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Jonathan D. Tepperman
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 oªenses; 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 o⁄ce 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.
Jonathan D. Tepperman is Senior Editor at Foreign Affairs.
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ap / wide world photos
The pain of remembering: a South African victim of police torture testifies
to the Truth and Reconciliation Commission, Johannesburg, November 1997
The truth business, in short, is booming. A new academic discipline
has sprung up to study the commissions, with courses on the topic
now oªered 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 o⁄ce 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
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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 o⁄ce, their civil servants—including judges, prosecutors, and
police—usually remain in place. This makes practical sense, since new
democracies cannot aªord 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.
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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 eªect on those who have suªered. 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 o⁄ce 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
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also suggests what truth commissions, imperfect as they are, can oªer 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 suªered 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
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chairman, Archbishop Desmond Tutu, a religious one. Mandela and
Tutu’s importance cannot be overestimated: if they, who had both
suªered 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 oªer 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 oªered 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
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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 tradeoª, 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 o⁄cials. 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 di⁄cult and
may still be premature today, only three years later. The trc itself,
however, provides one yardstick for evaluating its eªorts: 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
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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
di⁄cult 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 eªorts
of the commission. Racial violence is almost nonexistent. Goldstone
explained, “If we had not had a truth commission, the denials of
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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 eªects 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
diªerent 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 o⁄cers 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 eªects 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 oªered 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.
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corbis - bettmann
Required reading: Desmond Tutu presents the TRC report
to Nelson Mandela, October 29, 1998
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
eªect. “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 o⁄ces 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
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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
Truth turns out to
during the war, a death toll greater than
be a surprisingly
those in El Salvador, Nicaragua, Chile, and
Argentina combined. The ceh placed the
elusive goal.
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 Arzú
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. Arzú 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. Alhough Portillo himself was a populist
with some left-wing credentials, his party, the Guatemalan Republican
Front, was dominated by his father-in-law, General Efraín Ríos
Montt, who as the country’s dictator in the 1980s had overseen some
of the worst abuses.
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The election served as a bitter symbol of how little impact the ceh
had had on Guatemala, and once Portillo and Ríos Montt took o⁄ce
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 payoª 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
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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 aªect 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 diªerent 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
suªered vastly more than other groups, Tutu wanted the trc to show
how apartheid had aªected 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, suªered 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
aªected 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.
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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 suªerers. 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 diªerent 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
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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 decisionmaking 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 eªective alternative.
It is very possible that such a trade was once legitimate. In the mid1980s, 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 o⁄ce seemed both ludicrous and
barred by judicial precedent. After leaving o⁄ce, former dictators were
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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 “eªorts to promote truth commissions
have become a way of avoiding eªorts 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 oª—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
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not managed many successful trials for apartheid crimes. One highprofile 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 eªect 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 di⁄cult 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
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in Guatemala are now part of the general historical record. De Klerk’s
political career has been ruined and he will never return to o⁄ce. 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 diªerent 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 diªerences 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 oª, and achieving accountability remains extremely di⁄cult.
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 eªort—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 Ignatieª 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
suªer in silence, airing the truth can be a powerful remedy indeed.∂
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