William Blackstone, perhaps the most influential jurist in Western legal thought, claimed in his 18th century magnum opus Commentaries on the Laws of England that “It is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury its proper redress.” Providing remedy for infringed-upon human rights has become one of the fundamental means of realizing the massive framework of human rights developed over the past century. From this goal of redressing violations has arose a novel perspective of justice – transitional justice.
Transitional justice is a broad and amorphous term; it covers far too many concepts and ideals to be fairly surmised in a single essay, let alone a paragraph. Under the umbrella term of transitional justice range the Nuremburg and Tokyo Trials to an annual prayer ceremony in Northern Uganda as equally legitimate forms of post-conflict justice. Nonetheless – from the numerous disparate definitions and materializations of transitional justice – a basic binding thread between the various visions can be found: the question of, as noted by Priscilla Hayner, “how to reckon with massive past crimes and abuses?”
In the realm of traditional jurisprudence, this question is self-evident: crimes are addressed by criminal justice. However, in the case of many transitioning states, the criteria for a stringent criminal justice system can rarely be met in dealing with the legacy of human rights abuses. The rules of evidence may be impossible to meet, witnesses may not be willing to testify in an adversarial system, and the political situation may not allow for a truly free and independent trial. The nascent norm of transitional justice attempts to address these roadblocks with a litany of tools for a diverse set of demands and circumstances. Memorialization, reparations, lustration, and commissions of inquiry are some of the many manifestations of transitional justice. But the dominating force in transitional justice is that of the truth commission, which has become the international community’s cure-all for transitioning states.
While the initial batch of truth commission experiences were middling, by increasing the disciplinary scope of the process, a more robust and successful model has precipitated over the last decade. Instead of thinking of a truth commission as a salve or a temporary measure to heal an injured body politic, the modern truth commission sees reconciliation, truth-building, and societal reconstruction as a constantly ongoing process. The mandate of transitional justice is never truly over: the phantom pain of conflict can never fully be healed; even generations later, the scars of conflict will remain.
Given these seemingly endless complexities and near-impossible mandate, what can a truth commission hope to achieve? To answer this question requires an understanding of the evolution of the truth commission. By examining the width and breath of truth commissions, a holistic vision of a truth commission can be developed that eschews easy description and instead realizes the multidisciplinary potential of transitional justice.
While the Nuremberg Trials are perhaps the first example of transitional justice, they bare as much resemblance to the modern truth commission as fish to man. Despite the claims that war crimes tribunals, truth commissions, and commissions of inquiry are all Western constructs designed to suppress the developing world, the first truth commissions emerged out of the “global south.” The progenitors of the truth commission were not a result of Western pressure, but instead of incalculable grief in developing nations emerging from conflict. The first official truth commission was in Bolivia, but it would take Argentina in 1984 to pioneer the truth commission with the Nunca Más (Never Again/No More) report. Just the name of the report itself highlights the visceral anguish that the first truth commission attempted to mitigate. While not necessarily truth commissions in name, inquiries into previous war crimes were undertaken in Uganda, Zimbabwe, Guatemala, El Salvador, Nepal, and the Philippines.
The Rettig Report, officially known as the National Commission for Truth and Reconciliation Report in Chile, was the first of these kind of bodies to formally adopt the language of “truth and reconciliation.” But the climactic development point for the truth commission is most definitely that of South Africa’s Truth and Reconciliation Commission (TRC).
Although it may have formally appealed to Western concepts of human rights, the TRC deployed an organic model of state, culture and society. Drawing on Plato’s views of society, the body politic is viewed through general principles of organicism, holism, and collectivism in which it is the purpose of the individual to maintain social harmony and the health of the state. This perspective is exemplified in the writings of TRC Chair, Desmond Tutu. In justifying the controversial amnesty legislation, which enabled the commission to grant amnesty to perpetrators, Tutu writes:
Social harmony is for us the summum bonum – the greatest good. Anything that subverts or undermines this sought-after good is to be avoided like the plague. Anger, resentment, lust for revenge[…] are corrosive of this good.
The main metaphor of the organic state is society as a sick body that is in need of healing. The TRC carried out this healing and thus promoted national reconciliation. Metaphorically phrased, the TRC opened the wounds of the suffering nation and cleansed them, thus healing the national body politic. The morality of the nation-state becomes a question of Platonic moral and political hygiene. Here, the focus is not as much on individuals, but on the nation-state. Reconciliation between individuals in the sense of victim–offender mediation was not attempted in South Africa; sub-national social groups such as classes, races or genders are not to be reconciled with one another either. Instead, the reconciliation proposed by the TRC works at a much higher level of abstraction. The nation-state is to be reconciled with itself. Ultimately, the TRC is but another tool to respond to the classic Weberian problematic of state legitimacy.
But South Africa’s truth commission served a vital tool. It was the standard model to which each subsequent truth commission was held to, allowing for transitioning societies to fork their own vision of transitional justice. It became a platform for a vibrant and diverse set of transitional justice forms, each suited for the individual situation of each nation. The modern truth commission does what South Africa did not: focus on the individual, vulnerable groups, and rich narratives that refused to bend to politics.
Nowhere is this modern truth commission perspective more visible than in Timor-Leste. Reeling from years of Indonesian occupation, the Timor Leste developed a Commission for Reception, Truth and Reconciliation with the help of the United Nations. Its main work in East Timor was to carry out Community Reconciliation Procedures (CRPs) in every district, with the aim of reintegrating low level offenders. The framework chosen to shape these meetings was the adat (customary law) ceremony called “biti bot” or “unrolling of the mat.” The mat is laid out in a public space and the occasion is dignified by the display of sacred heirloom objects. The meeting is presided over by elders and spiritual leaders, who arrive dressed in ceremonial attire of traditional textiles, silver breastplates and headdresses of feathers or silver horns. They open the proceedings by chanting ritual verses, then take their places and share betel-nut – a gesture symbolic of good relations all over South-East Asia. The participants arrange themselves around the four sides of the mat, with the CRP panel on one side, facing the community members, and the deponents and victims to the panel’s left and right respectively. The hearing requires a full admission and apology in the presence of the community. The victim confronts the perpetrator, is entitled to question them closely and must eventually say what will help them feel better. Perpetrators must then undertake redress as directed.
While the success of truth commissions cannot be quantified, international observers from all over the world have heralded East Timor’s quasi-legal efforts as ground-breaking. Ultimately, the truth commission exceeded its planned goal of hearing 1000 cases. By the end, it had received a total of 1541 statements from deponents requesting to participate.
Thus the modern truth commission is not bound by the Western legal legacy – the words of Blackstone and Plato no longer play into the mandate of transitional justice. Instead, what is the centerpiece of a truth commission is the nation itself. The truth commission incorporates and fuses community. By internalizing the unique facets of a conflict, the truth commission can be molded into an institutional structure that can provide for generations. Think not of the truth commission as some sort of probe, an inflexible tool wielded by the West to humiliate the developing world. Instead, the truth commission is a malleable mechanism of empowerment, aimed at integrating into a nation and providing something – whether it be truth, reconciliation, or respect – which has yet to be provided through normal means.
Sri Lanka’s latest efforts to set up a TRC provides ample opportunity to learn from other models. When Maithripala Sirisena surprisingly won the presidency in 2015, ushering in a unity government with Ranil Wickremesinghe as Prime Minister, Sri Lanka was poised to enter a new, forward-looking era. It seemed possible that the myopic politics of Mahinda Rajapaksa were a thing of the past. This hope was compounded by Sri Lanka’s sponsoring of UN Human Rights Council Resolution 30/1, which called for a credible judicial mechanism to investigate alleged human rights abuses during the end of the civil war.
With the tabling of Resolution 30/1, the Sri Lankan government devised a four part plan to ensure accountability: a truth commission, reparations and missing persons offices, and, most importantly, an independent special court for war crimes with international oversight. Out of these four mechanisms, the government has publicly announced progress in the Office on Missing Persons (OMP). The government has promised that the truth commission will be launched by the end of the year. The OMP still needs to be approved by Parliament.
During a recent visit to Sri Lanka, I met some of the talented and passionate stakeholders working with the government to catalyze the transitional justice process. It was clear that one of the most important ways to accelerate the establishment of the TRC and to win public support for it is to transform the way in which the local communities perceive TRC. The key then is to focus on the political messaging: framing transitional justice in a way that transcends partisan politics, and positions it as a solution to larger problems of national exceptionalism.
Last year, Foreign Minister Mangala Samarawera told the press that Sri Lanka’s TRC was to be modeled after South Africa’s 1996 TRC. One important lesson to be learnt from South Africa’s TRC is the way in which it cultivated positive media attention. There are few transitional justice efforts that have so effectively captured the national imaginational as the South African TRC. Each and every step seemed designed to make the biggest splash: from the appointment of high-profile members like Archbishop Desmond Tutu to the regularly televised broadcasts of “Truth Commission Special Report” each Sunday. The political leaders behind South Africa’s TRC understood the necessity of public support, and made a number of decisions to ensure media and public engagement.
While the Sri Lankan government’s effort to adopt a flexible, home-grown model used by more recent truth commissions will help to create a sense of national ownership of the process, communicating a clear and powerful narrative of transitional justice to the public will increase its national credibility and international stature.
About the Author: Akshan de Alwis is the UN Correspondent for the Diplomatic Courier.