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Seeking the 'Truth' in Truth Commissions

Truth commissions as a means for justice and reparation for victims of severe human rights violations are being set up in a number of Asian countries. In Nepal, debate on the truth and reconciliation commission bill is throwing up many insights and concerns.

COMMENTARY

Seeking the ‘Truth’ in Truth Commissions

Mukul Sharma

unique democratic experiments of nationbuilding, which has shown the courage to initiate the establishment of a truth and reconciliation commission (TRC) to “investigate truth about those who have seriously violated human rights and those who were involved in crimes against

Truth commissions as a means for justice and reparation for victims of severe human rights violations are being set up in a number of Asian countries. In Nepal, debate on the truth and reconciliation commission bill is throwing up many insights and concerns.

Mukul Sharma (mukul1961@yahoo.co.in) is with Amnesty International India.

When considering the question ‘should we remember?’ it is very important to firstly ask, has any victim forgotten? Could they ever forget? Secondly we should ask, who wants to forget? Who benefits when all the atrocities stay silent in the past? Roberto Cabrera, Should We Remember? Recovering Historical Memory in Guatemala, 1998.

S
ocieties emerging from a history of crimes and human rights violations ought to create a long-term strategic action plan to ensure that the truth is told, that justice is done and that reparation is provided to all the victims. Judicial measures here need to combine with nonjudicial ones, like truth commissions, effective procedures for granting reparation, and mechanisms for vetting the armed and security forces. Such an action plan can develop through a coordinated process of national consultation, tailored to the situation of a particular country, but in compliance with the international law. In south Asia, India and Pakistan at the time of Partition, Bangladesh during the liberation war, Sri Lanka during the civil war and Nepal during the armed conflicts – all have witnessed unprecedented human rights violations. However, at present it is Nepal, going through the humanity in course of the war and to create an environment for reconciliations in the society”. It is further worth noting that the TRC has been agreed upon through a comprehensive peace accord, signed by the government of Nepal and the Communist Party of Nepal (Maoist) in November 2006.

Truth commissions are a worldwide phenomenon, with Asian countries like Indonesia (Truth and Reconciliation Commission, 2004), Indonesia and Timor-Leste (Truth and Friendship Commission, 2005, bi-national), Philippines (Presiden tial Committee on Human Rights, 1986) and South Korea (Presidential Truth Commission on Suspicious Deaths, 2000) establishing them. Sri Lanka also tried something similar to the truth commission in cases of disappeared persons. Between 1974 and 2007, at least 34 truth commissions have been established in 28 countries. More than half of these have come up in the past 10 years.

At a time when Nepal is boldly debating the TRC bill, proposed by its ministry of peace and reconstruction, it is timely for us to understand the role of truth commissions. How do they protect, promote and respect human rights? How do they represent the right to truth, justice and reparation?

december 22, 2007 Economic & Political Weekly

COMMENTARY

How are they established and what are their functions and powers to build their future in the region? Truth commissions are an effective tool and an important first step for ensuring that countries, territories and populations living through the memories of severe injustices in their region have access towards some accountability under the international law for crimes committed during armed conflicts. They are a means for guaranteeing that victims of these crimes have the benefit of their rights to truth, justice and reparation. In the context of political transitions, either to peace or to a democratic regime, truth commissions can play a significant role in providing an account of past human rights violations. They can contribute in the investigation and the eventual prosecution of the perpetrators of these crimes. They can prevent their repetition and ensure that victims and their relatives are provided with full reparation, including restitution, compensation, satis faction, rehabilitation and guarantees of non-repetition.

Process of Establishment

As far as Nepal is concerned, continuing discussions by the government officials, parliamentarians and other interested parties, as well as by the international community, reveal that the Nepalese civil society has not been sufficiently involved from the early stages in the discussions regarding the establishment, mandate and powers of the commission. The process of nominations of the TRC members is led by a body open to political influence and does not offer sufficient guarantee of independence from the government. The commission’s mandate is limited. For example, cases of enforced disappearances are excluded from the mandate if family members filed writs of habeas corpus, whether or not they received from the courts a full and accurate account of the fate and where abouts of their “disappeared” relatives.

Prosecutions are often the logical outcome of a truth commission and an obligation upon states under international law – whether explicitly spelt out in the peace accord or not. No part of the TRC bill explains that the work of the TRC should be followed by prosecutions, and that evidence collected by the commission

Economic & Political Weekly december 22, 2007

should be handed over to judicial authorities, with the aim of bringing the perpetrators to justice. At present, if the commission’s investigations result in the establishment of a prima facie case of individual criminal responsibility, it has the power to choose one of three possible actions: (a) If the suspected perpetrator is found to have committed gross violations of human rights or crimes against humanity while “abiding his/her duties or with the objective of fulfilling political motives”, the commission has the power to recommend amnesty (section 25, with the only exception of perpetrators involved in any kind of murder committed after taking under control or carried out in a inhuman manner, inhumane and cruel torture, and rape); (b) Whatever the crime allegedly committed by the suspected perpetrator, the commission has the power to initiate procedures for “reconciliation” between the suspected perpetrator and the victim/s (section 23); and (c) The commission can recommend “necessary action” against the suspected perpetrator (section 24) – but not in cases where “reconciliation” has been reached. These provisions are said to be violating of Nepal’s obligations under international laws. Amnesties for serious crimes under international law are prohibited, as they deny the right of victims to justice.

It is also being said that no attention has been paid to the rights and protection of victims and witnesses, and they have been ensured no support for participating in the TRC process. Grave concerns have further been raised about its power to organise “reconciliation” processes and ceremonies, by which a suspected perpetrator meets with the victim, makes an apology and provides reparation for the loss and damage caused. The reconciliation process leads to a de facto amnesty, because necessary action cannot be recommended by the commission if the perpetrator and the victim have been involved in a reconciliation procedure. At present, nothing in the TRC bill guarantees that victims will not be coerced into reconciliation procedures, including by believing to be under a legal requirement to be involved in such practices.

Under the bill, the commission will submit its final report to the government of Nepal, which will then present it to parliament. The responsibility for the implementation of the report will lie with the ministry of peace and reconstruction. The national human rights commission will have the task of monitoring the implementation of the recommendations made in the report. Serious concerns have been raised that the TRC bill does not include any compulsion to make the report public,

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COMMENTARY

nor does it determine any deadline for its submission to parliament. As the report may not be released to the public, civil society as a whole has no means of knowing the findings, or of monitoring the implementation of its recommendations.

Truth commissions are defined as “official, temporary, non-judicial fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law, usually committed over a number of years”. The object of their inquiry (a pattern of human rights violations, rather than a specific event) distinguishes them from other commissions of inquiry. Their temporary character separates them from many national human rights commissions and other national institutions for the promotion and protection of human rights, which are permanent monitoring and enforcement bodies. They are required to take a victim-centred approach and conclude their work with a final report containing findings of facts and recommendations. However, the success of any truth commission lies in its clarity of principles and practices, and there should be sufficient understanding in the region about it, including Nepal.

A Step towards Justice

The value of truth commissions is that they are created, not with the presumption that there will be no trials, but to constitute a step towards knowing the truth and, ultimately, ensuring that justice prevails. Victims of gross human rights violations and their families, as well as other members of society, have the right to know the truth about past abuses. The right to truth, both in its individual and collective dimensions, is an inalienable right, which stands alone. It should be considered as a non-negotiable right and should not be subject to any limitations. With respect to the individual dimension of the right to truth, international humanitarian law expressly guarantees the right of family members to know the fate of their missing relatives. The right to know the fate and whereabouts of “disappeared” relatives, both in times of peace and in times of armed conflict, has been confirmed in the jurisprudence of international and regional human rights bodies, as well as of national courts.

Further, while the respective functions of truth commissions and courts are complementary, they are different in nature and should not be confused. Truth commissions are not intended to act as substitutes for the civil, administrative or criminal courts. In particular, they cannot be a substitute for the judicial process, to establish individual criminal responsibility. Take the case of Chile, where the Inter-American Commission on Human Rights noted that “(The National Commission for Truth and Reconciliation) was not a judicial body and its work was limited to establishing the identity of the victims whose right to life had been violated. Under the terms of its mandate, the Commission was not empowered to publish the names of those who had committed the crimes, or to impose any type of sanction on them. For this reason, despite its important role in establishing the facts and granting compensation, the Truth Commission cannot be regarded as an adequate substitute for the judicial process”. Similar is the case with El Salvador.

Reparation is a right and should be proportional to the gravity of the violations and the harm suffered. It should be provided even if the perpetrator has not been identified, and must include measures to prevent further abuses from happening in the future. In the realm of establishment, functions and powers of the truth commission, the drafting of statute, mandate (both subject-matter and temporal mandate), and period of operation become crucial. Issues like competence, impartiality and independence of the commission, public information, a victim-centred app roach, a fair procedure, ensuring that victims are provided with effective support and security to participate in the commission’s process, and special measures for child victims and victims of sexual violence have to be thought of in detail.

As in the case of Nepal, since the commission is usually established during a period of transition, they rarely coexist with a fully functioning national justice system. The national justice system may have been seriously deprived of human and material resources during an armed conflict, to the point that it is unable to function effectively. Alternatively, it may have a record of collusion with those in power who were responsible for committing human rights violations in the past. In many cases, a truth commission is called to cover, at least in part, the vacuum left by an ineffective national justice system. Its work should assist and should not prejudice current or future criminal proceedings.

The truth and reconciliation commission of Peru noted that “Neither reconciliation nor forgiveness equate to impunity. Impunity is another name for injustice. That’s why the TRC understands justice as the foundation of reconciliation, its precondition and effect, its point of departure and arrival. The exercise of justice guarantees the realisation of reconciliation”. Some truth commissions, most notably the truth and reconciliation commission in South Africa and the commission for reception, truth and reconciliation in Timor-Leste, have designed their activities, in particular public hearings, to provide victims and perpetrators with a forum for public and private acts of reconciliation. Individual reconciliation between victims and perpetrators was seen as conducive to collective, political reconciliation. Undoubtedly, the establishment

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december 22, 2007 Economic & Political Weekly

COMMENTARY

of the facts is a precondition for, and can help to promote, individual and collective reconciliation. However, reconciliation, both at the individual and at the collective level, cannot be imposed by either a truth commission or any other official body or procedure. If a truth commission decides to adopt specific procedures to promote individual reconciliation, such as traditional mechanisms of conflict-resolution or religious practices, they must fully respect the rights and dignity of both victims and alleged perpetrators. In particular, victims and their families should not be forced to meet alleged perpetrators or to engage in any act of reconciliation. On the other hand, reconciliation procedures should not be at the expenses of fair procedure.

Ensuring accountability for human rights violations is of fundamental importance to us. There are times when we are told that justice must be set aside in the interest of peace. It is true that justice can only be dispensed when the peaceful order of society is secure. But the reverse is also true: without justice there can be no lasting peace. Truth commissions should unearth and reveal the whole truth, or as much as is possible to find. They are a critical means for laying a sound foundation and building a strong and lasting reconciliation in countries that have been in turmoil or are undergoing transition.

Economic & Political Weekly december 22, 2007

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