Global Policy Forum

By Yav Katshung Joseph *

Yav Katshung Joseph argues that as truth commissions multiply around the world it is important to look at their relationship to prosecutions and justice in an immediate and historical sense. Are TRC's designed to generate more truth, more justice, reparations, and genuine institutional reform? Or are they designed to undermine the State's and society's legal, ethical and political obligations to their people?

INTRODUCTION

Truth commissions have been multiplying rapidly around the world and gaining increasing attention in recent years. They are proposed for different reasons and driven by diverse motives. They can be used firstly, for the purpose of national reconciliation and in the interests of the society; secondly, sometimes they can be used to avoid accountability or prosecution and merely to shield an offender from justice. Following recent outbreaks of violence in the aftermath of Kenya's presidential election last December, stakeholders continue to make strides toward peace. Parties have agreed among other things to a Truth, Justice and Reconciliation Commission, which will be established through an Act of Parliament. The Commission will inquire into human rights violations, including those committed by the state, groups, or individuals. This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions. It will also inquiry into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence. Other historical injustices shall also be investigated. The commission will primarily focus on events dating back to independence, December 12, 1963 up to February 28, 2008. However, it will as necessary look at antecedents to this date in order to understand the nature, root causes, or context that led to such violations, violence, or crimes. This gives us opportunity to share views on adequate truth commissions and their relationship with prosecutions.

TENSIONS BETWEEN TRUTH COMMISSIONS AND PROSECUTIONS

Very often, when a country wishes to move from dictatorship to democracy or from war to peace, various ways may be tried and these include trials in an international or national court of law and non-punitive approaches such as truth commissions. Thus, ".a country's decisions about how to deal with its past should depend on many things: the type of dictatorship or war endured, the type of crimes committed, the level of societal complicity, the nation's political culture and history, the conditions necessary for dictatorship to reoccur, the abruptness of the transition, and the new democratic government's power and resources [1]." One may adds the "interests" of the country.

Different countries have chosen widely different strategies to deal with the past including prosecutions in one hand and, truth commissions and other non-punitive approaches, in the other. Although justice is crucial after violations of human rights, it may not be possible or practical. International tribunals are useful, but they are not the full solution. They are hugely expensive and can try only a small group of perpetrators, the most "responsible". Ironically, many times, those who are tried are not the most responsible but the most "available" in the country. Therefore, justice becomes extremely selective and seems to be the way of granting de facto amnesty to those who fled the country and those responsible. Then come the necessity of other non-judicial mechanisms such as truth commissions not as a panacea for all the challenges of transition, or an alternative, but as a complement way to be used by broken societies, in order to bring the benefits of justice to the victims and to the political culture.

However, this is challenging and there are always tensions between the requirements of the criminal justice system and those of non-punitive approaches to gross and systematic human rights violations. Rightly, Charles Villa-Vicencio pointed out that, "the tension between justice and reconciliation and revenge, prosecution and amnesty is grounded as much in principled debate as in a tug-of-war between deep emotions, unresolved memories and uncertain futures. It is a tension that is best not collapsed into an attempted neat synthesis of a complex set of contradictions. The contradictions need to be sustained. The demands of the one side need to impact on the other. It is through honest encounter that opposing groups stand the best chance of knowing that they need one another. It is then that new possibilities begin to be imagined-and sometimes realised [2].

DOMESTIC TRUTH COMMISSIONS AND PROSECUTIONS: REACHING FORWARD

Truth Commissions are established to officially investigate and provide an accurate record of the broader pattern of abuses committed during repression, civil war and unjust periods. There have been more than thirty truth commissions worldwide, including in Sierra Leone, DRC, Morocco, and more importantly South Africa. "Truth commissions today", according to Jose Alvarez, Professor of International Law at Columbia University, "are inescapable tools in establishing the truth of past crimes and a means for victim recompense and instruments to promote peace and reconciliation."

Most recently, the United Nations Secretary-General's report on "The rule of law and transitional justice in conflict and post-conflict societies" praised them as "a potentially valuable complementary tool in the quest for justice and reconciliation" and in "restoring public trust in national institutions of governance [3]". The increased interest in truth commissions is, in part, a reflection of the limited success in judicial approaches to accountability, and the obvious need for other measures to recognise past wrongs and confront, punish or reform those persons and institutions that were responsible for violations. Successful prosecutions of perpetrators of massive atrocities have been few, as under-resourced and often politically compromised judicial systems struggle to confront politically contentious crimes. With an eye on building a human rights culture for the future, many new governments have turned to mechanisms outside the judicial system to confront, as well as learn from the horrific crimes of the past [4].

However, a truth commission should at the same time never be allowed to circumvent international human rights law or, more specifically, to ignore the punitive demands of the criminal justice. Related to the South African case, where there was a Truth and Reconciliation Commission (TRC) with a possibility to grant a conditional amnesty [5] in exchange of a full disclosure and shown remorse, could we say according to the Rome Statute that, the TRC decisions or proceedings were taken for the purpose of shielding the person concerned from criminal responsibility? One should take into account and acknowledge that the South African TRC was democratic and genuine. The purpose was not to shift or to hide someone or a group from prosecution. It was in the interest of peace, reconciliation, etc. In my view and for many others, the South African TRC was not there to shield perpetrators but to seek the truth for national reconciliation. South Africa acted in good faith; the TRC was established by the best efforts of negotiators to end violations of human rights. This is justice, to my view and I may say in the interests of the entire country/society, not in the interest of prosecuting some few and not others, and still walk free as if they were granted de facto amnesty.

Emphasising this argument, Juan Mendez, stated that:

"In most parts of the world, the South African example stands out as an attempt to achieve reconciliation and forgiveness without impunity. Others decry the fact that most perpetrators of the worst crimes of apartheid did evade justice. In my view, however, the South African exercise with truth, justice and reconciliation is notable for its insistence on hearing the victims, consulting with all members of society, allowing participation by all stakeholders, and conducting the exercise in complete transparency. It is in this sense that the South African example continues to inspire all those who decide to turn a page in a country's history without forgetting the plight of those who suffered [6]." Therefore, we may pause with Naomi Roht-Arriaza that, if perpetrators appear before an independent and democratic truth commission that hears applications for conditional and accountable amnesty, they should not face prosecution by the ICC. In this case, amnesty (conditional) is granted for the purpose of domestic reconciliation and not to shield him/her/(the perpetrator) from criminal prosecution [7]. However, can all truth commissions have the same purpose of not shielding perpetrators? It is important to draw the line in order to avoid some contradictions between truth commissions and prosecutions. The next point will deal with that.

THE QUESTION OF ADEQUATE TRUTH COMMISSIONS IN ORDER TO COMPLY WITH INTERNATIONAL STANDARDS

We should ask ourselves if all truth commissions should be considered as genuine and serve the interests of the country. As we may know, in some countries the purpose of a truth commission may be not genuine and reasonable. This is challenging and it will be useful to deal at the case-by-case level. Rightly, Professor James Crawford of the University of Cambridge has said in relation to Article 17 of the Rome Statute:

"I think there is a question about truth commissions, because you can't say a priori which ones are a reasonable response to the situation, and which ones are a cover-up. It's going to require extreme care by the prosecutor. There may be some problem there with the capacity to subvert those processes if they are reasonable, and we'll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don't necessarily involve prosecutions of individuals, so there's no reason why the principle of complementarity ought not to cover an appropriately constituted truth commission [8]."

Moreover, Charles Villa-Vicencio, talking about truth commissions states that: ". They demand fewer resources than courts and, if designed properly, can provide some accountability [9]." Using the words such as "if designed properly", meant that we may find some not properly designed and therefore, the need for benchmarks in order to comply with international law. Can we say that the South African TRC was able to provide accountability and was consistent with international law?

Despite some few critiques, the South African TRC is internationally recognised, and has been favourably endorsed by numerous international human rights organisations and commentators. The TRC was passed pursuant to a valid Act of Parliament and imposes a form of public procedure and accountability for the actions of perpetrators. It was the country's decision in favour of peace. This is not impunity because there was political consensus in South Africa that getting as much of the truth out as possible and having fewer, but more effective prosecutions, was a just result. Given that, this was what the majority of the public wanted, that is not impunity.In this line, speaking on the relationship between the prosecutorial mandate of the ICC and the amnesty administered by the South African TRC, the Secretary-General of the United Nations has observed:

"The purpose of the clause in the Statute (which allows the Court to intervene where the state is 'unwilling or unable' to exercise jurisdiction) is to ensure that mass-murderers and other arch-criminals cannot shelter behind a State run by themselves or their cronies, or take advantage of a general breakdown of law and order. No one should imagine that it would apply to a case like South Africa's, where the regime and the conflict which caused the crimes have come to an end, and the victims have inherited power.

It is inconceivable that, in such a case, the Court would seek to substitute its judgement for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future [10]".

As noted, the South African TRC has been recognized and even endorsed as a valid means of dealing with crimes arising out of apartheid [11]. Moreover, state practice [12], international jurisprudence [13] and authors [14] confirm that the Rome Statute does not preclude a state from utilizing amnesty as an effective means of prosecution. However, what about the Congolese TRC? In assessing if the Congolese TRC met some minimal requirements to approach legitimacy under international law, one can point out that the Congolese TRC was not created and operated transparently in order to sustain democratic legitimacy. There was a clear lack of citizen involvement in the creation and functioning of the TRC, and openness to ensure domestic legitimacy. There was no endorsement of the TRC and its work as a mechanism of transitional justice. Moreover, there are many critiques because commissioners came from different factions, and were not chosen by means of a process, which tried to ensure a democratic spirit and practice, and transparency. Therefore, it seems that the purpose of such a commission, was to be a "Truth Omission" instead of a "Truth Commission" and cannot encounter support by the international community [15].

In order for truth commissions to merit international legitimacy, Professor Crawford suggested that one possible test would be whether the procedure in question had been freely ratified by the successor regime, "so it's not just a way that the generals can sign their amnesty on the way out of the door [16]." And for that, Charles Villa-Vicencio [17] helps us by saying that truth commissions needs at a minimum to incorporate the following:

- There needs to be convincing evidence that the majority of citizens endorse the provision as a mechanism of transitional justice; - The disclosure of as much truth as possible concerning the gross violations of human rights; - Accountability of those responsible for gross violations of human rights, recognising that this need not to be in the form of retributive sentencing by the state; - A mechanism needs to be put in place to provide a form of relief or reparation to victims whose rights are suspended by a qualified amnesty provision; - The suspension of prosecutions in a transitionary situation should not be a pretext for the abrogation of other requirements of international law; - A forum in which victims and survivors may tell their stories and questions; - Prosecutions should remain an option both during and after the TRC against those perpetrators who did not adequately participate in the process.

Although we agreed with Charles on these criteria, the last one seems not to be consistent. Truth commissions are not alternative to prosecutions, all are two sides of the same coin and should be used complementarily but sequencing for their success. Saying that "prosecutions should remain an option both during and after the TRC against those perpetrators who did not adequately participate in the process" seems to be too simplistic and could undermine the entire effort to heal the wounds of the nation and to fight against impunity. In addition to satisfying the above minimum criteria for international legitimacy, a Truth commission should also be created and operated transparently in order to sustain democratic legitimacy. Citizen involvement in the creation of a truth commission, and openness to media coverage of its operations, are necessary to ensure domestic legitimacy [18]. And Juan Mendez put it clearly by saying:

"There are two conditions of legitimacy that we should insist upon for any program of transitional justice. First, transitional justice policy should be developed as part of an open, democratic debate, which includes consultation with and participation of the relevant stakeholders and full transparency of decisions. If decisions about how to reckon with the past are adopted exclusively by the parties to a conflict, without appropriate consultations with the victims of abuse or with society at large, the result will almost always generate dissatisfaction and rejection. Second, transitional justice policy should be contemplated in as comprehensive and holistic an approach as possible. This is not only because there will always be an 'impunity gap', meaning that many cases of abuse will not be resolved by trials, thus generating the need for a broader treatment of the universe of violations. It is also because the emerging principles in international law . establish that the obligations of the State are four-fold: to prosecute perpetrators, to unearth the truth, to offer reparations to victims, and to reform abusive public institutions [19].

CONCLUSION

In many transition periods two methods are used to establish record of grave human rights crimes following a conflict/war: prosecutions at national or international level and truth commissions with various names, which investigate situations and submits reports. Both of these two methods are not sufficient and therefore, the need to complement each other. There is a growing demand for transitional justice mechanisms such as truth commissions, around the world. The problem however, it is to test if all those mechanisms imply good faith. Is the effort designed to generate more truth, more justice, reparations, and genuine institutional reform? If so, they are welcome. If the objective is to evade the State's and society's legal, ethical and political obligations to their people, they should be rejected. The answer should be found in the design of the process itself, but also in the degree of participation, consultation, and transparency that surrounds them (e.g. of South Africa). Moreover, we should start by avoiding seeing truth commissions as an alternative to prosecutions. Even if many of them have been accompanied by grants of amnesty to the major perpetrators of human rights crimes, viewing truth commissions, as substitute for prosecutions is not a right way and can lead to contradictions.

Therefore, we should try to consider truth commissions as complementary to national and international prosecutions, not to substitute them. They are two sides of the same coin: transitional justice. However, the processes must be sequenced in a way that one does not affect the effectiveness of the other. Accordingly, Scharf has said, "a country should not rush ahead with prosecutions at the cost of political instability and social upheaval or that every single perpetrator must be brought to justice, an impossible task in most countries that have experienced widespread human rights abuses. By documenting abuses and preserving evidence, a truth commission can enable a country to delay prosecutions until the international community has acted, or the new government is secure enough to take such action against members of the former regime [20]." Furthermore, it may be useful to examine the utility of conducting prosecutions after Truth commissions as a means of uncovering more "truth" that was not revealed through the process. Because, like in the South African case, if those people who did not apply for amnesty or those whom the amnesty was refused, do not face trials, someone could say that there is de facto amnesty and therefore, the purpose of a TRC was just to shield some perpetrators. In this hypothesis, the process will violate the international law and will not be in the interest of justice (society as a whole). So, we should look on the possibilities to trials for those persons in order to avoid impunity, contradictions and allow the roots of a just society to take hold.

NOTES

1] Tina Rosenberg, "Afterword: Confronting the Painful Past", in Martin Meredith, Coming to Terms: South Africa's Search for Truth, 1999, p 328

2] Charles Villa-Vicencio, "Reconciliation as Political Necessity: Reflections in the wake of Civil and Political Strife", p.3

3] Paavani Reddy, "Truth and Reconciliation Commissions Instruments for Ending Impunity and Building Lasting Peace" in The Chronicle, See http://www.un.org/Pubs/chronicle/2004/issue4/0404p19.html

4] Priscilla Hayner, Same species, different animal: how South Africa compares to truth commissions worldwide, in Charles Villa-Vicencio and Wilhelm Verwoerd, "Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa" UCT Press, 2000, p34-35

5] Boraine, Alexander, "Amnesty in exchange for truth: Evaluating the South African model" in "A country Unmasked" Pgs 258-275

6] Juan E Mendez, "Transitional Justice in Historical Perspective", Outline, Somerset West Conference, March 28, 2005 Inaugural Address

7] Naomi Roht-Arriaza, "Amnesty and the International Criminal Court", International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Ardsley, New York: Transnational Publishers Inc., 2000) at 79.

8] James Crawford, See http://www.crimesofwar.org/onnews/news-us-icc.html (accessed on 4th December 2007)

9] Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, Pieces of the Puzzle: keywords on reconciliation and transitional justice, Cape Town, pp.89-90

10] Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, op.cit, p 91

11] Kader Asmal, International Law & Practice: Dealing with the Past and the South African Experience, 15 AM. U. INT.'L L. REV. 1211, 1228 (2000).

12] Azanian Peoples Organization (AZAPO) v. The President of the Republic of South Africa, 1996 (4) S.A.L.R. 671, at 30 (South African Constitutional Court);

13] Prosecutor v. Tadic, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1-AR72 (Oct. 2,1995) at 6

14] Leila Nadya Sadat, Universal Jurisdiction, National Amnesties, and Truth Commissions: Reconciling the Irreconcilable, in Stephen Macedo, Universal Jurisdiction: National Courts and the prosecution of Serious Crimes Under International Law (2003); Scharf, Amnesty Exception, supra note 33; John T. Holmes, The Principle of Complementarity, in 41-79 The International Criminal Court: The Making of the Rome Statute (Roy S. Lee., ed., 1999); Michael P. Scharf, Swapping Amnesty for Peace: Was there a Duty to Prosecute International Crimes in Haiti?, 31 TEX. INT'L L.J. 1, 4-5 (1996).

15] Critiques reside especially in the way of nomination and the issue of openness by involving civil society and other parties.

16] James Crawford, See http://www.crimesofwar.org/onnews/news-us-icc.html

17] Charles Villa-Vicencio, Truth Commissions, in Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, op.cit., p 92

18] See Andre du Toit, "The South African Truth and Reconciliation Commission (TRC): Local History, Global Accounting", in Politique Africaines 92 (2003), p7

19] J. Mendez, 1997. "Accountability for Past Abuses", Human Rights Quarterly, 19, pp. 255- 282.

20] Michael P. Scharf, "The Case for a Permanent International Truth Commission", in Duke J. Comp.& Int'Law, Vol.7:375, 1997, p.399

About the Author: Yav Katshung Joseph is a Human Rights lawyer and Lecturer at the Faculty of Law, University of Lubumbashi, Democratic Republic of Congo.