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TRUTH AND RECONCILIATION COMMISSIONS

Traditional fora such as the gacaca are not the only way in which enemies have sought to foster reconciliation. So-called Truth and Reconciliation Commissions (henceforth, TRC), of which there have been forty or so to date, are another and better known such mechanism—in no small part due to the enormous influence and fame of the South African TRC. The overwhelming majority of TRCs were established in the aftermath of civil wars or in periods of transition from dictatorships to democracy—for example in El Salvador and Guatemala—and sometimes via the peace agreement itself—for example, in El Salvador, Liberia, and Sierra Leone. Interestingly, however, following Indonesia’s bloody departure, East-Timor, then Timor-Leste, resorted to such a commission under the auspices of its international transitional administration (UNTAET). This is the only instance to date of a post- interstate conflict commission—though there were (abortive) attempts to do something similar in the former Yugoslavia.22

Typically, truth commissions are touted as an institution of restorative justice. As Lucy Allais insightfully notes, however, they can help instantiate the key justificatory value of punitive justice, namely holding wrongdoers accountable for their deeds and honouring the dignity of the victims.23 Either way, what reasons are there to endorse them? For a start, victims may, indeed often do, want some form

Criminal Law Forum 4 (1993): 277—99; A. Ashworth, ‘Responsibilities, Rights and Restorative Justice’, British Journal of Criminology 42 (2002): 578—95.

  • 22 For a comprehensive study of truth commissions, see Hayner, Unspeakable Truths. Unless otherwise stated, the factual claims I make in this section are drawn from her work.
  • 23 L. Allais, ‘Restorative Justice, Retributive Justice, and the South African Truth and Reconciliation Commission’, Philosophy & Public Affairs 39 (2011): 331—63. For the restorative justice view of TRCs, see, e.g., E. Kiss, ‘Moral Ambition Within and Beyond Political Constraints’, in R. I. Rotberg and D. F. Thompson (ed.), Truth v. Justice—The Morality of Truth Commissions (Princeton, N.J.: Princeton University Press, 2000); J. J. Llewellyn, ‘Truth commissions and restorative justice’, in G. Johnstone

of public acknowledgment of what they endured—an aspiration which (as we saw in chs. 6 and 7, respectively) neither reparations alone nor war crime trials can fulfil. Moreover, they often want their suffering to be acknowledged once they have told their story and thanks to having told it. Perpetrators, for their part, sometimes want forgiveness. To that, they are not entitled. Sometimes, however, they want and need their victims, or the latter’s relatives, to understand the pull of deep social conditioning, and to see, when appropriate, that they too have also been victimized. Think, for example, of a combatant ordered at gunpoint to kill civilians and whose family’s survival may well have been at stake; of the informer who was tortured by the security services into betraying his side; of the combatant who killed defenceless civilians after losing his entire family in an aerial bombing.

TRCs serve those ends74 They afford victims and perpetrators an opportunity to tell their stories, and the latter a chance to express remorse (even if that is not built into the design of the institution). By that token, in establishing the truth about what happened to this or that person, and through the accretion of those individual testimonies, they function as channels for and repositories of something like the historical truth about patterns of serious wrongdoings; they also often issue in recommendations for the prosecution of this or that individual, and/or proposals for institutional reforms and reparations programmes.

Whether there are compelling moral reasons to establish a truth commission thus depends, first, on whether any of those things are necessary for reconciliation; second, if they are, on the likelihood that the commission can achieve that task; and third, whether it can do so better than or at least as well as other mechanisms, at a similar or lesser cost. I very much doubt that one can reach such a strongly verdictive and a priori judgement on either count. If, in a given context, establishing manifold truths about war wrongdoings is necessary to help war victims live side by side with perpetrators and work with them towards a justifiedATC peace, this provides us with a pro tanto reason to endorse them. But it is not clear (at least to me) that one can say with any degree of confidence, in advance or in the course of peace negotiations, that peace will not obtain unless such a commission is established. The most that one can say, perhaps, is that, under propitious circumstances, a truth commission is likely to be of such help. How strong the reasons are to endorse it as a reconciliatory mechanism is contingent on the facts of the matter.

Importantly, it is not contingent on perpetrators being protected by the same norms of due process in use in criminal trials. Truth commissions have sometimes been criticized for falling short of those standards even though perpetrators confess to having committed serious crimes and, in so doing, expose themselves to considerable hardship. This criticism is overstated however. Norms of due process vary depending on the institutions: they are not the same for criminal courts, civil courts, and parliamentary or congressional committees. Given that TRCs do not and D. W Van Ness (ed.), Handbook of Restorative Justice (Portland, Or.: Willan Publishing, 2007); Philpott, Just and Unjust Peace.

24 For a good summary, see M. Minow, ‘The Hope for Healing—What Can Truth Commissions Do?’, in R. I. Rotberg and D. F. Thompson (ed.), Truth v. Justice—The Morality of Truth Commissions (Princeton, N.J.: Princeton University Press, 2000).

have it in their power to punish and that the consequences of being named by a TRC are not as bad as the consequences of being found guilty by a war crime tribunal, it is not clear why they should be held to the same standards as war crime tribunals.25

Suppose then that in a given case, a truth and reconciliation commission would be the best step towards a justifiedATC peace. To the extent that erstwhile enemies are under a duty to bring about a justifiedATC peace, they are under a duty to support the establishment of such a commission. Before committing ourselves to this conclusion, however, we need to unpack that duty.

A duty to do something—in this instance, a duty to support a particular institution—is a positive duty. As we saw in s.1.2, some advocates of positive duties of distributive justice hold that those duties are best discharged through political institutions such as the state and that all that individuals are under a duty to do at the bar of justice is to support those institutions. Others, by contrast, insist that duties of justice are discharged by institutions and by individuals in their private capacity. On the former approach, I discharge my duty of justice by voting for a political party which will set up an egalitarian taxation system, and by paying my taxes once that party is in power. On the latter approach, I discharge my duty by doing all of that and by making choices, in my private life, which will mitigate inequalities or alleviate poverty.

Let us bring the distinction to bear on the duty to support a TRC. Most obviously, the duty includes a duty to support moves by public officials to establish the commission, for example by voting for political parties which are committed to this particular part of the peace process. The institutionalist approach can easily handle that. Suppose then that the commission is established. For it to do its work, perpetrators, victims, and bystanders must be willing to come forward and testify. The question now is whether those agents are under a duty to do precisely that. The institutionalist approach to justice by definition cannot support this particular duty, at least in so far as it is held, not by public officials, but by individuals in a private capacity. Only the individualist approach can do so.

Would it make sense to insist that duties of justice are necessarily institutional, and thus to conclude that there can be no such thing as a duty of justice to testify? I do not think so. For recall that the institutionalist approach to justice is grounded in the fact that institutions best achieve both relevant knowledge of what policies will best bring about justice, and the high degree of cooperation between duty-holders which discharging those duties requires. Even if the institutionalist approach is correct in the context of obligations of assistance, it does not undermine the individualist approach to testimony as a means to discharge general obligations to promote peace, for I do not need to coordinate efforts with other people to attend a truth commission.

Thus, the strengths of the institutionalist approach in the realm of distributive justice do not particularly count in its favour in the realm of reconciliation—at

25 For exploration of due process concerns and responses along the lines I sketch out here, see, e.g., Hayner, Unspeakable Truths, ch. 10; Levinson, ‘Trials, Commissions, and Investigating Committees’.

least as far as testifying to a truth commission goes. Conversely, the strengths of the individualist approach count in its favour with respect to the duty to testify, for it accounts for the importance of promoting and living by a peace-friendly ethos which regulates our interpersonal relationships within the interstices of the law. It is not enough, for example, that we should vote in favour of the welfare state and anti-discrimination laws: we must also treat our fellow human beings in our daily interaction with them in a spirit of solidarity.26 As applied to truth commissions, then, it is not enough that we should vote in favour of establishing them: we may well be under duties to do so by testifying to them if called upon to do so.

That being said, we should be sensitive to individuals’ standpoint in relation to the atrocities committed during the conflict. The case of perpetrators is relatively easy. I claimed in s.7.7 that conditional amnesties compel victims to forego their right to punish perpetrators in exchange for something to which they are entitled anyway—for example, that perpetrators should testify to what they did. This is not particularly controversial morally speaking. If I commit a serious crime—say, a murder—I am not simply under a duty not to actively obstruct the course of justice by not lying or not resisting arrest. I am also under a duty to support the course of justice by confessing to the crime—a duty which I can discharge all the more easily if I am granted amnesty as a result.

But what about victims? Many believe themselves to have particularly stringent moral reasons to bear witness. But other victims simply cannot bring themselves to reliving the past: in fact, there is evidence that many who testified to the South African TRC were traumatized anew as a result. This is particularly true of rape, admissions of which usually elicits shame in victims and often leads to further victimization at the hands of their families and communities. On the reasonable assumption that there is a limit to the burdens that may be imposed on innocent individuals for the sake of promoting peace, there is no duty on the part of victims to testify to what happened to them when the costs of doing so exceed those limits. By implication, third parties, who do not stand in the same painful relationship to those events, have more stringent reasons to bear witness on their behalf and thus ensure that knowledge of those individual sufferings contribute to the construction of truth about the past.

To conclude, truth commissions are not a necessary condition for reconciliation irrespective of circumstances, anymore than traditional fora such as gacaca are: countries ravaged by civil wars have managed to move towards reconciliation without them, as have a fortiori interstate belligerents. Under some circumstances, however, they may well provide a good alternative to wholesale punishment, offer the best available mechanism for holding many perpetrators accountable, and enable victims and perpetrators to reconcile with one another and thereby work towards a just, or at least justifiedATC peace.

  • 26 See Cohen, Rescuing Justice and Equality. On the importance of ethos in general, see also J. Wolff, ‘Fairness, Respect and the Egalitarian Ethos’, Philosophy & Public Affairs 27 (1998):
  • 97-122.
 
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