiveness of a truth commssion in aiding heling and reconciliation depends on its mandates and how effectively, it can carry out those mandate. Effectiveness is however almost impossible to measure! - Florence
Comment originally posted by Neneh Binta Barrie
It is clear that every victim would want their perpetrators to be punished; however in a situation where there were massive human rights violations, it would be difficult to punish all the perpetrators. This is why I think the TRC process is legitimate and significant to the rehabilitation process. In Sierra Leone, the TRC played a significant role in the rehabilitation process. For instance, some victims expressed how relief and powerful they felt after facing their perpetrators, especially when their perpetrators showed remorse of their behavior. Similarly so, telling the truth is very significant to the healing and rehabilitation process regardless of the fact that most Africans believe in forgiveness, it is important to understand that there will be no forgiveness and reconciliation if the truth is uncovered. For example, the process of bringing both the victims and perpetrators to tell their stories contributed greatly to the rehabilitation process in Sierra Leone. Even though the mandate of the TRC is not to punish the perpetrators, but the fact that there is a mechanism or space for victims and perpetrators to face each other and talk about their experience, can be considered a leading path to justice.Neneh Barrie Sierra Leone
Comment originally posted by Glenda
The South African Truth and Reconciliation Commission was, amongs others, an attempt to document the country's Apartherid history and facilitate reconciliation in a divided society. It is important to rememeber that the Commission's mandate was not to achieve reconciliation but as one ot the instruments established during the transition from oppressive apartheid rule to democracy, to promote reconciliation. Other societies have dealt with their iniquitous past in different ways, some more successfiully than others. The Commission depended on the stories, narratives of both victims and perpertrators. These stories depended on memory.
Human memory is never a collection of fixed, stored data that can be downloaded or accumulated for later use. There are many factors that impact on memory. Social conditions determine what is rememered and how events are recalled. Some thinkers have said that memory is not the same as history and memorialising is different from writing history. Understanding this we are able to distinguish between truth and untruth(lies).
If memory is difficult to unpack or understand, so too is truth. The South African Truth Commission referred to several 'truths' in its seven volume report. Firstly, personal truth which refers to the personal, individual story with the person's own interpretation of events. In this aspect of truth memory plays an important role. The second is factual or forensic truth. Thirdly, social or dialogical truth which is the context within which the personal or narrative truth is understood. Fourthly, a restorative or healing truth. The truth which the Commision had to acquire was to contribute to the healing of the nation and the restoration of the dignity of those who suffered injustice in the past.
While I think it is important to bear in mind that Truth Commissions are not only an attempt to document, remember, uncover the truth, it is also an opportunity to restore the lost dignity of everyone involved in the conflict. The processes and procedures adopted by the commission should be such that particularly the victims feel dignified by the process and that the humanity of perpertrators is restored.
Comment originally posted by jill.e.williams
Glenda,
While I think there is a great deal of merit to Marga's (among others') argument that a "truth and reconciliation commission" is better termed a "truth commission," your points about the need for a commission to adopt procedures that dignify the victims and humanize the perpetrators are good ones. I wonder if you have suggestions for what those procedures would look like concretely? In theory, your comments make perfect sense. In practice, I think there are times when procedures that are designed to humanize perpetrators can feel dehumanizing to victims. These tensions were some of the challenges we faced in Greensboro and I wonder if that was a common experience for other TRCs (or TCs or TJRCs, etc.)?
Jill Williams, Former Executive Director, Greensboro Truth and Reconciliation Commission
Comment originally posted by Glenda
Jill
You ask an importnat question. We knew intuitively while establishing the TRC in South Africa that we had to dignify the victims. I guess we did it in many different ways. Firstly, we were convinced that we needed to start with the victim or human rights violations hearings first and much later in the process start the anmesty hearings. We felt that the anmesty hearings would attract media attention and not give the victims the ' airtime' they deserved.
Secondly,all our hearings were held with the victims ascending onto a stage. They were elevated above that of the audience, perhaps a symbolic way of dignifying them. Unusual for a judicial process remarked one of our leading legal minds in SA, Adv George Bizos. Like a Greek drama, he says with the audience playing the role of a chorus.
Thirdly, during the hearings the victims were not cross examined. We did ask questions of clarity, but in the main gave them the opportunity to tell their story from their perspective. There was a corroborattion process. which was done by investigators and researches- much like in your Greensboro process. We also encouraged them to bring documents, other evidence to the Commission to corroborate their stories. The victims were also supported by the Commission staff called "briefers". Paul and I have written about this and the notebook is available on the New Tactics website. in this process we were conscious of the fact the the testimony could re-evoke the trauma and tried as much as possible to minimise it during testimony.
Fourthly, when requested, we facilitated victim-offender mediation sessions. There were many such requests where the perpetator and victim came together to talk about the violation. Remember that in many of the cases victims and perpetrators came from communiites where they share a culture. So reconciliation between them is/was very important. You may have watched the documentary ' Long Night's Journey into day', a powerful movie about the work of the commission. This does give an insight , in small measure, of our attempt to dignify victims and humanize perpertrators.
I know that we may not have got it right; but at least there was an attempt.
And lastly, it is important to know that there is a relationship between amnesty and reparation. When amnesties are granted, it takes away the right of victims to charge wrongdoers criminally. Adequate reparations are very important. When I talk about reparations, I do not only mean compensation, or the monatary aspect, but an entire package of redress, reparation, restoration, rehabilitation, memorialisation(monument, memorials).
Perpertrators!! tough one. but if we believe that the perpetrator is part of our society then a strategy of reintegrating them into the commuity is an essential aspect of healing traumatised societies. Mozambique and other countries that had long protracted wars have done innnovative work with child soldiers, for example. Guns for skill programs was one such initiative to re -skill thee young men and in the process rehumanise them.
Sofia
Original comment posted by npearson
This deliberation of the Peru TRC over the request to provide a hearing to a perpetrator during a public hearing and decision to provide a different kind of hearing and response to perpetrators is very powerful. It points to the clear vision and goal of the TRC to provide the space and opportunity for victims to publicly declare their experience.
At the same time, the TRC showed its flexibility to provide a different public space for those leaders who wanted to ask the country for forgiveness and provided a separate balanced opportunity for that.
I found it especially interesting that the Commission did not receive any rebuttals from those who had publicly expressed they felt attacked. But when the Commission did provide information about to those who had been identified as violators, a number of them did provide the Commission with information that apparently altered the final report.
I think this kind of adherance to principles while showing flexibility provides a model to the country and communities that is necessary for moving forward.
Nancy Pearson, New Tactics Program Manager
Comment originally posted by pete
Following up on a number of comments in this very useful discussion, I would endorse the general view that the value of truth commissions is that they are created, not with the presumption that there will be no trials, but to constitute a step towards knowing the truth and, ultimately, making justice prevail. Nevertheless, the institution of a truth commission should not be accepted as a substitute for the state's obligations, which cannot be delegated, to investigate violations committed within its jurisdiction, and to identify those responsible, punish them if necessary, and ensure adequate compensation for the victim.
The tension between aspirations for retributive justice for victims of oppression and the practical need for amnesties as a step towards reconciliation needs to be addressed at the outset of reconiliation and truth recovery processes. Drumbl has described this transition:
“Post conflict justice is terribly and terrifically complex. There are no simple solutions. Research suggests that lasting social order in societies roiled by internecine conflict is restored by a ‘forgiveness process’ characterised by truth telling, redefinition of the identity of the former belligerents, partial justice and a call for a new relationship.”
In addressing this tension, the objectives of political reconciliation should, in certain circumstances, as Tom Hadden as argued, be prioritised over punishment for past human rights violations, particularly for those perpetrators not in leadership positions and that any arrangements for amnesties, early prisoner releases or truth recovery processes should be transparent and subject to independent approval or international scrutiny.
I would argue that this utilitarian approach should be adopted and that through this non-prescriptive method of addressing accountability, human rights organisations can make an important and necessary contribution to the pursuit of a sustainable peace.
These pragmatic political considerations need to be included in peacebuilding activities and that resolving the underlying political or ethnic causes is key to ending conflicts.
The experience of Northern Ireland and the use of multiple strategies involving legal and political processes are noteworthy in this respect. As well as entrenching the rule of law by providing human rights and equality guarantees and reforming key institutions such as the police, other 'political' options were developed in Northern Ireland such as the granting of early prisoner release schemes as a way of facilitating the peace process that extended the boundaries of a strict rule of law approach.
For more information on how Northern Ireland is facing up to the challenges of dealing with the legacy of its conflict, see the current issue of the Northern Ireland Human Rights Commission's magazine on this link http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/71/NIHRC_Review_Issue_6_Feb_08.pdf
Comment originally posted by AUmunna
Neneh Barrie, I really understand what you are saying, I quote you,
"It is clear that every victim would want their perpetrators to be punished; however in a situation where there were massive human rights violations, it would be difficult to punish all the perpetrators."
What is the meaning of Justice to Victims?
Crime hurts, physically, financially, and psychologically for weeks, months and even years after the crime occurs. Now this victims leave in the same communities, with their perpetrators. Their perpetrators are in the government in this country they have been hurt.(Like in Liberia)
There must be a place set up after TRC to helps victims cope with trauma and grief, ensures their rights are not ignored within the judicial system, advocates for change that will make a balanced justice system, and implements community programs for violence prevention. In Liberia what is happening, Former president Charles Taylor, is in Hauge and see the amount of money that is just going to his court case. If they can take half of that money and just put it for the victims it will be good. How long will it take to get justice victims in Sierra Leone? There must be fast way to respond to the victims need.
Restorative justice is one way to respond to a criminal act. Restorative justice puts the emphasis on the wrong done to a person as well as on the wrong done to the community. It recognizes that crime is both a violation of relationships between specific people and an offence against everyone the state.
Restorative justice programs involve the voluntary participation of the victim of the crime and the offender and ideally members of the community, in discussions. The goal is to "restore" the relationship, fix the damage that has been done and prevent further crimes from occurring.
Restorative justice requires wrongdoers to recognize the harm they have caused, to accept responsibility for their actions and to be actively involved in improving the situation. Wrongdoers must make reparation to victims, themselves and the community. In Liberia, Prince Johnson is a wrongdoer and is in the government of Liberia. Is that justice? Allowing him to work in the same country he as commited human rights abuses.
I really hate Prince Johnson in the government of Liberia.
There are so many tensions between Victims and Perpetrators in Liberia.
Prince Yormie (or Yeomi) Johnson is a Liberian political and former military figure. He was elected to serve as a senator in the Liberian congress in the historic 2005 election.
Johnson was born in Nimba County, in the east-central interior of the country. In 1990, Johnson was allied with Charles Taylor as part of the National Patriotic Front of Liberia (NPFL), which crossed the border from Côte d'Ivoire and began operations in Liberia on Christmas Eve, 1989. However, an internal power struggle resulted in Prince Johnson leading a faction of fighters which he named the Independent National Patriotic Front of Liberia (INPFL). In spite of ECOMOG opposition, INPFL forces captured most of the capital, Monrovia, late in the summer of 1990, and Johnson's supporters abducted President Samuel Doe at ECOMOG headquarters, the Free Port of Liberia.
Although Johnson has recently denied killing Doe, there is no question that Doe was brutally executed in Johnson's custody on September 9, 1990, as the spectacle was videotaped and seen on news reports around the world. The video shows Johnson sipping a Budweiser as Doe's ear is dismembered. Ahmadou Kourouma also accused Prince Johnson of war crimes (abduction and torture of several Firestone's executives) in his book "Allah is not obliged".
Shortly after Doe's death, Johnson allied with UN-supported ECOMOG peacekeepers in capturing the Liberian capital. Subsequently, Johnson briefly claimed the presidency of Liberia in the fall of 1990. His claims ended following the consolidation of rebel power by his rival Charles Taylor of the NPFL. In an attempt by the weak national government to reconstruct Liberian politics, the INPFL was recognized at a conference held in Guinea, where Amos Sawyer was elected president. However, Johnson was forced to flee to Nigeria in fear of rebel forces supporting Taylor. He returned to Liberia in March 2004, stating his intention to return to politics by running for a senate seat in Nimba County; however, he left Liberia again on 7 April, apparently due to death threats he had received from the country's dominant rebel group, the Liberians United for Reconciliation and Democracy (LURD).
In the October 11, 2005 elections, Johnson contested and won a Senate seat representing Nimba County, despite having a reputation for wartime brutality and having committed gross human rights abuses. He is the chair of the Senate's defense committee.
Can we have him prosecuted in Liberia? How long will take and how much money will the government spend on him? When he is working as Senetor in Liebira where he commited Human Rights abuses. Can his victims get justice? Which type of Justice will the victims get in Liberia? After the TRC after there must be a restorative Justice programs set up in Liberia. Will the government of Liberia really do? Thease are the thing we need to talk about when it comes to setting up TRC in Kenya.
All restorative justice programs have some common elements. They seek healing, forgiveness and active community involvement. The programs can take place at different times after a crime has occurred - sometimes after charges have been laid; sometimes after an accused has been found guilty of an offence.
Some examples of restorative justice programs include:
victim offender mediation;
family group conferencing;
sentencing circles;
consensus-based decision-making on the sentence; and
victim offender reconciliation panels.
Good restorative justice programs have well-trained facilitators who are sensitive to the needs of victims and offenders, who know the community in which the crime took place and who understand the dynamics of the criminal justice system. Did this ever happen in Sierra Leone or any other TRCs in Africa? Will it happenin Liberia after the TRC finish their work? It is not just setting up TRCs but after TRCs what can be done to help us rebuild our countries. These are questions Kenya have to ask.
Agnes M.F. Kamara-Umunna
Radio Producer/Pres
Comment originally published by AUmunna
Have we been able to punish the perpetrators of violence?
Kyle Lambelet, that is a good question you have asked.
In Africa after TRCs is there any perpetrators of violence been punuished?
In South Africa the TRC and its subsequent report have been widely criticized. Many in both the former ruling white elite as well as the Zulu-based Inkatha Freedom Party (IFP) have called the TRC a witch hunt.Many of apartheid’s victims believe the process failed them by both granting amnesties and failing to pay reparations.The minority of TRC supporters, led by Desmond Tutu, former Chairperson of the TRC, argue that the process has been both healing and necessary for the future of a South African society based on human rights. The idea of bringing to justice those within an authoritarian regime who committed human rights abuses during their tenure is not new. The evolution of a human rights paradigm and the development of mechanisms necessary for pursuing justice for the survivors of human rights abuses emerged at the end of World War II with both the Nuremberg and Tokyo tribunals. These tribunals have become the standard by which all others are measured. Duplications have been impossible, in large part due to the nature of the majority of transitions. As a result many varieties have emerged.
With roughly twenty commissions in more than fifteen countries over the past twenty-five years, it is evident that the "commission" has become an important transition tool. There are as many types of commissions as there are types of transitions. Each commission has its own limitations. The South African TRC is but one recent variation, albeit a variation that many viewed with high expectations. The TRC in its inception sought to alleviate the various problems and obstacles encountered by many of the recent commissions, particularly those in Latin America. Because South Africa’s TRC has been seen as an improvement over other experiments, it is legitimate to assess whether or not the goals of the TRC have been met and if this hybrid model has anything to offer other transitioning societies. Thus, two questions are addressed here. Is South Africa’s TRC a viable model for justice and reconciliation in a post-authoritarian society? What advantages and disadvantages does this model present? What can Kenya learn from South Africa TRC?
Neneh Binta Barrie, Was Sierra Leone been able to punish the perpetrators of violence?
Agnes M.F. Kamara-Umunna
Radio Producer/Pres
Comment originally posted by npearson
NOTE: I am taking the liberty of moving Yav Katshung Joseph's comment on Truth Commissions and Prosecutions to within this TRC dialogue so that others will be able to comment on it as well. You can see the two comments placed on his posting by clicking on the link. Nancy Pearson, New Tactics Program Manager
Business and Human Rights, Human Rights Education Exchange, New Tactics Community Members
INTRODUCTION
commissions have been multiplying rapidly around the world and gaining
increasing attention in recent years. They are proposed for different
reasons and driven by diverse motives. They can be used firstly, for
the purpose of national reconciliation and in the interests of the
society; secondly, sometimes they can be used to avoid accountability
or prosecution and merely to shield an offender from justice. Following
recent outbreaks of violence in the aftermath of Kenya's presidential
election last December, stakeholders continue to make strides toward
peace. Parties have agreed among other things to a Truth, Justice and
Reconciliation Commission, which will be established through an Act of
Parliament. The Commission will inquire into human rights violations,
including those committed by the state, groups, or individuals. This
includes but is not limited to politically motivated violence,
assassinations, community displacements, settlements, and evictions. It
will also inquiry into major economic crimes, in particular grand
corruption, historical land injustices, and the illegal or irregular
acquisition of land, especially as these relate to conflict or
violence. Other historical injustices shall also be investigated. The
commission will primarily focus on events dating back to independence,
December 12, 1963 up to February 28, 2008. However, it will as
necessary look at antecedents to this date in order to understand the
nature, root causes, or context that led to such violations, violence,
or crimes. This gives us opportunity to share views on adequate truth
commissions and their relationship with prosecutions.
TENSIONS BETWEEN TRUTH COMMISSIONS AND PROSECUTIONS
Very often, when a country wishes to move from dictatorship to
democracy or from war to peace, various ways may be tried and these
include trials in an international or national court of law and
non-punitive approaches such as truth commissions. Thus, “…a country’s
decisions about how to deal with its past should depend on many things:
the type of dictatorship or war endured, the type of crimes committed,
the level of societal complicity, the nation’s political culture and
history, the conditions necessary for dictatorship to reoccur, the
abruptness of the transition, and the new democratic government’s power
and resources [1].” One may adds the “interests” of the country.
Different countries have chosen widely different strategies to deal
with the past including prosecutions in one hand and, truth commissions
and other non-punitive approaches, in the other. Although justice is
crucial after violations of human rights, it may not be possible or
practical. International tribunals are useful, but they are not the
full solution. They are hugely expensive and can try only a small group
of perpetrators, the most “responsible”. Ironically, many times, those
who are tried are not the most responsible but the most “available” in
the country. Therefore, justice becomes extremely selective and seems
to be the way of granting de facto amnesty to those who fled the
country and those responsible. Then come the necessity of other
non-judicial mechanisms such as truth commissions not as a panacea for
all the challenges of transition, or an alternative, but as a
complement way to be used by broken societies, in order to bring the
benefits of justice to the victims and to the political culture.
However, this is challenging and there are always tensions between
the requirements of the criminal justice system and those of
non-punitive approaches to gross and systematic human rights
violations. Rightly, Charles Villa-Vicencio pointed out that, “the
tension between justice and reconciliation and revenge, prosecution and
amnesty is grounded as much in principled debate as in a tug-of-war
between deep emotions, unresolved memories and uncertain futures. It is
a tension that is best not collapsed into an attempted neat synthesis
of a complex set of contradictions. The contradictions need to be
sustained. The demands of the one side need to impact on the other. It
is through honest encounter that opposing groups stand the best chance
of knowing that they need one another. It is then that new
possibilities begin to be imagined-and sometimes realised [2].
DOMESTIC TRUTH COMMISSIONS AND PROSECUTIONS: REACHING FORWARD
Truth Commissions are established to officially investigate and
provide an accurate record of the broader pattern of abuses committed
during repression, civil war and unjust periods. There have been more
than thirty truth commissions worldwide, including in Sierra Leone,
DRC, Morocco, and more importantly South Africa. “Truth commissions
today”, according to Jose Alvarez, Professor of International Law at
Columbia University, “are inescapable tools in establishing the truth
of past crimes and a means for victim recompense and instruments to
promote peace and reconciliation.”
Most recently, the United Nations Secretary-General’s report on “The
rule of law and transitional justice in conflict and post-conflict
societies” praised them as “a potentially valuable complementary tool
in the quest for justice and reconciliation” and in “restoring public
trust in national institutions of governance [3]”. The increased
interest in truth commissions is, in part, a reflection of the limited
success in judicial approaches to accountability, and the obvious need
for other measures to recognise past wrongs and confront, punish or
reform those persons and institutions that were responsible for
violations. Successful prosecutions of perpetrators of massive
atrocities have been few, as under-resourced and often politically
compromised judicial systems struggle to confront politically
contentious crimes. With an eye on building a human rights culture for
the future, many new governments have turned to mechanisms outside the
judicial system to confront, as well as learn from the horrific crimes
of the past [4].
However, a truth commission should at the same time never be allowed
to circumvent international human rights law or, more specifically, to
ignore the punitive demands of the criminal justice.
Related to the South African case, where there was a Truth and
Reconciliation Commission (TRC) with a possibility to grant a
conditional amnesty [5] in exchange of a full disclosure and shown
remorse, could we say according to the Rome Statute that, the TRC
decisions or proceedings were taken for the purpose of shielding the
person concerned from criminal responsibility?
One should take into account and acknowledge that the South African
TRC was democratic and genuine. The purpose was not to shift or to hide
someone or a group from prosecution. It was in the interest of peace,
reconciliation, etc. In my view and for many others, the South African
TRC was not there to shield perpetrators but to seek the truth for
national reconciliation. South Africa acted in good faith; the TRC was
established by the best efforts of negotiators to end violations of
human rights. This is justice, to my view and I may say in the
interests of the entire country/society, not in the interest of
prosecuting some few and not others, and still walk free as if they
were granted de facto amnesty.
Emphasising this argument, Juan Mendez, stated that:
“In most parts of the world, the South African example stands out as
an attempt to achieve reconciliation and forgiveness without impunity.
Others decry the fact that most perpetrators of the worst crimes of
apartheid did evade justice. In my view, however, the South African
exercise with truth, justice and reconciliation is notable for its
insistence on hearing the victims, consulting with all members of
society, allowing participation by all stakeholders, and conducting the
exercise in complete transparency. It is in this sense that the South
African example continues to inspire all those who decide to turn a
page in a country’s history without forgetting the plight of those who
suffered [6].”
Therefore, we may pause with Naomi Roht-Arriaza that, if
perpetrators appear before an independent and democratic truth
commission that hears applications for conditional and accountable
amnesty, they should not face prosecution by the ICC. In this case,
amnesty (conditional) is granted for the purpose of domestic
reconciliation and not to shield him/her/(the perpetrator) from
criminal prosecution [7]. However, can all truth commissions have the
same purpose of not shielding perpetrators? It is important to draw the
line in order to avoid some contradictions between truth commissions
and prosecutions. The next point will deal with that.
THE QUESTION OF ADEQUATE TRUTH COMMISSIONS IN ORDER TO COMPLY WITH INTERNATIONAL STANDARDS
We should ask ourselves if all truth commissions should be
considered as genuine and serve the interests of the country. As we may
know, in some countries the purpose of a truth commission may be not
genuine and reasonable. This is challenging and it will be useful to
deal at the case-by-case level. Rightly, Professor James Crawford of
the University of Cambridge has said in relation to Article 17 of the
Rome Statute:
“I think there is a question about truth commissions, because you
can’t say a priori which ones are a reasonable response to the
situation, and which ones are a cover-up. It’s going to require extreme
care by the prosecutor. There may be some problem there with the
capacity to subvert those processes if they are reasonable, and we’ll
just have to hope that the institutions within the court take a
sensible view about it. But complementarity extends to covering
internal processes which don’t necessarily involve prosecutions of
individuals, so there’s no reason why the principle of complementarity
ought not to cover an appropriately constituted truth commission [8]."
Moreover, Charles Villa-Vicencio, talking about truth commissions
states that: “… They demand fewer resources than courts and, if
designed properly, can provide some accountability [9].” Using the
words such as “if designed properly”, meant that we may find some not
properly designed and therefore, the need for benchmarks in order to
comply with international law. Can we say that the South African TRC
was able to provide accountability and was consistent with
international law?
Despite some few critiques, the South African TRC is internationally
recognised, and has been favourably endorsed by numerous international
human rights organisations and commentators. The TRC was passed
pursuant to a valid Act of Parliament and imposes a form of public
procedure and accountability for the actions of perpetrators. It was
the country's decision in favour of peace. This is not impunity because
there was political consensus in South Africa that getting as much of
the truth out as possible and having fewer, but more effective
prosecutions, was a just result. Given that, this was what the majority
of the public wanted, that is not impunity.
In this line, speaking on the relationship between the prosecutorial
mandate of the ICC and the amnesty administered by the South African
TRC, the Secretary-General of the United Nations has observed:
“The purpose of the clause in the Statute (which allows the Court to
intervene where the state is ‘unwilling or unable’ to exercise
jurisdiction) is to ensure that mass-murderers and other arch-criminals
cannot shelter behind a State run by themselves or their cronies, or
take advantage of a general breakdown of law and order. No one should
imagine that it would apply to a case like South Africa’s, where the
regime and the conflict which caused the crimes have come to an end,
and the victims have inherited power.
It is inconceivable that, in such a case, the Court would seek to
substitute its judgement for that of a whole nation which is seeking
the best way to put a traumatic past behind it and build a better
future [10]”.
As noted, the South African TRC has been recognized and even
endorsed as a valid means of dealing with crimes arising out of
apartheid [11]. Moreover, state practice [12], international
jurisprudence [13] and authors [14] confirm that the Rome Statute does
not preclude a state from utilizing amnesty as an effective means of
prosecution. However, what about the Congolese TRC?
In assessing if the Congolese TRC met some minimal requirements to
approach legitimacy under international law, one can point out that the
Congolese TRC was not created and operated transparently in order to
sustain democratic legitimacy. There was a clear lack of citizen
involvement in the creation and functioning of the TRC, and openness to
ensure domestic legitimacy. There was no endorsement of the TRC and its
work as a mechanism of transitional justice. Moreover, there are many
critiques because commissioners came from different factions, and were
not chosen by means of a process, which tried to ensure a democratic
spirit and practice, and transparency. Therefore, it seems that the
purpose of such a commission, was to be a “Truth Omission” instead of a
“Truth Commission” and cannot encounter support by the international
community [15].
In order for truth commissions to merit international legitimacy,
Professor Crawford suggested that one possible test would be whether
the procedure in question had been freely ratified by the successor
regime, “so it’s not just a way that the generals can sign their
amnesty on the way out of the door [16].” And for that, Charles
Villa-Vicencio [17] helps us by saying that truth commissions needs at
a minimum to incorporate the following:
- There needs to be convincing evidence that the majority of
citizens endorse the provision as a mechanism of transitional justice;
- The disclosure of as much truth as possible concerning the gross violations of human rights;
- Accountability of those responsible for gross violations of human
rights, recognising that this need not to be in the form of retributive
sentencing by the state;
- A mechanism needs to be put in place to provide a form of relief or
reparation to victims whose rights are suspended by a qualified amnesty
provision;
- The suspension of prosecutions in a transitionary situation should
not be a pretext for the abrogation of other requirements of
international law;
- A forum in which victims and survivors may tell their stories and questions;
- Prosecutions should remain an option both during and after the TRC
against those perpetrators who did not adequately participate in the
process.
Although we agreed with Charles on these criteria, the last one
seems not to be consistent. Truth commissions are not alternative to
prosecutions, all are two sides of the same coin and should be used
complementarily but sequencing for their success. Saying that
“prosecutions should remain an option both during and after the TRC
against those perpetrators who did not adequately participate in the
process” seems to be too simplistic and could undermine the entire
effort to heal the wounds of the nation and to fight against impunity.
In addition to satisfying the above minimum criteria for
international legitimacy, a Truth commission should also be created and
operated transparently in order to sustain democratic legitimacy.
Citizen involvement in the creation of a truth commission, and openness
to media coverage of its operations, are necessary to ensure domestic
legitimacy [18]. And Juan Mendez put it clearly by saying:
“There are two conditions of legitimacy that we should insist upon
for any program of transitional justice. First, transitional justice
policy should be developed as part of an open, democratic debate, which
includes consultation with and participation of the relevant
stakeholders and full transparency of decisions. If decisions about how
to reckon with the past are adopted exclusively by the parties to a
conflict, without appropriate consultations with the victims of abuse
or with society at large, the result will almost always generate
dissatisfaction and rejection. Second, transitional justice policy
should be contemplated in as comprehensive and holistic an approach as
possible. This is not only because there will always be an ‘impunity
gap’, meaning that many cases of abuse will not be resolved by trials,
thus generating the need for a broader treatment of the universe of
violations. It is also because the emerging principles in international
law … establish that the obligations of the State are four-fold: to
prosecute perpetrators, to unearth the truth, to offer reparations to
victims, and to reform abusive public institutions [19].
CONCLUSION
In many transition periods two methods are used to establish record
of grave human rights crimes following a conflict/war: prosecutions at
national or international level and truth commissions with various
names, which investigate situations and submits reports. Both of these
two methods are not sufficient and therefore, the need to complement
each other.
There is a growing demand for transitional justice mechanisms such
as truth commissions, around the world. The problem however, it is to
test if all those mechanisms imply good faith. Is the effort designed
to generate more truth, more justice, reparations, and genuine
institutional reform? If so, they are welcome. If the objective is to
evade the State’s and society’s legal, ethical and political
obligations to their people, they should be rejected. The answer should
be found in the design of the process itself, but also in the degree of
participation, consultation, and transparency that surrounds them (e.g.
of South Africa).
Moreover, we should start by avoiding seeing truth commissions as an
alternative to prosecutions. Even if many of them have been accompanied
by grants of amnesty to the major perpetrators of human rights crimes,
viewing truth commissions, as substitute for prosecutions is not a
right way and can lead to contradictions. Therefore, we should try to
consider truth commissions as complementary to national and
international prosecutions, not to substitute them. They are two sides
of the same coin: transitional justice. However, the processes must be
sequenced in a way that one does not affect the effectiveness of the
other. Accordingly, Scharf has said, “a country should not rush ahead
with prosecutions at the cost of political instability and social
upheaval or that every single perpetrator must be brought to justice,
an impossible task in most countries that have experienced widespread
human rights abuses. By documenting abuses and preserving evidence, a
truth commission can enable a country to delay prosecutions until the
international community has acted, or the new government is secure
enough to take such action against members of the former regime [20].”
Furthermore, it may be useful to examine the utility of conducting
prosecutions after Truth commissions as a means of uncovering more
“truth” that was not revealed through the process. Because, like in the
South African case, if those people who did not apply for amnesty or
those whom the amnesty was refused, do not face trials, someone could
say that there is de facto amnesty and therefore, the purpose of a TRC
was just to shield some perpetrators. In this hypothesis, the process
will violate the international law and will not be in the interest of
justice (society as a whole). So, we should look on the possibilities
to trials for those persons in order to avoid impunity, contradictions
and allow the roots of a just society to take hold.
*Yav Katshung Joseph is a Human Rights lawyer and Lecturer at the
Faculty of Law, University of Lubumbashi, Democratic Republic of Congo.
-------------
NOTES
1] Tina Rosenberg, “Afterword: Confronting the Painful Past”, in
Martin Meredith, Coming to Terms: South Africa’s Search for Truth,
1999, p 328
2] Charles Villa-Vicencio, “Reconciliation as Political Necessity: Reflections in the wake of Civil and Political Strife”, p.3
3] Paavani Reddy, “Truth and Reconciliation Commissions Instruments
for Ending Impunity and Building Lasting Peace” in The Chronicle,
See http://www.un.org/Pubs/chronicle/2004/issue4/0404p19.html
4] Priscilla Hayner, Same species, different animal: how South
Africa compares to truth commissions worldwide, in Charles
Villa-Vicencio and Wilhelm Verwoerd, “Looking Back, Reaching Forward:
Reflections on the Truth and Reconciliation Commission of South Africa”
UCT Press, 2000, p34-35
5] Boraine, Alexander, “Amnesty in exchange for truth: Evaluating the South African model” in “A country Unmasked” Pgs 258-275
6] Juan E Mendez, “Transitional Justice in Historical Perspective”,
Outline, Somerset West Conference, March 28, 2005 Inaugural Address
7] Naomi Roht-Arriaza, “Amnesty and the International Criminal
Court”, International Crimes, Peace, and Human Rights: The Role of the
International Criminal Court (Ardsley, New York: Transnational
Publishers Inc., 2000) at 79.
8] James Crawford, See http://www.crimesofwar.org/onnews/news-us-icc.html (accessed on 4th December 2007)
9] Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, Pieces of the
Puzzle: keywords on reconciliation and transitional justice, Cape Town,
pp.89-90
10] Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, op.cit, p 91
11] Kader Asmal, International Law & Practice: Dealing with the
Past and the South African Experience, 15 AM. U. INT.’L L. REV. 1211,
1228 (2000).
12] Azanian Peoples Organization (AZAPO) v. The President of the
Republic of South Africa, 1996 (4) S.A.L.R. 671, at 30 (South African
Constitutional Court);
13] Prosecutor v. Tadic, Appeals Chamber, Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1-AR72 (Oct.
2,1995) at 6
14] Leila Nadya Sadat, Universal Jurisdiction, National Amnesties,
and Truth Commissions: Reconciling the Irreconcilable, in Stephen
Macedo, Universal Jurisdiction: National Courts and the prosecution of
Serious Crimes Under International Law (2003); Scharf, Amnesty
Exception, supra note 33; John T. Holmes, The Principle of
Complementarity, in 41-79 The International Criminal Court: The Making
of the Rome Statute (Roy S. Lee., ed., 1999); Michael P. Scharf,
Swapping Amnesty for Peace: Was there a Duty to Prosecute International
Crimes in Haiti?, 31 TEX. INT’L L.J. 1, 4-5 (1996).
15] Critiques reside especially in the way of nomination and the
issue of openness by involving civil society and other parties.
16] James Crawford, See http://www.crimesofwar.org/onnews/news-us-icc.html
17] Charles Villa-Vicencio, Truth Commissions, in Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, op.cit., p 92
18] See Andre du Toit, “The South African Truth and Reconciliation
Commission (TRC): Local History, Global Accounting”, in Politique
Africaines 92 (2003), p7
19] J. Mendez, 1997. “Accountability for Past Abuses”, Human Rights Quarterly, 19, pp. 255- 282.
20] Michael P. Scharf, “The Case for a Permanent International Truth
Commission”, in Duke J. Comp.& Int’Law, Vol.7:375, 1997,p399
Comment originall posted by marga
A decade ago, I was in a pannel on Truth Commissions with the then South African ambassador to the Netherlands, who was describing the work of the SA TRC. He said that the granting of amnesties by the the TRC was a compromise arrived at, so that the country would not fall into civil war. In other words, it was amnesty or violence.
I don't know if this was indeed the case, but I have no reason to doubt him. In that case, it seems to make very little sense to copy a model that was imposed to begin with.
It also bears repeating that amnesties for gross human rights violations or crimes against humanity are violations of international law. And if the state violates the law, how can it ask anyone else to respect it?
Original post by joseyav
Introduction
The International Criminal Court (ICC) issued warrants of arrest for Kony and four other Lord’s Resistance Army (LRA) commanders - Vincent Otti, Raska Lukwiya, Dominic Ongwen and Okot Odhiambo - accusing them of carrying out massacres, mutilating their victims and kidnapping thousands of children to be used as fighters and sex slaves. Now, two years on, it finds itself at odds with Uganda's government, which first referred the case to it, but is now offering the rebels amnesty and protection if talks succeed. [2]
This brief examines this dispute and seeks to locate the debate about peace and justice in Northern Uganda.
Defining Justice
Defining justice is a difficult task. Is it justice in the narrow sense of criminal justice, or justice in the broader, restorative, sense? Talking about “justice”, one should note that it is a flexible concept. Justice in situations of transition is not self-defining. It is about what is required and what is possible in a given situation. There are different kinds of justice: retributive justice, deterrent justice, compensatory justice, rehabilitative justice, exonerative justice and restorative justice. [3]
Each has a time and a place in a given situation and no one model of justice covers all needs.
"Mato Oput" as Restorative Justice
It is important to note that restorative justice views crime essentially as a violation of people and relationships between people. Its primary objective is to correct such violations and to restore relationships. As such, it necessarily involves victims and survivors, perpetrators and the community, in the quest for a level of justice that promotes repair, trust building and reconciliation. It draws attention to the need to create a milieu within which all those implicated in crime come to realise the need to uphold the principles of the law, co-operating in an endeavour to discern the best way to achieve this. [4]
In other words, restorative justice is concerned with resolving crime and conflicts. It focuses upon the end result (harmonious community relations) and it is characterised by community participation that involves both the victim and the perpetrator, with a view to restoring rights that have been abused.
In fact, Mato Oput, which in the Acholi language literally means "to drink a bitter potion made from the leaves of the ‘oput’ tree" is one of the mechanisms for forgiveness and reconciliation among the Acholi people in Northern Uganda. The drinking of this bitter herb means that the two conflicting parties accept the bitterness of the past and promise never to taste such bitterness again. The payment of compensation follows the ceremony. The victim or his/her family is compensated for the harm done, for example, in the form of cows or cash. Is such kind of compensation is enough to satisfy people? It is believed by many Acholi that Mato Oput"can bring true healing in a way that formal justice system cannot.” [5]
It doesn't aim at establishing whether an individual is guilty or not, rather it seeks to restore marred social harmony in the affected community.
The question of using Mato Oput for gross violations of human rights: The Kony’s Case
The referral of the Northern Uganda conflict to the ICC in December 2003 and the subsequent issue of warrants of arrest for Joseph Kony and other four high-ranking LRA commanders, [6] have sparked considerable controversy in Uganda and in the international sphere. Not everybody welcomed these arrest warrants. On the one hand, proponents of prosecution argue that individuals who commit crimes against humanity should be punished for the sake of justice.
They say that it would be unprincipled - as well a dangerous message worldwide - for the prosecutor to submit to the demands of armed thugs who have been maiming, raping and killing with impunity. On the other hand, opponents of prosecution argue that the ICC should give peace a chance, as it is more important to save civilians than to judge perpetrators. Moreover, withdrawal by the ICC would not mean the end of accountability, they argue, but the beginning of indigenous justice processes.
This group prefers traditional justice to the ICC, and argues that modern justice will have a negative impact on the peace process in Northern Uganda. For them, the arrest warrants would make further peace negotiations impossible. This is a typical case of balancing peace and justice as the trend in Uganda now, is how to use the traditional form of justice named Mato Oput instead of the ICC.
Barney Afako (2002) states that: “The unacceptably high costs of civil war have caused Ugandans to re-assess approaches to resolving conflict. Among the Acholi of northern Uganda, the bitter experience of unending conflict has generated a remarkable commitment to reconciliation and a peaceful settlement of the conflict rather than calling for retribution against the perpetrators of serious abuses… This call for amnesty was underpinned by their faith in the capacity of the community and cultural institutions to manage effective reconciliation even against the background of serious offences. Many conflicts yield meaningful distinctions between victims and perpetrators. Yet the majority of Acholi recognize that most combatants in the LRA were forcibly abducted and have themselves been victims. This generates the realization that anyone could be subjected to the conditions that produced the perpetrators of the crimes experienced in the conflict. Combined with a profound weariness with the war and the suffering it has caused, this creates a moral empathy with the perpetrators and an acknowledgement that the formal justice system is not sufficiently nuanced to make the necessary distinctions between legal and moral guilt. As a result, most Acholi have decided to promote reconciliation through traditional mechanisms, rather than a retributive understanding of justice, to create conditions to end the war and reintegrate the community.” [7]
However, there are always tensions between the requirements of the criminal justice system and those of non-punitive approaches to gross and systematic human rights violations. Therefore, one could ask if the Mato Oput is an attempt by Uganda to justify or disguise impunity?
Answering to this question one should test if this Mato Oput mechanism implies good faith. That is true because restorative justice employs integral responses that focus upon redressing the harm to the victims, holding perpetrators accountable for their actions and engaging the community in a conflict resolution process. It is highly participative, is forward-looking and is based on values of respect for all participants and community empowerment.
Is the Mato Oput designed to generate more truth, more justice, reparations, and genuine institutional reform? If the objective is to evade the State and society’s legal, ethical and political obligations to their people, it should be rejected. If not, someone could say that the purpose of this Mato Oput mechanism is just to shield some perpetrators (Kony and others). In this hypothesis, the process will violate international law and will not be in the interest of justice (society as a whole).
Therefore, the answer should be found in the design of the process itself, but also in the degree of participation, consultation, and transparency that surrounds this Mato Oput mechanism.
How to conclude?
We conclude with a quote from Juan Mendez that “We need to be careful to counter attempts to disguise impunity with fanciful adjectives. ‘Restorative justice,’ for example, is a concept that in its proper setting is valuable and does have its place in a transitional justice policy. [8] Often, however, the term ‘restorative justice’ is used to advocate some alternative to criminal justice, to honest truth telling and full investigation of abuses. When used in such a way it is no more than an attempt to justify or disguise impunity.” [9] Suffice it to say that the paradox between peace and justice is an open question that we should all try to answer.
References
[1] Tina Rosenberg, “Afterword: Confronting the Painful Past”, in Martin Meredith, Coming to Terms:South Africa’s Search for Truth, 1999, p 328
[2] The ICC has insisted that Kony and four other LRA leaders must face justice, but the Ugandan government says it will convince the Hague-based court to lift the indictment… See UGANDA: Balancing forgiveness with justice. At: http://www.irinnews.org/report.asp?ReportID=55425&SelectRegion=East_Africa
[3] Charles Villa-Vicencio, “Restorative Justice”, in Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, Pieces of the Puzzle: keywords on reconciliation and transitional justice, Cape Town, p.33
[4] Ibid, p.35
[5] See Liu Institute for Global Issues and Gulu District NGO Forum, "Roco Wati Acoli: Restoring Relations in Acholi-land Traditional Approaches to Reintegration and Justice", September 2005, available: http://www.ligi.ubc.ca/admin/Information/543/Roco%20Wat%20I%20Acoli-2005...
[6] See The International Criminal Court, "Warrant of Arrest Unsealed Against Five LRA Commanders," ICC-20051014-110-En, 14 October 2005, available:http://www.icccpi.int/pressrelease_details&id=114&l=en.html They are accused of committing war crimes and crimes against humanity in Northern Uganda since July 2002
[7] Barney Afako, Reconciliation and justice: ‘Mato oput’ and the Amnesty Act (2002), at: http://www.c-r.org/our-work/accord/northern-uganda/reconciliation-justic...
[8] Miriam J. Aukerman, “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice,” Harvard Human Rights Journal 15 (2002): 39-97; Pablo de Greiff, “The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted,” in The Age of Apologies, Mark Gibney and Rhoda Howard-Hassmann, eds. (forthcoming).
[9] Juan E. Méndez, “How to Take Forward a Transitional Justice and Human Security Agenda: Policy Implications for the International Community”, Cape Town, April 1, 2005
Dr. Joseph Yav K.
DRC
Comment originally posted by marga
The road to justice for those of us working in Latin America has been harsh and slow. After a burst of energy after Argentina returned to democracy (which led to the initiation of hundreds of criminal procedures against human rights violators and the sentencing of the top junta leaders), we had blanket amnesties and pardons. The rest of Latin America followed this course, with amnesties appearing everywhere. There were truth commissions, but if they intended to bring reconciliation, what they got was more discord.
So we went abroad. Italy, France, Germany (where it didn't work out) and finally Spain. Then we had the incredible luck of getting Pinochet in England - and though he was ultimately let go, the mere possibility that he could be held accountable for his crimes, reawoke civil society's quest for justice in the whole continent. It's been a slow march since, but there were 190 sentences for human rights violations in Chile in the last few years. In Argentina I don't think we've gotten 5 (though there are 4,000 open cases). But the Argentine Supreme Court ruled recently that pardons for gross human rights violations and crimes against humanity violate international law, and are therefore inapplicable, a first. This week the first case for forced disappearances started in Guatemala. Peru is trying Fujimori, a constitutional president, for forced-disappearances. Uruguay has done the same with a military president. It's slow, very slow, but we're getting somewhere. And as I said before, it's better late than never.
Hopefully, countries like Kenya who are dealing with recent human rights violations won't have to wait so long.
could also deliver justice, but unfortunately that doesn't seem to accord with
the reality of most transitional settings. I agree that the potential
contribution that a TRC can make is often confused and sometimes destroyed by
mixing it up with justice- and especially with amnesty. Advocates who align
themselves as pro or contra TRC's on the basis of favouring truth or
justice often make it more confusing, as clearly, I think, we are looking
for truth and justice. I continue to come across situations in which
potential TRC's are overly influenced by the most well known model of South
Africa, the exceptional case where justice was part of the model, and
consequently transfer the idea of including amnesty as part of the process.
Recent examples are the draft law for a TRC in Nepal, the draft law for a
national TRC in Indonesia (struck down by the Constitutional Court but now
resurfacing, again with amnesty provisions) and the Indonesia-Timor Leste Truth
and Friendship Commission, which also has power to recommend amnesty.
focused on collecting the stories of victims and witnesses and writing up the
findings which are supported by the information collected. Their operations have
very little to do with perpetrators, who have little motive to be involved.
Most post conflict situations do not have a group of perpetrators already in
prison who are motivated to particpate by seeking their own freedom, as was the
case in South Africa. The political reality also often means that powers such as
search and seizure and subpoena, although theoretically valuable, are fairly
impractical as powerful figures are unlikely to comply.
collection and analysis of large numbers of victim testimonies can produce a
record which has enormous weight, public hearings can stimulate an emotional
catharsis on a national level, and other victim centred activities of a TRC can
promote healing between individuals and factions. All of this can also lead to a
broader recognition for the need for justice, but it oftern takes some years to
germinate the seed.
Original comment by galuh.wandita
We in Asia are following closely the experiences (and slow unfolding story on getting justice) in Latin America for our own source of experience. In Indonesia, President Soeharto's regime fell in 1998 but the old machinary is still intact. Ten years later, we have had not a single succesful conviction of perpetrators for serious crimes (except for one militia leader from East Timor convicted for crimes against humanity) despite a number of (unfair) trials. The mass killings and detention of 1965 (some say 500,000 to 1 million killed, and another 1 million imprisoned without trial for many years) is still completely denied by the state. So the work for truth and justice is long and trechearous and the opportunities seem to get smaller and smaller.
Indonesia had a law establishing a TRC but it was annulled by the Constitutional because some of its articles were against human rights principles (such as victims can get reparations when their perpetrators are given amnesty!) But the surprise part of the decision was that they did not strike down the problematic articles but then declared the whole thing annuled. And also now we have a flawed process with the Truth and Friendship Commission [TFC] for Indonesia and Timor-Leste (which I describe above). So even a little bit of truth is a highly contested process.
That is why it is very inspiring to read and hear about the slow but sure efforts in Chile, Argentina, it gives us a bit of hope...at a time of complete impunity.
Galuh
Original post by Patrick Burgess
During the three years I spent
working on the East Timor TRC (the CAVR), I worked closely on a program which
took a novel approach to the issue of justice vs truth. We were faced with a
similar situation to that which was referred to in the dialogue yesterday in the
Liberian context, in which the local legal system had very little capacity to
provide justice. The UN had established the Serious Crimes Process, which
eventually prosecuted over 80 ‘small fish’ (ie East Timorese militia members.)
The ‘big fish’- mostly Indonesian military officers- had escaped over the border
to Indonesia, where a subsequent
judicial process resulted in 17 out of 18 charged being acquitted. However, the
challenge of maintaining peace involved finding some solution for not only
serious crimes but the many thousands of ‘lesser crimes’-burning houses,
beatings, looting etc, which had been committed by members of the same
communities as the victims. The struggling legal system, including fledgling
police service, prosecutors and courts, could not keep up with even newly
committed serious crimes such as murders, let alone these thousands of past, conflict-related
less serious crimes, and the international eyes were focused on the elusive ‘big
fish.’ In that context it seemed that
nothing could be done about the less serious crimes, but in fact the anger over
these acts threaten to ignite hundreds of communities in which the perpetrators
and victims had previously lived together in peace.
In this context the TRC (the
CAVR) did fulfil a very important function directly related to justice. It
carried out a program called the Community Reconciliation Procedures, in which
perpetrators of ‘less serious crimes’ (not murder, rape or torture) volunteered
to take part in a process in their local villages, presided over by a Panel of
local leaders and involving traditional spiritual and dispute resolution
practices. The perpetrators were required to admit their crimes, face the
victims and community and ask for forgiveness. The community and victims were
able to ask questions, and eventually a solution was sought in which the
perpetrators agreed to do some community service work or pay modest compensation
to the victims. This agreement was registered with the court and when the work
or payment was completed immunity from further legal action was established.
Approximately 1500 cases were completed in
this way, over 18 months. When the program closed an additional 3000 individuals
wanted to participate but could not. What was the motivation of these
perpetrators, in a context in which there was actually no practical threat, no
‘stick’ from the dysfunctional legal system? The ‘carrot’ was the opportunity to
explain themselves to their communities, to state not only what they had done
but what they had not done (and thereby dispel rumours), to apologise, and ask
for forgiveness. This allowed them to be received back into the community again,
it was their ‘key’ to the door, painful, embarrassing, shaming, but necessary.
And very importantly, as groups of perpetrators participated in the same
communal hearings, it gave the communities a chance to examine the conflict as a
whole. Each hearing was followed by a celebration, funded modestly by the
commission, which was also extremely important.
Many criticisms could be leveled
at this process. Purists claim the perpetrators should all have been tried and
punished, that the ‘community service’ and compensation resembled amnesty as it
was too lenient, that the perpetrators should have all have received legal
counsel and representation first, that the victims did not receive sufficient
reparations etc etc. I agree, in a perfect world, yes all of these should
happen. But Timor, like so many other
situations in the post conflict years, bears very little resemblance to a
perfect world. In the end, in the heavy
mud of trying to bring perpetrators and victims together in a context of anger,
suspicion and hatred, the CRP’s provided an important, limited and partial
solution. It worked in Timor because it was designed for Timor, shouldn’t be transplanted or copied as a whole, but
the principles could provide some guidance for some other very imperfect but
important partial solutions. It also raises the possibility that TRC’s can also
create quite different processes for each different setting, in order to respond
to the local context and challenges.
[Posted by Patrick Burgess, current Asia Director for ICTJ]
Nancy Pearson, New Tactics Program Manager
Original comment by marga
While it's true that tribunals are not necessarily the best tools for arriving at collective truth, and they don't necessarily give everyone the opportunity to tell their story - they sometimes can perform these functions even better than truth commissions, if for no other reason that they sit for longer.
For example, the criminal procedures against Argentine military in Spain involved hundreds of victims testifying, both in Argentina and Spain. The trials for truths that took/take place in several Argentine cities also had the same effect. In both cases, the procedures have approached a decade and have resulted in more comprehensive "truths" about the nature and mechanisms of the repression in specific areas that the CONADEP was able to gather. In addition, they have helped to arrive to "individual" truths, as to the likely fate of many of the disappeared. Plus in the Spanish case, the procedures led to a conviction and a ruling that foreign courts not only had universal jurisdiction over international crimes, but that they also could and should apply the figure of crimes against humanity internally. Its political and judicial effect will - IMHO - be great.
In this day and age, moreover, there are other methods for victims and witnesses to offer their testimony than truth commissions. The internet itself allows them to publish their testimony online and makes it available to much larger audiences than the unwieldy volumes of truth commissions do. Televised trials put at least some testimonies in front of the whole society. One of the things we do at Project Disappeared (http://www.desaparecidos.org/) is give families and victims a forum where to tell their stories. Most of this people have already testified before the CONADEP and sometimes before the courts, but they see value in having their words were practically everyone can access them.
This is not to say that truth commissions are not valuable. As I said before, I think they are essential for discovering and telling the global or collective truth - in particular, as in the case of Argentina, if they come up with a short, user friendly report :-)
Original comment by marga
I haven't been able to find that summary online, however. The 9 tomes of the full report are there, however.
Original comment by laura.young
The interesting issue of the use of technology for truth & justice work is raised in this discussion. The Liberian TRC has been exploring some innovations in this area, in a strong partnership with Georgia Institute of Technology, a university based in Atlanta, GA, USA. Liberians and others from around the world are able to submit statements online to the TRC: https://www.trcofliberia.org/statements. Moreover, video of TRC of Liberia public hearings are being uploaded to the site and are available for viewing from anywhere in the world: https://www.trcofliberia.org/memorials/video-galleries/video-gallery/pubilc-hearings/. The TRC also is working with GA Tech to develop mobile TRC kiosks that would run on generator power, and would operate with a user interface that takes into account the literacy and language issues in rural parts of the country. The kiosks are designed to take the TRC process into areas that may not have otherwise had access.The use of technology also raises serious issues however, particular with data security, confidentiality, and the ability of anyone to participate without extensive verification of their identity. Also, does the use of technology remove some of the important aspects of a TRC process, involving human to human contact in actively listening to and validating the story of one individual?Laura A. Young, JD, MPH
Original comment by kantin
What an interesting aspect to the TRC process! I'm so glad that you brought this up. I didn't realize that the Liberia TRC was using technology in this way. It's very true that this technology can be very useful and make it easier to collect a large amount of information and interviews, but on the other hand, it brings up privacy and verification issues.
I find the ability to watch videos of the public TRC hearings very attractive. I can imagine that these videos will be an educational tool for human rights activists, stduents and others around the world.
I think collecting data from victims through the internet is an interesting idea, and might be a great starting point at least, from which to carry out more extensive interviews with participants. I hope that the participants know the security and privacy risks of participating through the internet!
-Kristin Antin / New Tactics Online Community Builder
Original comment by Neneh Binta Barrie
The issue of using technology in the TRC or any justice system is very interesting, it makes it easier to collect significant amount of information and helps the public to get access to testimonies of both victims and perpetrators. However what I am concern about here is the safety of witnesses, It requires a lot of effort to make sure witnesses safety are not at risk. The Special Court for Sierra Leone do have witnesses testimony online, but the testimonies are distorted that no one could easily identify a witness by reading the story, their testimonies do not mention them by names but by TF numbers. In terms of healing, witnesses reported that testifying before their perpetrators helped greatly to move forward with their lives.
The use of technology in this process can be really fascinating.
Original post by npearson
This is a very interesting area of discussion that you've raised in the dialogue - particularly your question: "does the use of technology remove some of the important aspects of a
TRC process, involving human to human contact in actively listening to
and validating the story of one individual?"
It does seem that one of the greatest values of TRC processes is exactly this public opportunity for victims to tell their stories; have other people listen to their story; hear the stories of others and know that you are not alone in your loss and pain; and have this process acknowledged on a broad social level.
The technology you describe here, of providing a mechanism to reach a nations' Diaspora community, to reach those in far-flung areas is a great benefit. It seems to me there will need to be a way for these people who share their stories via the electronic kiosks to be provided with concrete proof that their story was recorded - for example getting a print-out of their story. But in addition to that, getting some of concrete result that shows they were part of the larger process and what recommendations and outcomes emerged from being an active participant in that process.
Do you know if there are mechanisms and plans in place for that kind of feedback? For example - will their be some kind of public unveiling?
Nancy Pearson, New Tactics Program Manager
Originally posted by kantin
I was very interested to read Dr. Dan McQuillan's recent blog post on internet.artizans titled '"There ain't no justice, just us" - war crimes impunity in the digital age.' In it, Dan looks at the ever-present issue of impunity for perpetrators of war crimes and gives a few ideas for how digital tech might be used to combat this painful trend. We have seen Ushahidi crowdsource and map instances of violence throughout Kenya after the 2007 elections - but justice for this violence was not guaranteed in this process. As Dan points out in his blog post, "more than 2 years later no-one in Kenya has been prosecuted for the crimes against humanity that it helped to map." How can we use digital technology, crowdsourcing, and other new innovative ideas to bring perpetrators to justice? Dan writes,
"My contention is that the real impact of digital comes from it's catalysis of horizontal process, social action that routes around institutional complicity. Could Ushahidi or something like it be used to convene activities of transitional justice - people-powered initiatives that take on the need to confront legacies of mass abuse? I'm not talking about the real-world equivalent of a Twitter lynch mob but holistic additions to criminal prosecutions that promote accountability and create just and peaceful societies. These would need to be more active than digital memorials. Perhaps we should apply the radical transparency of wikileaks to the archive of the war crimes court for the former Yugoslavia and pipe the results through citizen-up initiatives like we20?...The transparency of the digital age is not just about open data but the surfacing of suppressed histories as starting points for transformation."
What do you think?
Kristin Antin, New Tactics Online Community Builder
Comment originally by marga
The issue of identity is a very difficult one to solve - it's less important when you have a memorial site, like ours, than when you have a judicial or quasi-judicial procedure where truth finding is the goal. But this is a problem that exists regardless. In Argentina, for example, there was a group of people who were disappeared and, while imprisoned in secret detention camps, were co-opted to work for the military authorities. Several continued to work for them even after they were freed, and have given corrupted testimonies to both the CONADEP and the courts. These are not cases in which the identities are a question, just the allegiances.
Encrypting all mail between the witness and the commission can alleviate worries of confidentiality and data security - in particular, in the case of witnesses who don't want to be identified.
Original comment by laura.young
Georgia Tech and the TRC are very aware of the data security issues, and I should have made clear that they are using the best available in technology to assure encryption, security, and confidentiality of information.
Laura A. Young, JD, MPH
Comment originally posted by Jose Caetano Guterres
I would like to start my participation in the new tactics
dialog by sharing with you on my experience with trc in Timor Leste.
This reflection will be as a respond to the following questions:
The
goal of the TRC process in Timor Leste was to build peace foundation
for Timor Leste to by conducting truth seeking on human rights
violations that were happened in Timor Leste from 1974 - 1999. As we
aware that Timor Leste has very dificult history that have been
destryed relationships during 24 years conflict under Indonesian
occupation. So, we need a procees to deal with our past and find ways
to build peace as foundation for nation building.
This
is very dificult question for me to reflect on the TRC process in Timor
Leste. I found that TRC process in Timor Leste has rised lots of
participatino and expectation of victims, family of victims to a chieve
justice as promise. The report was about more then 2500 pages. It
was about facts of human rights violations from 1974 - 1999 including
200 recomendations about dealing with past and prevent to not repeating
human rights violations in the future. Timor Leste has good dream to
build peace foundation as mentioned in number 1 but it has been no
outcomes. It was just because since the report hand over to the
President, National Parliements and UN up to date The State have doing
nothing to the report. It was not debated officialy in the Parliement.
challenges? What were the issues that the process could not address?
How is this affecting what is happening now in your country?I think during the implementation of the TRC process there was no
challenges that faced by TRC. I can say that it was success full and
victims and family of the victims has very much supporting the
process. The only challenges is that this was the first ASian TRC that
happened in Timor Leste. It was a new process that happened in a new
country like Timor Leste. So we are like doin learning by doing. Even
though in the end we feel success because people has been contributed
to the process and tell the truth about human rights violations drung
24 years from 1974 - 1999. The other challenges was time. It was
because we are dealing with 24 years of conflict but we only got 2.5
years to implement the big mandate of truth seeking and facilitating
community reconciliation. But i also think that after the report was
hand over another challenges that we are facing was political will from
Timorese leadears to debate and implement these recomendations. Also
political will of Indonesia and International community that were
contribute to the conflict in Timor Leste from 1974 - 1999.
For time been i think that TRC process is important for Timor
Leste to deal with past and to bring justice to the people of Timor
Leste. But first we need political will of Timorese leaders and
International community to implement the recomendations mentioned in
the report. If the leadersd are failed to implement the recomendation
it means nothing for victims and we don't need another TRC process
again. For me it will just like open wounds but no idea bout how to
heal and recovered the wounds. This is a disaster for the Timor Leste.
The
critics was TRC is only a project and it will just finished when it
finished. It was then received many critics when the report was not
debated or nothing of the report was implemented. For me it will be no
way to overcome it it no political will to implement the
recomendations.
involved in the process? Were there challenges in having an
international presence? Should there be an international presence? What
are the issues surrounding international organizations leading this
process versus a strictly indigenous process? How might these issues be
addressed for future TRC processes?
During TRC process in Timor Leste i found many international staff
presence and involved in the process. It Timor Leste was under UNTAET
(United Nations Transitional Administration in East Timor)
adminisration. It's also reflected the role of UN and International
community during 24 years of conflict. UN have been involved in the
process of rezolving Timor Leste's case since 1960's. Even though
the international presence was to support in the formation and the
implementaion of TRC process. Even the money that were used in
implementing the mandat was come from international community. Timor
Leste has not given any financial support to implement the project.
This is also reflect the independency of TRC in Timor Leste. I think it
was right since Timor Leste's case was an international case. So' we
need international presence to involved in TRC process. Its also
important for implementation of the recomendations in the future.
Thanks, Jose Caetano Guterres
Originally posted by marga
Who keeps the record of the TRC? It makes sense that whoever that is be the one who at least makes itself available to take more statements. In Argentina, for example, that is the Secretariat of Human Rights.
Original comment by marga
I think that's the real issue in Kenya. The post-electoral violence has stopped - but there is no reason to believe it will not come back if the underlying causes of the violence are not addressed. In Kenya, the idea is that the TRC would look at the violence and the causes of violence that have occurred since independence - and it would include a special look at the violations of economic rights.
Could a process which gives people the right to express their grievances in a neutral forum be catalystic for creating a context in which these grievances can be addressed (if there is the political will to do it, which is another question altogether)? I tend to think that this process is necessary, but that *now* is not the right time for it. The Kenya National Commission on Human Rights will issue a comprehensive report on this period of post-electoral violence in a few months, which will include recommendations about how to address those historical grievances (I imagine), and we'll see whether they are paid attention to now. None of the recommendations of past committees of inquiry and the like have been acted on.
Sophia (and others), I have a question for you. What is your opinion of the National Commission on Reconciliation and Reparation of Colombia and the work they are doing?
Original comment by Paul Haupt
A number of questions have been asked about the South
African TRC in the discussion so far. Rather than attempting to answer them
directly, though the themes will no doubt re-emerge, I would like to take a
step back for a moment linking to Marga's comment. To share what I understand
to have been some of the context in which South Africa’s TRC was formulated,
promulgated and implemented. The intention is to provide a contextual
understanding from which to critically assess the South African TRC as one of South
Africa’s
mechanisms to constructively engage political conflict and contribute to
political transition from in SA’s case, oppressive minority rule under
apartheid to democracy.
As you will remember, the TRC was formulated in 1995 during negotiations
by political leaders representing political parties who had been engaged in
armed conflict for more than 30 years. These were the leaders of Apartheid State and previously banned liberation movement
political parties. The background to these public negotiations was years of “secret
talks” the State had with the leadership of band political parties spearheading
the armed liberation struggle, in particular the ANC. By the mid 1980’s in the
face of increasing pressures felt from the armed struggle, the international
pressure in the form of sanctions and moral condemnation as well as pressure
from the more liberal political opposition corners within the government, Apartheid
leaders were force to seek a political solution the outcome of which was unclear.
The objective of these negotiations was to formulate a negotiated
political settlement that would establish a path “a bridge” for South Africa a free
democratic society based on equality for all, and in so doing shift political power.
The negotiations were disrupted by the withdrawal of some political parties,
they broke down around a number of vexed questions and were re-engaged and ultimately
lasted approximately two years as the political leaders applied themselves (their
minds, hearts, values and sense of justice from their various vantage points) to
a range of heated and complex questions.
One such question was how to deal with the past. It was these
former political enemies who were faced with the task of finding a way to do
this that would be acceptable to all sides. A complex question, engaged with at
a political level in the context of these negotiations. Agreement was not easy
and by all accounts agreement was never reached. Rather it was in the final
moments of the negotiation process that a political compromise was brokered. The
result was The Promotion of National Unity and Reconciliation Act, Act No 34 of
1995 (www.doj.gov.za/trc/). It was this Act that promulgated the Truth and
Reconciliation Commission. The overall objective was to restore the human dignity
of both survivors and perpetrators and promote national unity and reconciliation.
Its mandate was threefold:
establish as much truth as possible about the Gross Human Rights Violations
(GHRV) that occurred under Apartheid rule from 1960 -1994. To hold public
hearings so that the nature and extent of GHRV suffered is made public and
acknowledged.
provide amnesty to those responsible for these GHRV who meet the criterion
for amnesty (full disclosure, acting in accordance to a clear political mandate,
being a member of a recognised political organisation engaged in the armed
struggle, that the GHRV committed was in line with the intended political
objective). To hold public hearings for all amnesty applicants.
provide support for all those going through the TRC process (statement
givers and those appearing in the TRC’s public hearings)
This discussion thus has touched on a range of important and
intriguing issues, I would like to focus on two main threads in the current
discussion, namely;
what way does a Truth Seeking process need to be part of broader attempts to reach moral,
political, social and other goals in order to constructively contribute
to the management of political conflict?
Some useful sites related to South Africa’s TRC
http://www.doj.gov.za/trc/
http://truth.wwl.wits.ac.za/terms.php?linkto=cat_home
http://web.africa.ufl.edu/asq/v8/v8i1a2.htm
Original comment by npearson
Galuh, you have provided an excellent and certainly disturbing example of how a tactic -- such as the TRC process -- can be adapted to promote a goal that is counter to the values and benefits for which the tactic was intentionally created.
As you point out, TRCs are at the center and core a victim's hearing model. The powerful and positive force of TRC processes have been the recognition and empowerment of victims to find their voice, share their experience that builds a collective narrative for a country and community to address the previous status quo of silence and impunity, and plants the seeds for justice, if not actually providing some aspects of justice outright. (As others have already pointed out, the timeline for reaching certain kinds of justice - such as cases reaching conclusion in courts of law has often taken many decades.)
A TRC process that eliminates the accountability back to the victims is an intentional distortion of the tactic. The "truth" in this kind of process is meant to reinforce rather than dimantle the culture of impunity.
Are there counter processes being proposed from other sectors of civil society in Indonesia to balance and address this distortion?
Nancy Pearson, New Tactics Program Manager
Original comment by galuh.wandita
Yes, the human rights groups in both Indonesia and Timor-Leste have been very active on this. In Jakarta and Dili, we held alternative public hearings [at the same hotel / or near the vicinity , on the same day or very near to the time of the "official" hearing] to ensure that the media heard other sources of the truth. I also testified before the CTF talking about the systematic sexual violence that took place in 1999 [then right after me, one of the generals said that what I said was complete lies!] ICTJ also wrote a monitoring report on the CTF [which you can download from our website].
Of course the work of the CTF is not yet finished. Some sources have said that the report will be a good report (ie. finding institutional responsibility) but I think the public hearings have made such damage, in that alleged perpetrators were able to say anything without being substantively challenged --and this was all covered by the Indonesian media. However, if the report is a good report, then it is a small step forward.
Galuh, ICTJ (formerly CAVR)
Original comment by marga
I don't know that the strategy for getting TRC's recommendations implemented - provided civil society agrees with such recommendations - is any different that the strategy to make the state comply with its human rights obligation sin general. You advocate for your position using all the activist tools at your disposal: dissemination of information, education of the populace, political activism, appeal to international institutions and other states, etc. Ultimately it's a political struggle, but not different than all the other ones.
And yes, in most cases there is a need for institutional reform. In cases of grave human rights violations, judicial systems have often failed and they need to be reformed. New institutions, such as human rights secretariats, human rights commissions or ombudsmen offices, and other bodies in charge of attending specific types of complaints, need to be created and properly funded and staffed. In the cases where the human rights violations resulted from military coups, the military usually needs to be reformed as well. The same is true of the police and the intelligence services. It's a huge job, and one that the government must undertake, under constant pressure from civil society.
Original comment by laura.young
While this is indeed the case, that implementation of TRC recommendations
must be advanced using all similar mechanisms available in other human rights
advocacy, TRCs have some unique characteristics. For one, there is a
sufficient history at this point to make evident to all future TRCs that
implementation is the critical post-TRC challenge. Accordingly TRCs can
take this into account in their initial mandate, in their planning, and during
their work. For example, the legislation establishing the Liberian TRC's
mandate contains provision making the recommendations of the TRC
"binding" on the government. It remains to be seen what kind of
actual impact that provision will have, but it is at least a recognition of
this issue in the pre-TRC as opposed to post-TRC era. Moreover, the work
of a TRC builds constituencies, through the individual participation in the
process, which can be educated about the ongoing need for their participation
long into the future. The empowering aspects of the TRC can be transferred
into ongoing democratic engagement and investment in the outcome of the TRC
process. Finally, TRCs that build networks for outreach within civil
society can be mindful of the importance of those networks in the post-TRC era,
and build into their work the development of advocacy skills within those
networks with the goal of post-TRC implementation advocacy. Easier said
than done to be sure, but given the overwhelming evidence of problems with
implementation no one should be caught unawares that this is an issue.
Including for it in planning processes could be a powerful tool to get a jump
start on implementation.
Laura A. Young
Wellstone Legal Fellow
The Advocates for Human Rights
Original comment by marga
It'll be interesting to see to what degree Liberia will put into effect the recommendations of its TRC. Unless the recommendations are rather tepid, I don't see it happening without significant pressure from civil society and international actors. The pressure to maintain institutions as they are is too strong to be overcome by mere legislation without a fully committed government behind it. And governments that start committed to an ideal of truth and justice, do not necessarily stay so when confronted with internal pressure (this was the case in Argentina in the late 80's, when a comprehensive search for justice awoke the ire of the military and the possibilities of another coup - which led directly to the amnesty laws)
Of course, when a TRC is in itself an impunity instrument, those specific dangers will not be there - but any substantial reform will endanger interests who are not likely to take it without a fight.
It is easy to be overly enthusiastic when truth and justice processes
start, but it's important to be aware of what the possible misshaps may
be. And indeed plan - but as a HR advocate myself, I think that those plans will not come to fruition without the use of the common tools of HR advocacy.
Original comment by jprestholdt
When a TRC's mandate ends, implementation is left to the government, civil society and (sometimes) to the national human rights commission. But TRC recommendations are often unpaletable to the government ,and post-conflict civil society and national human rights commissions may be weak or non-existent. This can lead to slow - or even worse, no - implementation of the TRC's recommendations. There is no question that politicians and civil society should use every tool in their "human rights toolkits" to fight for implementation. But what about those of us outside of the country? Is there a role for us? Shouldn't we help with pushing for implementation of the TRC's recommendations if they are based on international human rights standards and the result of a serious and genuine TRC process? Part of what we are trying to do with the Liberia TRC Diaspora Project is raise awareness in the U.S. about the conflict and the transitional justice process in Liberia, as well as the experience of Liberians in the diaspora. Hopefully, we can use that awareness to generate long-term support from the Liberian diaspora , as well as the American public and policy makers, for implementing the TRC's recommendations.
Original comment by marga
I may be biased because while my organization works for human rights around the world, and in Latin America in particular, we are based in the US and Europe - but I think the job of being a human rights activist doesn't change based on where you are. The roles of "domestic" and "international" activists - to give them a name - are complimentary, and in the best of world both groups should work together. This should include working to implement the recommendation of the TRC, if those are in tune with their general human rights policy. International activists are particularly good at socializing information to an international audience and lobbying international governments and institutions (and of course, so much the better if they help fund human rights efforts at home) to put pressure on the domestic government to institure the necessary changes.
The work of the disapora should include helping to "round up" exilees to testify before the TRC and thus give it a more complete picture of what happened. For example, there were hundreds of thousands of Chilean exilees during the Pinochet dictatorship - without hearing their story, we can't really say we understand how the repressive apparatus of the Chilean dictatorship worked.
Original comment by jeanrodenbough
Greensboro, NC
Having read through these posts once I returned home from the weekend, I am aware that there are many ways to work through a truth and reconciliation process. Using technical means offers new possibilities to include in these processes. Yes, it is not wise to begin such an effort while the violence or acts needing to be resolved are still taking place. There is value in the perspective of time. Here in Greensboro, the process began about 25 years after the event. As someone pointed out, we had one particular event which called for reconciliation, rather than ongoing conditions, so it was from a different perspective here than that of others'. That particular event, however, was one result of an ongoing culture of racism and economic injustice, which boiled over at times into major conflicts in our society, violent reactions which simmer and fester until some acknowledgement and resolution occurs. We can't necessarily have full reconciliation with all elements of society, but the movement toward forgiveness, hope of reparation in some cases, and healing a community or a state or nation can be a dynamic and progressive activity. I don't know how our process will reach resolution but none of our situations will find the same tactics and reconciliations, as I read the experiences of others in this group. I am in awe of the courage of the efforts I am reading about here in your comments.
Original comment by kyle.lambelet
Many in Greensboro have critiqued the T&R process as dealing with ancient history, an event that happened nearly 30 years ago. They argue that this isolated incident in the past has nothing to do with our present relationships. Most of these critiques come from people who have a vested interest in forgetting that past, it alows them to purge themselves of their complicity (or active participation) in the violence of Nov. 3rd, 1979. This critique is built on an assumption about time as linear and progressive. Events that are in the past don't have much to do with the present or future so it's best to just forget, or so the line of thinking goes.
One of the purposes behind creating a TRC here was to dispute this kind of linear understanding of time and to expose how one violent event is connected to a larger history of racist violence that continues to live in the present and, unacknowledged, continues to shape our common future. Just in the last year in Greensboro: the Police Department has been embroiled in a scandal involving racist surveillance of its own officers, an African-American city council member has had to defend herself against a racist attack launched by white members of council, and it has been exposed that the Special Investigations Unit of the GPD destroyed documents related to the events of 79. These are some of the more sensational occurences--the continued negative attitudes toward organizers for social change, the existence of economic and educational disparities between whites and communities of color, and the growing chasm between the rich and poor notwithstanding.
It seems to me that the T&R process provides both an opportunity to address the past, giving particular weight to survivors' experiences (which is of vital importance), as well as to expose the pasts living and vibrant connection to the present. I know there are other groups in the US who are interested in using the T&R model to address events that are even more than a century ago (see the Wilmington Race Riot Commission and Southern Truth and Reconciliation).
I think the T&R process may be a helpful model there too, though it may be highly modified. As Jill Williams has noted elsewhere, it is one tool in the toolbox.
Kyle Lambelet
Greensboro, North Carolina
Original comment by jprestholdt
In the Liberian diaspora, there are also people who respond that what happened between 1979 and 2003 is over and done. Why should we dig up the painful past? It won't bring anyone back. Perhaps this avoidance, on the part of victims as well as perpetrators and government representatives, is true for all post-conflict societies. But we have also encountered many in the diaspora who have come forward to give their statements precisely because they believe that the history that the TRC will create won't be accurate without their contributions. Many others have given their statements because they feel they need to speak on behalf of a loved one who was killed; otherwise, their loved one's story will be lost to Liberian history. As a statement taker, I have been deeply affected by the profound courage that so many Liberians have shown in being willing to relive the most horrible experiences in order to give statements in honor of the memory of their loved ones. Many of our statement givers, as well as our volunteer statement takers, have pointed out that there is an unexpected power in bearing witness in this way. It is impossible to bring someone back, but it needs to be acknowledged that it can be important for the statement giver to take this step to ensure that what happened to their loved one becomes part of the country's national history.
Jennifer Prestholdt
Liberia TRC Diaspora Project
Deputy Director, The Advocates for Human Rights
Original Comment by Neneh Binta Barrie
Why is it necessary to educate the community about the TRC process? (e.g., regarding mandates, parameters, interaction with other processes such as Criminal Tribunals, etc)It is necessary to educate the community about TRC process for various reasons and these are as follows:
· What do you see as the most positive and / or actual outcomes from your TRC process?
The TRC played a significant role in the rehabilitation and reintegration process, some perpetrators where able to find some of the victims and asked for forgiveness which tremendously helped in the healing process.
What did you personally take away from being involved in the TRC process?
From being involved in the TRC process, I personally felt satisfied with the establishment of the TRC. After reading the final report, I was motivated to help victims and witnesses testify before the Special Court.
What “tips” or “lessons learned” would like to tell others who are considering using a TRC process?
One important aspect to consider is not to have both the TRC and the Court going on at the same time. This may hinder the progress of the TRC especially create fear in perpetrators to come forward and testify before the TRC. Due to administrative delay the TRC was still calling witnesses when the Court issued warrant of arrest of some of the perpetrators, as a result, some of the perpetrators refused to show up before the TRC. Even though they had agreed and were prepared to face the Commission. Sometimes this may prevent perpetrators to talk about the crimes they committed; they might be defensive and uncover the truth.
Original comment posted by jeanrodenbough
Jean Rodenbough here:
Q: What do you see as the most positive and/or actual outcomes from your TRC process?
A: The Greensboro community was educated about the Nov. 1979 event, or at least had the opportunity to learn in greater detail about that time. The efforts at that period in Greensboro's history in reference to both racism and to the economic inequalities in textile manufacturing in particular were joined and described in a dynamic and personal manner. The step by step detailing of events on Nov. 3 between the two groups, Klan-Nazi and Communist Worker Party members, were available to the general public in ways not done before -- even with the articles and books that had been written. Not to be discounted also is that this story was told again from a different perspective, and was shared with those who were not living here at the time. Thus the residents of the Greensboro community were educated of this recent past. This year, as we observe the Bi-centennial of Greensboro, it is fitting to have the Commission Report join other local histories.
Q: What did you personally take away from being involved in the TRC process?
A: I lived in a nearby town during the event addressed in the TRC Report. I did keep up with the events, but my understanding was limited to what was described about Nov. 3, 1979 in the Greensboro newspapers. I did attend one of the Commission hearings, the final one, and realized there was a story I had not been aware of through the media reports over the years. Upon moving to Greensboro after the Commission Report, and being invited to participate in the Task Force, my entire understanding and grasp of what lay behind the event and the subsequent repercussions was considerably changed and broadened. Now I am committed to working with the Task Force to develop the opportunities to see this city and area become more than what it has been, in the sense of having community and of working together for justice and reconciliation of all those who live here. Educating the community must be a continuing goal as the population is a changing one. The small efforts toward that by me are simply one piece of bringing reconciliation through acknowledging our past and making our future as a community fruitful and just.
Q: What "tips" or "lessons learned" would I like to tell others who are considering using a TRC process?
A: I believe there are others here who can respond more definitively than I. Because each TRC process is by necessity going to be defined by where it takes place, by the history of the need for such a process, and by those involved, there is no one-size-fits-all. There are, however, important lessons to learn from those who have gone through this process that can be applied. I believe what we have been sharing during this week supplies many of the lessons to be learned, and so I hope somehow this week-long conversation can be put together in ways that are helpful to others who are considering such a process.
Original comment by jprestholdt
As we are right in the middle of the Liberian TRC process, it is too early for us to draw conclusions about the impact. Once we complete the statement taking, the US public hearings and our report to the TRC, we hope to spend some time evaluating the impact of including a diaspora population in a transitional justice process and documenting the model that we have been developing with the Liberian TRC. Each TRC experience is and should be unique, and those who are considering setting up a TRC have a growing number of "lessons learned" to draw upon. It has been an honor for us to contribute in a small way to the development to the field of transitional justice. Hopefully, others will learn from our experience.
You can learn more about the Liberian TRC, including videos and summaries of testimony from the current public hearings phase, at www.trcofliberia.org. More information about the work of our nearly 500 TRC Diaspora Project volunteers in the United States, United Kingdom and Buduburam Refugee Settlement in Ghana, including a 7 minute video on statement taking, can be found at http://liberiatrc.mnadvocates.org/. The Liberian TRC Diaspora Project is only one of many areas of programmatic work at The Advocates for Human Rights. You can learn more about us and how to get involved at www.advrights.org.
The Chairman of the Liberian TRC, Cllr. Jerome Verdier, oftens states that the TRC is only the first step in the long process of reconciliation and accountability. I do believe that both education and implementation of the TRC's recommendations will be critical to long-term peace building in Liberia. The Advocates for Human Rights is committed to continuing to support transitional justice processes as a way to address past human rights abuses and ensure protection against future human rights abuses. This month, we will also publish a new curriculum called Road to Peace: A Teaching Guide on Local and Global Transitional Justice. http://www.advrights.org/Road_to_Peace.html
Jennifer Prestholdt
Liberian TRC Diaspora Project
Deputy Director, The Advocates for Human Rights
Original comment posted by jeanrodenbough
Jean Rodenbough
Greensboro, NC
I found this endeavor educational, broadening, exciting, and also
frustrating as I read some of the posts where all had not yet been
accomplished in terms of reconciliation. I was often left feeling sad, and
angry as well, to learn of the efforts of others which have yet to achieve
the results sought. Our situation is still unfinished as well, and perhaps
reconciliation is an eternal process. Historically, cruelties perpetrated
by governments and those acting in the name of such are a part of all our
experiences. We need only read a few and come to the unsettling conclusion
that peace, justice, reconciliation are always something not quite
achieved. But if we do not make the effort, taking the long view, then we
have wasted the life and the time we have been given.
Original comment by kantin
Kristin Antin, New Tactics Online Community Builder
Hello participants, a community member from Kenya is requesting information on healing communities in Kenya. Please add your ideas and experiences to this request by commenting on this online dialogue:
Tactics for healing, encouraging dialogue, and reconciliation processes in Kenya
Thank you for your help!
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