Truth Commissions Can they prevent further violations? Executive summaries of relevant papers Association for the Prevention of Torture (APT) Route de Ferney 10 Case Postale 2267-1211 Genève 2 Tel. +41 22 919 2170 Fax. + 41 22 919 2180 apt@apt.ch www.apt.ch APT has consultative status with the ECOSOC of the UN, the Organisation of American States, the Council of Europe and the African Commission on Human and Peoples Rights.
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Truth Commissions Can they prevent further violations? Executive summaries of relevant papers Table of contents Articles Executive Summary of the comparative study: Truth Commissions: An Uncertain Path? CODEPU/APT Review of Discussion, Truth Commission Seminar Mexico 2002 Guatemala s experience. "It s time to talk..." Ruth del Valle, Alianza contra la Impunidad (Guatemala) Truth commissions difficulties and challenges regarding torture, reparation and prevention Naomi Roht-Arriaza, Professor of Law at the University of California (Unites States) What to expect of a truth Commission? Executive Summary Rodolfo Mattarollo, Chief of Human Rights Section, UNAMSIL Chief of Staff at the Secretariat for Human Rights,.Ministry of Justice, Security and Human Rights (Argentina) The experience of Peru, The practice of torture from the point of view of the Peruvian Truth Commission Sofia Macher, Commissioner of Truth Commission (Peru) The Documentation of torture Morris Tidball-Binz, Head of Human Rights Defenders Programme International Service for Human Rights (Switzerland) Justice as a preventive tool Rodolfo Mattarollo, Chief, Human Rights Section, UNAMSIL Chief of Staff at the Secretary for Human rights, Ministry of Justice, Security and Human Rights (Argentina) Argentina s experience. Truth, Purge and Justice: Prevention of Human Rights Violations Javier Mariezcurrena, Programme Co-ordinator, Projects for Justice during Transition, Centre for Civil and Human Rights. University of Notre- Dame (United States) Page 3 13 15 17 21 31 33 35 37 3
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Truth Commissions: An Uncertain Path? Executive Summary of the Comparative study of truth commissions in Argentina, Chile, El Salvador, Guatemala and South Africa from the perspective of victims, their relatives, human rights organisations and experts 1 CODEPU / Association for the Prevention of Torture The search for truth and justice in societies emerging from a period of institutionalised violence, characterized by grave human rights violations, have been facilitated in some countries by the creation of truth commissions. Established in the complex social and political processes of transition in order to seek truth, repair damage and initiate a reconciliation process, the role played by these commissions has varied widely from one country to another. As a Chilean human rights organisation, Codepu undertook a comparative analysis on truth commissions to find out how victims and human rights groups viewed the impact of truth commissions on their own lives, communities and societies. Interviews based on questionnaires were conducted in Argentina, Chile, El Salvador, Guatemala and South Africa. The Association for the Prevention of Torture (APT) took an interest in studying the potential of truth commissions as a preventative tool. Chapter 1. Truth Commissions: A Comparison The five truth commissions considered in Codepu s comparative analysis were established between 1983 and 1995 2. They emerged after periods of conflict, characterised by a winning political force, with perpetrators retaining influence within the new ruling power. While similarities exist, the establishment of each truth 1 Authors: Víctor Espinoza Cuevas María Luisa Ortiz Rojas Paz Rojas Beaza; Collaborators: Federico Aguirre Madrid, Jean Michel Diez. 2 Argentina 1983; Chile 1990; El Salvador 1991; Guatemala 1996 and South Africa 1995. 5
commission was influenced by the particularities of its own historical and political context. In general, their creation marked the need for public legitimacy of new democracies. The role of these bodies was however greatly limited, on the one hand, by the political context in particular the perpetrators remaining grip on power and on the other hand, or a greater structural problem of justice. The purpose of all five commissions was to investigate and establish the truth about specific violations, thus contributing to the national reconciliation process. None of them included the right to justice as an objective. The crimes to be investigated were clearly outlined in some mandates as for example in the Argentine Commission mandate they were limited to disappearances. Where the mandates were broad, the crimes to be investigated were interpreted and further defined by the commissioners. In general, the legal framework was not explicitly defined: International human rights and international humanitarian law were mentioned but their interpretation was left to the commissioners. Investigations were limited to certain periods limited in view of political and historical events and therefore did not comprehend all violations. For example, the Argentine Commission investigated violations occurring from the time of the military coup to the reinstatement of a constitutional government. This approach excluded the important escalation of repression leading up to the coup. Given the magnitude of violations, the time granted to the commissions for investigations was always insufficient. As a result, investigations were not exhaustive and many cases were left out. Credibility, objectivity and impartiality were the shared criteria for selecting commissioners. In order to address social and political polarization, the commissioners were either supporters of the outgoing or incoming regime, as well as human rights and international experts. The Commissions were granted attributions to enable them to conduct their investigations. Some had the power to call on public officials, who were under obligation to collaborate. Nonetheless, most officials alleged documents had been destroyed, provided incomplete or misleading accounts or outrightly refused to cooperate. By far the greatest barrier to effective investigations was the failure of the security and armed forces to disclose relevant information. Most commissions established a central office in the capital city and some regional offices. The Commission also made on-site visits to more remote areas and received the support of the consulates, which took testimony from exiles. Their mandates and 6
working methods were publicized through the press, particularly to encourage people to come forward with testimonies. Human rights organisations played a particularly critical role, as they were the main source of information and provided a link with victims and relatives. The question of whether perpetrators should be identified or not led to considerable controversy. Where it was not stipulated in the mandate, commissioners were left to decide, usually under immense political pressure. Those interviewed almost unanimously agreed on the importance of this form of public recognition, considered a fundamental aspect of truth and a form of symbolic justice. All commissions presented reports with the findings of their investigations. The reports registered the number of disappeared, executed or killed people; the detention centres, the torture methods used. Thy also analysed the origins and causes of the conflict, the methodology of the repression etc In general, reports tended to be welcomed by victims, human rights organisations and the political opposition, and rejected by those who had been in power during the period investigated. The weakest link of truth commissions legacy is perhaps the implementation of recommendations. The mandates of all commissions, with the exception of Argentina, include making recommendations regarding reparation, reconciliation and prevention. Where commissions were established through peace accords, as in Guatemala and El Salvador, recommendations were binding. However, despite the commitment from the government and opposition forces of both countries to implement recommendations, no mechanism was ever established for this purpose. In Argentina and Chile implementation depends on the political will of the executive and legislative power. Thus, recommendations are not obligatory in any country. With the exception of Argentina, all commissions mention the need to purge the armed forces. Profound reforms to the judiciary were recommended in Chile, El Salvador and South Africa. Commissioners in South Africa and Guatemala further recommended that perpetrators not covered. Those interviewed were particularly critical of follow-up mechanisms or lack thereof. 7
Chapter 2. Truth Commissions: reparation The five truth commission s mandate considered in Codepu s comparative analysis included drawing up recommendations on reparation measures. How did the persons interviewed perceived truth commissions approach to the issue of reparation? The results show that the understanding of reparation was generally imprecise and ambiguous, but always based on the premise that the loss and damage caused by violations was irreparable. A. The concept of reparation a) Reparation Reparation was one of the principal objectives of truth commissions. Their interpretation of the concept varied from one country to another and its meaning was often mistaken, usually interlinked or confused with concepts of truth and justice. Many interviewees expressed serious doubts as to whether reparation not involving profound social and institutional changes structures would actually impede the recurrence of violations. However, despite numerous reservations, they generally recognized that at least some aspects of the truth commission process itself had a reparatory value. b) Truth Commissions mandates and reports explicitly note that truth is the basis of the entire process. All commissions maintained that peace, reconciliation and democracy cannot be constructed on the basis of silence. Truth was therefore either seen as superior to reparation or as the ultimate form of reparation. The establishment and the public recognition of the truth were viewed by those interviewed on the one hand as a form of reparation and on the other hand as the most important achievement of truth Commissions. Therefore, the public dissemination of the truth, particularly through the report, was of primary importance. Some even viewed the report as reparation in itself. However, despite consensus that truth was amongst the commissions most important achievements, numerous critiques emerged, throughout the interviews, about the process and results of 8
reconstructing the facts surrounding violations. Regarding the process, one of the main limitations was that commissions were not granted legal power to obligate perpetrators to testify. The truth was therefore generally constructed with information provided by human rights organisations. The time limitation was also considered an obstacle to more in-depth investigations. Due to this and the mandates limitations, reports do not register all violations committed. Moreover, Commissions interpretations of context and facts were sometimes questioned. The truth was also insufficiently disseminated or socialized. This was particularly the case in rural areas, where even those affected where unfamiliar with the report. Moreover, the fact that commissions did not adopt the same investigative criteria as judicial bodies was also considered problematic. Indeed, despite their mandate to forward investigations to the judiciary, commissions did not usually gather sufficient evidence required by courts. Now, establishing the truth was not considered sufficient for the reconciliation and democratisation process, unless complemented by transforming this truth into evidence for pending judicial processes. c) Justice Commissions viewed justice, alongside truth, as one of the fundamental conditions for achieving reparation and reconciliation. Justice was also seen as a social demand, intimately tied to reparation for victims and necessary to prevent future abuse. Despite the general recognition of its central role, with the exception of South Africa, justice was not part of commissions mandates. Three main tendencies emerged from interviews regarding reparation and justice, understood to mean investigation and punishment. Some considered justice as the only reparation possible and refused any other type of reparation. Others saw justice as the basic reparation, upon which other types of reparation should be based. Finally, there were those who had lost all hope for justice, a view particularly prevalent in rural areas, since justice does not exist for the poor. Nevertheless, the persistence of impunity led to a feeling of disillusionment extending also to the commissions. With regards to amnesties, while they were generally rejected by those interviewed, some accepted them under certain conditions, namely the identification of 9
perpetrators. However, in most countries, amnesties were granted in the absence of adequate investigations. In general, where justice has been done, it has helped society regain confidence in public institutions. d) Reconciliation One of the stated aims of all commissions was contributing to reconciliation, which was possible only once the truth was known, justice done and reparation provided. However in practice, the cause-effect relation of these concepts on reconciliation is much less clear: Those interviewed empathized the danger of assuming that such a complex social process can be a direct consequence of truth commissions. Reconciliation was considered one of the most elusive goals, particularly in countries with deep social inequalities. They also stressed that truth and justice were the basic conditions to begin the reconciliation process. A particular obstacle to reconciliation is that perpetrators themselves refused to accept responsibility and ask forgiveness. The weight of the reconciliation process was therefore placed largely on victims themselves, who were expected to abandon their right to truth and justice in order to forgive the perpetrators. Finally, another obstacle was the lack of implementation of recommendations, which could have contributed to reconciliation. e) Prevention and promotion: Commissions generally recognized that effective promotion of human rights and prevention of violations imply radical transformations of institutional structures and social values which allowed for abuses in the first place. To ensure non-repetition, a broad human rights education policy is also required. The recommendations of all five commissions included preventative and promotional measures. Those interviewed unanimously agreed that the main preventative measure is justice. While impunity persists there is always the latent possibility for these crimes to be repeated. The need to eliminate institutional structures and people responsible or accomplices to violations was emphasized. The persisting social and economic inequality at the root of most conflicts was considered another risk factor. Education and dissemination are key elements for ensuring a social impact necessary for prevention. 10
B. Implementation of Reparation The commissions recommendations for reparation were comprehensive and implied such profound changes, making full implementation impracticable. The evaluation of implementation to emerge from interviews was negative: the few measures implemented were usually economic. Any symbolic and moral measures were usually due to the efforts of relatives and human rights groups. Reparation from the State did not usually coincide with procedures recommended by commissions or with due consideration of cultural factors. Lack of political will was the overwhelming reason for explaining the insufficient reparation measures. Many noted that the minimal level of implementation that has been achieved is due to the efforts of human rights groups and relatives. Due to the particular importance and the States incompliance, victims and relatives have been most active in promoting symbolic measures. The decision of accepting economic and social welfare as reparation is a very polemic issue: Relatives always have the dilemma of not getting bought off, of not selling their victims. Criticisms also centred on the amount received and the burdensome administrative requirements. Reparation involving education, health and other services are more readily accepted. Education for the children was particularly sought after in all countries but such a form of reparation was only provided in Chile. Community reparation was most common in Guatemala, where the indigenous populations were most severely affected by the war. Exhumations were a very important reparation measure, particularly for indigenous communities in Guatemala due to cultural and religious factors. The report s publication was also considered an act of symbolic reparation. Nevertheless, the initiative of all these forms of symbolic reparation did not come from the government. Chapter 3. Truth Commissions: Victims views Chapter 3 of the comparative study analyses, from a psychological perspective, the significance of truth commissions for victims of human rights violations. Victims of 11
crimes against humanity, humanitarian law, genocide and apartheid were interviewed; most of them were also members of human rights organisations. a. Truth, Justice and Impunity The prevailing level of impunity in all five countries despite the commission process created an additional trauma for victims leading to feelings of impotence, anger, shame and disbelief. The fact that perpetrators did not reveal the entire truth and were not held accountable brought a sentiment of injustice and inequality. The impunity also caused a collective feeling of insecurity and fear. b. Reparations How did victims perceived reparation? Justice, moral and symbolic reparation are the most significant form of reparation for them. Social measures such as health and education are generally also welcomed. On the contrary, monetary compensation is the most problematic; particularly when it is implemented in the absence of other measures and can lead to the opposite effect of offending victims rather than repairing damage. c. Psychological harm In addition to the trauma suffered, impunity and lack of reparation lead to a sense of frustration, of being marginalized, stigmatised, mixed with feelings of guilt, shame and fear. Many victims have countered this process by taking part in human rights activism. d. Reconciliation From the interviews one can conclude that reconciliation has not been achieved. Synthesis of impact on victims While the relatively small sample and the fact that they were not pre-selected does not allow for any definitive conclusions, we can say that truth commissions were usually recognized as having contribute to put an end to the conflict and reveal a silenced history as an official truth. However, the suffering initially produced 12
intentionally by repressive regimes has continued through with impunity imposed by those democratically elected. Chapter 4. Truth Commissions: recommendations Chapter 4 of the comparative study is a summary of recommendations identified by those interviewed to improve the impact of truth commissions. Here we will focus on recommendation with respect to prevention. With regards to Prevention: A comprehensive national human rights policy should be developed, contemplating broad participation, adequate resources and extensive dissemination of the report. Implement a national campaign against violence with the participation of all political and social actors. Concluding Remarks The commissions establishment was considered a positive first step by human rights defenders and victims interviewed. The revelation and official acknowledgment of a truth, which had previously been silenced and denied, was by far the most significant second step and commissions overall accomplishment. Prevailing impunity nonetheless overshadowed these achievements. Creating a truth commission became the easiest way to respond to national and international demands to deal with human rights violations and to postpone legal proceedings. While commissions were encouraged to forward evidence of crimes to the judiciary, they were under no obligation to do so, nor were any mechanisms established for this purpose. Amnesties and the absence of criminal investigation and prosecution became the norm. States had failed to recognize that a stable and lasting reconciliation must be built on the principles of truth and justice. 13
The procedures and findings adopted by commissions were duly recognized, with due note of their limitations. Amongst the most serious was the exclusion of certain types of violations and the refusal of perpetrators to reveal information, leading to the establishment of a half truth provided primarily by victims themselves. The level of integrity and competence of commissions was highly valued, with due recognition of the insufficient consultation processes, particularly with victims, thereby largely delegating this task to human rights groups. The implementation of recommendations generally fell well below expectations, given the prevalent absence of follow-up mechanisms. In the case of reparation, for example, measures tended to be insufficient and limited mostly to monetary remuneration, leaving victims and human rights groups to take initiative to ensure symbolic and moral reparation. Truth commissions must be part of the broader process of peace and reconciliation. In the countries studied, the creation of truth commissions did not lead to an integral reparation policy or to substantive changes in political structures. 14
Review of Discussion Truth Commission Seminar Mexico, July 2002 The legal framework determining the activities of truth commissions is international human rights law. Under international human rights law states have an obligation to safeguard the right to justice, which includes the following: the investigation of alleged violations; the identification and punishment of those individuals deemed responsible; the provision of reparations to the victims; the right to know the truth; and a corresponding obligation of the state to organise its apparatus in order to ensure the effective implementation of human rights. Within the Inter-American system of human rights and national jurisprudence there has been a progressive interpretation of the right to know the truth, to which there is a corresponding obligation on the part of state and society not to forget the past and to draw the relevant lessons from history in order not to repeat it. The ultimate goals of all truth commissions are truth, justice, reparation and the removal from office and duty all public officials who have been implicated in past human rights violations. For the purpose of guaranteeing the effectiveness of truth commissions it must be ensured from the outset of their establishment that all relevant international human rights treaties have been ratified, that they enjoy constitutional status and that all domestic legislation has been amended accordingly. In addition, the legal framework embedding the truth commissions should be such that all recommendations made by the latter are fully binding and that there exists a mechanism to ensure the implementation of those recommendations. Truth commissions must also take into consideration all relevant advances made by the international community in the fight against impunity including, among other things, that torture, summary execution and enforced "disappearances" are characterized as crimes against humanity and the non-prescription of crimes against humanity. The perpetrators of such gross human rights violations must not benefit from amnesties or other measures, which must never prevent the investigation, trial and sanction of crimes under international law. 15
Truth commissions are part of a long-term strategy to improve the defense of human rights and are a tool to prevent human rights violations. One of the most important aspects of any truth commission should be its autonomy from the state authorities. Their overall activities should also be public, participatory and transparent. The participation of civil society in their work is indispensable from the outset and it is recommendable that their mandate, objectives, hearings, and conclusions are widely disseminated. The mandate of any given truth commission should be sufficiently broad to include all types of human rights violations and it should be allowed to investigate all such violations. A mechanism should also be in place to ensure the implementation of its recommendations by the state. Before the activities of a truth commission are concluded, the continuity of its work should also be ensured, such as by the establishment of a mechanism to receive the testimonies of victims and to provide ongoing therapeutic support for victims and their families. 16
Guatemala s experience. "It s time to talk..." Ruth del Valle Alianza contra la Impunidad (Guatemala) We must know the truth about our history. It is the only thing which will allow us to build a future, different from the present, which will guarantee that past acts of violence are never repeated and that impunity does not become the rule in our countries. The comparative study undertaken by the Corporación de Promoción y Defensa de los Derechos del Pueblo (Codepu, Chile) and the Association for the Prevention of Torture (APT, Switzerland) documents the different national experiences of recovering historical memory. Now, it seems that the time to talk has come. It is time to ask questions and to demand answers: Where are the remains of our enforced disappeared relatives? Why were our students tortured? It is important to share our experiences and build a regional network which will give us strength to carry on fighting, give us knowledge of each other s strategies and help us learn from each others national struggles to obtain justice. The Guatemalan Truth Commission Comisión para el Esclarecimiento Histórico which was created as a result of an agreement between the parties to the conflict, the government and the Unidad Revolucionaria Nacional Guatemalteca, carried out its work between 1997 and 1999. Both parties first made sure that the perpetrators of gross human rights violations would not be identified and the recommendations of the Commission would not be binding. Such situations have arisen very often. We tell victims to tell us their stories, even though it will not help them obtain justice. However, truth without justice is not sufficient. A project called the Recuperación de la Memoria Histórica (REMHI) was set up by the Guatemalan Diocese. In July 1995, Guatemala s Bishop stressed the importance of knowing the truth in order to ensure that the past is never repeated. REMHI 17
gathered many testimonies and then shared them with the Commission. However, REHMI did not have the power to call on public officials and could not force them to cooperate. Therefore, the only source of information was provided by victims testimonies. As a result of the limitations imposed by the Peace Agreements, which established the Truth Commission, we did not hold out much hope regarding the Commission s conclusion. However, the conclusion that genocide was perpetrated in Guatemala unexpectedly surprised us. The Commission made a series of recommendations in the hope that, even if they were not binding, they would, nevertheless, be considered by the State to be a real commitment and, therefore, be promoted. Finally, the Commission s recommendations became the platform of the struggle for the social and human rights movement. Moreover, civil society has continued to demand that the right of justice be considered a crucial element of national reconciliation. If we cannot safeguard the right of victims and survivors to bring judicial proceedings against perpetrators of human rights violations, we will not be able to build a different, democratic and peaceful Guatemala. Unfortunately, those individuals who have denounced human rights violations and have fought to establish the truth and to obtain justice have been threatened, some of whom have even been killed. After paramilitary groups, responsible for human rights violations, demanded that they should receive reparations for their suffering during the conflict, Ruth Valle asked in 2002: Are the perpetrators going to be indemnified while the victims continue to be marginalized? Such a question is also asked to the international community. 18
Truth commissions difficulties and challenges regarding torture, reparation and prevention Naomi Roht-Arriaza Professor of Law at the University of California (Unites States) Torture States have a clear obligation under International law to prohibit, sanction, and investigate torture and to provide reparations to its victims. Torture had been widespread and systematic in many countries where a truth commission has been set up. Committed for political, ethnic or social reasons, it constitutes a crime against humanity and therefore no amnesties are permitted. Moreover, the prohibition of torture in a non-derogable right during a state of emergency and a war crime under humanitarian law. However, torture has not received the focus it deserves by many truth commissions. This leaves victims of torture with a feeling of being marginalized and left out without public acknowledgement of the damage suffered. In this paper, Naomi Roht-Arriaza asks the following question: Why has it been so difficult for truth commissions to address torture? This issue is closely related to reparation and prevention. The reason given by governments not to consider cases of torture within truth commissions involves the argument that the number of cases is too huge and resources and time are limited. This is a practical problem which can be resolved in various ways. The issue of establishing a list of victims, who should receive compensation, is more problematic. The problem is, on the one hand, the number of victims and, on the other, the difficulty to evaluate the damage caused. Toleration is another reason given to explain why it has been so difficult for truth commissions to address the issue of torture. Torture is a widespread practice during periods of conflict and dictatorship. It is considered by military and police officers as a necessary suffering in order to get information to prevent subversive attacks. Now, 19
post-conflict or transitional periods are also characterised by a high degree of insecurity. Torture keeps being a systematic practice; the only difference is that it is used against common delinquency yet with the same justification. Governments can be reluctant to address the issue of torture because it keeps being a tolerated practice. Focussing upon torture would involve the state calling into question its police officers methods of interrogation and practices. Reparation Reparation for human rights violation is not a favour given by the state; it is an obligation under international law. Reparation is not restricted to compensation. It is a much broader concept which includes various categories of compensation (symbolic, financial rehabilitation etc ). Though all truth commissions have recommended that states must provide reparation to victims, little has been achieved. The main problem is that truth commissions are not the ones that provide reparation; they only recommend it to governments. As their recommendations are not legally binding, governments have ignored them. The problem with reparation has been even more acute when the number of victims has been overwhelming, where victims were predominantly rural, when there has been a lack of political will, or where the government has invoked its lack of resources. How can such a situation be improved? First of all, Truth commissions should listen to victims in order to find out which kind of reparation they want. For example, sometimes, people want very simple things such as the remains of the dead person. Secondly, reparation should not be provided only by the state but also by the public institutions and the perpetrators, for example the pension of military or police officers could be reduced in order to defray the costs of reparation. Lastly, a follow-up mechanism after the truth commission is crucial. Prevention Prevention is also a moral, legal and political state obligation. The state has to organise its system in order to prevent human rights violations. The work of truth commissions contribute to the prevention of such violations because it raises 20
peoples awareness. That is why, testimonies are so important as they make violations more concrete, as well as the dissemination of the truth commissions work and conclusions. All truth commissions have recommended political, military and legal authorities to undertake reforms. Again the problem has been, on the one hand, the fact that their recommendations are not legally binding and, on the other hand, the lack of a follow up mechanism. Lastly, measures aimed at preventing human rights violations should also be taken at various level. Truth commissions should decentralised their activities and pay more attention to the regional level to avoid impunity. Its recommendations should extend to the regional level and ask for the removal and trial of local officials implicated in human rights violations. They should suggest structural reforms which prevent the rise of new repressive power at the local level. 21
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What to expect of a truth Commission? Executive Summary Rodolfo Mattarollo Chief of Human Rights Section, UNAMSIL Chief of Staff at the Secretariat for Human Rights,.Ministry of Justice, Security and Human Rights (Argentina) Definition and Primary Objectives: To search for the Truth and Safeguard the Evidence The truth commissions considered in the context of this seminar 3 are public sector bodies, which do not have judicial power. Their main purpose is to investigate serious attacks on human dignity, which have usually taken place during a past period and within the confines of a single country. These attacks may constitute serious violations of human rights, international humanitarian law and international criminal law. In addition to this investigative function, another primary objective of truth commissions is to safeguard the evidence relating to these events. Characteristics Truth commissions do not have judicial power. It is not their responsibility to determine the individual legal liability of those responsible, their accomplices or those who have sought to conceal the acts under investigation. Neither is it their responsibility to indict them in a court of law. Truth commissions usually investigate the past, though there have been some exception in the Philippines and Rwanda, where the commissions set up investigated violations committed both before they were established and while their work was going on. 3 The seminar took place in Mexico City from 18 20 July 2002. 23
Truth commissions usually investigate acts committed within a single country. However, in some cases, the need arose to investigate violations committed beyond national borders. The Chad Commission perhaps went furthest in investigating to what extent a repressive government had received assistance from abroad. An example of an investigation into human rights violations within a sub-region can be found in the section on coordination of repression in Latin America contained in the report of the Comisión Nacional sobre la Desaparición de Personas. Truth commissions conduct an official inquiry into the facts. For the State to officially acknowledge the truth means that it has to accept any political and moral responsibilities that might flow from it. This brings with it specific legal obligations, such as the duty to provide reparation for the suffering caused to the victims. Truth commissions must safeguard the evidence of the acts committed. Safeguarding the evidence of the acts committed - one of the primary objectives of a truth commission - means safeguarding the circumstantial, documentary and material evidence, as well as testimony obtained from victims and witnesses. Individual Truth and Overall Truth Truth commissions have to direct their efforts to uncovering both the individual truth, that is to say, determining what happened with regard to specific cases, and the overall truth, which involves analysing the structures and methodologies used in carrying out the abuses, as well as the political, economic, social and cultural context in which the violations occurred. Other Fundamental Objectives of a Truth Commission: To Pave the Way for Justice and Reparation Another crucial aim of a truth commission is to pave the way for the other two key components of the struggle against impunity: rendering justice and obtaining reparations. 24
Rendering justice Experience in numerous countries shows that there is a close yet complex relationship between the right to know the truth, the right to justice, the right to reparation, and national reconciliation. One important question to look at is whether truth commissions prepare the way for criminal prosecutions or whether, on the other hand, they are a substitute for trials. This depends on what type of democratic transition process there is. When it comes to satisfying basic demands for justice, it would not be right, whether for reasons of political expediency or in order to bring about peace within a country, to put forward truth commissions as a desirable alternative to action by the courts. As has been argued on several occasions in countries undergoing a transition to democracy, forgiveness is a private matter and States cannot grant it on the victims behalf. Before forgiveness can be granted, the identity of the perpetrator must be known and the perpetrator must request forgiveness. In several countries, however, those involved in illegal repression have not shown any sign of being willing to mend their ways. In some cases, they have quite unashamedly claimed responsibility for their actions. In many cases, however, it would be true to say that truth commissions have been set up precisely because weaknesses in the judicial system mean that the autonomy, impartiality, objectivity and competence normally to be expected from a judiciary worthy of the name cannot be guaranteed. Nonetheless, in some cases, truth commissions have been part of an enormous national and international drive to end impunity by bringing those responsible to justice. Obtaining reparations Impunity also occurs when the State fails to guarantee moral and material reparation to victims for the harm done to them or to take steps to prevent the violations from recurring. Reparation can include a wide range of measures, such as: returning the victim to or re-establishing them in, their previous situation whenever possible; 25
compensation for pain and suffering and material damage; medical, psychological, legal and social rehabilitation; moral satisfaction and guarantees that the human rights violations will not recur. Such measures should be part of a deliberate State policy. They depend in large part on initiatives adopted by the executive and legislative branches of government and, in this sense, are much more far-reaching than any sentences the courts might pass as a result of compensation claims. In particular, in the majority of countries where the authorities have assumed the obligation to provide guarantees of non-repetition, this has led to a radical transformation of the State apparatus into a system based on democracy and the rule of law. The measures taken have included reform of the judiciary and the laws and the overhaul of both the institutions and the doctrine of the armed forces, security forces and police. Factors Influencing the Overall Work of a Truth Commission If a truth commission is to have any moral authority, both independence and competence must be sought when selecting its members. The credibility of its report, however, depends on the clarity of its mandate, the rules of procedure and evidence it follows and the rigour of its investigations. The mechanics of the abuses One of the challenges facing a truth commission is to discover the mechanics of the abuses, that is to say, the key elements which, when put together, make up systematic violations. This in turn will determine what research methodology the commission uses. In the case of Argentina, for example, the key element was the use of secret detention centres. Secret detention centres in effect facilitated prolonged enforced disappearance and its consequences: torture, systematic abuses by the armed forces as a means of extracting intelligence information, and widespread summary executions. The Sábato Commission managed to identify 340 secret detention centres throughout Argentina. A study of the location, organizational ties, structure and operation of these centres proved to be crucial in mapping out the repression and building a picture of the victims sufferings. 26
The role of civil society Having the support of civil society can also play an important role in ensuring that the commission s work is carried on and that it has an impact on State policies. The Composition of the Commission Independence and a high level of competence are indispensable requisites if a truth commission is to have moral authority. The issue of composition raises several questions: How and by whom should commission members be appointed and what qualities should they possess? There are several possibilities: A commission can be made up solely of nationals of the country in question or it can be made up of foreign personalities and nationals of the country in which the investigation is taking place. Appointments to a truth commission can be made as the result of a decision taken by the national authorities or by an international organization, such as the United Nations, in consultation with the parties involved in any negotiating process. Whether or not foreign personalities become members of a truth commission is often linked to the role played by the United Nations in any process of transition. In fact, the search to ensure that the composition was balanced and reflected a broad cross-section of society seems to have been a prevalent feature in the setting up of several national commissions Whether the make-up of a commission is wholly or partly national in character or wholly or partly international will depend on the characteristics of each process. There are advantages and disadvantages to each approach. An international commission may appear to be more objective and impartial than a national commission. However, the international nature of a commission may alienate some sections of public opinion, who may see the activity of such a body as foreign intervention or at least use it as an argument to discredit the commission. Foreign commissioners are also far less likely to have the same in-depth knowledge of the events to be investigated as commissioners from the country itself. Whenever possible, setting up commissions which are wholly or partly national appears to be the best solution since it is a way of encouraging those engaged in establishing the rule of law and addressing impunity to assume their responsibilities and start making decisions for themselves. 27
The Mandate of the Commission Defining the mandate The mandate of a commission must be clear and precise. Under international human rights law, standard interpretation adjudges that it is only the State that can violate human rights. Nonetheless, all parties to an armed conflict, be it internal or international, are capable of violating the standards of behaviour applicable to armed conflicts under international humanitarian law. All parties to an armed conflict are consequently subject to the standards of repression that have been established under international law and which are currently applicable for grave breaches committed during both internal and international armed conflicts. Thus, in a context of internal armed conflict, it is sensible to investigate offences committed by both parties. Length of mandate The length of a mandate is largely determined by its objectives. However, with regards to the length of the period under investigation, the size of the caseload to be studied and the resources available, it is essential to be realistic and make sure that the program of work to be undertaken is feasible. Putting a time limit on the mandate and requiring the commission to produce a final report would seem to be two absolutely indispensable pre-requisites. On the other hand, the question of how many cases are to be investigated in order to establish the individual truth, for example, can be left up to the commission because it depends on circumstances which vary widely from one country to another. Immunity and Powers of Investigation Most of the truth commissions, which have existed so far, have had the powers they needed to carry out their mission established, to a greater or lesser extent, through a series of guarantees contained in the acts, which set them up. These guarantees include immunity for their members and protection for their files, the power to request reports and testimony related to the investigations they undertake and the power to request or adopt preventive measures, either to protect victims or witnesses or to safeguard evidence. 28
Rules of Procedure and Evidence It is extremely important to draw up and follow appropriate rules regarding procedure and evidence in order to guide the investigations and so that all the circumstantial, documentary and material evidence available can be properly evaluated. Protection of victims With regards to the protection of victims and witnesses, their safety is paramount. However, sources of information cannot remain anonymous and a way must be found to record the identities of those sources, even if they are not made public immediately. In fact, one of the greatest obstacles faced by some truth commissions has been the fear of reprisals on the part of the victims and witnesses. A problem that has to be faced in all cases is how to protect victims, their relatives, witnesses and also any experts who want to testify before a truth commission during a period of transition to democracy or while negotiations are going on to find a peace agreement. Here again it is worth referring to Joinet s Draft Principles 4, in which an attempt has been made to codify a series of guarantees, which the experience of the past two decades has shown to be necessary. Standards of proof Even though truth commissions do not have judicial power, it is important, nevertheless, that they should adhere to clearly defined standards of proof so that their conclusions are fair and convincing. To name names? One of the issues that have been most hotly debated is the question of whether or not publishes the names of the perpetrators. The arguments for and against releasing the names of those allegedly responsible for abuses are well known. The argument against is based on the fact that truth commissions are not courts of law. Those who hold this position argue that charges cannot be brought if the proceedings have not been conducted on the basis of the adversarial principle and the guarantees 4 See the Draft Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity contained in the final report prepared by Mr. Louis Joinet on the Question of the Impunity of Perpetrators of Violations of Human Rights (Civil and Political Rights), pursuant to decision 1996/119 of the United Nations Sub commission on Prevention of Discrimination and Protection of Minorities 29
of due process have not been respected. For those who have reservations about naming names for legal reasons, a solution can be found in the proposals put forward by the Special Rapporteur of the UN Sub commission of Human Rights, Louis Joinet, in connection with the Draft Principles to address impunity: if the commission s mandate authorizes it to reveal the names of those questioned, the commission must provide them with similar guarantees to those provided in trial proceedings conducted according to the adversarial principle. Staff, Data Base, Documentation Centre, Forensic Team A commission which attempts to carry out an in-depth investigation of a large number of complex cases requires adequate staffing, in terms of the number of people and the skills available. The recruitment process must be carefully planned and not carried out in a bureaucratic fashion. The type of staffing structure that is put in place should be based on the kind of investigation to be carried out, the scale and nature of the phenomena to be studied, etc. In organizational terms, and based on a range of experiences, there would seem to be two key departments: the research department and the legal analysis department, both of which must take a broad and nonformalistic approach to the law. It should be stressed that these days it is absolutely essential to look for scientific, and especially forensic, evidence when investigating individual or collective killings or disappearances. It is also crucial for the whole set of investigations to be computerized. Moreover, the documentation centre can actively help with the work of preserving the archives, a task for which many countries lack the necessary experience and resources. The archives issue is, in fact, of immense political and historical importance, as has already been stated several times in this article. But there is more to it than the mere processing of information. In many circumstances, a truth commission is the only body that is in a position to organize the collective memory of an especially painful and turbulent period in the life of a people. 30