A BRIEF HISTORY OF TRUTH
Since September 11, most talk about international justice has focused on what to do with Osama bin Laden and his al Qaeda terrorists, if and when they are caught. The debate over military tribunals, international trials, and similar concerns arising from the Afghanistan campaign, however, has obscured what is perhaps the greatest recent innovation in post-transition justice: the rise of truth commissions. Few have yet started clamoring for such a panel to catalog the Taliban’s various offenses; Afghanistan is still far too chaotic and violent, its government far too tentative. But this lack of a truth commission in Afghanistan bucks the trend. Elsewhere, such commissions seem to be springing up with amazing regularity.
On taking office in October 2000, for example, one of the first things Vojislav Kostunica, Yugoslavia’s first freely elected president, did was announce the creation of a truth commission to investigate the crimes committed during the wars of Yugoslav succession. Nine months later and half a world away, Alejandro Toledo made a similar pledge the day he was elected to replace the autocratic Alberto Fujimori as Peru’s head of state. Unthinkable just a short time ago, such gestures now accompany practically every transition from civil war or authoritarian rule. Announcing the creation of a truth commission has become a popular way for newly minted leaders to show their democratic bona fides and curry favor with the international community. In the months between Kostunica’s and Toledo’s announcements, for example, ten other commissions were started, in countries ranging from Bosnia to East Timor and Panama to Sierra Leone.
The truth business, in short, is booming. A new academic discipline has sprung up to study the commissions, with courses on the topic now offered at New York University, Harvard, Michigan, and Columbia law schools. Numerous books and articles on the subject appear each year. And last March, the world’s first truth commission consulting firm — the International Center for Transitional Justice (ICTJ) — set up shop in a Wall Street office suite.
Despite their swelling popularity, however, almost everything about the truth commissions — including their missions, compositions, and outcomes — is now the subject of intense debate. And much of the criticism has come from the most unlikely of sources: the mainstream human rights community, which not long ago enthusiastically supported such projects around the world.
TRIAL AND ERROR
More than 21 truth commissions have run their course since 1974. Not surprisingly, their objectives and structures have varied dramatically, as have their results. Still, a few generalizations can be made. Developed primarily in Latin America during the 1980s, truth commissions are tools that traumatized countries use to set the historical record straight. The commissions allow newly democratic nations to investigate the crimes of the past, overturning the lies told by previous regimes to cover up their abuses. Most importantly — and this helps explain both their popularity and controversy — truth commissions do all of this without holding trials.
This lack of trials is an essential aspect of the commissions’ identity and a lightning rod for supporters and critics alike. The commissions generally operate without judges, courtrooms, and the cumbersome trappings (and safeguards) of legal procedure. Unlike courts, they do not seek punishment or retribution. Often given the power to grant some form of amnesty, their task is to uncover just what happened to whom in the past, and why. Who did it, however, is rarely stressed. Few truth commissions name names of violators, and when they do it is for purposes of moral and perhaps social censure — but never legal retribution.
One might think that this inability to punish would make commissions extremely unpopular. In fact, it has done just the opposite. After all, trials, the standard mechanism for arranging punishment, are a far from perfect way to establish transitional justice. The upper levels of the outgoing regime often demand immunity from prosecution as part of the transition deal. And even after repressive governments leave office, their civil servants — including judges, prosecutors, and police — usually remain in place. This makes practical sense, since new democracies cannot afford to purge all their experienced technocrats, but it inevitably results in less vigorous investigation and punishment of old crimes. Trials, moreover, with their high standard of proof and extensive evidentiary requirements, are complicated and expensive, and fledgling governments tend to be strapped for cash.
Even in countries eager to confront the past, trials have turned out not to be a good way of doing so. At their best, prosecutions for human rights crimes are limited in number and selective in scope. The Allied-sponsored Nuremberg trials, for example, covered 85,882 individual cases but secured only 7,000 convictions — and this for the Holocaust and all other Nazi atrocities. Moreover, trials focus not on general social or economic forces, but on individuals, and one set of individuals at that: namely, the perpetrators and not their victims.
Truth commissions, in theory, are supposed to address all these shortcomings. By forgoing the right to dispense punishment they make themselves less objectionable to members of the old regime. By avoiding prosecutions, they can delve widely into institutional injustices in the past. And by broadening their focus, commissions allow victims, not just violators, to tell their stories — something thought to have a powerful healing effect on those who have suffered. This, at least, is how truth commissions are supposed to work. In practice, the commissions’ results have been mixed, and their operations have often been manipulated and politicized. And thus, as the panels proliferate, an intense debate has broken out over whether they cause more problems than they solve, and whether they deserve international support — or condemnation.
Some of the outcry has come from predictable sources, such as former strongmen or their apologists, who argue that it is better to leave the past behind than reopen old wounds. Harder to ignore are the increasingly strident critiques emanating from truth commissions’ erstwhile allies in the human rights community. Commissions are deals with the devil, these critics charge — flawed compromises between those seeking justice and those trying to obstruct it. Even if such bargains were once necessary, they argue, they are not any longer. The global move toward international justice has now made trials much easier to achieve, and commissions only soak up the attention and resources that should be devoted to criminal prosecutions. Finally, critics question the very conceptual basis for commissions: the notion that one version of past events can be singled out and established as “the truth,” and that, once promulgated, it will lead to national healing or something called reconciliation.
These criticisms highlight a number of awkward dynamics that commissions and their advocates too often tend to gloss over. Yet they also overlook an essential part of the picture: the depressing realities that make compromises in justice necessary in the first place. Transitional governments come into office with many priorities and obligations yet few resources. This fact all but ensures that any approach they take to the past will be problematic and incomplete. A glance at the experiences of two recent commissions, in South Africa and Guatemala, reveals just how painful these compromises can be. But it also suggests what truth commissions, imperfect as they are, can offer as new democracies struggle to overcome debilitating traumas in the past.
CRY, THE BELOVED COUNTRY
Ask most people whether they have ever heard of a truth commission; if they have, it tends to be South Africa’s. Although neither the first nor the most recent, South Africa’s Truth and Reconciliation Commission (TRC), which ran from 1996 to 1998, is by far the most famous example of the genre.
This celebrity is easy to understand, for South Africa has always stood out in the international imagination. Repressive governments usually make some attempt to disguise their bad behavior. Pretoria rarely bothered, and it even constructed a full-scale ideology to legitimize its actions. A bastion of white minority power that persisted long after settlers had given up elsewhere on the continent, South Africa was a pariah state. Its infamous apartheid legislation, enacted in 1950, enforced rigid racial separation in all aspects of life, legitimized forced relocations of black communities, and imposed humiliating restrictions (including the notorious “pass laws”) on nonwhite citizens. When this system finally collapsed in 1994 and the country managed a stunningly peaceful transition to multiracial democracy, the world watched with rapt attention.
The TRC represented an audacious attempt by the new African National Congress (ANC) government to address the country’s troubled history in a nonvengeful way — a remarkable act of grace by people who had suffered terribly. The commission’s powers, budget, and size were all unprecedented, far exceeding those of previous and less well known commissions in Argentina, Chile, and El Salvador (the models on which the TRC was based). These unparalleled resources included search-and-seizure powers, the right to issue court-backed subpoenas, and most controversially, the power to grant individual amnesties. The TRC’s hearings were held in public (also a first), followed by press conferences, and broadcast daily on the radio throughout South Africa and the world. A weekly TV round-up became a much-watched event.
The TRC also profited from the support of two much-beloved figures — then President Nelson Mandela, a secular saint, and the TRC chairman, Archbishop Desmond Tutu, a religious one. Mandela and Tutu’s importance cannot be overestimated: if they, who had both suffered so much and led the fight against the old regime, were ready to forgive, surely the nation could follow.
Or could it? Despite the popularity of its spokesmen and the breadth of its powers, in fact, the commission was dogged by controversy from the start. Two aspects in particular drew intense fire. The first was the commission’s ability to grant amnesties. Not everyone was as keen on reconciliation as Mandela and Tutu, and many demanded regular trials for the generals and foot soldiers of apartheid. But South Africa’s transition to democracy had come about through negotiations between the ANC and the ruling National Party of F. W. de Klerk, and de Klerk made it clear from the beginning that he would never hand over power if trials remained a possibility. As Thabo Mbeki, then Mandela’s deputy and now president of South Africa, said in 1997,
within the ANC the cry was “to catch the bastards and hang them.” But we realized that you could not simultaneously prepare for a peaceful transition. If we had not taken this route [and allowed for amnesties] I don’t know where the country would be today. Had there been the threat of Nuremberg-style trials for members of the apartheid state security establishment we would never have undergone a peaceful change.
The result was a compromise — what Tutu called a “third way” between national amnesia and criminal prosecutions. The new government decided that it would indeed offer amnesties for past crimes, but not the kind of blanket immunity that preceded the truth commission in Chile or followed the ones in Argentina and El Salvador. Such amnesties had utterly undermined the work of those commissions. And as Alex Boraine, an Afrikaner and former church leader who served as deputy chairman of the TRC, has noted, a general absolution in South Africa “would have encouraged impunity and may even have led to acts of personal revenge.”
What South Africa offered instead were individual pardons, on strict conditions. Perpetrators had to come before the TRC’s amnesty committee and make a full, public confession of their misdeeds. If the crimes were deemed to be political in nature and motivation, only then would the perpetrators be granted immunity from all criminal and civil penalties. This bargain lay at the heart of the TRC’s project, and it involved an explicit trade: truth for justice. Criminals who made full disclosure would evade retribution, and victims would be vindicated by having their stories publicly confirmed. Families would finally find out what had happened to their vanished relatives. And the country as a whole would learn the exact details of what South Africa’s security apparatus had been doing but denying for so long.
Not everyone accepted the tradeoff, however. The amnesty provision was quickly challenged by Nontsikelelo Biko, the widow of black rights advocate Stephen Biko, who had been beaten to death in police custody. Joined by the families of several other slain apartheid activists, Biko filed suit in South Africa’s Constitutional Court to block the amnesty provisions as fundamentally unjust. But the court ruled against her and the proceedings continued.
The commission’s mandate was to investigate not the legality of apartheid itself but actions that were illegal under that system’s own laws. In the end, 21,297 victims or family members gave statements. More than 8,000 individuals applied for amnesty, although few of them were high-ranking officials. Hearings covered the behavior of not only the South African armed forces and police, but also paramilitary units and political parties — and even the ANC itself during its struggle against the regime. When the TRC finally issued its report in late 1998, the five-volume document listed widespread abuses over 34 years and made far-ranging recommendations for the future, including reparations for all the victims it identified.
Judging the results of such a complex enterprise is difficult and may still be premature today, only three years later. The TRC itself, however, provides one yardstick for evaluating its efforts: the principle of reconciliation. This much used (but seldom defined) word permeated all of the commission’s work. At the first hearing, a huge banner hung from the wall reading “Truth: The road to reconciliation.” Commissioner Bongani Finca invoked the theme when she opened the session with the Xhosa hymn “Lizalise idinga lakho” (The forgiveness of sins makes a person whole). And Tutu underscored it as well, emphasizing a Christian theology devoted to rehabilitation, consistently asking victims if they were ready to forgive, and explaining to participants that “if you live with hatred and revenge in your heart, you dehumanize not only yourself, but your community.”
But as to whether there was in fact reconciliation where it mattered most — among the victims — the answer seems to depend on which victim you talk to. Lucas Sikwepere, an ANC activist who testified before the TRC in Cape Town in 1996, had been blinded when the police shot him in the face; they had also tortured him. After relaying his story to the commission, however, he said, “I feel what has been making me sick all the time is the fact that I couldn’t tell my story. But now it feels like I got my sight back by coming here and telling you the story.” And Beth Savage, who was severely wounded during a grenade attack by anti-apartheid activists on an all-white country club in King William’s Town, reported that after confronting and then forgiving her attacker at a TRC session, she was able to sleep without nightmares for the first time since the assault. Still other victims embraced or applauded their persecutors once confessions were made.
Almost every such anecdote, however, can be matched by an opposite story. Reconciliation was certainly not a priority for Biko’s widow, nor was it much in evidence when, as the commission finished its work, a poll reported that two-thirds of South Africans felt the commissions’ revelations had only made them angrier and contributed to a worsening of race relations. A mere 17 percent of those polled predicted that people would become more forgiving as a result of the TRC.
Even the commission itself, as its work progressed, gradually seemed to realize that achieving any form of rehabilitation would be far more difficult than it had assumed, and it began to scale back expectations accordingly. Tutu began to argue that the commission had promised only to “promote” reconciliation, not achieve it. Even Richard Goldstone — a stalwart supporter of the TRC and a judge on South Africa’s Constitutional Court — lamented that “national reconciliation is one of those generalizations that doesn’t have a great deal of content. In South Africa today we still have a great deal of distance between the two communities. I’m not sure the truth commission has been all that successful in that area.”
Still, South Africa today is a much healthier country than it was several years ago, and part of this is unquestionably due to the efforts of the commission. Racial violence is almost nonexistent. Goldstone explained, “If we had not had a truth commission, the denials of apartheid-era abuses by members of the prior regime would no doubt continue to this day and still be believed by a large number of people. But in the aftermath of the truth commission, even the hard right wing of the apartheid regime can no longer deny the worst abuses.” Indeed, the relative success of the TRC — in terms of the wealth of information it uncovered and the positive effects it had — becomes even more obvious when its results are compared to those of another commission, set up simultaneously half a world away under very different circumstances.
THE BETTER PART OF VALOR
In 1996, Guatemala looked like it might finally be able to start rebuilding its shattered society. A remarkably brutal civil war had ended after 36 years. Under the peace accords, the left-wing rebel forces of the Guatemalan National Revolutionary Union were disbanded, the size of the army was reduced, and several senior military officers were forcibly retired. Both sides also agreed to the establishment of an internationally sponsored truth process — the Historical Clarification Commission (known by its Spanish acronym, CEH). Chaired by a soft-spoken German academic named Christian Tomuschat, the CEH aimed to uncover the sources and effects of a civil war that had gone on for as long as most Guatemalans could remember.
Although the CEH and South Africa’s TRC started at almost the same time, however, they had little else in common. In every way that South Africa’s was a “strong” commission, Guatemala’s was weak. It had no search-and-seizure power, no ability to subpoena, no right to hold public hearings, and it could not name perpetrators. It was preceded, moreover, by the passage of 13 blanket amnesty laws that offered immunity for all but the most serious human rights crimes.
These weaknesses in the CEH’s mandate were deliberate. The postwar Guatemalan government was fragile, and even after the signing of the peace accords, right-wing elements remained extremely powerful in the country, especially within the military. The framers of the CEH feared that an overly aggressive commission would be defied, thus complicating its work and undermining its legitimacy. Tomuschat put the dilemma simply: “Even if we’d had subpoena power, people just wouldn’t have shown up.”
Still, many human rights advocates, including Guatemalan Bishop Juan Gerardi Conadera, bitterly criticized the CEH’s inability to name names. Tomuschat himself admits that this restriction kept his commission from “penetrating to the heart of the evil.” But the limitation was accepted because of fears that specific accusations would lead the military to insist on an amnesty for all crimes — as had happened a few years before in neighboring El Salvador. And according to Greg Grandin, a professor of Latin American history at Duke University who advised the CEH, the anonymity provision ended up having a salutary effect. “It forced the commission to find other ways to address the violence,” he argues, such as looking into the broad social forces and inequities that contributed to the civil war in the first place.
CEH regional offices were set up throughout the country and representatives fanned out to find victims, often hiking to remote villages to take statements. The commission asked the U.S. government to declassify and provide its own documents relating to the civil war and succeeded in getting much of what it wanted. The Guatemalan military stonewalled and some of the commission’s employees were harassed, but in the end they managed to collect 7,200 depositions.
The CEH’s nine-volume final report was released in February 1999, at an emotional ceremony in Guatemala City attended by more than 2,000 people. Despite the commission’s limitations, its conclusions were devastating. The report estimated that a total of 200,000 people had been killed during the war, a death toll greater than those in El Salvador, Nicaragua, Chile, and Argentina combined. The CEH placed the responsibility for most of the deaths squarely on the government, reporting that “the violence was fundamentally directed by the State against the excluded, the poor, and above all, the Mayan people, as well as against those who fought for justice and greater social equality.” The military and its accomplices were blamed for 93 percent of all human rights violations. Most explosive was the report’s description of the government’s scorched-earth campaign against the rebels, an attempt to break the back of the insurgency by wiping out its Mayan supporters. According to the CEH, this campaign amounted to genocide.
As in South Africa, the conclusions were accompanied by a raft of progressive recommendations, ranging from the creation of a national holiday honoring the war dead to prosecutions for key perpetrators. The optimism and high hopes that attended the release of the CEH report, however, were quickly disappointed: President Alvaro Arzu sat stone-faced throughout the report’s presentation, refusing to receive the document himself and sending his low-ranking “peace secretary” onto the stage instead. Arzu also failed to issue any public comment for days afterward, and his government was similarly slow to respond. Then, ten months later, a new president, Alfonso Portillo, was elected in a landslide. Although Portillo himself was a populist with some left-wing credentials, his party, the Guatemalan Republican Front, was dominated by his father-in-law, General Efrain Rios Montt, who as the country’s dictator in the 1980s had overseen some of the worst abuses.
The election served as a bitter symbol of how little impact the CEH had had on Guatemala, and once Portillo and Rios Montt took office the commission’s report vanished from the political agenda. Virtually none of its recommendations have been adopted. According to Mario Polanco, head of a local human rights group, “we have gone nowhere. Nothing has changed. If the question is, ‘Did Guatemala listen to what the commission was saying,’ the answer is ‘No.'” Meanwhile, the violence continues. In April 1998, two days after presenting the results of the Catholic Church’s own investigation into the killings, Bishop Gerardi was beaten to death with a concrete brick in the garage of his Guatemala City seminary. People investigating mass gravesites complain of ongoing police harassment, and in recent years the number of abuses in the country in general has risen rather than fallen. As human rights worker Angel Albizures complains, impunity remains “the chronic disease of the Guatemalan state.”
THE TRUTH IS OUT THERE, ISN’T IT?
Eyeing these mixed results in South Africa, Guatemala, or elsewhere, skeptics have raised four types of general objections to the work of truth commissions: that history is so murky and subjective that even well-intentioned investigations cannot establish anything that should actually be called, with a straight face, “truth”; that the panels too often focus on individual violations rather than broad structural problems; that their work does not lead to reconciliation; and that they interfere with, and distract attention from, the prosecution and punishment of past crimes. A close look at the South African and Guatemalan cases, however, shows that although some of these charges have merit, well-planned commissions can nevertheless make an essential contribution to justice and harmony in fragile societies.
The first question, whether historical truth is a reasonable goal, is crucial. In many cases a commission’s actual findings are its sole lasting accomplishment — the supreme payoff in exchange for which new governments have agreed to sacrifice retribution. And the value of revealing the truth is not abstract. After September 11, for example, the most important thing for many of the victims’ families was to find out what exactly had happened to their loved ones. Only once the truth was discovered could the healing finally begin. By the same token, it is argued, an honest accounting of past injustices is essential before shattered societies can start to rebuild.
Yet truth turns out to be a surprisingly elusive goal. One need not be a postmodernist to recognize that historical narratives are partly constructed rather than merely discovered, and that power and interests affect the process. Truth commissions rarely acknowledge such problems, however. In fact, only South Africa’s TRC actually addressed this dilemma directly — and it did so in a bizarre manner that hurt rather than helped its credibility. The commission’s report lists four different kinds of truth that it pursued: “factual,” “personal,” “social,” and “healing” varieties. Because only the first of these is recognizable as the sort of objective, verifiable phenomenon most people think of when they think of truth, however, the list only seemed to heighten confusion and skepticism about the TRC’s ability to produce a single authoritative story of what had transpired under apartheid.
Furthermore, commissions have a bad habit of reflecting the prejudices and agendas of their framers. The TRC, for example, placed a disproportionate emphasis on crimes committed against nonblack South Africans. This slant was deliberate: even though blacks had suffered vastly more than other groups, Tutu wanted the TRC to show how apartheid had affected all South Africans. As Boraine explained to me, “[Tutu] said that the major problem in our country is not a black problem, it’s a white problem. It’s a mixed race, a colored problem. So we mustn’t go strictly on proportionality.” However noble such a motive, unfortunately, giving nonblack victims more attention than they statistically “deserved” caused many blacks to angrily question the legitimacy of the TRC’s findings.
The Guatemalan report, meanwhile, suffered from the reverse bias: its analysis was weighted heavily toward the country’s impoverished indigenous Mayan community and downplayed the many abuses committed against the Ladino majority. Some have argued that this focus reflected the genuinely genocidal nature of the war, which affected Mayans far more than Ladinos. But by minimizing the crimes committed against one segment of the population, the CEH report undermined its credibility and opened itself up to political attack.
Such criticisms, while serious, are best answered by the findings themselves. And there is abundant evidence that even imperfect truth commissions produce a wealth of previously unknown information regarding events that many people care about passionately. Families and friends have learned what happened to loved ones who “disappeared,” and victims have had their charges legitimized. This can have a profound impact on sufferers. In South Africa, for example, many anti-apartheid activists were tortured into giving “confessions” by having a wet bag placed over their heads until they reached the point of asphyxiation. For years, the police steadfastly denied using this tactic, illegal even under apartheid law, until one lone constable finally admitted it to the TRC. The impact of his admission on his victims was intense; many spoke afterwards of feeling profoundly exonerated and vindicated by the revelation.
Columbia University’s Mahmood Mamdani, however, has leveled a somewhat different charge: that the TRC was not so much unable to locate the truth as it was unwilling to do so. The legislation that founded the commission, he notes, directed it to investigate only “gross violations of human rights.” But the commission interpreted this mandate too narrowly, using it as an opportunity to avert its gaze from the broader criminality of the system itself and the racial inequities it perpetuated. Such choices explain why the TRC avoided economic injustice and documented only 21,000 victims — what Mamdani calls a “laughable” figure.
Boraine, among others, has defended the TRC’s narrow scope by pointing out that the commission had only a short period of time in which to complete its work. “If we were to address the overall consequences of apartheid, we would need 20 or 30 years.” Still, the TRC limited its focus so narrowly that, as Mamdani bitingly explains, “[it] ended up acknowledging as victims only political activists. But apartheid wasn’t about political activists; it was about ordinary people. The only reconciliation the TRC can now expect is between two elites.”
This hardly means that the TRC report was a total failure. The fact that both de Klerk and Mbeki challenged it in public and in court suggest that it got something right. But Mamdani’s critique does highlight the consequences of the choices that commissions make and raises questions about what exactly is meant by all the talk of reconciliation. Is reconciliation supposed to occur among individuals, interest groups, the nation as a whole? How and why, and can the process be measured? And what does the word itself mean?
David Crocker, a researcher at the University of Maryland, defines reconciliation narrowly, as the absence of open conflict — mere “nonlethal coexistence.” The political scientists Amy Gutmann and Denis Thompson are more expansive, defining it as democratic decision-making and reintegration. Antjie Krog, a journalist who covered the TRC for South African radio, provides a more useful framework when she argues that advocates of reconciliation really want a return to the sort of social consensus or harmony on which the smooth functioning of society depends.
In both South Africa and Guatemala, however, such a return has proven next to impossible, largely because the societies never worked properly to begin with. Krog writes, “In this country, there is nothing to go back to, no previous state or relationship one would wish to restore. In these stark circumstances, ‘reconciliation’ does not even seem like the right word, but rather ‘conciliation.'”
Reconciliation, then, turns out to involve much more than mere forgiveness; to achieve it seems to require far more than truth telling. In fact, the reconciliation project could better be described as “nation building.” Such a process involves addressing fundamental social inequalities. That is a task for politics, however, and not one that truth commissions — however broad their mandate — can hope to accomplish.
THE SOFT OPTION
If truth commissions tend to achieve somewhat less than their advocates like to think, then the final charge against them — that they overshadow and undermine prosecutions — becomes more important. It suggests that trials are being traded for a much less effective alternative.
It is very possible that such a trade was once legitimate. In the mid-1980s, when truth commissions were first developed, international human rights trials were not really a possibility, and even domestic trials were extremely rare. The idea of prosecuting a former head of state for abuses committed while in office seemed both ludicrous and barred by judicial precedent. After leaving office, former dictators were far more likely to end up on the French Riviera than in the dock. The alternative to truth commissions then was not prosecution, but impunity.
Today, however, both national and international human rights trials have become far more common. Consider the prosecution of Chile’s Augusto Pinochet, for example, or Belgium’s conviction of Rwandan nuns for complicity in that country’s genocide. Argentina has finally begun to bring charges against its military for the “dirty war” that it fought against leftists in the 1970s. Given this trend, human rights workers are now urging transitional governments and the international community not to give up on justice so quickly. Ken Roth, executive director of Human Rights Watch, criticizes the TRC as a “necessary compromise that was a compromise nonetheless” — and should not be repeated. And Aryeh Neier, president of the Open Society Institute, warns that “efforts to promote truth commissions have become a way of avoiding efforts to do justice.” There are limits to the international community’s generosity, patience, and attention span, and commissions risk exhausting these before trials are ever held. Reed Brody of Human Rights Watch cites as an example the case of Haiti, which was told by international donors that it would get no support for prosecutions of past crimes because a truth commission for the country had already been funded.
Some governments, moreover, have turned to commissions precisely in order to put off — and eventually escape — formal legal proceedings that could spark confrontation with members or agents of the old regime. This avoidance has led observers to wonder whether the vogue for commissions is actually a step backward rather than forward.
Truth commission advocates such as Priscilla Hayner and Alex Boraine, both of whom are now professional truth-commission consultants at the ICTJ, deny there is any necessary opposition between commissions and trials. The two processes, they argue, are complementary, not mutually exclusive. Hayner points to the fact that in both Argentina and Chad, evidence uncovered by truth commissions has been used in subsequent prosecutions. “You’ll find that truth commissions increase the possibility of prosecutions rather than the other way around,” she promises.
So far, at least, there is little evidence to support this claim. Even South Africa, which has a fairly well-functioning court system, has not managed many successful trials for apartheid crimes. One high-profile conviction of a notorious government hit-squad leader named Eugene de Kock (known by the nickname “Prime Evil”) was followed by the equally high-profile acquittal of the defiant apartheid-era Defense Minister Magnus Malan. And in Guatemala the record is much worse. Few trials have even been attempted, and where they have, judges have been subjected to death threats and attacks. Asked whether there is a causal connection between the work of the truth commission and the small number of prosecutions, Paul Seils, a Scottish human rights lawyer working in Guatemala, argues that the effect of the CEH report was to reduce international pressure on the country. In turn, that step made it easier for the government to avoid shining a spotlight on the past. Although there may be no inherent or necessary opposition between truth commissions and trials, therefore, the former do seem to make the latter less likely.
NO MEAN FEAT
In the end, truth commissions face two basic types of problems: those that are avoidable and those that are inherent. The first relate to how commissions are established, conducted, and followed up. It should be possible, at least in theory, to minimize these problems for new commissions by learning from the experiences that are rapidly accumulating. Future truth commissions, in other words, need not let themselves be abused by dictators for political purposes, narrowly limited in their mandates, accompanied by general amnesties, or set up in such a way as to diminish the likelihood of trials.
The second type of problem is less easily sidestepped, however. Reconciliation turns out to be tremendously difficult to achieve or even understand. Truth too often remains elusive. The most appropriate response to such problems, however, should be not to blame the commissions for what they cannot accomplish, but to appreciate them for what they indisputably can. Although they may not have lived up to the giddy promises of their founders, for example, both the Guatemalan and the South African commissions made invaluable contributions to the health of those countries. Thanks to the TRC and the CEH, basic facts about apartheid in South Africa and the civil war in Guatemala are now part of the general historical record. De Klerk’s political career has been ruined and he will never return to office. Even in Guatemala, a country slipping back toward chaos and gangsterism, the genocide of the 1980s is now impossible to deny.
And South Africa, at least, is a different country because of the TRC’s collective national therapy. Harmony may not reign, but as Professor Jakes Gerwel, the chancellor of Rhodes University, argues, “notwithstanding the complex divisions and differences of various sorts, levels, and intensities, [it] is decidedly not an unreconciled nation in the sense of being threatened by imminent disintegration and internecine conflict.” The fact that there have been no revenge killings in the country since the TRC started its work almost certainly says something about what kind of impact the commission has had.
Critics of commissions too often make the best the enemy of the good and confuse the way they think the world ought be with the way it actually is. Of course the commissions reflect compromises among the various goals of new democracies, and of course the results are imperfect. But that is because the goals themselves — to find out what happened, punish the guilty, unite the country, put the past behind — are often fundamentally irreconcilable. The commissions’ imperfections stem from the imperfect situations out of which they arise.
Justice, moreover, remains a scarce commodity. Despite recent advances, for most human rights abuses trials of any kind remain a long way off, and achieving accountability remains extremely difficult. Too often, the choice faced today is not between truth commissions and trials, but between truth commissions and nothing. For every Afghanistan — now the focus of a huge international effort — there are many Sudans and Sierra Leones, of little interest to the world at large. In such situations, well-designed truth commissions, embedded in some larger political process, can make a crucial contribution to history, justice, and democracy. As Harvard’s Michael Ignatieff has written, “all that a truth commission can achieve is to reduce the number of lies that can be circulated unchallenged in public discourse.” This may well be true. But in the real world, where lies proliferate and too many victims suffer in silence, airing the truth can be a powerful remedy indeed.