I. INTRODUCTION
A. A Holistic Approach
The legacy of a transitional period can be profoundly influenced by the societal and individual experience of transitional justice mechanisms.Footnote 1 There is a growing consensus that it is preferable for transitional societies to tap into a ‘rich repertoire of institutional innovations’ rather than relying upon a single mechanism.Footnote 2 Adopting a holistic approach to transitional justice is logical. The multiplicity of justice goals, challenges and constituencies present in a transitional setting are unlikely to be satisfied by a single initiative. However, different transitional mechanisms may strengthen or compensate for the limited mandates of and contextual constraints placed upon others. A truth commission, for example, could bring a degree of clarity and accountability where it is institutionally and politically impossible to prosecute more than a small proportion of the alleged perpetrators of crime.
The rationale behind adopting a holistic approach highlights the potential dangers of expecting too much from one mechanism. Truth commissions often have to grapple with multiple and expansive objectives and concomitant expectations.Footnote 3 The findings of certain analysts suggest that implementing only one type of transitional justice mechanism does not strengthen human rights protections, and, in some cases—including establishing a truth commission in isolation—has a reverse correlation.Footnote 4
The advice of the United Nations (UN) Secretary-General—that transitional justice strategies afford ‘integrated attention’ to prosecutions, truth seeking, reparations, institutional reform and vetting or dismissals—is therefore strategically sound.Footnote 5 A holistic approach does not imply simply ‘many’, but that the many are part of a whole, or a single plan. A coherent conception and design will provide structures to address overlapping priorities and powers,Footnote 6 save resources and mitigate against mixed and confusing messages that can undermine the appearance of utility and efficacy.
This article focuses on specific aspects of the overlap between truth commissions and reparations schemes. Examining these aspects in isolation is necessarily artificial. But the discussion demonstrates that the nature of the structural relationship and the communication channels between transitional institutions can either enhance or detract from their relative ‘success’.Footnote 7 In politically-constrained or resource-scarce environments, the ideal is to optimize the extent to which different mechanisms can contribute or reinforce different justice goals.
Truth seeking has the potential, through inter alia institutional design and individual attitudes, to contextual contribute to the reparation of victims in various ways. However, due to the contextual constraints, nuance and individual variation, this is not a foregone conclusion and furthering this potential requires thought and determination by those involved in their design, execution and follow-up.
B. Definitions and Caveats
This article is concerned with truth seeking by truth commissions and administrative reparations schemes instituted to respond to claims en masse, rather than reparations awarded on an individual basis as a result of court cases. The ‘reparative effect’ of truth commissions, as analysed in this article, refers to the contribution of truth commissions to affording victims reparation as conceptualized under international law (and discussed below).Footnote 8
Truth commissions are defined by the Office of the High Commissioner for Human Rights (OHCHR) as ‘officially sanctioned, temporary, non-judicial investigative bodies’Footnote 9 (sometimes known as truth and reconciliation commissions or TRCs), and are generally given a fixed time period to investigate the context, causes and consequences of a specific set of violations that were perpetrated during a particular phase in a nation's history. Commissions tailor their investigations and fact-finding methodologies to their mandated objectives. They are increasingly tasked with promoting reconciliation and recommending reparations programmes and institutional reforms to ensure such abuses do not happen again.Footnote 10 Truth commissions come in different shapes and sizes, but almost always rely heavily on victim testimony in producing a historical narrative. Their raison d'etre, however, is not to write the story of every individual, but to establish a common narrative or a ‘communal truth’, in the context of which individual truths can be framed.
Reparations schemes are designed to acknowledge not only the violation of victims' legal rights, but also to respond to their memory and the suffering and needs that result. Pablo de Greiff recommends that such schemes be ‘complex’, ie, comprising a mix of different measures, including pecuniary, symbolic, collective and individualized reparations, social services, medical services, etc.Footnote 11 Most reparations schemes include a variety of initiatives, including community and individualized components.Footnote 12 ‘Complex’-ity is likely to enhance a scheme's responsiveness to the often multiple and diverse needs of victims. Reparations are often distributed through an administrative scheme or body that gathers and processes applications. This body may be part of an existing government institution or a body that is constituted especially for the purpose. In Chile, for example, the Ministry of Health was tasked with distributing medical services to victims, while the National Corporation for Reparations and Rehabilitation was established to administer many other forms of reparations, including the archive programme.Footnote 13
When assessing the potential of truth commissions to contribute to various justice goals, the constitutional and contextual constraints placed upon them is a prominent part of the formula. The importance of context illustrates that there is no ‘one-size-fits-all’ approach.Footnote 14 While seeking to highlight some of the considerations and characteristics of a ‘reparative-minded’ truth seeking process, this article also acknowledges that other factors will help determine the appropriate way to set about this goal in each particular set of circumstances. As a result, none of the following sections purports to be comprehensive and the discussion has to be at a certain level of generality. Further, examples are drawn from a wide range of commissions rather than based on a few in-depth case studies. The intention is to consider some of the key factors that illustrate the issues and tensions raised by each perspective from which the reparative potential of truth seeking is considered.
C. Paradigm and Structure
The right to reparation is firmly established under international law. Section II of this article takes a brief look at the international legal framework that surrounds reparations in transitional contexts, including the broad conception of repair and the multiple modalities in which reparation is envisaged. It discusses the normative conception that truth is a form of reparation, the limits of this assertion and also highlights the value of adopting a broad conception of reparation in this context.
Truth in itself is considered a form of satisfaction. A truth seeking process therefore has an instrumental reparative value. Section III examines truth seeking as a tool in influencing the scope, type and legitimacy of the truth that is produced. A more credible truth is more likely to have a greater ‘satisfactory’ effect, on the basis that the narrative that encapsulates victims' stories is easier to trust and harder to challenge. It is therefore more likely to be followed up. Where the truth about violations suffered (and often suffered in silence) is officially endorsed and widely acknowledged, the satisfactory and reparative effect of the historical record is greater.
The truth elicited and the recommendations accompanying that truth may also exercise an operational influence on any subsequent reparative policy and mechanism(s). This is more conspicuous where a truth commission has been tasked with recommending or designing the outline of a reparations scheme, but can occur in any case. A forward-thinking truth seeking process can therefore enhance the effectiveness of the reparation mechanisms and modalities that follow. Section IV discusses the ways in which truth seeking can influence subsequent reparations mechanisms and the impact on the success of the latter.
Undertaking institutional design with a purely instrumental focus may obscure the reparative potential inherent in the truth seeking process itself. A broad conception of ‘repair’ focuses on empowering or re-empowering victims: acknowledging their suffering, recognizing their dignity and opening a space within the national discourse for victims to assert their rights. The operation of a well-designed, empathetic truth seeking process may have intrinsic reparative potential through providing a platform to acknowledge and recognize victims that have long felt ignored. A commission provides an institutional space in which these processes play out and through which a sense of dignity may be restored. Some observers and participants have focused more narrowly on the healing effect of ‘opening up’. Section V assesses some of these claims. This section also highlights the importance of conducting the assessment at both an individual and a collective level, rather than conflating the two.
The end of an official truth seeking process is not the end of the story. Section VI considers the need for a long-term focus if truth seeking is to have any lasting reparative effect. If, for example, there are no resources or insufficient political will to act upon the findings and recommendations of a commission, the validity and utility of that particular truth is undermined. If a commission's report remains private, the truth embodied within it has no claim to universality, implicitly undermining its force and its ability to afford satisfaction. Participation in a truth seeking process may have raised victims' expectations of institutional reform, tangible benefits, etc. Frustrated expectations can cause victims further harm, while undermining any willingness to trust national institutions and therefore potential for reconciliation with State bodies. However, it would be too simplistic to claim that unsatisfactory ends means that a truth seeking process has no value or reparative effect. Expectations are evidence of a sense of status and empowerment.
Official acceptance or rejection of a commission's findings illustrate that truth seeking does not play out in a vacuum. Nor is the relationship between truth seeking, reparation and the various actors involved linear or predetermined in the way that a sequential institutional analysis might suggest. The context places limitations on the reparative effect of a truth commission, but it can also provide the catalyst, advocacy platform or moral capital for other actors to pursue their own agenda towards a reparative end. Section VII highlights the importance of contextual factors by taking a brief look at some examples of this phenomenon.
As becomes clear when analysing the different angles from which truth seeking may impact on reparation, there are tensions between different parts of a commission's mandate. For example, initiatives that render the process more reparative may undermine the legitimacy and accuracy of the truth that results. Resolving these tensions requires a balancing act in light of what a commission is trying to achieve.
II. THE LEGAL FRAMEWORK
A. The Right to Reparation
International law establishes a right to reparation for victims of breaches of international humanitarian law, international human rights law and, more recently, international criminal law.Footnote 15 The obligation of a violating State to provide reparation is an integral part of combating impunity.Footnote 16 What constitutes reparation in this context is defined widely. International law generally adopts a broad and flexible approach towards the modality of reparation that may be deemed appropriate,Footnote 17 and, as part of this, confirms the normative status of truth seeking as a form of reparation.Footnote 18
In 2005, the United Nations General Assembly ‘adopted and proclaimed’ the ‘United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ (the Basic Principles), which identify ‘mechanisms, modalities, procedures, methods’ to operationalize existing obligations in respect of redress and reparation.Footnote 19 The Basic Principles were the result of 16 years of study and consultation with States, international organizations and NGOs. It is a ‘soft law’ instrument, not binding on States, which required inter alia ‘compil[ing] and systematiz[ing] the extensive corpus of law regulating the right to a remedy and reparations’.Footnote 20 The Basic Principles ‘seek to rationalize through a consistent approach the means and methods by which victim's rights can be addressed’.Footnote 21
The Basic Principles draw upon human rights and humanitarian law jurisprudence, including those aspects that reflect systematic characteristics. A breach of international human rights law is conceived of as a violation of both individual rights and of the international human rights legal order. Footnote 22 Reparation therefore addresses both aspects of violations. It is in this context that the Inter-American Court of Human Rights (IACtHR)—which has created ‘perhaps the most comprehensive legal regime on reparations in the human rights field of international law’Footnote 23—has developed concepts such as transformative reparations.Footnote 24 Where violations occur in a situation of structural discrimination or marginalization, restoration of the status quo ante is not adequate reparation. Reparations should therefore aim to transform the pre-breach situation.Footnote 25 This may require the creation of institutions, or even the amendment of a State constitution,Footnote 26 as well as remedies targeting individual harm.Footnote 27 Reparation for a breach of the right to the truth reflects this dual focus.Footnote 28
The Basic Principles confirm that victims are entitled to prompt, adequate and effective reparation for gross violations of international human rights law and serious violations of international humanitarian law, proportional to the gravity of the injury and violations suffered and as appropriate in the circumstances.Footnote 29 Reparation is categorized into five different forms, which are neither mandatory nor exclusive: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. No specific formula is prescribed and a degree of flexibility is therefore retained. The Basic Principles make clear that the identification, apprehension, prosecution or conviction of a perpetrator is not a prerequisite to a victim's right to reparation, therefore all victims should be incorporated in any reparations programme.Footnote 30 The definition of ‘victim’ incorporates those who have suffered a wide variety of injuries, but (unlike most human rights or humanitarian law instruments) only apply where that harm has been caused by gross or serious violations.
The Basic Principles draw upon customary international law, as codified in the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts (ILC Articles).Footnote 31 There are, however, some key differences. The Basic Principles do not prescribe a hierarchy in the modality of reparation as the ILC Articles do (restitution, compensation and satisfaction as an ‘exceptional’ remedy), but instead adopt a more flexible approach.Footnote 32 Restitution may not be appropriate for victims of human rights or humanitarian law violations. Depending upon how a violation is defined in the course of transition, both temporally and substantively, restitution may return or condemn a victim to a situation of marginalization and poverty. Transformative reparations reflect this concern. The 2007 Nairobi Declaration on the Women and Girls' Right to Reparation and a Remedy also articulates this concern, as follows:
that reintegration and restitution by themselves are not sufficient goals of reparation, since the origins of violations of women's and girls' human rights predate the conflict situation.Footnote 33
At times, the normative status and sociological effect of reparative measures diverge. The relative flexibility retained by the Basic Principles (reparation that ‘is appropriate in the circumstances’) is an acknowledgement that different measures are not reparative in all circumstances. The Basic Principles recognize that the ‘truth’ may cause further harmFootnote 34 and the truth can have opposite effects at a societal and individual level. Many victims create their own narrative around events in order to make sense of the suffering. The truth can question or destroy this narrative. The South Africa Truth and Reconciliation Commission (South African TRC) was established in 1994 following the election of the African National Congress and Nelson Mandela. Its mandate was to investigate ‘gross human rights violations’ perpetrated during the apartheid regime between 1960 and 1994. It had the authority to grant amnesties to perpetrators of political crimes that fully confessed.Footnote 35 Hayner highlights the frequently reported story of Sylvia Dlomo-Jele, a South African woman and a co-founder of the prominent Khulumani victim support group, for whom it is believed that the truth proved fatal.Footnote 36 For many years, Ms Dlomo-Jele thought that her son had been killed by the police. However, his ANC colleagues subsequently confessed to the crime during an amnesty hearing of the South African TRC. Ms Dlomo-Jele died a few weeks later.Footnote 37 Yet the symbolic and material reparations that resulted from the TRC's work assisted the local community and Ms Dlomo-Jele's other children to deal with the tragedy.Footnote 38
The analysis is complicated by the fact that there was no prompt official investigation as required by international human rights law. Ms Dlomo-Jele had therefore built ten years of her life around this story. Would the result have been the same had investigations revealed the truth at the time of Sicelo Dlomo's death? In many situations where truth seeking takes place, the question is academic—part of the underlying rationale for the exercise is the absence of an official investigation. But for many victims, even where investigations are launched relatively promptly—for example, in relation to 9/11—creating their own narrative is a necessary step in making sense of the disruption of the way they understood the world.Footnote 39 A truth commission's work can destabilize this understanding.
Further, the Basic Principles also require reparation to be ‘proportional’ to the violation and the harm, rather than relying on the classic international law standard of ‘wiping out the consequences’ (as per the Chorzów Factory Case).Footnote 40 The latter standard may be unsuitable, or even insulting, in a transitional setting. It is impossible to ‘wipe out’ the consequences of some violations. Further, many States in transition are dealing with numerous victims but have limited resources. Satisfaction, traditionally an ‘exceptional’ remedy, could therefore play an important role.
B. Truth Seeking As a Form of Reparation
The Basic Principles include ‘[v]erification of the facts and full and public disclosure of the truth’ (truth seeking) as an example of satisfaction.Footnote 41 They also confirm that victims have a right to seek the truth regarding the violations that they have suffered, including the causes of the violations.Footnote 42 The IACtHR in Gelman v Uruguay, confirmed this right when ordering a factual investigation and immediate ‘localization’ of the remains of a disappeared victim ‘as a form of reparation of the victims [sic.] [in this case relatives'] right to the truth’.Footnote 43 The updated set of principles for the protection and promotion of human rights through action to combat impunity (the Impunity Principles) echo this right, confirming inter alia victims' right to know the circumstances in which violations took place and the role that a truth commission might play in fulfilling this right.Footnote 44 The Impunity Principles further state that fulfilling the right to the truth is a safeguard against reoccurrence,Footnote 45 and it is, therefore, not only a form of satisfaction, but also a guarantee of non-repetition.
The ILC Articles envisage satisfaction as corresponding to injuries that are often of a symbolic character, constituting an affront to the State, irrespective of the material consequences involved,Footnote 46 and as taking many different forms, including official apologies and a declaration of wrongfulness of the act by a competent court or tribunal.Footnote 47 The IACHR in Gelman similarly described the issuance of a judgment in the victim's favour as a form of satisfaction.Footnote 48 This makes clear that the fact of being the object of a wrongful act can constitute an injury and require reparation, regardless of other consequences. The Basic Principles emphasize that reparation should be proportional to the gravity of the violation as well as the harm and ‘affirm’ that the gross or serious violations constitute an ‘affront’ to dignity.Footnote 49 Violations directed at a victim send an implicit message about a victim's value, dignity and place in the community. When the violation is inflicted and/or ignored by the State, this further restricts the space in which rights may be enjoyed. Pablo de Greiff highlights that those who intentionally harm others pursue strategies of ‘dehumanization’, pointing to certain assumptions about the agency of those harmed.Footnote 50 The purposes of rape, for example, have been compared to those of torture, as including humiliation, degradation and destruction of the person (including sense of self).Footnote 51
This illustrates a central element of reparation: restoring the dignity and agency of victims and empowering them to claim their rights themselves. Truth commissions and reparations schemes are not, ultimately, looking to benefit passive and subdued victims, but to open or reopen the space in which victims can assert their place, and in this sense, to ‘de-victimize’ the victims. Transitional justice measures seek to provide recognition to victims as individuals and as bearers of rights.Footnote 52 In his work on ‘justice as recognition’, Haldemann draws on the work of political scientists to highlight the human need for recognition.Footnote 53 Self-identity and self-respect are dependent on the attitude of and interaction with others. He discusses how feelings of being ignored and a failure to recognize another's dignity or equal worth are internalized as a lack of respect. Footnote 54
Acknowledging the fact and wrongfulness of the violation(s) is therefore a precondition to ‘de-victimization’. Albie Sachs recently commented: ‘[t]o me the huge shift that a good truth commission type process makes … is to move from knowledge to acknowledgement. Knowledge is just knowing the facts, the details, but it's abstract … acknowledgment means it enters into your emotional world, your world of responsibility’.Footnote 55
The nature and medium of the response to victims is therefore central to engendering this sense of recognition,Footnote 56 thus highlighting the importance of considering the process of truth seeking as well as the manner and context in which the truth is articulated. Ms Dlomo-Jele said of her experience testifying before the South African TRC: ‘[t]he way they listened to me, the interest they showed in my story, that was good for me’.Footnote 57
III. ENHANCING THE INSTRUMENTAL REPARATIVE VALUE
The truth in itself can therefore constitute a form of reparation. The satisfaction afforded by a truth commission's product depends in part upon the credibility of that truth. Not only does its credibility influence the direct reparative nature of the truth produced for victims, it also affects the broader reparative effect via its acceptance by a wider population. A well-received truth garners support for the implementation of a commission's recommendations, which often include reparations and institutional reform.
The credibility of the truth depends upon the legitimacy of the truth seeking mechanism. ‘The legitimacy of the source … influences considerably the effectiveness of the message in producing attitude change’.Footnote 58 Procedural fairness has been highlighted as a key criterion in assessing the institutional legitimacy of truth commissions, where perceptions of procedural fairness depend upon rationality (neutrality and factuality) and relevant parties being accorded the possibility to voice opinions and views.Footnote 59 Other studies on theories of public participation and institutional legitimacy of like institutions note the importance of similar factors: neutrality, listening to interested parties, quality of decision making, but also the experience of interacting with the commission.Footnote 60 The process and the way that victims are treated therefore feeds directly into the legitimacy of the truth produced.
Limited credibility can set in motion a vicious cycle. Commissions rely upon the participation of victims, perpetrators and cooperation of government etc to form their product. Limited credibility may make participation less appealing, thus inhibiting a commission's methodology and rendering the product less credible. The benefits of engaging with a truth commission are less likely to be deemed to outweigh the costs —time, effort and potential trauma—if the report is liable to be questioned or dismissed on grounds of partiality, bias, faulty methodology, etc.
This section does not intend to provide a comprehensive survey of best practice in relation to establishing and running a truth commission. Rather, it seeks to illustrate how far the quality of the truth and the perceived quality of the truth are reliant upon institutional and political factors, as well as some of the challenges faced in seeking the requisite legitimacy.
A. Logistical and Contextual challenges
Commissions face administrative, operational and political challenges that frequently undermine their work. Infrastructure and communication is one example: commission staff members in Guatemala visited villages in the mountains that were so isolated that they were unaware that the war had ended, let alone of the existence of a truth commission.Footnote 61 Due to a lack of office space, the Chad truth commission established itself in the headquarters of the security forces' former secret detention centre. This, in turn, deterred many victims from providing testimony.Footnote 62 These challenges can also cause delay, which often undermines public confidence and interest. The 1986 truth commission in Uganda enjoyed wide public support for the first couple of years of its mandate, but due to an absence of political support, and thus insufficient resources, it did not deliver its report until 1994, by which time many Ugandans had lost interest: ‘[e]ight years and countless hold-ups later, the Commission released its report with a quiet whimper’.Footnote 63 Sometimes these factors prevent the release of any findings at all: the Bolivian truth commission did not complete or issue a report due to insufficient resources and lack of political support.Footnote 64
B. Independence and Impartiality
The identity of the commissioners can prove crucial to a commission's credibility. In her seminal book on truth commissions, Priscilla Hayner highlights the importance of strong leadership in determining the impact of a truth commission, particularly due to the managerial and political difficulties often faced.Footnote 65
But leadership is not only an operational concern. The independence and impartiality of the commissioners, and the appearance of independence and impartiality, is central to the perceived quality of truth that is produced by the commission.Footnote 66 The 1986 Ugandan commission (discussed above) was further undermined by the belief, held by some Ugandans, that its role was to legitimize the position of the political leadership and that it had no real truth-telling function.Footnote 67
The official instruments pursuant to which commissions are established will usually require that commissioners are independent and impartial and provide for the removal and replacement of commissioners who do not fulfil these criteria. The Kenyan Truth, Justice and Reconciliation Act (TJR Act), establishing the Truth, Justice and Reconciliation Commission (TJRC), is one such example. The TJRC was one of several commissions envisaged by the agreements underlying the February 2008 power-sharing deal following the post-election violence. The violence lasted approximately two months, during which an estimated 1,133 people were killed and approximately 350,000, displaced from their homes.Footnote 68 The TJRC Report describes it as ‘the darkest episode in Kenya's post-independence history’.Footnote 69 The TJR Act was passed in late 2008 and mandated the TJRC to investigate, record and make recommendations in respect of abuses committed between 12 December 1963 (independence) and 28 February 2008.Footnote 70 The TJR Act requires that commissioners be free from the ‘direction or control of any person or authority’ and shall be independent of any political or organizational interests. Tellingly, the commissioners ‘shall avoid taking any action, which could create an appearance of partiality or otherwise harm the credibility or integrity of the Commission’.Footnote 71 (Emphasis added.)
Despite its statute, President Kibaki's appointment of Bethwell Kiplagat as Chair of the TJRC provides a dramatic example of the link between a commissioner's perceived partiality and the damage to the credibility of a commission's work. Kiplagat was alleged to be implicated in human rights abuses and irregular land distribution practices.Footnote 72 The fallout of the accusations and the official reaction resulted in delay and confusion, which was exacerbated by the consequent resignation of some other commissioners.Footnote 73 One resigning commissioner voiced concerns that the government's failure to investigate Kiplagat, along with a failure to provide sufficient resources, would make it impossible for the commission to complete its work. He added: ‘[the Commission's] report and recommendations, no matter how well supported and reasoned, will forever be tarnished by that failure’.Footnote 74 In short, a rigorous fact-finding methodology is not sufficient. The symbolic role of the truth commission, bound up in the reputation of its commissioners, has a significant impact on acceptance of the truth produced.
C. Methodological Challenges
Commissions generally have limited resources and very little time compared to the enormity of the task they are set. Their fact-finding methodologies need to balance competing goals. There is an inherent bias in a commission's mandate towards patterns and trends. Individual testimonies are often included as ‘case studies’ to illustrate widespread phenomena, but many victims' stories will form a statistic in the final report rather than an explicit part of the narrative. This may be another source of disappointment for victims who believe their story will finally be told: ‘[s]tatistics do not tell us how it felt to be there’.Footnote 75
Some commentators distinguish between commissions that concentrate on a ‘historical truth’ (for example, the Guatemala Commission for Historical Clarification) and others that prioritize a ‘judicial truth’.Footnote 76 The 1990 Chilean TRC (the Rettig Commission) is an example of the latter. It was established following President Alywin's victory over General Pinochet in the 1989 elections. The Rettig Commission was established to document the human rights abuses that resulted in death and disappearances during military rule from 1973 to 1989. It conducted a thorough investigation of most of the cases presented to it and published numerous individual stories in its over 1000 page report. Its ability to analyse each case in depth was linked to the limited subject matter of its mandate as compared to the time it was given to conduct investigations. Other commissions with a wider mandate have relied to a greater extent on statistics and statistical analysis to underscore their findings. The Commission for Reception, Truth and Reconciliation of Timor-Leste (CAVR) was mandated inter alia to investigate human rights abuses in the context of political conflicts between 1974 and 1999 (a period incorporating Indonesian occupation and internal conflict). It estimated that between 102,800 and 183,000 people died due to conflict-related causes. This figure includes 18,600 people who were unlawfully killed or disappeared, and a minimum of 84,200 people that died from hunger and illness and who would not have been expected to die from these causes under peacetime conditions.Footnote 77
Competing priorities also have to be balanced in the choice of evidentiary standard, which is usually determined by the commission. Hayner has noted a general trend is towards commissions adopting a standard of ‘preponderance of the evidence’ or ‘balance of probabilities’.Footnote 78 The South African TRC identified those involved in ‘gross violations’ based on the ‘balance of probabilities’. Yet it chose not to consider victims' accounts of their experiences of human rights abuse as truthful until proven otherwise.Footnote 79 The El Salvador commission applied a three-tiered approach to the standard of proof, allocating to each finding one of the following degrees of certainty: overwhelming evidence; substantial evidence and sufficient evidence. When the evidence was less than ‘sufficient’, the commission refrained from making a particular finding.Footnote 80 Findings are more robust if supported by a higher standard of proof. This is particularly important if the commission intends or is mandated to identify perpetrators by name or to provide evidence to the criminal justice system to encourage criminal investigations and prosecutions.
However, a higher standard of proof is likely to require deeper and more rigorous questioning and investigation that can detract from the reparatory effect of the evidence-gathering process. Victims may find providing details or being questioned about their experiences difficult. The rigorous cross-examination adopted in certain adversarial systems is likely to be inappropriate, especially where risks of re-traumatization are high. Further, this may result in cases being excluded from the report or analysis if they cannot be corroborated. Providing sufficient corroborating documents to substantiate physical harm, for example, may be impossible where the victim had no access to medical services.
D. Outreach, Consultation, Participation
As noted above, opportunities for participation enhance perceptions that the outcome is fair and legitimate. Consultation and participation can engender a sense of ownership. Communication and outreach, along with consultation and participation strategies, are therefore central to the perceived legitimacy of a commission.
Given the influence of the identity of the commissioners on the perceived neutrality of a truth commission, consultation and participation will ideally be sought with respect to both the appointment of commissioners and the work of the commission.Footnote 81 The South African authorities sought an (at the time) unprecedented degree of civil society input into the TRC commissioner selection process. Nelson Mandela selected the commissioners from 25 candidates proposed by a selection committee composed of inter alia human rights NGOs and civil society representatives. With the exception of two candidates whom Mandela selected to maintain gender and regional balance, all of the commissioners had been nominated by the public and interviewed by the selection committee in public.Footnote 82 In Ghana, the Attorney General consulted with the Civil Society Coalition (CSC) prior to passing the constituting legislation of the National Reconciliation Commission (NRC). Following various meetings, the CSC proposed guidelines regarding the selection process. The CSC believes that certain of its proposed guidelines formed the basis for the NRC's diversity (including ensuring a greater gender balance). This diversity is thought to have been instrumental in augmenting public support during the initial stages of the NRC's work.Footnote 83
The picture painted by a truth commission may obscure a significant part of a nation's history if it excludes potentially marginalized groups from the procedure and substance of its work. Consultation and participation is part of an inclusive approach: it facilitates access to necessary information and can build trust that may increase access and input. Truth commissions will normally need to employ specialist techniques in order to ensure, for example, gender-sensitive approaches to outreach, participation and testimony-taking.Footnote 84 In certain cultures, commissioners noted that women tell the stories of their male relatives before their own.Footnote 85 Allocating insufficient time to the process could therefore mitigate against recording the full story. Women gave 55 per cent of all testimonies to the South African TRC, but the majority of these testimonies concerned what had happened to their husbands or sons.Footnote 86 Victims of sexual violence are another constituency that may choose not to engage with a commission unless certain protective procedures are put in place. They may only be willing to testify in private conditions on a confidential basis, and may prefer to talk to a statement taker of the same sex. The Sierra Leone TRC employed a cadre of female statement-takers, who were trained in taking statements from victims of sexual abuse. Testimony was taken on a one-to-one basis, although, if requested, counsellors were present to sit beside women and offer assistance.Footnote 87
An inclusive approach requires consideration of other barriers to access, including educational and linguistic. The Peruvian Comisión de la Verdad y Reconciliación (CVR) created a photography exhibit in the National Museum as well as publishing photographs at the same time as releasing the informe final. The CVR President's speech prior to handing over the informe final was translated into Quechua.Footnote 88
E. Dissemination of the ‘Truth’
The official response (itself an expression of the political context) influences the legitimacy accorded to a commission's findings. A public and official apology is envisaged as a means to afford satisfaction,Footnote 89 and when motivated by the truth, it augments the ‘satisfactory’ effect and the force of that truth. It also makes it harder for the State not to take further action. When the truth is undermined, so is its potential reparative effect. Following the release of the Rettig Commission's report, President Aylwin apologized on behalf of the State on national television. Each victim listed in the report received an official letter of apology. Even though a series of bombings in the immediate aftermath of the report's release diverted attention from the report, the President's acknowledgement gave the TRC's findings a certain historical status.Footnote 90 In El Salvador, on the other hand, the President and the Defence Minister criticized the commission's findings upon their release.Footnote 91 The public lost interest in the commission's findings when an amnesty act was passed five days after the commission's report was published. Victims were left with no political representation.Footnote 92
Similar considerations apply to a refusal to publish a commission's report. Maintaining secrecy restricts the potential for acknowledgement of victims' stories as well as hampering attempts to achieve reform on the basis of the report. Despite pressure from NGOs and relatives of victims, the Zimbabwean government refused to publish the report of the Zimbabwe truth commission (1983–84) on the basis that it might encourage violence.Footnote 93 Contrast this with the report of the Argentinean commission (also operational between 1983 and 1984), which was published in its entirety, and as a book-length version. The book (Nunca Más) was an immediate bestseller and 150,000 copies were sold in the eight weeks following its release.Footnote 94
The way that a State treats a final report is likely to be of less importance where the population has had significant contact with the truth commission's proceedings, for example, via extensive media coverage. In South Africa, victim testimony and public confessions were broadcast live to the nation. Even prior to publication of the final report, certain truths had permeated the national consciousness. However, the way that the report, and particularly the commission's recommendations, were treated affected the legacy of the process. The lack of subsequent prosecutions,Footnote 95 for example, sent a message about the State's attitude to the stories revealed by the TRC.
IV. OPERATIONAL DETERMINISM
States that implement both a truth commission and reparations scheme often do so sequentially, with the former preceding the latter.Footnote 96 In such cases, and particularly where the truth commission is mandated to make recommendations regarding reparations, the design and conduct of the former can have a huge effect on the definition and contours of the latter.
A. Mandate
The operational influence of a truth commission over a subsequent reparations scheme is clearly illustrated where a truth commission has a limited mandate. A truth commission has the authority to investigate allegations of violations that fall within a defined time period and usually of a specific nature. The investigative mandate determines the scope of credible findings and recommendations that can be made. The mandate of the Rettig Commission notably excluded investigation of torture allegations not resulting in death.Footnote 97 The Rettig Commission documented 3,248 cases of disappearances, executions, kidnapping and torture that fell within its mandate and recommended a series of reparations programmes for those identified as victims of those crimes (including family members).Footnote 98 In 2003, following years of pressure, the then-President of Chile, President Lagos, set up the National Commission on Political Imprisonment and Torture (the Valech Commission) to investigate other abuses committed by the military regime, including torture that did not result in death.Footnote 99 The Valech Commission classified over 28,000 people as legitimate victims under its mandate.Footnote 100 Many of these victims are now included in programmes that formed part of the original reparations schemes, for example, pensions, educational benefits and an extensive State medical system.Footnote 101 The expansion of the mandate drastically altered the story that was told and the scope of the reparations scheme that resulted.
B. Fact-Finding Methodology
The fact-finding and recording methodologies chosen by a truth commission can prove central to the design of a subsequent reparations scheme. Victims are a heterogeneous constituency who have suffered different violations and have different needs and expectations. The ability to meaningfully respond through reparations is therefore enhanced when information is categorized not only by violations suffered, but also objective and logistical information, for example, location, age, gender, dependants, health opportunities, etc.Footnote 102 This information can then form the basis for recommendations regarding the design of a reparations scheme and/or be used by a subsequent administrative body charged with designing and rolling out that scheme. Designing a ‘complex’Footnote 103 scheme with multiple, specialized initiatives will require particular information sets on which to justify and construct the different programmes. If commissions are ‘reparations-minded’ in their fact-finding and recording exercises, they can reduce the time and resources required by a body charged with implementing reparations and help avoid unintentional exclusion of victims.
As countries ‘in transition’ often have limited resources to dedicate to reparations schemes, the data and findings of truth commissions may be used to make difficult choices. The Basic Principles envisage a degree of creativity and many commissions have adopted an innovative approach. The CVR and Moroccan L'Instance Equité et Reconciliation (IER), for example, defined, not only individuals, but also communities or regions as victims and therefore beneficiaries of reparations. On this basis, they recommended collective reparations as one of the measures to be implemented by a future reparations scheme. The Program of Collective Reparations in Peru awards communities investment projects as reparations.Footnote 104 The IER concluded that certain regions had deliberately been excluded from State funding and services and/or subject to mass repression. The Moroccan community reparations programme targets different regions, and includes both symbolic reparations and development projects.Footnote 105
However, although synergies between institutions involved in truth seeking and reparations should be optimized, there is a balance to be struck. Gathering information to facilitate implementation of a reparations scheme is not the primary goal of a truth commission. Commissions have been assigned varying degrees of responsibility vis-à-vis reparations programmes. But even where commissions are assigned an activist role, such as the CVR, which was mandated with ‘drawing up proposals for reparation and dignification of the victims and their family members’, this was one of five objectives and was predicated on its other functions. Footnote 106 Further, truth seeking functions may be undermined by an unbalanced focus on the design of a subsequent reparations scheme. There is, for example, a risk that statements will be tailored to bolster claims for reparations,Footnote 107 thus increasing the burden on commissions to test and corroborate statements before affording them evidential weight. This potential conflict is one reason that commissions generally do not get involved in the implementation of reparations programmes. As discussed below, there are also risks of raising expectations that a truth commission does not have the power to fulfil.
Some commissions are empowered to award urgent, interim reparations during the truth seeking process, generally in order to assist those that have urgent (for example, medical) needs. Historically, the numbers of victims targeted, the amounts involved and the delays in implementation often mitigate concerns regarding conflicts of interest. As a result of World Bank funding, 700 of the most vulnerable individuals in Timor-Leste were provided with health, counselling and support services and a one-off payment of $200.Footnote 108 This represented 0.38–0.62 per cent of the number of victims estimated to have died due to conflict-related causes.Footnote 109
In South Africa, many of the interim reparations payments were made after the initial volumes of the TRC's report had been presented in October 1998, and were dealt with by the Reparation and Rehabilitation Committee rather than the Human Rights Violations Committee.Footnote 110 The delay was caused by hold-ups in promulgation of the necessary regulations and logistical difficulties faced by the Reparations and Rehabilitation Committee.Footnote 111 Of the 300 million rand that was initially allocated for urgent interim reparations, only (approximately) 50 million was distributed.Footnote 112 Delays in distributing any form of reparation can cause frustration and be interpreted as indifference to the degree of suffering. Whatever the underlying cause of complications with an interim reparations programme, the association of delay with the truth commission can detract from a commission's reparative legacy.
C. Outreach, Consultation, Participation
Consulting victims and encouraging participation prior to making reparations recommendations increases the quantity and (usually) quality of information available and therefore tends towards a more efficient and effective scheme.Footnote 113 This can be particularly important where resources are limited and victims many and diverse in enhancing the effectiveness of reparations. The Moroccan IER organized consultations and invited input on its recommendations regarding reparations, and particularly community reparations. Following a series of meetings with victims in the region, the IER received a letter from the inhabitants of Douar Bou Khnan requesting a bridge building project. The IER incorporated this recommendation into its report.Footnote 114 Following visits to Tagleft, the IER received a letter from the Anergui Association for Development, Environment and Communication, requesting a grant for development projects. The IER's final report recommended various different projects, including infrastructure projects, such as road paving and water and electricity provision.Footnote 115 In 2011, the Anergui Association was one of six associations in the Azilal region to receive funding to facilitate implementation of collective reparations projects.Footnote 116
Participation helps to ensure that the heterogeneity of victims is reflected in a commission's recommendations regarding reparations. The gendered nature of certain violations—both in terms of experience and consequencesFootnote 117—may only be appreciated, and an appropriate response formulated, as a result of facilitating broad participation. As emphasized by Albie Sachs: ‘the crucial thing is for the voices of women to be heard. And it's not just one single voice’.Footnote 118 The IER held a National Forum on Reparations in 2005, following which it announced it would prioritize gender considerations in its reparations recommendations. Its recommendations consciously bypassed inheritance laws that would reduce de facto the compensation received by widows of those killed or disappeared.Footnote 119 The CAVR was established under UN Regulation 2001/10, which mandated that a gender perspective be incorporated into its work.Footnote 120 As a result of its work with women's groups and female victims, the CAVR realized that women were underrepresented in its statement sample and, consequently, as beneficiaries of its urgent reparations scheme. The CAVR therefore ensured that more women than men were invited to the healing workshops (part of the urgent reparations programme) at which cash grants were distributed.Footnote 121
Outreach and a participatory approach on the part of a commission may facilitate victims' engagement with a subsequent reparations body by encouraging victims groups and NGOs to organize politically, and building trust and communication channels. In Peru, the truth seeking process catalysed the formation of many new victims groups. The expertise and consensus developed by NGOs and victims groups during the CVR process was leveraged during the passing of legislation relevant to reparations.Footnote 122 NGOs that had been engaged with reparations issues throughout the life of the CVR also facilitated communication between the reparations follow-up mechanism (CMAN) and victims groups.Footnote 123 However, a proliferation of groups may not always prove effective, particularly where they cannot coordinate. The Guatemalan government excluded victims groups from the reparations implementation process on the basis that the lack of consistent consensus between victims' representatives was an obstacle to cooperation and progress.Footnote 124
A truth commission's outreach and consultation strategy not only educates a commission. Participation is a two-way process that assists in managing the expectations of victims.Footnote 125 Debates between the CVR, NGOs and victims groups helped to educate victims regarding the constraints—political, legal, financial—faced by the CVR in formulating its recommendations and that would be faced by a subsequent scheme.Footnote 126
V. REPARATION THROUGH THE PROCESS
In producing a truth, and trying to ensure acceptance of that truth, truth commissions aim to obtain widespread acknowledgment for the narrative of victims' stories on which its findings are based.Footnote 127 This, in itself, can have a reparative effect, especially for those who have long felt ignored. However, acceptance of the final product is not the only goal. The truth seeking process in itself can have a powerful symbolic effect, empowering and opening a space for rights to be asserted.
A. Healing and Reconciliation
Some commentators claim that the process of engaging with and opening up to a truth commission can have a healing (rehabilitating or satisfactory, thus reparative) effect.Footnote 128 Read strictly, ‘healing’ implies effort on the part of the victim rather than something provided to a victim to compensate for a wrongful act. However, facilitating the healing process may be seen as the beginning of trying to make amends. Zalaquett offers his personal recollections as a member of the Rettig Commission: ‘[a]t first we did not realize the very process of seeking the truth was thus also a patient process of cleansing wounds, one by one’.Footnote 129 Hamber, a psychologist with the South Africa TRC, reported that individuals had described the public hearing process as cathartic and relieving.Footnote 130 ‘Structured and facilitated story-telling can serve the cognitive function of re-shaping the event for the survivor and allowing for the essentially abnormal event to be integrated into the cognitive and emotional matrix of his or her life.’Footnote 131
These claims are based on an assumption that opening up and talking assists the healing process and that a public, verbal account of the past may help to combat the isolating effects of a ‘culture of silence’.Footnote 132 Hayner devotes a chapter in her book about truth commissions to this topic Footnote 133 in which she discusses testimony from experts and victims themselves explaining that victims have a desire to tell their stories and that doing so assists in the process of healing emotionally.
But this is not the end of the story. Emotional healing is a long-term process; truth commissions meet and listen to victims a limited number of times and often only once.Footnote 134 A truth commission is usually working with limited resources and to tight deadlines. Its mandate is unlikely to prioritize the necessary long-term psycho-social assistance necessary to deal with trauma.Footnote 135 Even where commissions have recognized the need to provide long-term psychological support to the victims that testify before it, implementation has not always matched intentions. The South African TRC provided psychological support and pre- and post-public hearing briefing sessions and provided a referral service (although this was obviously dependent upon the availability of local services). However, the programme has been criticized for being inadequate in practice.Footnote 136 And, as noted by Hayner, this leaves open the possibility of re-traumatization.
Long-term psychological support is more likely understood as a form of rehabilitation, and predominantly as part of the reparations process. The Rettig Commission, for example, recommended that, as part of a subsequent reparations scheme, victims and their relatives be given specially-tailored and comprehensive physical and mental health care, over ‘not too short’ a period of time. It noted:
[Victims] have had traumatic experiences so intense and so strong that their psychic structure has not been able to process them. All their subsequent efforts at reorganizing their lives will be marked by the damage done unless they receive specialized help.Footnote 137
But what happens if that help is not provided? Or there is a long delay before it is? Judith Herman, a Harvard psychologist, has warned that for some victims testifying to a truth commission ‘opens them up and leaves them with nowhere to go’.Footnote 138
Therefore, although the truth seeking process can have a healing effect, simply relying upon the idea that ‘revealing is healing’ ignores the variety and nuance of human experience and reactions and the frequent need for long-term assistance.
The ‘therapeutic’ element of a truth seeking process is also dependent on that process being appropriate to the victim's cultural perception of catharsis. Different nations, regions within each nation, and communities with regions, may have different approaches to healing. This again highlights the drawbacks of an overly simplistic approach. Studies have questioned whether a public, verbal process of remembering was appropriate throughout Sierra Leone, while acknowledging that ‘revealing’ was the preferred method amongst certain constituencies.Footnote 139
The concept of healing in transitional justice challenges us to think beyond the individual to healing at a family, community, regional and national level. The importance of ‘opening up’ in order to heal wounds at a societal level has also been cited as a benefit of establishing a truth commission. Both Bishop Joseph Humber and Archbishop Tutu, the Chairmen of the Sierra Leone and South Africa TRCs, respectively, spoke about the need to reopen wounds in order to heal them. ‘Superficial healing will allow the wounds to explode again’.Footnote 140
Societal healing requires awareness, which, in turn, relies upon authoritative information. This is what a truth commission is intended to produce. In February 2012, the Chairman of the Canada TRC noted that he was surprised at the lack of national awareness surrounding residential schools and stated: ‘healing requires education’.Footnote 141 A public process can prove as (and sometimes more) important as the final report in building a consensus around a national history, particularly where the process is widely disseminated. It is harder to deny a story and to ignore victims when perpetrators admit to crimes and victims testify about their experiences live on the television, radio or internet, or at well-attended public hearings.
But, as noted earlier, there are drawbacks to collapsing a collective and individual analysis, which is a risk when focusing on a collective entity. Hamber and Wilson highlight their concern that commissions working on the basis of the ‘fiction’ that nations (with no psyche) can heal risks seeing ‘individual and national processes of dealing with the past [as] largely concurrent and equivalent’. Expecting individuals to heal at the same pace as national institutions may cause further trauma.Footnote 142
Discussions of societal healing invoke notions of reconciliation. Reconciliation is often a mandated objective of the truth commission process. There is little consensus around the concept and practice of reconciliation (‘the basic problem with reconciliation is that no-one agrees how to define or how to do it’),Footnote 143 but there are certain points on which many can agree. To the extent that a truth commission raises awareness of the violations in question or creates consensus around an historical narrative, it can contribute to reconciliation and, in turn, to ‘guarantee[ing] non-repetition’. Albie Sachs notes that acknowledgment of the truth, in the sense of:
entering into that realm with their imaginations [and] with their consciences … has a very powerful effect [and] impact in relation to [one's] moral citizenship, [one's] understanding … this enables people to live in the same country. Not the same country physically, but the same country morally, emotionally… .Footnote 144
The South Africa TRC Report states:
while truth may not always lead to reconciliation, there can be no genuine, lasting reconciliation without truth. Certainly lies, half-truths and denial are not a desirable foundation on which to build a new South Africa.Footnote 145
But reconciliation, however conceived, is a complex process that is dependent upon a myriad of factors, often outside of a truth commission's control. The Centre for the Study of Violence and Reconciliation in South Africa (CSVR) found that many victims considered that the TRC had failed to achieve reconciliation between the black and white communities. Victims believed that the TRC had not rendered justice, which was a prerequisite for reconciliation. The perception of some victims was that perpetrators lived as normal, while they continued to live in a state of poverty, often exacerbated by the violations suffered.Footnote 146
As with psychological healing, a truth seeking process can contribute to reconciliation, but it is a process that will extend far beyond the mandate, resources and life of a truth commission.
B. Recognition
One way in which truth commissions can contribute to reparation is via acknowledgement, recognition and the restoration of dignity. By providing an official, institutional space that recognizes the presence and the suffering of victims, truth commissions send a message about the State's attitude towards the victims.Footnote 147 This is fundamental to any reparative process. A Chilean psychologist told Hayner that ‘the simple act of recognizing a victim's traumatic experience could be extremely important’.Footnote 148 The majority of victims in South Africa ‘attached great importance to having the truthfulness of their testimony recognized and acknowledged’, including those who did not find the process of providing testimony cathartic.Footnote 149 Many victims have lived in a context where the violations that they have suffered have been denied for many years. As noted above, a successful truth seeking process moves a nation towards acknowledgement of a specific part of its history.Footnote 150
The reparative effect of truth seeking is linked, not only to the message sent by the provision of an institutional space in which victims can tell their story, but what plays out within that space—namely the victim's contact with and experience of the truth commission. As noted above, the latter also forms an integral part of assessing its ‘legitimacy’. Interviewees of the CSVR study mentioned above emphasized the importance of sensitivity and integrity on the part of statement-takers.Footnote 151 Interviewees in other research initiatives also commented on the significance of statement-takers adopting an empathetic and encouraging approach.Footnote 152 The CVSR study notes that special emphasis should be placed on avoiding re-evoking memories of interrogations during public hearings.Footnote 153
The Ghanaian commission was criticized for its overly-legalistic format, which could prove intimidating and detracted from any sense of recognition of the violations recounted. Footnote 154 Deponents were often told to stick to time and the facts. Further, some victims perceived the commissioners as biased in their time allocation, affording more time to some victims than others. This undermined trust, the credibility of the commission and detracted further from any potentially reparative effect of being part of the truth seeking process.Footnote 155 A court-like set-up can also confuse deponents as to the role of a commission. One child asked the Liberian TRC why the formal hearings seemed so much like a court, if this was not the case.Footnote 156
C. Outreach, Consultation, Participation
As already discussed, the experience of consultation and participation has a potentially empowering effect. But the manner in which consultation and participation is implemented determines its efficacy in affording recognition.
Participation that is respectful, knowledgeable, and transparent, and achieved through effective forms of representation, allows victims to feel that they are valued and recognized as rights-holders under the law and as relevant actors in their society.Footnote 157
On the other hand, consultation or participation that is pursued in an off-handed or disinterested manner can leave victims groups feeling isolated and ignored.
Outreach, consultation and participation strategies are often intricately linked to stakeholders' experience of a commission. This, in turn, determines the symbolic meaning attached to a commission as a public space to acknowledge and process past experiences, and thus a commission's impact.
VI. REINFORCING THE MESSAGE
The reparative effect of the truth seeking process, however legitimate or empathetic, can easily be undermined by what comes next. Providing testimony to a truth commission often raises expectations of an implicit bargain—that something will be provided in return—whether by the commission or the State. Expectations are, on one hand, evidence of an awareness of rights that a commission is trying to engender. However, any reparative effect of the ‘commission experience’ is likely to pale in the face of the message implicit in ignoring victims or recommendations after a report is published.
As noted above, delays in implementation of reparations recommendations can reinforce feelings of isolation and powerlessness. Saidu Conton Sesay, charged with implementing the Sierra Leone reparations programme, noted that the delays in the implementation of reparations following release of the TRC's report could ‘insinuate a lot of things – neglect, lack of attention’.Footnote 158 Little has been done to implement the CAVR's recommendations regarding reparations since its report was issued in 2005. The government has refused to acknowledge any responsibility for violations and has refused assistance to victims. Instead it has prioritized the needs of victims of the 2006 crisis.Footnote 159A study of the International Center for Transitional Justice highlighted that, as a result of the official silence and limited progress in implementing the CAVR's recommendations, many victims continue to suffer as a result of the violations and feel ‘forgotten and marginalized’.Footnote 160
The CSVR study mentioned above found that, for all but one focus group, the most prominent grievance regarding the South Africa TRC experience was the failure to implement a reparations programme. This greatly impacted the perception of how ‘just’ the truth seeking process was. Footnote 161 The South Africa TRC recommended a yearly grant of approximately $2,700 for six years. The Government made one-off payments of less than $4,000. The resulting sense of isolation was compounded when, in 1999, the government signed the largest ever arms deal in South African history and announced almost $10 billion in tax breaks in the 2000/2001 budget, while failing to allocate further funds to reparations.Footnote 162
Dialogue and exchange to manage expectations therefore takes on a new level of importance. As mentioned above in the Peruvian context, participation may facilitate this dialogue. A sense of ownership engendered by involvement in the process may also act to temper frustrations. Further, expectations, needs and wishes are not static and will change over time. Where there is delay in implementation, consultation will ensure that subsequent mechanisms ‘keep up’ and respond to current needs. On the other hand, participants of the CVSR study noted that the South Africa TRC did not communicate its limited power to follow up on reparations requests, and, at the same time, raised expectations of reparations by asking participants ‘what can the commission do to help you?’Footnote 163
It is not only the existence and scale of, but also the design of subsequent mechanisms (which, as noted above, can be influenced by truth seeking), that determines whether expectations are fulfilled: for example, factors such as unrealistic deadlines for victims to register for reparations, an overly exacting standard of proof or documentary burden, etc. In Sierra Leone, potential beneficiaries of reparations under the ‘Year One Program’ in some rural areas did not receive sufficient information in time to register for reparations, resulting in their exclusion from the programme.Footnote 164
These considerations apply not only to reparations schemes, but also the effect that other mechanisms will have on the legacy of truth seeking. As noted above, a perceived failure to render ‘justice’—both in terms of economic reconstruction and criminal prosecutions—affected the legacy of the South African TRC.Footnote 165
VII. A MATTER OF CONTEXT?
A. Contextual Constraints
‘[C]ommissions can be very fragile institutions, undergoing risks and challenges from their inception to the culmination of their work’.Footnote 166 The ‘reparative effect’ of even the most flawless truth seeking exercise is dependent upon the context in which a truth commission is established, conducted and in which it delivers its recommendations. A truth commission may be staffed by independent, well-respected, impartial commissioners; it may hand over a comprehensive, well-supported and well-organized database of information to a subsequent reparations scheme; it may conduct extensive outreach activities and invite consistent participation from a cross section of victims; but its legacy will be profoundly affected by international and national political, economic and social movements.
For example, the strength and engagement of civil society is particularly important in ensuring the quality of a commission's output (and sometimes its existence). The truth commission in Brazil was the direct result of civil society activities at the National Conference on Human Rights.Footnote 167 The CSC in Ghana worked on various iterations of the NRC Act (and, as noted above, was instrumental in ensuring diversity amongst the commissioners). It was also active in ensuring outreach and victim participation.Footnote 168 It has been attributed with ‘transform[ing] a political gesture into a national agenda by encouraging open and representative discussions about the truth commission’.Footnote 169
The avenues available to civil society actors often depend on institutional capacity and intra-institutional coordination, both of which constitute additional contextual factors that may shape a commission's legacy. Although truth commissions are ad hoc institutions, and thus do not rely on existing institutional capacity to the same extent as, for example, criminal prosecutions, the presence of relevant expertise is pertinent. In Argentina, Chile, Peru and, Guatemala, for example, the legacy of truth commissions in assisting the initiation or maintenance of criminal prosecutions was dependent upon the existence of the necessary judicial capacity. The activism of Chilean NGOs in challenging many disappearances before the national courts provided a ready source of evidence for the Rettig Commission. Footnote 170 Regional courts also play a role in mandating investigations (as, for example, in Gelman), which may push States towards establishing truth commissions. Additionally, coordination and mutual support enhances a truth commission's capital, which lies in perception as well as practice. Where institutions undermine each other it detracts from their legitimacy and thus their effectiveness.Footnote 171
The infrastructure and engagement of other national institutions can also prove particularly important to the success of a TRC. A media strategy, for example, is an essential part of an outreach strategy. Footnote 172 The media provides the means of raising awareness and promoting engagement, particularly where a TRC holds public hearings. In South Africa, the extensive media coverage formed the conduit through which most of the population engaged with the TRC's proceedings and product: ‘[h]earings were broadcast live on national radio, and a Sunday evening show summarizing the hearings became the country's most-watched news program’. Footnote 173
As touched upon above, the political context in which a truth commission is established circumscribes or facilitates its work and the work of other actors, both formally and informally. Power structures may be reflected in a mandate that excludes sensitive topics or periods and/or the acceptance of a commissions' findings after-the-fact. In Uganda, the 1986 truth commission's mandate was temporally limited to exclude investigation of events following Museveni's accession to power.Footnote 174 The final public hearing of the IER, which was scheduled to take place in Western Sahara, was cancelled at the last minute.Footnote 175 Ultimately, the IER's final report provided very little detail of the human rights violations suffered in Western Sahara, ‘the area that was hardest hit by repression’, thus increasing Sahrawis' perception of marginalization.Footnote 176
In Chile, in contrast to Alywin's apology in response to the Rettig Commission's report, the military rejected the report. As noted above, attention was diverted from the report soon after its release. However, Pinochet's subsequent arrest in London shifted the political discourse, and refocused attention on the report's contents. The Pinochet trial is thus an example of the role of wider geopolitical trends and international legal and institutional developments in buffering the reparative legacy of truth commissions.
B. A Small Part of the Picture
Turning the paradigm around, the importance of contextual factors illustrates that an analysis of only design and implementation may underplay a commission's potential reparative effect. Other actors, forces and trends determine many of the consequences that flow from its existence, work, etc. The use of information uncovered by truth commissions in judicial prosecutions is one such example. The Spanish judge that requested Pinochet's extradition relied heavily on the report of the Rettig Commission in building and presenting his case.Footnote 177 In spite of the flaws identified in the Chad truth commission report, it has been used as an important source of information in attempts to bring Habré to justice.Footnote 178 Criminal trials may contribute to satisfaction via, for example, imposing judicial sanctions on the perpetrator.Footnote 179 A criminal or civil judgment may also constitute satisfaction per se.Footnote 180
Truth commissions will often recommend institutional reform as a guarantee of non-repetition. Even where this does not occur or where recommendations are ignored, the moral capital usually associated with truth commissions provides a basis on which groups can advocate for change in the future. In Argentina, the truth commission's detailed documentation of its findings formed crucial evidence in the truth trials that eventually led to the overturning of the laws that granted de facto immunity.Footnote 181
In addition truth commissions may inspire other truth seeking efforts, including judicial efforts as described above. In Zimbabwe, in response to the government's refusal to publish the truth commission's report, two human rights organizations produced a report documenting the repression of the 1980s, based on interviews with victims.Footnote 182
Other forces can afford the findings of a truth commission unanticipated influence. For example, as mentioned above, the El Salvador commission's recommendations were initially largely ignored by the El Salvador government and an amnesty law passed soon after the report's release.Footnote 183 However, the United States' response to its alleged involvement in the war was more active than anticipated. The United States government established a panel to examine implications of the report's findings for foreign policy and Department of State operations. President Clinton ordered the review and release of classified documents regarding the US role in the war.Footnote 184
VIII. CONCLUSIONS
As with all histories, the ‘truth’ produced by a commission is one version of the truth. In the words of Michael Ignatieff: ‘the past is an argument and the function of truth commissions … is simply to purify the argument, to narrow the range of permissible lies’.Footnote 185 Ruti Teitel argues that the truth is ‘constructed’: ‘… a ‘truth’ is an overtly and explicitly political construction shaping the direction of the transition’.Footnote 186 It is framed through a particular lens and is dependent upon institutional design, victim participation, etc. Not all participants in the transition will identify with this truth.
And yet its value as a platform for a transition, in which the constituent victim testimonies are acknowledged as part of national history, rely upon its general acceptance. Much therefore depends on its credibility and subsequent dissemination, which, in turn, stems from the perceived legitimacy of the institution and its methodology. The CVR's report rewrote the history of the conflict in Peru and has been assimilated. Not only is it no longer possible to deny the marginalization of many rural communities, the CVR's findings challenged the prior assumption that the State was responsible for the majority of violations, determining that ‘the principal perpetrator of crimes and violations of human rights’ was Sendero Luminoso.Footnote 187
The institutional overlap between truth commissions and reparations schemes allows the former an opportunity to enhance the efficiency and responsiveness of the latter, especially in a sequential relationship. The information gathered and recorded by a truth commission can assist in crafting a comprehensive and complex scheme that addresses the needs of a cosmopolitan (and often large) group of victims. It can also assist in identifying particular vulnerability or urgent needs, which can form a legal basis for prioritizing reparations awards.Footnote 188 As demonstrated, ignoring urgent need for necessities or medical assistance may undermine the exercise.
The relationship between the truth commissions and reparations schemes is not predetermined, however, and is usually more coterminous than this paradigm would suggest. The forces present in constructing truth are varied and multiple. The truth is buffered, used and adopted by different stakeholders. Assertive civil society and victims' groups can use a commission's conclusions to advocate a redress and reparations platform. Credible commission findings put an evidentiary basis and a degree of moral capital behind demands for reparation. Equally, experience shows that other forces, including a lack of resources or political will or cooperation, destabilize the potential for these transitional mechanisms to reinforce the work of the other.
The potential reparative effect of truth seeking also depends on the particular individual in question. The broad conception of reparation under international law incorporates societal and individual elements. Although a communal narrative cannot be divorced from individual experiences, a series of measures that are beneficial to victims as a class will not prove beneficial to every individual. This highlights the pitfalls of concentrating only on a normative conception of reparation without considering the sociological effects of implementing that norm.
In contexts where the truth itself does not provide reparation, or prove ‘satisfactory’, to the individual, the symbolism of the process by which the truth is elucidated takes on a new level of importance. Although the institutional focus of a truth commission is collective, testimonies show that there is something inherently personal in the experience. Individuals can feel recognized, dignified and empowered. The way that the commission, as an institution, and commission staff, on an individual basis, relate to victims affects this process of empowerment. Maximizing the reparative effect of the process therefore requires awareness of the manner in which the process plays out. A reformulation of identity depends upon a shift in dialogue and response. In his discussion of the South African TRC, Haldemann notes that by ‘validat[ing] [victims] with official acknowledgment’ and encouraging them to tell stories to someone who ‘listened seriously’, the TRC ‘embodied a public commitment to the recognition of the moral agency of those previously excluded’.Footnote 189
In resource-scarce environments, maximizing reparative avenues is an important part of strategic planning. A widely-disseminated public truth-seeking process shines a spotlight on the plight of victims and may bring attention to the marginalization of an entire group or community. Therefore, in a politically-compromised or resource-scarce environment, a truth commission's positive legacy may be furthered more through its process and procedures than the operationalization of its final report. Lisa Laplante and Kimberly Theidon's research in Peru:
confirm[ed] the temporary beneficial effect of truth commissions with their emphasis on listening empathetically to the formerly voiceless to reconstruct a common version of history and to reveal the practices and institutions that led to their victimization.Footnote 190
The temporality of these beneficial effects depends upon follow-up strategies.Footnote 191 Where truth seeking is not followed by further action (reparations, prosecutions, etc), there is a danger that any reparative effect is undermined. Follow-up actions contain an implicit message regarding the validity of the truth, a State's priorities and whether there is true acknowledgment of the violations suffered, or if they are deemed worthy of only a cursory glance.
A truth commission is one part of a much larger transitional picture. Victims are more likely to ‘endow an imperfect measure with the meaning of a justice initiative’,Footnote 192 when accompanied by other transitional justice mechanisms that reinforce each other's legitimacy and when stakeholders are asked to participate in designing and rolling out the process. Transitional mechanisms operate within the confines of their constitution and context. The potential reparative effect of truth seeking will only be realized when a consciousness of its importance, potential and its fragility forms part of the framework of a coherent, holistic transitional justice strategy.
