Jonathan and I are having a pretty interesting discussion down here on the topic of “what makes a ‘truth’ commission?” Stop on by, everybody, and share your views, too.
I’ve done a bit more work on the chart I’ve been compiling about the general phenomenon of truth commissions. Actually, while doing that, I’ve learned a lot more interesting things about the range of truth commissions that have operated around the world in the past 30 years.
For example, the t.c. established in Timor Leste (East Timor) in 2001 is titled the “Commission for Reception, Truth and Reconciliation in East Timor”. “Reception” there refers to receiving the perpetrators of (at least) small crimes back into their communities, in line with local cultural norms. Here is the Commission’s officially stated purpose.
I would love to learn more about the East Timor Commission’s whole process, which was apparently designed in line with national cultural norms there.
Their process was certainly designed to incorporate much more intentional reconciliation/ peacebuilding than the South African TRC. For example, former “perpetrators” of politically motivated acts of violence were expected to make a full confession (as at the SA TRC)– but then beyond that, a committee including local “elders” of the community would preside over a Community Reconciliation hearing which would come up with a “Community Reconciliation Act” (or acts) that this person would have to perform.
In SA, by contrast, the perps were not obligated to take part in any kind of a “reconciliation” process, or even to apologize or express remorse to their erstwhile victims. Production of a narrative that the Amnesty Committee considered to be fully truthful was enough to bring the perps full amnesty.
This little extract from the East Timor Commission’s “Update” for December 2003 and January 2004 gives a flavor of what was going on there:
- January saw a noteworthy hearing as 20 deponents gave testimony in a hearing primarily concerned with their activities whilst militia members in Caikasa, Maubara, the birthplace of the notorious Besi Merah Putih militia. The CAVR?s Liquica team facilitated the public meeting which saw a high community turnout and level of involvement. After Caikasa elders had sanctified the proceedings with rituals according to local tradition [Yes, but how??? Describe this for us! ~HC] the participants were allowed the opportunity to apologise for their actions, promise never to involve themselves in such actions again, and were once more received by their community.
Your notes at the bottom of the chart about the timing of truth commissions reveal something interesting. Generally speaking, the empanelment of truth commissions seems to correspond to waves of democratization – the Latin America cluster in the mid-1980s followed the end of military rule in much of South America, and African commissions were most common during the democratization period of 1990-2000. There’s one wave, though, that is conspicuous by its near-absence: the post-Soviet democratization of eastern Europe. Your chart reveals only two European commissions, one of which is a special case resulting from the reunification of Germany and the other of which (Serbia-Montenegro) disbanded without completing its work. No commissions were established in the other eastern European countries or in Russia itself. I think the reason for this needs to be explored: my first guess is that it’s because Europe doesn’t have a restorative-justice culture, but that’s only a guess.
(The lack of a restorative-justice culture, incidentally, may be why a TRC-type commission has never been seriously proposed as part of an Israeli-Palestinian peace settlement. Even the Geneva Accord, which makes an effort in Article 7(14) to encourage cross-cultural exchanges and sharing of narratives, doesn’t contemplate a truth commission. Maybe a TRC was deemed culturally inappropriate – or maybe the Israeli and Palestinian ‘truths’ are simply too incompatible to reconcile.)
BTW, the more I consider, the more I think the gacaca courts should be on the list. Their functions do include documentation of the history of the genocide, and while their truth-gathering process is highly flawed and politically skewed, that’s also true of certain other commissions on your list.
J– re only two European commissions… I think the reason for this needs to be explored: my first guess is that it’s because Europe doesn’t have a restorative-justice culture, but that’s only a guess.
That was my first guess, too. I have the advantage of being able to compare the “truth commissions” table with the list of “country studies” presented in Vol 2 of Neil Kritz’s seminal 1995 work on Transitional Justice. (That is, all the countries he studied in depth.) On that list of 21 countries, 15 are European countries, going from the post-Nazi era to that of the fall of communism. Four others are in Latin America. Only two (S. Korea and Uganda 1986) are not countries ruled by European-cultured elites, which makes a “cultural” explanation– for something!– very attractive.
Well, I can tell you an explanation for what, I think, since Kritz is a legal scholar so he was looking overwhelmingly at the different legal measures countries took.
So what we have– if you take all his cases and all the “truth commission” cases as being cases in the “transitional justice” field as currently recognized– is that you see a trend that over time goes from Europe toward Africa, with Latin America playing an interesting intermediate role in there. You also see two other trends: from mainly legal tools being employed to the increasing rise in use of t.c.’s; and from the transitions involved being mainly transitions out of authoritarianism to, increasingly, transitions out of civil conflict instead.
The field is, in sum, still intriguingly dynamic.
I’m developing a definition of the kinds of transitions it covers (or ought to cover– not quite the same thing) as being ones that are intended to be “transitions into a more rights-respecting situation”: that could include transitions out of authoritarianism, out of protracted conflict, or out of rule by foreigners since all three of these situations are ones that constitute in themselves assaults on the rights of the affected persons…
Back to the “culture” issue. There is also a significant “institutional capabilities” issue. European countries certainly had the capability to do trials, institute rigorous but standardized vetting procedures, etc etc, if they wanted to– which overwhlemingly they did. Latin American countries (and South Africa?), somewhat. But a place like Rwanda, Mozambique, DRC, etc etc.? Fuggedaboutit. Also, building courthouses is not necessarily the first thing a very-low-income society needs to do as it recovers from protracted conflict. So you look at a place like Timor, the “best” they could hope for was a t.c., with just possibly a few exemplary prosecutions someplace down the line… How incredibly lucky that they still had fairly robust indigenous conflict-resolution traditions to bring to bear. (I mean that completely without irony.)
Disaggregating European “culture” from European institutional capabilities as contributory factors to the picture we see would be hard, I think. I just note that in Canada and New Zealand (and to a little extent here in the US as well) there has been a marked revival of interest in and use of the indigenous peoples’ con-res mechanisms as perhaps being more effective than the huge number of prosecutions and incarcerations that a “European-origin” justice system seems for reason able to stomach.
Back to the “culture” issue. There is also a significant “institutional capabilities” issue.
Point. That’s one reason for our partial disagreement on the merits of the ICC; I think it has a place providing technical and logistical aid to countries that want to go the traditional criminal justice route but don’t have the resources.
European countries certainly had the capability to do trials, institute rigorous but standardized vetting procedures, etc etc, if they wanted to– which overwhlemingly they did. Latin American countries (and South Africa?), somewhat.
In the Latin American cases, I wonder if there might be a third factor in play: the strength of the state vis-a-vis potential targets of prosecution. Argentina, for instance, couldn’t have instituted wholesale prosecutions of military officers without risking civil war (it was touch-and-go for a while even with the amnesty), so a truth commission was a second-best but acceptable alternative. This differentiates Argentina both from many of the African cases and East Timor (where TRCs were the best option from the popular standpoint) and from Eastern Europe (where the state was strong enough to conduct traditional prosecutions).
In the Latin American cases, I wonder if there might be a third factor in play: the strength of the state vis-a-vis potential targets of prosecution.
Good point.
the ICC; I think it has a place providing technical and logistical aid to countries that want to go the traditional criminal justice route but don’t have the resources.
Not so good point. Providing capacity-building aid to national jurisdictions is nowhere in the ICC’s mandate.
I do see one intriguing thing that seems to be happening w/ the ICC, though. We now have three states (all African) that have “referred” “situations” to the OTP (Office of the Prosecutor), for two of which he subsequently launched formal judicial investigations. In all three cases the referring states were the national govts of the places where the “situations” were located; and the “situations” they referred to were acts allegedly undertaken by insurgents acting inside those territories.
This was not the kind of use I had foreseen being made of the ICC. I had imagined that “situations” would get referred to the OTP more by states OTHER than the ones ruling the places in which these respective “situations” are occurring.
Only states (or the UNSC, which ain’t about to do it) can “refer” situations to the OTP. After a referral he has to “analyze” it before deciding whether to launch–under the supervision of a pre-trial bench– a formal judicial investigation. He can, however, also launch an investigation proprio motu (in his own right) on the basis of information received from non-state actors. He has not so far done this.
So are ICC prosecutions going to end up mainly as something that states use against insurgents? Wouldn’t it be interesting if that turns out to be what happens?
Another, possibly linked, possibility: that states could refer such cases– as a way to bring added pressure to bear on insurgents to go to the peace table. (This is quite possibly what’s happening in Uganda and DRC?) Frankly I’m not sure how I feel about this if this is indeed what’s happening. Getting parties to peace talks is always, in my book, an excellent idea. But giving states yet another means of pressure to get to, and to use within, the peace talks– a tool, moreover, to which the non-state parties don’t have ready access? Not so excellent, I think.
Anyway, this should probably be a separate post since it’s WAYS off the main topic. And it exceeds the guidelines lengthwise, too. Tsk, tsk, helena.
(Not sure if anyone else is following this thread apart from you and me, though.)
Not so good point. Providing capacity-building aid to national jurisdictions is nowhere in the ICC’s mandate.
OK, granted. I probably should have said that there ought to be an international institution that can provide such capacity-building aid.
On the other hand, your statement that [i]n all three cases the referring states were the national govts of the places where the “situations” were located suggests that some countries might be using the ICC as a back-door method of augmenting their prosecutorial resources. The DRC government doesn’t have the resources to prosecute its own insurgents, for instance, so it used the ICC as a “force multiplier.” Your point still stands, though, and it would be much better if an international institution had an explicit mandate to provide technical aid to national courts.
But giving states yet another means of pressure to get to, and to use within, the peace talks– a tool, moreover, to which the non-state parties don’t have ready access? Not so excellent, I think.
True. The non-state parties do have the option of asking the ICC prosecutor to make a reference to the Security Council, but in practice this amounts to a denial of access. Maybe the court should be opened to individuals, or at least to certain non-state actors such as those considered combatants under the Geneva Conventions?
(Not sure if anyone else is following this thread apart from you and me, though.)
Yeah, I think you need to spice these posts up with some salacious Middle East commentary. 🙂
The DRC government doesn’t have the resources to prosecute its own insurgents, for instance, so it used the ICC as a “force multiplier.”
Exactly.
The non-state parties do have the option of asking the ICC prosecutor to make a reference to the Security Council, but in practice this amounts to a denial of access.
No actually I don’t think that’s their main optiion. (Remember that the SC has three veto-wielders who have vetoes, which is why SC referrals to the OTP aren’t going to happen.) But non-state parties can– and have already, in huge numbers!– contact the OTP directly and give him information in the hopes he can launch a proprio motu investigation. But as I said above, he hasn’t chosen to do that yet (though there was some talk of it re DRC, as there is now, re Darfur.)
I suppose if you had another Rwanda-1994 situation with extremely broad, visible, and undeniable state-backed violence as well as– crucially– a very diplomacy-savvy, well organized and well connected insurgent movement (like the RPF), the said insurgent movement could (a) contact the OTP itself, with its own information and (b) orchestrate a broad campaign to have other governments contact him with the aim of having him launch either a p.m. investigation or a state-referred investigation…
In those circs the insurgents might have some rough “equality of arms”, in terms of access to the OTP, with the government against which they are insurging. But I don’t see many other insurgencies out there (apart from whatever the RPF’s proxies are called these days in eastern DRC?) who have RPF-like diplomatic outreach skills. They’d also need the basic kind of legalese skills to be able to frame their reports in terms of the ICC’s exact kinds of justiciable offenses…
I suspect that in many cases TRCs are most likely to be utilized when the balance of power between the warring parties is such that the potential losers in a conflict are still capable of inflicting substantial damage on the potential victors if the conflict is taken all the way to it logical, bitter conclusion. TRCs thus become an less expensive outcome to both parties, a proposition cast along lines of a game theory analysis.
Aside from obtuse theories, I have alway wondered whether Lebanon would have benefited from a TRC. Now that the lebanese conflict is simmering again this has become more than an academic question. As pointed out by Helena in her chart, the only current Arab example of a TRC is Morroco. However, I am afraid that in case of Morroco the TRC is but a fig leaf thrown by the Morrocan monarachy to explicate its crimes, commited by the way in direct collusion with western powers. The Morrocan TRC in this case serves to placate the opposition and maintain legitimacy.
Not sure if anyone else is following this thread apart from you and me, though.
Sometimes when people don’t comment it’s because things are getting alone fine without them.
Helena:
non-state parties can– and have already, in huge numbers!– contact the OTP directly and give him information in the hopes he can launch a proprio motu investigation
The trouble with this option is that, under Article 12 of the Rome Statute, the prosecutor can only begin such an investigation if the country where the crimes took place has ratified the ICC treaty or otherwise accepted the court’s jurisdiction. Since Sudan hasn’t done so, that would rule out an OTP investigation of Darfur unless the Security Council gives the go-ahead. I believe many other insurgent groups would face a similar barrier.
But I don’t see many other insurgencies out there (apart from whatever the RPF’s proxies are called these days in eastern DRC?) who have RPF-like diplomatic outreach skills.
I don’t think that much of the RPF’s diplomatic skill has rubbed off on its proxies. On the other hand, insurgent groups that do have such skills include the Palestinians, the rebel factions in Darfur, the Nepalese Maoists and possibly FARC or the Acehnese. In all cases except Colombia, though, the conflicts in question are taking place in non-signatory countries, so a prosecution would require Security Council intervention.
They’d also need the basic kind of legalese skills to be able to frame their reports in terms of the ICC’s exact kinds of justiciable offenses…
Any insurgent group worth its salt can get a lawyer. There’s never been any shortage of representation for such groups when they take their case to international tribunals.
Talal:
I suspect that in many cases TRCs are most likely to be utilized when the balance of power between the warring parties is such that the potential losers in a conflict are still capable of inflicting substantial damage on the potential victors if the conflict is taken all the way to it logical, bitter conclusion.
Absolutely. Some countries also seem to go the TRC route after a total amnesty proves unsatisfying. I think this is the case in Latin America; countries like Argentina declared amnesties in order to make peace with the military, and instituted TRCs later in order to bring the period of military rule to closure.