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International Conflict Resolution After the Cold War 9 Past Truths, Present Dangers: The Role of Official Truth Seeking in Conflict Resolution and Prevention Priscilla B.Hayner The subjects of transitional justice and historical memory have received increasing attention in recent years, as many countries representing a wide range of political contexts and transitional circumstances have confronted the legacy of widespread abuses by a prior regime or armed opposition group.1 States have turned to a range of transitional mechanisms in an effort to confront past crimes, hoping to achieve some measure of accountability, advance national reconciliation, and secure necessary institutional reforms to prevent future human rights abuses or the return to violence. The various mechanisms that have been used include prosecuting perpetrators in national and international courts; lustration or purges of those affiliated with a previous authoritarian government; the imposition of other noncriminal sanctions; material or nonmaterial compensation for victims; and official truth seeking, usually in the form of temporary investigative bodies that have acquired the generic name of “truth commissions.”2 Each of these transitional measures serves different (although sometimes overlapping) ends, and each has its strengths as well as its limitations. The decision to undertake one of these approaches over others will be determined by a wide variety of factors. These various mechanisms are not mutually exclusive, however, and there can be a positive interplay between the different structures or processes put in place. A number of states have attempted to prosecute perpetrators while also creating a truth commission, for example, sometimes using a truth commission to collect evidence for later prosecutions. Some truth commissions have been tasked with designing a follow-up reparations program.
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International Conflict Resolution After the Cold War To date, these accountability mechanisms have been studied and advanced primarily by those with an interest in combating human rights abuses and responding to abuses of the past. However, these various mechanisms are typically turned to at the point of transition out of a period of violent conflict or authoritarian rule, sometimes following a bitter civil war. During a negotiated transition, the means and manner by which accountability will be addressed are usually discussed directly at the negotiating table. This paper looks more closely at the role of one of these mechanisms—that of officially sanctioned truth investigations—in the resolution and prevention of violent conflict. After an introduction to the use of truth commissions in the past, their function, purpose, and limitations and their relationship to other transitional accountability mechanisms, this paper proposes three ways in which truth commissions may contribute to halting or preventing violent conflict. It then proposes how the “success” of truth commissions might be evaluated and the outside factors that influence their strength and effectiveness. The paper concludes by suggesting unanswered questions and areas of research in need of focused attention. THE EMERGENCE OF TRUTH COMMISSIONS AS A TRANSITIONAL TOOL At the point of transition following a brutal and repressive regime, a state and its people are left with a legacy of violence, bitterness, and pain and often many hundreds or thousands of perpetrators who deserve prosecution and punishment for their crimes. But successful prosecutions after a period of massive atrocities have been limited, as underresourced and sometimes politically compromised judicial systems struggle to confront such widespread and politically contentious crimes. Given limited options for confronting past atrocities, and with an eye toward the need for healing and reforms, many new governments have turned to mechanisms outside the judicial system to confront horrific crimes of a prior regime. The increasing attraction to official truth seeking as a transitional tool is partly a result of the limited reach of judicial-oriented approaches to accountability. As truth commissions have been more widely used and studied, however, it has become clear that they fill a very different role from judicial inquiries and trials. Truth commissions, defined as official, temporary mechanisms that are established to investigate a pattern of past human rights abuses or violations of international humanitarian law, are tasked with investigating, reporting, and recommending reforms, and in the process serve to formally acknowledge past wrongs that were silenced and denied. Truth commissions have no prosecutorial powers (and only the South African truth commission had the power to grant amnesty), although a
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International Conflict Resolution After the Cold War few to date have chosen to name perpetrators in their reports, in part to instill at least a sense of public and moral accountability. But while a truth commission cannot impart judicial decisions or punishment for wrongdoers, their strengths are in those very areas that fall outside the parameters or capabilities of a court. While trials are aimed at achieving individual criminal accountability, truth commissions are focused on describing patterns of crimes over a period of time, recommending policies to prevent the repetition of such abuses, and proposing measures to formally recognize or make reparations for past wrongs. Trials are narrowly focused: they typically do not investigate the social or political factors that led to the violence or the internal structure of abusive forces, such as death squads or the intelligence branch of the armed forces, all of which might be the focus of a truth commission. While some trials help shed light on overall patterns of human rights violations or may engage the public more broadly in confronting and reevaluating its past, this is generally not their focus or intent. Courts do not submit policy recommendations or suggestions for political, military, or judicial reforms. Finally, while the records of a trial may be public, judicial opinions are generally not widely distributed or widely read, as is the intention of truth commission reports. A truth commission should be distinguished from a government human rights office set up to watch over current human rights abuses and also from nongovernmental projects documenting past abuses. Likewise, these truth-seeking bodies should be distinguished from international tribunals, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, both created by the United Nations (UN), or the permanent International Criminal Court that may soon be established. These international tribunals are also designed to respond to abuses by the state, but they function with the purpose and powers of a court. Truth commissions differ as well from other mechanisms that have been used in recent years to confront past human rights crimes after a political transition from authoritarian rule. Several East European countries have turned to a policy of lustration, which removes persons who worked with the prior government or intelligence service from employment in the public sector. These lustration policies generally have relied on information in the files of the former intelligence service. But because some of these files may contain incorrect information and because of the limited rights of appeal and due process that have been granted, lustration has been criticized by international observers.3 This strategy also requires that detailed files were kept by the previous government (and not destroyed in the transition), that the new authorities have access to them, and that the new government has the political power to sustain a policy of
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International Conflict Resolution After the Cold War discharging civil servants, factors that would not be present in most postauthoritarian transitional states outside Eastern Europe. Other approaches to documenting past rights crimes include investigation and reporting by a specially appointed rapporteur of the UN or by a national or international nongovernmental organization. These two approaches do not depend on governmental sponsorship of an inquiry (although a UN rapporteur must receive a formal invitation from the government before visiting a country for a special investigation), but they are also unlikely to have access to extensive official documentation. While they may overlap to some degree, all of these various mechanisms or approaches to confronting past human rights abuses have different aims, powers, and outcomes and complement rather than replace each other. Transitional truth-seeking bodies became much more common in the 1990s and only in the past few years have taken on the generic name of truth commissions. Each of the 20-odd truth commissions to date has been unique, with considerable differences in the form, structure, and mandate used to carry out their work. Not all, in fact, are formally called truth commissions: in Guatemala, for example, there was a Historical Clarification Commission created under the UN-negotiated peace accords; Argentina set up a National Commission on the Disappearance of Persons; and in some countries these bodies are called Commissions of Inquiry (see Table 9.1). All of these commissions share certain common elements and are created for similar purposes. Truth commission is now a term of art that refers to a fairly specific kind of investigatory commission, identified by four common characteristics. First, a truth commission focuses on the past. Second, it investigates not a singular event but the record of abuses over a period of time (often highlighting a few cases to demonstrate and describe patterns). Third, a truth commission is a temporary body, concluding with the submission of a final report that is intended to be made public. Finally, a truth commission is somehow officially sanctioned by the government (and by the armed opposition where appropriate). This official sanction allows the commission greater access to information and greater security to undertake sensitive investigations and increases the likelihood that its conclusions and recommendations will be given serious consideration. Differences between commissions should be expected, as each country must shape a process out of its own historical, political, and cultural context. Unlike courts, which generally stand as permanent bodies and about which there are many international norms regarding their appropriate structure, components, and powers, and minimal standards under which their proceedings should be undertaken, there are many aspects of truth commissions that will vary from country to country and about which there are no established standards. Some are given subpoena powers or
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International Conflict Resolution After the Cold War TABLE 9.1 Truth Commissions to Date (in chronological order) Country Name of Truth Commission Title of report (Publication Date) Date of Commission Dates Covered Empowered by Uganda Commission of Inquiry into the Disappearance of People in Uganda Since the 25th January, 1971 Report of the Commission of Inquiry into the Disappearance of People in Uganda Since the 25th January, 1971 (1975) 1974 1971–1974 President Did not complete report Bolivia Comisión Nacional de Investigación de Desaparecidos (National Commission of Inquiry into Disappearances) 1982–1984 1967–1982 President Nunca Más Argentina Comisión Nacional para la Desaparición de Personas (National Commission on the Disappearance of Persons) (“The Sábato Commission” or “CONADEP”) (Never Again) (1985) 1983–1984 1976–1983 President Informe Final de la Comisión Uruguay Comisión Investigadora sobre la Situación de Personas Desaparecidas y Hechos que la Motivaron (Investigative Commission on the Situation of “Disappeared” People and Its Causes) Investigadora sobre la Situación de Personas Desaparecidas y Hechos que la Motivaron (Final Report of the Investigative Commission on the Situation of the “Disappeared” People and Its Causes) (1985) 1985 1973–1982 Parliament
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International Conflict Resolution After the Cold War Zimbabwe Commission of Inquiry Report kept confidential 1985 1983 President Uganda Commission of Inquiry into Violations of Human Rights The Report of the Commission of Inquiry into Violations of Human Rights: Findings, Conclusions, and Recommendations (Oct. 1994) 1986–1995 Dec. 1962– Jan. 1986 President Chile Comisión Nacional para la Verdad y Reconciliación (National Commission on Truth and Reconciliation) (“The Rettig Commission”) Informe de la Comisión de la Verdad y Reconciliación (Report of the National Commission on Truth and Reconciliation) (1991) 1990–1991 Sept. 11, 1973–March 11, 1990 President Chad Commission d’Enquête sur les Crimes et Détournements Commis par l’Ex-Président Habré, ses co-Auteurs et/ou Complices (Commission of Inquiry on the Crimes and Misappropriations Committed by the Ex-President Habré, his Accomplices and/or Accessories) Rapport de la Commission (Report of the Commission) (May 7, 1992) 1991–1992 1982–1990 President
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International Conflict Resolution After the Cold War Country Name of Truth Commission Title of report (Publication Date) Date of Commission Dates Covered Empowered by South Africa (ANC) Commission of Enquiry into Complaints by Former African National Congress Prisoners and Detainees (“The Skweyiya Commission”) Report of the Commission of Enquiry into Complaints by Former African National Congress Prisoners and Detainees (Oct. 1992) 1992 1979–1991 African National Congress Germany Enquete Kommission Aufarbeitung von Geschichte und Folgen der SED-Diktatur in Deutschland (Study Commission for the Assessment of History and Consequences of the SED Dictatorship in Germany) Bericht der Enquete-Kommission “Aufarbeitung von Geschichte und Folgen der SED-Diktatur in Deutschland” (June 1994) 1992–1994 1949–1989 Parliament El Salvador Comisión de la Verdad Para El Salvador (Commission on the Truth for El Salvador) De la Locura a la Esperanza (From Madness to Hope) (March 1993) 1992–1993 Jan. 1980– July 1991 United Nations-moderated peace accord South Africa (ANC) Commission of Enquiry into Certain Allegations of Cruelty and Human Rights Abuse Against ANC Prisoners and Detainees by ANC Members (“The Motsuenyane Commission”) Report of the Commission of Enquiry into Certain Allegations of Cruelty and Human Rights Abuse Against ANC Prisoners and Detainees by ANC Members (Aug. 20, 1993) 1993 1979–1991 African National Congress
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International Conflict Resolution After the Cold War Sri Lanka Commissions of Inquiry into the Involuntary Removal or Disappearance of Persons (three geographically distinct commissions)a Final Reports of the Commissions of Inquiry into the Involuntary Removal or Disappearance of Persons (three distinct final reports, plus eight interim reports from each commission) (Sept. 1997) Nov. 1994– Sept. 1997 Jan. 1, 1988– Nov. 13, 1994 President Haiti National Commission for Truth and Justice Si M Pa Rele (If I Don’t Cry Out) (Feb. 1996) April 1995– Feb. 1996 1991–1994 President Burundi International Commission of Inquiry Report never released publicly 1995–1996 Oct. 21, 1993– Aug. 28, 1995 United Nations Security Council South Africa Truth and Reconciliation Commission Truth and Reconciliation Commission of South Africa Report (Oct. 1998) Dec. 1995– 2000b 1960–1994 Parliament Ecuador Truth and Justice Commission Did not complete report Sept. 1996– Feb. 1997 1979–1996 President
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International Conflict Resolution After the Cold War Country Name of Truth Commission Title of report (Publication Date) Date of Commission Dates Covered Empowered by Guatemala Comisión para el Esclarecimiento Histórico (Commission for Historical Clarification) (Formal name: Commission to Clarify Past Human Rights Violations and Acts of Violence that Have Caused the Guatemalan People to Suffer) Guatemala: Memory of Silence (February, 1999) Aug. 1997– Feb. 1999 1960–1996 United Nations-moderated peace accord aIn Sri Lanka there were three geographically distinct commissions that operated simultaneously and with identical mandates: Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces; Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in the Northern and Eastern Provinces; and Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in the Central, North Western, North Central and Uva Provinces. When these three commissions ended, a follow-up body was formed to close the outstanding cases, called the Presidential Commission of Inquiry into Involuntary Removals and Disappearances. bAlthough the South African Truth and Reconciliation Commission submitted its main report in 1998, the commission continued to operate, with fewer staff and only a few commissioners operationally involved, into 2000, with an expected completion date in late 2000. This extra time was necessary for the Amnesty Committee to process all applications and has also allowed reparations policies to be put in place and victims’ lists to be finalized.
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International Conflict Resolution After the Cold War even strong search and seizure powers and hold public hearings in front of television cameras or covered live on national radio (such as in South Africa or in the 1986 commission in Uganda). Others hold all investigations and interviews of victims and witnesses behind closed doors, may not have the power to compel witnesses to testify, and release information to the public only through a final report (such has been true of all such commissions in Latin America). Commission mandates also differ on the types of abuses to be investigated, perhaps including acts by the armed opposition as well as government forces, for example (as in Chile, El Salvador, or South Africa), or are limited to certain specific practices such as disappearances (as in Argentina and Sri Lanka). Such variations are a natural reflection of the variations between countries and their distinct political contexts, political cultures, histories, and needs. Truth commissions can play a critical role in a transition. Some past commissions have been notable successes: their investigations have been welcomed by survivors of the violence and by human rights advocates alike; their reports have been widely read; their summaries of facts have been considered conclusive and fair. Such commissions are often referred to as serving a “cathartic” effect in society and as fulfilling the important step of formally acknowledging a long-silenced past. But not all truth commissions have been so successful. Some have been significantly limited from a full and fair accounting of the past—limited by mandate, by political constraints or restricted access to information, or by a basic lack of resources and have reported only a narrow slice of the truth. Truth commissions have been multiplying rapidly around the world and have gained increasing attention in recent years.4 Although there have been about 20 such bodies in the past 25 years, many have received little international attention—such as those in Chad, Sri Lanka, and Uganda—despite considerable interest from the press and public on a national level as the inquiries were under way. The few that have received considerable international attention have helped define the field and shape the truth commissions that followed elsewhere—particularly the Commission on the Disappeared in Argentina, which ended in 1984; the Chilean National Commission on Truth and Reconciliation, completed in 1991; the United Nations Commission on the Truth for El Salvador, which finished in 1993; the Truth and Reconciliation Commission in South Africa, which released its report in October 1998; and the Guatemalan Historical Clarification Commission, which completed its report in early 1999. Only since the early 1990s have countries begun to look closely at the experiences of previous truth commissions before designing their own. For example, South Africa crafted its Truth and Reconciliation Commission after studying the truth commissions that preceded it, particularly in Latin America. Those who crafted the legislation for the South African
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International Conflict Resolution After the Cold War commission were particularly conscious of the blanket amnesties awarded in many Latin American countries and the failure of most truth commissions to gain the cooperation of perpetrators in their search for the truth. These reflections contributed to the crafting of the truth-for-amnesty formulation in which perpetrators who disclose all they know about politically motivated crimes during the apartheid era are granted amnesty for those crimes. Table 9.1 provides an overview of the truth commissions that have existed to date. There are a number of other examples of official inquiries into past human rights violations that fill many functions of a truth commission but that for various reasons do not fully qualify as a truth commission by the definition used here. For example, some of these inquiries have been undertaken at the initiative of a permanent governmental human rights office, created to monitor present-day human rights matters but that began to look into the past after receiving complaints. The important initiatives of the Human Rights and Equal Opportunity Commission in Australia, which in 1997 reported on a long-term state policy of forcibly removing Aboriginal children from their families,5 and of the National Commissioner for the Protection of Human Rights in Honduras, which in 1994 reported on 179 people who disappeared in the 1980s and early 1990s, are examples of such projects. This Honduran national commissioner received no assistance from authorities during his inquiry into disappeared persons, and he continued to call for a full truth commission even as he published his own report documenting extensive abuses.6 A broad official truth-telling exercise might also take place as an extension of a judicial inquiry. In Ethiopia the Special Prosecutor’s Office (SPO) intended to thoroughly document the broad pattern of abuses under the Mengistu regime in the course of preparations for trials of hundreds of accused perpetrators and to publish a truth commission-like report. For several years it maintained an extensive computerized system and dozens of staff members to cull names and incriminating details from the extensive documentation that was left behind as the Mengistu regime crumbled. While the SPO continues to rely on this documentation in its strategy to show a broad pattern of events pointing to an overall policy of genocide under Mengistu, ultimately the plan for a truth report was dropped as it turned its attention to prosecutions alone. There are other important differences that distinguish these ad hoc inquiries from formal truth commissions. In contrast to truth commissions, these ad hoc investigations generally do not work under a written mandate, which would define what period and exactly what acts are to be investigated, under what investigative powers, and by what deadline it must finish. These projects may operate without a budget for inquiries into the past and are thus forced to divert funds from other responsibili-
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International Conflict Resolution After the Cold War commission’s work, especially when they come from the government that will be a target of investigation. Mandate of a commission. Many of the basic limitations and powers of a commission will be spelled out in its written mandate (usually a presidential decree, legislative act, or peace accord), which generally includes exactly what acts or events are to be investigated, over what period of time, and whether the commission has any powers such as an enforceable subpoena or witness protection capacity. Composition of a commission. Who the members of a truth commission are will ultimately have the greatest effect on the actual work of the commission, as they must shape out of whole cloth its procedures, priorities, methodology, work plan, and ultimately its final report. Political climate. A commission can have the greatest effect where there has been a loss of support for the old regime on both the popular and the elite levels, where there is a lack of polarization between sectors differently affected by the violence, and where the level of fear from reporting past abuses has lessened. Each of these factors influences the success of a commission not only during its work but also before it begins (in the design of its mandate and in the preparatory stage) and after it ends (in implementing its recommendations and responding to, making use of, and distributing its report). How the influence of these factors changes through these different stages is outlined in Table 9.4. Interim Indicators If one ultimate goal of a conflict resolution exercise is to prevent further violence in the future, it would be useful to be able to point to markers along the way that might indicate whether violent conflict was more or less likely to develop. Interim indicators can also influence policy by suggesting what positive developments should be encouraged and what signs of potential problems should be addressed. The time frame in which these indicators should be watched will depend on each case. It would be important to gauge these indicators immediately after the cessation of violence and then immediately after a truth commission has finished its report. But since it is common for communities to hold on to their history (especially their grievances of wrongdoing) for many generations, some of the indicators listed here would be useful almost indefinitely or as long as there is a threat of conflict arising in part as a response to past events. The kinds of indicators that should be watched are discussed below. While these indicators point to the potential for conflict based on how and
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International Conflict Resolution After the Cold War whether the past is addressed, whether such conflict turns violent depends on a whole host of factors separate from the question of truth seeking. Most importantly, this depends on whether there are actors present in the political mix whose interests are served through violence and who have the means to turn their grievances into violent action. In Bosnia, Rwanda, and elsewhere “the past,” mixed with an exaggerated fear of the future, has very much been used as a tool by which to shape public opinion and rally followers into brutalities. Elsewhere, armed opposition groups have pointed to past injustices and abusive policies to win popular support. But if neither armed resistance, a military coup, or inter group fighting is likely, even severe frustrations and unacknowledged pain may not lead to political violence. For example, according to Table 9.5, Chile shows the potential for conflict around issues of the past. When questions around the legacy of the Pinochet regime arise in Chile, it is with much conflict—including police violence against demonstrators at least twice in 1998, for example—but serious political violence in the form of a civil war, armed opposition, or military coup is considered extremely unlikely. Likewise, an analysis of the implementation of reforms and institutional protections could be done to gauge whether conflicts can be addressed fairly through legal means and whether groups that may have previously turned to violence are now given a fair voice in the political process. CONCLUSION The field of truth seeking as an official transitional mechanism is still relatively new. As more and more states begin to turn to truth commissions or similar bodies as a means to address a difficult past, researchers and academics are just beginning to understand the complexity of questions and difficulties around this subject matter and to grapple with it seriously. The primary limitations in this field to date are as follow: (1) Most who have written on the subject have in-depth experience pertaining to only one country or one region, and may not always be in a position to cull lessons from these experiences that are applicable in very different contexts and regions. This field is best served by a broadly comparative approach. (2) Most of the articles to date that analyze any one truth commission in depth have been written by participants in the commission—a commissioner or senior staff person. While these articles have been extremely valuable, there may always be a potential for bias or blind spots when a comission’s activities are recorded by participant-observers. This in part is a reflection of the parallel problems that (3) most commissions have not been monitored closely by an outsider while the commissions
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International Conflict Resolution After the Cold War TABLE 9.4 How Strong and Effective a Truth Commission? Influencing Factors Over Time Factors Precommission During Commission Postcommission Domestic political will Political interest in strong inquiry Political backing for commission’s work; respect for commission’s independence; access to official documentation Political interest and investment in implementation of commission’s recommendations; symbolic acts of contrition Role of perpetrators Power of perpetrators in shaping or limiting inquiry Willingness of perpetrators to cooperate with commission Willingness to acknowledge or apologize for wrongs done Role of civil society Civil society and victims’ role in lobbying for a strong inquiry Contacts, case files, and assistance from civil society Lobbying for implementation of recommendations and broad distribution and use of report International role International pressure, as necessary, for a fair and strong inquiry Funding for commission; declassification of foreign government information to assist in commission’s investigations Pressure for implementation of commission’s recommendations
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International Conflict Resolution After the Cold War Available resources Resources available for preparation and planning Commission’s financial resources; expertise and experience of commissioners and staff Resources for implementation of recommendations, including reparations policy Mandate of commission Is a preparation period stipulated before commission begins? What powers and limitations in commission’s investigations; how much time to complete work? Are recommendations mandatory? What happens to commission’s archives? Composition of commission Transparent appointment procedure?a Perceived to be unbiased, knowledgeable, and trustworthy? – Political climate Broad public and political support for reckoning with past Level of fear and protection for victims and witnesses to speak out Public interest and political space for broad discussion of report aIn fact, with the exception of South Africa and to some degree Guatemala procedure and with public input. Most are appointed at the sole discretion In South Africa the commission resulted from a months-long selection interview the final candidates. A transparent appointment procedure most truth commissions to date have not been appointed through a transparent of the president or parliament or in consultation with parties to a peace accord, process that collected public nominations and culminated in public hearings to should be encouraged for future commissions.
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International Conflict Resolution After the Cold War TABLE 9.5 Is the Past Likely to Be a Source of Future Conflict? A Few Indicatorsa Indicators Tensions Reduced; Violence Over the Past Unlikely Tension Over the Past Likely to Remain More Serious Tension; Potential for Future Violence if Unresolved How is a truth commission’s report used? Broad distribution of commission’s report (or summary) and extensive media and public discussion of conclusions and recommendations (South Africa) Report released but not broadly available; little public discussion (El Salvador, Chile) Report kept sealed; discussion of past discouraged (Zimbabwe) Government attitude and policy: acknowledgment of wrongs? Formal acknowledgment and apology on behalf of the state (Chile) Prefer silence on the topic (Argentina-Menem) Denial and disinformation about past conflict (Rwanda, 1993) Perpetrators’ response to truth commission’s report Willingness of perpetrators to accept and apologize for wrongs and to contribute to symbolic reparations to victims (some in South Africa and Mozambique) Silence about past wrongs (Argentina until 1995) Continued denial of or justification for past abuses (Chile, El Salvador, Serbia, Sri Lanka)
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International Conflict Resolution After the Cold War Are victims formally recognized? Memorial built in honor of victims; days of remembrance honored; individual or symbolic reparations for victims Disagreements about who and what should be remembered; lack of political interest in honoring victims Unwillingness to acknowledge victims or continued denial that there were unjustified victims; memorials remain in place that honor abusive forces How is history taught in schools? Use of truth report in schools; fair and balanced treatment of subject Silence about the past; recent conflict not integrated into teaching (El Salvador, Chile) Different versions of the past are taught in different schools and to different communities (Bosnia) Societal consensus about past wrongs? Apparent societal consensus that abuses were wrong (South Africa, Argentina) Lack of consensus but silence on the matter (Chile until 1998) Lack of consensus and open conflict based partly on different conceptions of past violence (Rwanda, Bosnia) aThis table includes examples of countries where there both have and have not been truth commissions.
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International Conflict Resolution After the Cold War were under way, and some commissions severely restrict access by outsiders for confidentiality reasons. In addition, (4) truth commissions to date have been studied and described largely on an anecdotal and impressionistic level, with little scientific rigor or theoretical modeling that may propose generic lessons for future cases. There is much room for more thorough and in-depth studies of these processes. The needs are many, but include the following: Case studies. A thorough and lengthy write-up of key cases would be useful for scholars and practitioners alike. Very little of this has been done. Comparative and theoretical research, including monitoring ongoing truth-seeking processes and those now in development. Some questions that call for attention include the following: When will conflict around the past turn to violent conflict around the past? What serves as a spark to long-held grievances? What role do memory and history play in the ongoing conflicts of today (Sri Lanka, Cyprus, Middle East, Kosovo, etc.)? The cases examined here are all conflicts that took place within national borders (although sometimes with the help of outsiders, like U.S. funding and arms for Central American and Southern Cone militaries, or with violence that spilled over borders, such as the South African attacks against activists exiled abroad). Is there a role for official truth seeking following international wars or conflicts? How might such bodies be created and by whom would they be overseen? The Israeli-Palestinian conflict may eventually approach the subject of the past and would need to consider new models that take into account the different perceptions of history across the political and national divides. What is the range of alternate forms of truth seeking (here labeled quasi-truth commissions) and in what circumstances are they most appropriate? What will be the relationship between the future International Criminal Court and national truth commissions, especially around legal questions of sharing evidence, confidentiality of investigations, and the use of witnesses?30 What kind of international guidelines might be proposed, both to assist those designing future truth commissions and to hold commissions to reasonably high standards? In drafting such guidelines, attention should be given to the elements of evaluation outlined earlier (process, product, and impact). What are the real psychological and emotional impacts on victims and witnesses of truth inquiries, and how can the healing effect be strengthened? How do these effects compare with the impacts of victims’ participation in judicial inquiries?
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International Conflict Resolution After the Cold War Historical research What does history tell us about the legacy of unaddressed pain and unacknowledged events? What can we learn from France after World War II, Spain after Franco, the Armenian genocide early in this century, Native Americans throughout the Americas, and other uncommissioned but unforgotten periods of authoritarian rule or brutality? Why in some cases was there no demand for truth seeking, while in other cases the wounds of the past remain open? The most useful contribution of a truth commission is to open, rather than close, a difficult period of history. Ideally, it should lead to other processes or institutions, such as memorials, museums, new educational curricula, and perhaps other commissions of inquiry or reparations bodies, all of which may better integrate a silenced and conflicted past into a respectful and peaceful memory. How these national pains are best addressed and how a society and its political life will be affected by this legacy will differ in every country. But as new and creative approaches to building peaceful relations are explored and developed further, the question of how to best respond to the full texture of past conflicts will continue to demand attention. NOTES 1 The field of “transitional justice” is in rapid development, although writers and commentators have used the term in different ways. Some have focused primarily on newly democratized states or those recently emerging from civil war. Others have inferred a broader sense of responding to a widespread practice of human rights crimes or violations of humanitarian law, including those that may have taken place under a democratic government or those that may have taken place many years before. In some cases, fully democratic and nontransitional countries grapple with these very same issues (as in specific events or practices that have taken place in the United States, or in European states that today are still grappling with the legacy of World War II). 2 For an overview of the transitional justice approaches available and experiences in a number of transitional countries, see Neil J.Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vols. I–III (Washington, D.C.: United States Institute of Peace Press, 1995). 3 See Herman Schwartz, “Lustration in Eastern Europe,” Parker School of East European Law, vol. 1, no. 2 (1994), pp. 141–171. 4 For a more detailed treatment of the subject of truth commissions, including descriptions of over 20 commissions to date, see Priscilla B.Hayner, Unspeakable Truths: Confronting State Terror and Atrocity. (New York and London: Routledge, 2000). 5 This Australian policy, which between 1910 and the early 1970s forcibly removed as many as 100,000 Aboriginal children from their homes, was based on the racist notion that mainstreaming Aboriginal children into white society would be to their benefit. This government inquiry concluded that the policy was “genocidal” and urged reparations and apology. See the report of this goverment inquiry, Bringing Them Home: Report of the Na-
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International Conflict Resolution After the Cold War tional Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Sydney: Human Rights and Equal Opportunity Commission, 1997). 6 Leo Valladares, National Commissioner for the Protection of Human Rights in Honduras, in conversation with the author, October 1995. 7 Brasil: Nunca Mats (Rio de Janeiro: Editora Vozes Ltda., 1985). For a description of the Brazilian project, see Lawrence Weschler, A Miracle, A Universe: Settling Accounts with Torturers (New York: Penguin, 1990; reprint with postscript, Chicago: University of Chicago Press). Because the Brazil project was carried out secretly, church backing not only provided financial support but also lent legitimacy to the published report. 8 Servicio Paz y Justicia, Uruguay: Nunca Más: Informe Sobre la Violación a los Derechos Humanos (1972–1985), 1989. The parliamentary commission was mandated to investigate disappearances only, which missed the great majority of abuses in the country (illegal imprisonment and torture). 9 The Archbishop of Guatemala’s Office of Human Rights project resulted in a four-volume final report, published in 1998. See Guatemala: Nunca Más, vols. I–IV (Guatemala City: Oficina de Derechos Humanos del Arzobispado de Guatemala, 1998). A summary of the report has been published in English as Guatemala: Never Again! (Maryknoll, N.Y.: Orbis Books, 1999). 10 See, for example, Links: Historical Almanac, Volume I (Moscow: Progress Phoenix, 1991) and List of Executed People: Volume I: Donskoi Cemetery 1934–1943 (Moscow: Memorial, 1993), both in Russian. For a description of Memorial’s activities, see “Making Rights Real: Two Human Rights Groups Assist Russian Reforms,” Ford Foundation Report, Summer 1993, pp. 10–15, or Nanci Adler, Victims of Soviet Terror: The Story of the Memorial Movement (New York: Praeger, 1993). 11 National Commission on the Disappeared, Nunca Más: Informe de la Comisión Nacional Sobre la Desaparición de Personas (Buenos Aires: Editorial Universitaria de Buenos Aires, 1984), or, in English, Nunca Más: The Report of the Argentine National Commission on the Disappeared (New York: Farrar Straus Giroux, 1986). 12 A number of high-level members of the military junta were convicted and jailed based in part on files from the commission on disappeared persons. But trials in Argentina were limited by pseudo-amnesty laws that prevented the prosecution of many perpetrators. Those who were convicted and imprisoned were freed several years later under a presidential pardon. 13 The author has looked into the question of why some states may prefer to leave the past alone in her book, Unspeakable Truths: Confronting State Terror and Atrocity (New York and London: Routledge, 2000), Ch. 12. 14 Human rights abuses generally refer to abuses by the state against an individual and in some cases also to abuses by armed opposition groups, such as when they control territory. Violations of international humanitarian law refer to crimes against the laws of war as articulated in the Geneva Conventions of 1949, committed by either government or opposition forces. 15 While little serious research has been dedicated to this question, two recent important studies—by the Carnegie Commission on Preventing Deadly Conflict and by the Aspen Institute’s Justice and Society Program—have identified official truth seeking as a central component to be considered in peace-making endeavors. See Carnegie Commission on Preventing Deadly Conflict, Preventing Deadly Conflict: Executive Summary of the Final Report (New York: Carnegie Corporation, 1997, p. 27), and Alice H.Henkin, ed., Honoring Human Rights: From Peace to Justice: Recommendations to the International Community (Washington, D.C.: The Aspen Institute, 1998, pp. 17–19, 35–37). 16 A coup was threatened in El Salvador if the Commission on the Truth named perpetrators. The commission proceeded to publish names, but the coup threat was not carried
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International Conflict Resolution After the Cold War out (though a sweeping amnesty was passed immediately, perhaps to pacify the armed forces). 17 The Haitian commission suggested that trials ensue first and that their list of persons responsible for crimes might be made public at a later date. 18 Interviews by author with staff of Khulumani, September 1997, Johannesburg, South Africa. 19 Interviews by author with commission staff in Haiti (December 1996) and Guatemala (May 1998). 20 The intercommunity violence of KwaZulu Natal has roots in the struggle against apartheid; the Inkatha Freedom Party was funded and armed by the apartheid state to attack supporters of the African National Congress. 21 Based on the author’s interviews in Isipingo, South Africa, including members of the Nsimbini KwaNkonka Local Peace Committee, September 1996. 22 The Truth and Reconciliation Commission was well aware of these tensions and tried to choose its hearing locations partly in response to these localized dynamics. 23 See the “Agreement on the Establishment of the Commission to Clarify Past Human Rights Violations and Acts of Violence that Have Caused the Guatemalan Population to Suffer,” United Nations Document A/48/954/S/1994/751, Annex II. Once under way, the commission’s period of work was extended to 18 months. 24 “Agreement on a Comprehensive Political Settlement of the Cambodian Conflict,” signed in Paris on October 23, 1991, Article 15. 25 See Stephen P.Marks, “Forgetting ‘The Policies and Practices of the Past’: Impunity in Cambodia,” Fletcher Forum of World Affairs, vol. 18, no. 2 (Summer/Fall 1994). 26 A UN-commissioned Group of Experts recommended in early 1999 that a truth commission be considered in Cambodia, suggesting especially the need for discussion and due consideration by Cambodians themselves on the question. See “Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135,” United Nations Document A/53/850/S/1999/231, pp. 52–54. For a discussion of recent developments and debates around truth seeking and justice in Cambodia, see Brad Adams, “Snatching Defeat from the Jaws of Victory?,” Phnom Penh Post, January 23, 1999; Balakrishnan Rajagopal, “The Pragmatics of Prosecuting the Khmer Rouge,” Phnom Penh Post, January 8–21, 1999; and Stephen P.Marks, “Elusive Justice for the Victims of the Khmer Rouge,” Journal of International Affairs, vol. 52, no. 2 (Spring 1999), pp. 691–718. 27 For further discussion of these different conceptions of reconciliation, see Susan Dwyer, “Reconciliation for Realists”; David Crocker, “Reckoning with Past Wrongs: A Normative Framework”; and David Little, “A Different Kind of Justice: Dealing with Human Rights Violations in Transitional Societies,” all appearing in Ethics and International Affairs, vol. 13 (1999). See also Donald W.Shriver, Jr., An Ethic for Enemies: Forgiveness in Politics (New York: Oxford University Press, 1995); Kader Asmal, Louise Asmal, and Ronald Suresh Roberts, Reconciliation Through Truth: A Reckoning of Apartheid’s Criminal Governance (Cape Town: David Philip Publishers, 1996). 28 For a full exploration into this concept of reconciliation, see Priscilla B.Hayner, “In Pursuit of Justice and Reconciliation: Contributions of Truth Telling,” in Comparative Peace Processes in Latin America, Cynthia J.Arnson, ed. (Washington, D.C.: Woodrow Wilson Center Press and Stanford CA: Stanford University Press, 1999), pp. 363–383. 29 Interview by the author with Manouri Muttetuwegama, chair of the Commission of Inquiry into the Involuntary Removals and Disappearances of Persons in the Western, Southern, and Sabaragamuwa Provinces of Sri Lanka, on September 18, 1998, in Brighton, England. 30 The question of the relationship between the future International Criminal Court and national truth commissions has been raised in discussions of a truth commission for
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International Conflict Resolution After the Cold War Bosnia. The chief prosecutor and president of the International Criminal Tribunal for the Former Yugoslavia strongly opposed the idea of a truth commission, seeing such an inquiry as likely to damage the tribunal’s prosecution efforts. Others disagree with this view, seeing a truth commission as potentially advantageous in helping to gather information and material for later use by the tribunal. All agree, however, that these issues raise many questions that are likely to arise in the operations of the permanent International Criminal Court. For further exploration of this issue, see Priscilla B.Hayner, Unspeakable Truths, Ch. 13.
Representative terms from entire chapter: