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Between truth commissions and criminal trials By COUNTRIES in transition often face difficult choices in deciding how to deal with the past in order to increase the chances for a better future. The transition may be a political one from dictatorship to democracy (Nigeria today, Chile and Argentina a decade ago), from civil war (Rwanda, Burundi, Sierra Leone, and Mozambique), or from apartheid to majority rule (South Africa in 1994). "Transitional justice" is often an important component of the way forward. Since the example of Argentina more than a decade ago, about 25 countries have utilised truth commissions as a method of facilitating transitions. While post-conflict truth commissions and criminal trials for mass atrocities have broadly similar aims of contributing to reconciliation, they approach these goals from fundamentally different angles. It is therefore important to understand the strengths and weaknesses of both truth and reconciliation commissions (TRCs) and criminal trials in courts of law.
The first important advantage of TRCs is that they approach reconciliation with a strong and welcome focus on victims, that is, restorative justice. When a perpetrator confesses his crimes, the victim, by forgiving (or at least having the option to do so) is empowered and thereby restored in a psychological sense. This advantage is even more pronounced if the TRC has the power to order and enforce reparations or restitution. Second, truth commissions can have a healing effect on wider society because of the public airing of crimes or grievances, sometimes accompanied by confessions. They thus engender a greater degree of public participation than criminal trials do. There is no question, for example, that the Oputa Commission has had a profound, positive effect on Nigeria's collective psyche.
But truth commissions have important limitations that make them ñ where unique political circumstances so demand ñ only a second best option to trials. First, because they cannot ensure or enforce accountability for serious human rights violations, they ultimately fail to address the yearning of the victims for justice. In this scenario, the supposed healing effect such exercises have on the national psyche may be, in effect, a passing fancy that does not address the heart of the matter ñ legal accountability for massive violations of human rights. Experience in several post-conflict societies has shown that where culprits were not prosecuted for any number of reasons, the banished ghosts of the victims' thirst for justice returned years later to haunt these societies, reopening old wounds thought to have been healed. This weakness is illustrated most famously by the case of Gen. Augusto Pinochet. The former president of Chile benefited a decade ago from an amnesty conferred on him and other top generals of his ruling junta but has recently been the subject of several attempts at criminal prosecution following his extradition from the United Kingdom to his native country.
Thirty years after Nigeria's civil war ended, the country, prodded perhaps by events far more recent than that conflict, has evolved to the point of a truth commission with a temporal mandate stretching back more than three decades. What this evolutionary process suggests is that judicial accountability in the form of full-blown trials for massive human rights crimes is a future possibility that cannot be excluded. Nevertheless, it may well be that, for some societies, deferring the day of reckoning may put them in a stronger position to handle the outcome of such truth commissions or trials at a later stage.
A second weakness of truth and reconciliation commissions is that they tend to make a false distinction between truth and reconciliation as supposedly represented by such bodies, and justice as represented by criminal trials. There is no convincing argument that criminal trials, despite the inherent clash of interests of the defendant and the prosecutor, are intrinsically incapable of arriving at the truth or frequently fail to do so. And in some cases before international criminal tribunals such as the International Military Tribunal at Nuremberg after World War II and the currently ñ sitting United Nations International Criminal Tribunal for Rwanda at Arusha, Tanzania, some accused persons have pleaded guilty and confessed the details of the crimes they committed.
Thirdly, truth and reconciliation commissions as instruments for coming to terms with past massive human rights violations offer little help when the crime committed is that of genocide. There is consensus nowadays among lawyers and global policymakers that genocide and crimes against humanity should and must be prosecuted.
When the benefits and limitations of truth and reconciliation mechanisms are weighed, there are a number of arguments that make trials a superior route ñ or at the very least a necessary component of ñ long term conflict resolution and reconciliation in fractured societies. The first is that justice and accountability (which in a real sense means legal responsibility and punishment for criminal acts and omissions) have a deep psychological impact on individuals and, by extension, societies. When justice is done, and seen to have been done, it provides a catharsis for those who have been traumatised or physically scarred by serious human rights violations or violations of humanitarian law. Deep-seated resentments ñ key obstacles to reconciliation ñ are removed, and people on different sides of the divide can feel that a clean slate has been provided for co-existence. Obviously, this objective is even better advanced if the justice that is handed down is a complete one, involving not only retribution against the perpetrator if guilt is established, but in addition restorative justice for the victims where necessary.
A second fundamental benefit of trials is that they establish individual responsibility for the crimes adjudicated, thus negating the notion of collective guilt that can be an obstacle to genuine reconciliation. Other members of the group to which the defendant or a group of defendants may belong (an ethnic or political group, say) are thus sparred the weight of collective guilt for crimes they did not commit or support and are free to participate in national life on equal terms with other groups.
Yet a third fundamental point in favour of trials is that impartial trials conducted by independent national courts or international tribunals establish an indisputable historical record of events with legally binding consequences where guilt is established, thus banishing extremists from the political space and and giving room for the growth of a democratic culture. This has been one of the most important contributions of the two United Nations international criminal tribunals for Rwanda and the former Yugoslavia to the societies they were established to help reconcile. But the problem is that the record of national courts in handing down impartial justice where crimes have been instigated and committed by the political leadership has been a poor one in Europe, Latin America, Africa and Asia this century, either for lack of will or independence, or lack of capacity. International tribunals have therefore been established to hand down justice where national courts cannot or will mete out justice for mass atrocities. A curve starting from the Nuremberg trials and including the UN's Rwanda and Yugoslavia tribunals and a forthcoming one for Sierra Leone is leading to a permanent International Criminal Court (ICC). And yet it is important that national judicial capacities be strengthened to deal with massive human rights violations such as genocide, crimes against humanity and war crimes.
Finally, criminal trials and the punishment they impose serve a deterrent function, though they cannot wish evil away and so cannot create a perfect world. Trials make it clear that there is a price to pay for impunity. Truth and reconciliation mechanisms sometimes create situations where, following the public airing of grievances without real accountability, the victims watch the perpetrators of the crimes they have suffered walk away free and continue to enjoy their freedom despite their acts of impunity. This recipe for lingering bitterness is avoided only where the truth and reconciliation mechanisms serve as a first step to the prosecution of selected individuals deemed uniquely responsible for certain heinous crimes. But the debate between truth commissions and criminal trials may be an artificial one. The two processes are not mutually exclusive, and absolutist positions are often unworkable in the real world. It is quite possible ñ indeed advisable ñ that the options of truth commissions and trials could be exercised at different points of a continuum. A country may begin with one and bring closure with the other, or run both processes simultaneously, perhaps putting on trial the leaders and planners and atrocities while utilizing a TRC mechanism for other players in the crimes or events being addressed. Sierra Leone is an example of a post conflict society that will utilize both truth commissions and criminal trials to heal the wounds of its conflict. A similar approach has been recommended by the UN Secretary-General for Cambodia. Moghalu is a Special Adviser to the United Nations International Criminal Tribunal for Rwanda (UNICTR) February 2002 |