Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (5 page)

The authors in Part I look at the different ways in which the quest for truth and justice can be carried out at the same time. These experiences use a variety of institutional designs to create an authoritative and official record of past events, to criminally prosecute the worst offenders, to give victims a platform, and to recommend changes that will dignify victims, educate bystanders, and ensure that “never again” becomes a reality.

In Chapter
1
, William Schabas discusses the Sierra Leone experience from his vantage point as a member of that country's Truth and Reconciliation Commission. Schabas concludes that, despite many fears and some real, and unexpected, problems, there is no inherent reason why a TRC cannot exist side by side with criminal trials, in this case the Special Court for Sierra Leone. Although the two institutions had different mandates and were created at different times, their goals were complementary, and by and large each pursued those goals unhindered. Schabas also raises questions about the advisability of retracting an already‐granted amnesty, and about the degree of real change in political culture needed to support transitional justice endeavors.

In Chapter
2
, Sigall Horovitz looks at Sierra Leone from the perspective of a former staff member of the Special Court. She describes the operation of the Court, and analyzes its strengths and weaknesses in light of prior experiences with international criminal tribunals, especially in terms of local ownership and long‐term strengthening of local justice. She considers the relationship of the Court to the TRC, and concludes that, while it is possible for both mechanisms to operate simultaneously, from her perspective a better approach would be to sequence them, so that the conclusions of a TRC undergird and feed into subsequent prosecutions.

That is the approach taken by the Peruvian Truth and Reconciliation Commission as described by Eduardo González Cueva in Chapter
3
. González Cueva takes up the challenges of using the information and testimony unearthed by a TC to catalyze domestic prosecutions, especially in a situation where the existing Public Prosecutor's office is not keen to do so. He describes the creation of a separate unit within the
TRC to prepare
dossiers
for the prosecutor, and the differences in approach of information‐gathering for public hearings, for an overall report, and for specific crimes. He discusses the problems encountered, and some alternative strategies that might have facilitated optimal use of the resources and capabilities of both institutions.

While Peru embedded some prosecutor‐type functions within its TC, Mexico created a new special prosecutors' office (SPO) instead of a TRC. In Chapter
4
, Mariclaire Acosta, the former Assistant Secretary for Human Rights in the Fox administration, and Esa Ennelin trace the genesis and evolution of the SPO, charged with looking into notorious massacres, killings and disappearances from the 1970s and 1980s. They note the lack of clear civil society – or official – support for the SPO, its risky legal strategy, and the creation of a Citizens' Support Committee that, at least initially, was seen as a way to move beyond individual cases to look at overall causes, patterns and possible reforms.

Chapter
5
illustrates yet another variation on this theme: the emerging proposals for demobilization of paramilitary groups in Colombia. Colombian Helena Olea and Argentine María José Guembe, both human rights lawyers, look at the advances and limits of the legislation which, as it now stands, combines limited prosecution, “alternative punishment,” reparations for victims and the compilation of a historical record into a single package. They point out some of the legal and practical challenges of tying these functions together. In addition, in a preview of the issues raised in Part II, they analyze the ways in which the Colombian government has had to respond to both the jurisprudence of the Inter‐American system and the looming presence of the International Criminal Court as well as to US extradition requests in designing the demobilization legislation.

Chapters
6
and
7
concern East Timor, during the period when it was administered by the United Nations following a pro‐independence referendum and the resulting Indonesian‐instigated violence. In Chapter
6
, Caitlin Reiger, former co‐director of the East Timor Judicial System Monitoring Programme in Dili, looks at the combined national/international efforts to hold the perpetrators of the violence criminally responsible. Here as in Sierra Leone, a truth commission coexisted with specially created institutions for criminal investigation, in this case Special Panels for Serious Crimes and a Serious Crimes Investigation Unit. Reiger's chapter focuses on the constraints and difficulties of the criminal investigations, especially given Indonesian non‐cooperation in extraditing or prosecuting the “big fish” and the ambivalence of both the United Nations and the Timorese government. Chapter
7
takes up the same time period from the perspective of the Commission for Reception, Truth and Reconciliation. It follows in Part II.

William A. Schabas

National University of Ireland, Galway

Truth and reconciliation commissions have become one of the standard options on the palette of transitional justice alternatives. They stand as something of a half‐way house among approaches towards accountability for past atrocities and other human rights violations. The truth and reconciliation commission does not “forgive and forget,” because it is predicated on public truth‐telling, but nor does it encompass rigorous prosecution by criminal justice mechanisms. The South African model is probably the best‐known, although it had some atypical features, such as the power to recommend amnesty to perpetrators who made full confession of their deeds.

The Sierra Leone Truth and Reconciliation Commission was established in July 2002. It presented its final report to the President of Sierra Leone on October 5, 2004. The actual operations of the Commission, consisting of both private and public encounters with victims and perpetrators, public hearings on thematic issues, and other research and investigation took only about eight months, however. The report provided Sierra Leone with a detailed narrative of the country's history, with a focus on the brutal civil war of the 1990s, analysis of various dimensions of political, economic and social life with a view to understanding the causes of the conflict, and a series of findings and recommendations.

Perhaps the most distinctive feature of post‐conflict justice in Sierra Leone has been the parallel existence of an international criminal justice mechanism, the
Special Court for Sierra Leone. In the past, truth and reconciliation commissions have often been viewed as an alternative to criminal justice that, sometimes only in an informal manner, obviates or at the very least suspends prosecutions. In Sierra Leone, the two institutions operated contemporaneously. This unprecedented experiment revealed some of the tensions that may exist between the two approaches. Yet it also demonstrated the feasibility of the simultaneous operation of an international court and a truth commission. The Sierra Leone experience may help us understand that post‐conflict justice requires a complex mix of complementary therapies, rather than a
unique choice of one approach from a list of essentially incompatible alternatives.

Sierra Leone's civil war began on 23 March 1991, when forces styling themselves the
Revolutionary United Front (RUF) raided a town near the border with Liberia. The declared objective of the RUF was to overthrow the corrupt and tyrannical government of Joseph Saidu Momoh and the
All People's Congress (APC), which had ruled Sierra Leone since the late 1960s. The events that day were little more than a skirmish, but they heralded the beginning of a decade of violence that devastated the country. If the aims of the RUF might have been shared by many in Sierra Leone, who were frustrated by years of dictatorship, and by the descending spiral of poverty and underdevelopment that characterized the country since its independence from British colonialism in 1961, the war soon lost the veneer of any legitimate aspirations. Not only
the RUF, but also both its allies and opponents, indulged in tactics of the utmost brutality.
[1]

Like all wars, it had its phases, with a series of regime changes in the central government, transformations in the profile of the rebel groups, and unsuccessful attempts at compromise and peace negotiation. A promising attempt to resolve the conflict, reached at
Abidjan, Côte d'Ivoire in late 1996, and brokered by various international actors including the United Nations,
[2]
soon broke down. The climactic conclusion was a devastating attack on the capital in January 1999, chillingly labeled “Operation No Living Thing.” With Freetown in ruins, the government sued for peace. The formal beginning of the end of the conflict was the
Lomé Peace Agreement
of 7 July 1999, between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone.
[3]
The agreement provided a controversial amnesty, sometimes also referred to as a pardon or reprieve, for perpetrators of atrocities on all sides of the conflict.
[4]
The Special Representative of the Secretary‐General of the
United Nations, Francis Okelo, formulated a reservation to the amnesty provision, insisting that it could not apply to
genocide, crimes against humanity,
war crimes, and other serious violations of international law.
[5]

The
Lomé Peace Agreement
pledged the establishment of a Truth and Reconciliation Commission (TRC), to be set up within ninety days. Although efforts were soon directed to this task,
[6]
legislation for the purpose was not adopted by Sierra Leone's Parliament until February 22,
2000.
[7]
Pursuant to section 6(1) of the
Truth and Reconciliation Commission Act 2000 (TRC Act)
, the Sierra Leone TRC was established “to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the Conflict in 1991 to the signing of the
Lomé Peace Agreement
; to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered.”

The Truth and Reconciliation Commission was a creation of the Parliament of Sierra Leone, in pursuance of an undertaking found in Article XXVI of the
Lomé Peace Agreement
. Although a national institution, the TRC had an international dimension because of the participation of the Special Representative of the Secretary‐General for Sierra Leone and the
High Commissioner for Human Rights in its establishment. These two senior United Nations officials were responsible for recommending the appointment of the three members of the Commission who were not citizens of Sierra Leone.
[8]
Virtually all of the financing for the Commission came from international donors, with the Office of the High Commissioner assuming the responsibility for fund‐raising. Initially budgeted at $10 million,
[9]
poor donor response resulted in a reduction to less than $7 million. In the end, the TRC received approximately $4 million, a disappointing result that seems to indicate an indifference to its mission, despite grand statements to the contrary. In contrast, the
Special Court for Sierra Leone, also funded by voluntary contributions from international donors, has a much larger budget, albeit one scaled down from an amount that originally exceeded $100 million to about $56 million over three years. The Office of the High Commissioner for Human Rights withheld 13 percent of the funds that it raised as an overhead or
administrative fee.
[10]

Although section 6 of the
TRC Act
might be taken to suggest a limit on the TRC's temporal jurisdiction from 1991, when the war began, until the
Lomé Peace Agreement
of July 7, 1999, in practice the Commission did not operate as if its investigations were confined by this period. The
TRC Act
also required the Commission to investigate and report on the “antecedents” of the “conflict,” and this implied it could look well back from 1991.
[11]
Moreover, the TRC was also charged with addressing impunity, responding to the needs of victims, promoting healing and reconciliation and preventing a repetition of the violations and abuses suffered. This aspect of the mandate had no precise temporal framework. The TRC took it as authority to look at post‐Lomé events. The final report of the Commission discussed the history of Sierra Leone in
considerable detail, especially the colonial period. It addressed the long‐standing dichotomy between the region surrounding the capital of Freetown, known as the Colony of Sierra Leone, and the enormous hinterland, designated as the Protectorate. The report also attempted to analyse the contribution of the various post‐colonial regimes, which were marked by tyranny and corruption, to the origins of the conflict.

The
TRC Act
referred in several places to “victims and perpetrators,” suggesting that these two groups made up the Commission's principal constituency. Special attention was focused on children, including child perpetrators, as well as victims of
sexual abuse.
[12]
The Commission was also given a role in determining responsibilities, as well as in identifying the “causes”
[13]
and the “parties responsible,”
[14]
and here its attention was directed to “any government, group or individual”.
[15]
The Commission listed the names of those holding positions of responsibility in the various parties to the conflict.

At the core of the Commission's mandate was the concept of “human rights violations and abuses.” The
TRC Act
seemed to suggest that these could be committed by individuals as well as governments. Responsibilities could extend, for example, to transnational corporations or private security organisations.
[16]
Section 6 assigned the Commission to report on “violations and abuses of human rights and international humanitarian law,” arguably a very broad concept. In contrast, the mandate of the South African TRC – a model familiar to the Parliament of Sierra Leone when it created the TRC – spoke only of “gross violations.” According to
Priscilla Hayner, the South African TRC was criticised for this narrow perspective, in that this presented a “compromised truth” that excluded a large number of victims from the Commission's scope.
[17]
The term “violations” is widely used within both human rights law and humanitarian law, but the term “abuses” is rather less familiar. Of some interest within the field of international human rights law is the frequent use of the term “abuse” in a very recent instrument, the
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa
, adopted in July 2003. It uses the term “abuse” in several provisions.
[18]
The context suggests that the term is used particularly with reference to acts committed by individuals against other individuals, rather than by states.
[19]
This construction of the term “abuses” is confirmed elsewhere in the
TRC Act
, which instructs the Commission to consider the acts of any “government, group or individual.” Whether or not the drafters of the
Act
were aware of the debate in international human rights law about the liability of non‐State actors, they certainly seemed to be of the view that it was not only governments that could breach fundamental rights.

The broad reference to “human rights and international humanitarian law” had another consequence. The Commission's work was not confined to the classic violations of bodily integrity, such as killings, rapes and other violent crimes, and to crimes of destruction of property or pillage. After some consideration, the Commission concluded that it should take its guidance from the comprehensive enumeration of human rights found in such instruments as the
Universal Declaration of Human Rights
and the
African Charter of Human and Peoples' Rights
. In other words, it was to consider not only civil and political rights but also economic, social and cultural rights. Instructions along these lines were given to statement takers as guidance for their interviews with victims.

The value of an approach stressing the indivisibility of human rights became abundantly clear when victims reported to the Commission. Although they would describe their initial victimization in terms of physical violence or destruction of property, by and large they told the Commission that they were not seeking compensation or restitution tied to these specific harms, but rather “schooling for my children”, “medical care” and “decent housing.” For the victims of terrible brutality, the future lay in the vindication of their economic and social rights, rather than some classic legal concept of
restitutio in integrum
.

The Commission's mandate had both fact‐finding and therapeutic dimensions. As then‐Attorney General Solomon Berewa (currently Vice‐President) put it, “far from being fault‐finding and punitive, it is to serve as the most legitimate and credible forum for victims to reclaim their human worth; and a channel for the perpetrators of atrocities to expiate their guilt, and chasten their consciences. The process was likened to a national catharsis, involving truth telling, respectful listening and above all, compensation for victims in deserving cases.”
[20]
The “Memorandum of Objects and Reasons,” which was attached to the
TRC Act
, noted that the Peace Agreement “envisaged the proceedings of the Commission as a catharsis for constructive interchange between the victims and perpetrators of human rights violations and abuses.”

The work of the TRC consisted of two principal phases. The first, described as the “statement taking phase,” began in December 2002. Approximately seventy “statement takers” were recruited throughout the country. Most were drawn from various sectors of civil society, such as NGOs and religious institutions. Attention was paid to ensuring that a significant percentage of the statement takers were women. Fluency in local languages was one of the main criteria in the hiring of statement takers. The statement taking proceeded until March 2003. Approximately 7,000 statements, mainly from victims but with a not unsubstantial number of perpetrators, were compiled. The statements were
analysed in order to identify “window cases,” that is, representative statements that served to illustrate important aspects of the conflict. All of the statements were also coded and entered into a computerized data base for the purpose of statistical analysis.

The second phase, known as the “hearings phase,” began in April 2003 and continued until early August 2003. Many of the hearings brought together victims and perpetrators for what were sometimes quite dramatic exchanges, and the occasional public reconciliation. These hearings were held throughout the country, often in isolated towns that were only accessible by helicopter. Other hearings focused on thematic issues, such as the media, the legal profession, governance, and corruption.