Truth and Consequences - Council on Foreign Relations · Truth and Consequences foreign affairs.March /April 2002 [131] 15 Tepperman.pp128-145FIX* 1/30/02 3:17 PM Page 131. also suggests

a brief history of truthSince September 11, most talk about international justice hasfocused on what to do with Osama bin Laden and his al Qaedaterrorists, if and when they are caught. The debate over militarytribunals, international trials, and similar concerns arising from theAfghanistan campaign, however, has obscured what is perhapsthe greatest recent innovation in post-transition justice: the rise oftruth commissions. Few have yet started clamoring for such a panelto catalog the Taliban’s various oªenses; Afghanistan is still far toochaotic and violent, its government far too tentative. But this lack ofa truth commission in Afghanistan bucks the trend. Elsewhere, suchcommissions seem to be springing up with amazing regularity.

On taking o⁄ce in October 2000, for example, one of the firstthings Vojislav Kostunica, Yugoslavia’s first freely elected president,did was announce the creation of a truth commission to investigatethe crimes committed during the wars of Yugoslav succession. Ninemonths later and half a world away, Alejandro Toledo made a similarpledge the day he was elected to replace the autocratic Alberto Fujimorias Peru’s head of state. Unthinkable just a short time ago, such gesturesnow accompany practically every transition from civil war or author-itarian rule. Announcing the creation of a truth commission has becomea popular way for newly minted leaders to show their democraticbona fides and curry favor with the international community. In themonths between Kostunica’s and Toledo’s announcements, for example,ten other commissions were started, in countries ranging from Bosniato East Timor and Panama to Sierra Leone.

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Truth and Consequences

Jonathan D. Tepperman

Jonathan D. Tepperman is Senior Editor at Foreign Affairs.

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The truth business, in short, is booming. A new academic disciplinehas sprung up to study the commissions, with courses on the topicnow oªered at New York University, Harvard, Michigan, and Columbialaw schools. Numerous books and articles on the subject appear eachyear. And last March, the world’s first truth commission consultingfirm—the International Center for Transitional Justice (ictj)—setup shop in a Wall Street o⁄ce suite.

Despite their swelling popularity, however, almost everythingabout the truth commissions—including their missions, compositions,and outcomes—is now the subject of intense debate. And much ofthe criticism has come from the most unlikely of sources: the mainstreamhuman rights community, which not long ago enthusiastically supportedsuch projects around the world.

trial and errorMore than 21 truth commissions have run their course since 1974.Not surprisingly, their objectives and structures have varied dramatically,as have their results. Still, a few generalizations can be made. Developed

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ap / wide world photos

The pain of remembering: a South African victim of police torture testifies

to the Truth and Reconciliation Commission, Johannesburg, November 1997


primarily in Latin America during the 1980s, truth commissions aretools that traumatized countries use to set the historical recordstraight. The commissions allow newly democratic nations to investigatethe crimes of the past, overturning the lies told by previous regimesto cover up their abuses. Most importantly—and this helps explainboth their popularity and controversy—truth commissions do all ofthis without holding trials.

This lack of trials is an essential aspect of the commissions’ identityand a lightning rod for supporters and critics alike. The commissionsgenerally operate without judges, courtrooms, and the cumbersometrappings (and safeguards) of legal procedure. Unlike courts, they do notseek punishment or retribution. Often given the power to grant someform of amnesty, their task is to uncover just what happened to whomin the past, and why. Who did it, however, is rarely stressed. Few truthcommissions name names of violators, and when they do it is for pur-poses of moral and perhaps social censure—but never legal retribution.

One might think that this inability to punish would make com-missions extremely unpopular. In fact, it has done just the opposite.After all, trials, the standard mechanism for arranging punishment,are a far from perfect way to establish transitional justice. The upperlevels of the outgoing regime often demand immunity from prosecutionas part of the transition deal. And even after repressive governmentsleave o⁄ce, their civil servants—including judges, prosecutors, andpolice—usually remain in place. This makes practical sense, since newdemocracies cannot aªord to purge all their experienced technocrats,but it inevitably results in less vigorous investigation and punishmentof old crimes. Trials, moreover, with their high standard of proof andextensive evidentiary requirements, are complicated and expensive,and fledgling governments tend to be strapped for cash.

Even in countries eager to confront the past, trials have turned outnot to be a good way of doing so. At their best, prosecutions forhuman rights crimes are limited in number and selective in scope.The Allied-sponsored Nuremberg trials, for example, covered 85,882individual cases but secured only 7,000 convictions—and this for theHolocaust and all other Nazi atrocities. Moreover, trials focus not ongeneral social or economic forces, but on individuals, and one set ofindividuals at that: namely, the perpetrators and not their victims.


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Truth commissions, in theory, are supposed to address all theseshortcomings. By forgoing the right to dispense punishment theymake themselves less objectionable to members of the old regime. Byavoiding prosecutions, they can delve widely into institutional injusticesin the past. And by broadening their focus, commissions allow victims,not just violators, to tell their stories—something thought to have apowerful healing eªect on those who have suªered. This, at least, ishow truth commissions are supposed to work. In practice, the com-missions’ results have been mixed, and their operations have oftenbeen manipulated and politicized. And thus, as the panels proliferate,an intense debate has broken out over whether they cause moreproblems than they solve, and whether they deserve internationalsupport—or condemnation.

Some of the outcry has come from predictable sources, such asformer strongmen or their apologists, who argue that it is better toleave the past behind than reopen old wounds. Harder to ignore arethe increasingly strident critiques emanating from truth commissions’erstwhile allies in the human rights community. Commissions aredeals with the devil, these critics charge—flawed compromises betweenthose seeking justice and those trying to obstruct it. Even if suchbargains were once necessary, they argue, they are not any longer. Theglobal move toward international justice has now made trials mucheasier to achieve, and commissions only soak up the attention andresources that should be devoted to criminal prosecutions. Finally,critics question the very conceptual basis for commissions: the notionthat one version of past events can be singled out and established as“the truth,” and that, once promulgated, it will lead to national heal-ing or something called reconciliation.

These criticisms highlight a number of awkward dynamics thatcommissions and their advocates too often tend to gloss over. Yet theyalso overlook an essential part of the picture: the depressing realities thatmake compromises in justice necessary in the first place. Transitionalgovernments come into o⁄ce with many priorities and obligationsyet few resources. This fact all but ensures that any approach theytake to the past will be problematic and incomplete. A glance at theexperiences of two recent commissions, in South Africa andGuatemala, reveals just how painful these compromises can be. But it


foreign affairs . March / April 2002 [ 13 1 ]


also suggests what truth commissions, imperfect as they are, can oªer asnew democracies struggle to overcome debilitating traumas in the past.

cry, the beloved countryAsk most people whether they have ever heard of a truth com-mission; if they have, it tends to be South Africa’s. Although neitherthe first nor the most recent, South Africa’s Truth and ReconciliationCommission (trc), which ran from 1996 to 1998, is by far the mostfamous example of the genre.

This celebrity is easy to understand, for South Africa has alwaysstood out in the international imagination. Repressive governmentsusually make some attempt to disguise their bad behavior. Pretoriararely bothered, and it even constructed a full-scale ideology to legitimizeits actions. A bastion of white minority power that persisted longafter settlers had given up elsewhere on the continent, South Africawas a pariah state. Its infamous apartheid legislation, enacted in 1950,enforced rigid racial separation in all aspects of life, legitimized forcedrelocations of black communities, and imposed humiliating restrictions(including the notorious “pass laws”) on nonwhite citizens. When thissystem finally collapsed in 1994 and the country managed a stunninglypeaceful transition to multiracial democracy, the world watchedwith rapt attention.

The trc represented an audacious attempt by the new AfricanNational Congress (anc) government to address the country’s troubledhistory in a nonvengeful way—a remarkable act of grace by people whohad suªered terribly. The commission’s powers, budget, and size wereall unprecedented, far exceeding those of previous and less well knowncommissions in Argentina, Chile, and El Salvador (the models onwhich the trc was based). These unparalleled resources includedsearch-and-seizure powers, the right to issue court-backed subpoenas,and most controversially, the power to grant individual amnesties. Thetrc’s hearings were held in public (also a first), followed by pressconferences, and broadcast daily on the radio throughout South Africaand the world. A weekly TV round-up became a much-watched event.

The trc also profited from the support of two much-belovedfigures—then President Nelson Mandela, a secular saint, and the trc




chairman, Archbishop Desmond Tutu, a religious one. Mandela andTutu’s importance cannot be overestimated: if they, who had bothsuªered so much and led the fight against the old regime, were readyto forgive, surely the nation could follow.

Or could it? Despite the popularity of its spokesmen and thebreadth of its powers, in fact, the commission was dogged by controversyfrom the start. Two aspects in particular drew intense fire. The firstwas the commission’s ability to grant amnesties. Not everyone was askeen on reconciliation as Mandela and Tutu, and many demandedregular trials for the generals and foot soldiers of apartheid. ButSouth Africa’s transition to democracy had come about throughnegotiations between the anc and the ruling National Party of F. W.de Klerk, and de Klerk made it clear from the beginning that hewould never hand over power if trials remained a possibility. As ThaboMbeki, then Mandela’s deputy and now president of South Africa,said in 1997,

within the anc the cry was “to catch the bastards and hang them.” Butwe realized that you could not simultaneously prepare for a peacefultransition. If we had not taken this route [and allowed for amnesties] Idon’t know where the country would be today. Had there been the threatof Nuremberg-style trials for members of the apartheid state securityestablishment we would never have undergone a peaceful change.

The result was a compromise—what Tutu called a “third way”between national amnesia and criminal prosecutions. The new govern-ment decided that it would indeed oªer amnesties for past crimes, butnot the kind of blanket immunity that preceded the truth commissionin Chile or followed the ones in Argentina and El Salvador. Suchamnesties had utterly undermined the work of those commissions.And as Alex Boraine, an Afrikaner and former church leader whoserved as deputy chairman of the trc, has noted, a general absolutionin South Africa “would have encouraged impunity and may even haveled to acts of personal revenge.”

What South Africa oªered instead were individual pardons, onstrict conditions. Perpetrators had to come before the trc’s amnestycommittee and make a full, public confession of their misdeeds. If thecrimes were deemed to be political in nature and motivation, only




then would the perpetrators be granted immunity from all criminaland civil penalties. This bargain lay at the heart of the trc’s project, andit involved an explicit trade: truth for justice. Criminals who madefull disclosure would evade retribution, and victims would be vindicatedby having their stories publicly confirmed. Families would finally findout what had happened to their vanished relatives. And the countryas a whole would learn the exact details of what South Africa’s securityapparatus had been doing but denying for so long.

Not everyone accepted the tradeoª, however. The amnesty provisionwas quickly challenged by Nontsikelelo Biko, the widow of blackrights advocate Stephen Biko, who had been beaten to death inpolice custody. Joined by the families of several other slain apartheidactivists, Biko filed suit in South Africa’s Constitutional Court toblock the amnesty provisions as fundamentally unjust. But the courtruled against her and the proceedings continued.

The commission’s mandate was to investigate not the legality ofapartheid itself but actions that were illegal under that system’s ownlaws. In the end, 21,297 victims or family members gave statements.More than 8,000 individuals applied for amnesty, although few of themwere high-ranking o⁄cials. Hearings covered the behavior of notonly the South African armed forces and police, but also paramilitaryunits and political parties—and even the anc itself during its struggleagainst the regime. When the trc finally issued its report in late 1998,the five-volume document listed widespread abuses over 34 years andmade far-ranging recommendations for the future, including reparationsfor all the victims it identified.

Judging the results of such a complex enterprise is di⁄cult andmay still be premature today, only three years later. The trc itself,however, provides one yardstick for evaluating its eªorts: the principleof reconciliation. This much used (but seldom defined) word permeatedall of the commission’s work. At the first hearing, a huge banner hungfrom the wall reading “Truth: The road to reconciliation.” CommissionerBongani Finca invoked the theme when she opened the session withthe Xhosa hymn “Lizalise idinga lakho” (The forgiveness of sins makesa person whole). And Tutu underscored it as well, emphasizing aChristian theology devoted to rehabilitation, consistently asking victimsif they were ready to forgive, and explaining to participants that “if




you live with hatred and revenge in your heart, you dehumanizenot only yourself, but your community.”

But as to whether there was in fact reconciliation where it matteredmost—among the victims—the answer seems to depend on whichvictim you talk to. Lucas Sikwepere, an anc activist who testified beforethe trc in Cape Town in 1996, had been blinded when the police shothim in the face; they had also tortured him. After relaying his storyto the commission, however, he said, “I feel what has been makingme sick all the time is the fact that I couldn’t tell my story. But nowit feels like I got my sight back by coming here and telling you thestory.” And Beth Savage, who was severely wounded during agrenade attack by anti-apartheid activists on an all-white countryclub in King William’s Town, reported that after confronting andthen forgiving her attacker at a trc session, she was able to sleepwithout nightmares for the first time since the assault. Still other victimsembraced or applauded their persecutors once confessions were made.

Almost every such anecdote, however, can be matched by an oppositestory. Reconciliation was certainly not a priority for Biko’s widow, norwas it much in evidence when, as the commission finished its work,a poll reported that two-thirds of South Africans felt the commissions’revelations had only made them angrier and contributed to a worseningof race relations. A mere 17 percent of those polled predicted thatpeople would become more forgiving as a result of the trc.

Even the commission itself, as its work progressed, gradually seemedto realize that achieving any form of rehabilitation would be far moredi⁄cult than it had assumed, and it began to scale back expectationsaccordingly. Tutu began to argue that the commission had promised onlyto “promote” reconciliation, not achieve it. Even Richard Goldstone—astalwart supporter of the trcand a judge on South Africa’s ConstitutionalCourt—lamented that “national reconciliation is one of those general-izations that doesn’t have a great deal of content. In South Africa todaywe still have a great deal of distance between the two communities. I’mnot sure the truth commission has been all that successful in that area.”

Still, South Africa today is a much healthier country than it wasseveral years ago, and part of this is unquestionably due to the eªortsof the commission. Racial violence is almost nonexistent. Goldstoneexplained, “If we had not had a truth commission, the denials of




apartheid-era abuses by members of the prior regime would no doubtcontinue to this day and still be believed by a large number of people.But in the aftermath of the truth commission, even the hard rightwing of the apartheid regime can no longer deny the worst abuses.”Indeed, the relative success of the trc—in terms of the wealth ofinformation it uncovered and the positive eªects it had—becomeseven more obvious when its results are compared to those of anothercommission, set up simultaneously half a world away under verydiªerent circumstances.

the better part of valorIn 1996, Guatemala looked like it might finally be able to start re-building its shattered society. A remarkably brutal civil war had endedafter 36 years. Under the peace accords, the left-wing rebel forces ofthe Guatemalan National Revolutionary Union were disbanded, thesize of the army was reduced, and several senior military o⁄cers wereforcibly retired. Both sides also agreed to the establishment of an inter-nationally sponsored truth process—the Historical ClarificationCommission (known by its Spanish acronym, ceh). Chaired by asoft-spoken German academic named Christian Tomuschat, the cehaimed to uncover the sources and eªects of a civil war that had goneon for as long as most Guatemalans could remember.

Although the ceh and South Africa’s trc started at almost thesame time, however, they had little else in common. In every waythat South Africa’s was a “strong” commission, Guatemala’s wasweak. It had no search-and-seizure power, no ability to subpoena,no right to hold public hearings, and it could not name perpetrators.It was preceded, moreover, by the passage of 13 blanket amnestylaws that oªered immunity for all but the most serious humanrights crimes.

These weaknesses in the ceh’s mandate were deliberate. The post-war Guatemalan government was fragile, and even after the signingof the peace accords, right-wing elements remained extremelypowerful in the country, especially within the military. The framersof the ceh feared that an overly aggressive commission would bedefied, thus complicating its work and undermining its legitimacy.




Tomuschat put the dilemma simply: “Even if we’d had subpoenapower, people just wouldn’t have shown up.”

Still, many human rights advocates, including Guatemalan BishopJuan Gerardi Conadera, bitterly criticized the ceh’s inability to namenames. Tomuschat himself admits that this restriction kept his com-mission from “penetrating to the heart of the evil.” But the limitationwas accepted because of fears that specific accusations would lead themilitary to insist on an amnesty for all crimes—as had happened a fewyears before in neighboring El Salvador. And according to GregGrandin, a professor of Latin American history at Duke Universitywho advised the ceh, the anonymity provision ended up having a salutaryeªect. “It forced the commission to find other ways to address theviolence,” he argues, such as looking into the broad social forces andinequities that contributed to the civil war in the first place.

Ceh regional o⁄ces were set up throughout the country andrepresentatives fanned out to find victims, often hiking to remotevillages to take statements. The commission asked the U.S. government


corbis - bettmann

Required reading: Desmond Tutu presents the TRC report

to Nelson Mandela, October 29, 1998


to declassify and provide its own documents relating to the civil warand succeeded in getting much of what it wanted. The Guatemalanmilitary stonewalled and some of the commission’s employees wereharassed, but in the end they managed to collect 7,200 depositions.

The ceh’s nine-volume final report was released in February 1999,at an emotional ceremony in Guatemala City attended by more than2,000 people. Despite the commission’s limitations, its conclusions

were devastating. The report estimated thata total of 200,000 people had been killedduring the war, a death toll greater thanthose in El Salvador, Nicaragua, Chile, andArgentina combined. The ceh placed theresponsibility for most of the deaths squarely

on the government, reporting that “the violence was fundamentallydirected by the State against the excluded, the poor, and above all, theMayan people, as well as against those who fought for justice and greatersocial equality.” The military and its accomplices were blamed for93 percent of all human rights violations. Most explosive was the report’sdescription of the government’s scorched-earth campaign againstthe rebels, an attempt to break the back of the insurgency by wipingout its Mayan supporters. According to the ceh, this campaignamounted to genocide.

As in South Africa, the conclusions were accompanied by a raft ofprogressive recommendations, ranging from the creation of a nationalholiday honoring the war dead to prosecutions for key perpetrators.The optimism and high hopes that attended the release of the cehreport, however, were quickly disappointed: President Alvaro Arzúsat stone-faced throughout the report’s presentation, refusing toreceive the document himself and sending his low-ranking “peacesecretary” onto the stage instead. Arzú also failed to issue any publiccomment for days afterward, and his government was similarly slowto respond. Then, ten months later, a new president, Alfonso Portillo,was elected in a landslide. Alhough Portillo himself was a populistwith some left-wing credentials, his party, the Guatemalan RepublicanFront, was dominated by his father-in-law, General Efraín RíosMontt, who as the country’s dictator in the 1980s had overseen someof the worst abuses.



Truth turns out to

be a surprisingly

elusive goal.


The election served as a bitter symbol of how little impact the cehhad had on Guatemala, and once Portillo and Ríos Montt took o⁄cethe commission’s report vanished from the political agenda. Virtuallynone of its recommendations have been adopted. According to MarioPolanco, head of a local human rights group, “we have gone nowhere.Nothing has changed. If the question is, ‘Did Guatemala listen towhat the commission was saying,’ the answer is ‘No.’” Meanwhile,the violence continues. In April 1998, two days after presenting theresults of the Catholic Church’s own investigation into the killings,Bishop Gerardi was beaten to death with a concrete brick in thegarage of his Guatemala City seminary. People investigating massgravesites complain of ongoing police harassment, and in recent yearsthe number of abuses in the country in general has risen rather thanfallen. As human rights worker Angel Albizures complains, impunityremains “the chronic disease of the Guatemalan state.”

the truth is out there, isn’t it?Eyeing these mixed results in South Africa, Guatemala, or elsewhere,skeptics have raised four types of general objections to the work oftruth commissions: that history is so murky and subjective that evenwell-intentioned investigations cannot establish anything thatshould actually be called, with a straight face, “truth”; that the panelstoo often focus on individual violations rather than broad structuralproblems; that their work does not lead to reconciliation; and thatthey interfere with, and distract attention from, the prosecutionand punishment of past crimes. A close look at the South African andGuatemalan cases, however, shows that although some of thesecharges have merit, well-planned commissions can nevertheless makean essential contribution to justice and harmony in fragile societies.

The first question, whether historical truth is a reasonable goal, iscrucial. In many cases a commission’s actual findings are its sole lastingaccomplishment—the supreme payoª in exchange for which newgovernments have agreed to sacrifice retribution. And the value ofrevealing the truth is not abstract. After September 11, for example,the most important thing for many of the victims’ families was to findout what exactly had happened to their loved ones. Only once the




truth was discovered could the healing finally begin. By the sametoken, it is argued, an honest accounting of past injustices is essentialbefore shattered societies can start to rebuild.

Yet truth turns out to be a surprisingly elusive goal. One neednot be a postmodernist to recognize that historical narratives arepartly constructed rather than merely discovered, and that powerand interests aªect the process. Truth commissions rarely acknowledgesuch problems, however. In fact, only South Africa’s trc actuallyaddressed this dilemma directly—and it did so in a bizarre mannerthat hurt rather than helped its credibility. The commission’s reportlists four diªerent kinds of truth that it pursued: “factual,” “personal,”“social,” and “healing” varieties. Because only the first of these isrecognizable as the sort of objective, verifiable phenomenon mostpeople think of when they think of truth, however, the list onlyseemed to heighten confusion and skepticism about the trc’sability to produce a single authoritative story of what had transpiredunder apartheid.

Furthermore, commissions have a bad habit of reflecting the prej-udices and agendas of their framers. The trc, for example, placed adisproportionate emphasis on crimes committed against nonblackSouth Africans. This slant was deliberate: even though blacks hadsuªered vastly more than other groups, Tutu wanted the trc to showhow apartheid had aªected all South Africans. As Boraine explainedto me, “[Tutu] said that the major problem in our country is not ablack problem, it’s a white problem. It’s a mixed race, a colored problem.So we mustn’t go strictly on proportionality.” However noble such amotive, unfortunately, giving nonblack victims more attention thanthey statistically “deserved” caused many blacks to angrily questionthe legitimacy of the trc’s findings.

The Guatemalan report, meanwhile, suªered from the reverse bias:its analysis was weighted heavily toward the country’s impoverishedindigenous Mayan community and downplayed the many abusescommitted against the Ladino majority. Some have argued that thisfocus reflected the genuinely genocidal nature of the war, whichaªected Mayans far more than Ladinos. But by minimizing the crimescommitted against one segment of the population, the ceh reportundermined its credibility and opened itself up to political attack.




Such criticisms, while serious, are best answered by the findingsthemselves. And there is abundant evidence that even imperfect truthcommissions produce a wealth of previously unknown informationregarding events that many people care about passionately. Families andfriends have learned what happened to loved ones who “disappeared,”and victims have had their charges legitimized. This can have aprofound impact on suªerers. In South Africa, for example, manyanti-apartheid activists were tortured into giving “confessions” byhaving a wet bag placed over their heads until they reached the pointof asphyxiation. For years, the police steadfastly denied using this tactic,illegal even under apartheid law, until one lone constable finallyadmitted it to the trc. The impact of his admission on his victimswas intense; many spoke afterwards of feeling profoundly exoneratedand vindicated by the revelation.

Columbia University’s Mahmood Mamdani, however, has leveleda somewhat diªerent charge: that the trc was not so much unable tolocate the truth as it was unwilling to do so. The legislation thatfounded the commission, he notes, directed it to investigate only“gross violations of human rights.” But the commission interpretedthis mandate too narrowly, using it as an opportunity to avert its gazefrom the broader criminality of the system itself and the racial inequitiesit perpetuated. Such choices explain why the trc avoided economicinjustice and documented only 21,000 victims—what Mamdani callsa “laughable” figure.

Boraine, among others, has defended the trc’s narrow scope bypointing out that the commission had only a short period of timein which to complete its work. “If we were to address the overallconsequences of apartheid, we would need 20 or 30 years.” Still, thetrc limited its focus so narrowly that, as Mamdani bitingly explains,“[it] ended up acknowledging as victims only political activists. Butapartheid wasn’t about political activists; it was about ordinary people.The only reconciliation the trc can now expect is between two elites.”

This hardly means that the trc report was a total failure. The factthat both de Klerk and Mbeki challenged it in public and in courtsuggest that it got something right. But Mamdani’s critique doeshighlight the consequences of the choices that commissions makeand raises questions about what exactly is meant by all the talk of




reconciliation. Is reconciliation supposed to occur among individuals,interest groups, the nation as a whole? How and why, and can theprocess be measured? And what does the word itself mean?

David Crocker, a researcher at the University of Maryland, definesreconciliation narrowly, as the absence of open conflict—mere“nonlethal coexistence.” The political scientists Amy Gutmann andDenis Thompson are more expansive, defining it as democratic decision-making and reintegration. Antjie Krog, a journalist who covered thetrc for South African radio, provides a more useful framework whenshe argues that advocates of reconciliation really want a return to thesort of social consensus or harmony on which the smooth functioningof society depends.

In both South Africa and Guatemala, however, such a return hasproven next to impossible, largely because the societies never workedproperly to begin with. Krog writes, “In this country, there is nothingto go back to, no previous state or relationship one would wish to restore.In these stark circumstances, ‘reconciliation’ does not even seem likethe right word, but rather ‘conciliation.’”

Reconciliation, then, turns out to involve much more than mereforgiveness; to achieve it seems to require far more than truth telling.In fact, the reconciliation project could better be described as “nationbuilding.” Such a process involves addressing fundamental socialinequalities. That is a task for politics, however, and not one that truthcommissions—however broad their mandate—can hope to accomplish.

the soft optionIf truth commissions tend to achieve somewhat less than theiradvocates like to think, then the final charge against them—that theyovershadow and undermine prosecutions—becomes more important. Itsuggests that trials are being traded for a much less eªective alternative.

It is very possible that such a trade was once legitimate. In the mid-1980s, when truth commissions were first developed, internationalhuman rights trials were not really a possibility, and even domestictrials were extremely rare. The idea of prosecuting a former head ofstate for abuses committed while in o⁄ce seemed both ludicrous andbarred by judicial precedent. After leaving o⁄ce, former dictators were




far more likely to end up on the French Riviera than in the dock. Thealternative to truth commissions then was not prosecution, but impunity.

Today, however, both national and international human rightstrials have become far more common. Consider the prosecutionof Chile’s Augusto Pinochet, for example, or Belgium’s conviction ofRwandan nuns for complicity in that country’s genocide. Argentinahas finally begun to bring charges against its military for the “dirtywar” that it fought against leftists in the 1970s. Given this trend,human rights workers are now urging transitional governments andthe international community not to give up on justice so quickly. KenRoth, executive director of Human Rights Watch, criticizes the trcas a “necessary compromise that was a compromise nonetheless”—and should not be repeated. And Aryeh Neier, president of the OpenSociety Institute, warns that “eªorts to promote truth commissionshave become a way of avoiding eªorts to do justice.” There are limitsto the international community’s generosity, patience, and attentionspan, and commissions risk exhausting these before trials are ever held.Reed Brody of Human Rights Watch cites as an example the case ofHaiti, which was told by international donors that it would get nosupport for prosecutions of past crimes because a truth commissionfor the country had already been funded.

Some governments, moreover, have turned to commissions preciselyin order to put oª—and eventually escape—formal legal proceedingsthat could spark confrontation with members or agents of the oldregime. This avoidance has led observers to wonder whether the voguefor commissions is actually a step backward rather than forward.

Truth commission advocates such as Priscilla Hayner and AlexBoraine, both of whom are now professional truth-commissionconsultants at the ictj, deny there is any necessary opposition betweencommissions and trials. The two processes, they argue, are comple-mentary, not mutually exclusive. Hayner points to the fact that inboth Argentina and Chad, evidence uncovered by truth commissionshas been used in subsequent prosecutions. “You’ll find that truthcommissions increase the possibility of prosecutions rather than theother way around,” she promises.

So far, at least, there is little evidence to support this claim. EvenSouth Africa, which has a fairly well-functioning court system, has




not managed many successful trials for apartheid crimes. One high-profile conviction of a notorious government hit-squad leader namedEugene de Kock (known by the nickname “Prime Evil”) was followedby the equally high-profile acquittal of the defiant apartheid-eraDefense Minister Magnus Malan. And in Guatemala the record ismuch worse. Few trials have even been attempted, and where theyhave, judges have been subjected to death threats and attacks. Askedwhether there is a causal connection between the work of the truthcommission and the small number of prosecutions, Paul Seils, a Scottishhuman rights lawyer working in Guatemala, argues that the eªect ofthe ceh report was to reduce international pressure on the country.In turn, that step made it easier for the government to avoid shininga spotlight on the past. Although there may be no inherent or necessaryopposition between truth commissions and trials, therefore, the formerdo seem to make the latter less likely.

no mean featIn the end, truth commissions face two basic types of problems:those that are avoidable and those that are inherent. The first relateto how commissions are established, conducted, and followed up. Itshould be possible, at least in theory, to minimize these problems fornew commissions by learning from the experiences that are rapidlyaccumulating. Future truth commissions, in other words, need not letthemselves be abused by dictators for political purposes, narrowlylimited in their mandates, accompanied by general amnesties, or setup in such a way as to diminish the likelihood of trials.

The second type of problem is less easily sidestepped, however.Reconciliation turns out to be tremendously di⁄cult to achieve or evenunderstand. Truth too often remains elusive. The most appropriateresponse to such problems, however, should be not to blame thecommissions for what they cannot accomplish, but to appreciatethem for what they indisputably can. Although they may not havelived up to the giddy promises of their founders, for example, boththe Guatemalan and the South African commissions made invaluablecontributions to the health of those countries. Thanks to the trc andthe ceh, basic facts about apartheid in South Africa and the civil war




in Guatemala are now part of the general historical record. De Klerk’spolitical career has been ruined and he will never return to o⁄ce. Evenin Guatemala, a country slipping back toward chaos and gangsterism,the genocide of the 1980s is now impossible to deny.

And South Africa, at least, is a diªerent country because of thetrc’s collective national therapy. Harmony may not reign, but asProfessor Jakes Gerwel, the chancellor of Rhodes University, argues,“notwithstanding the complex divisions and diªerences of varioussorts, levels, and intensities, [it] is decidedly not an unreconcilednation in the sense of being threatened by imminent disintegrationand internecine conflict.” The fact that there have been no revengekillings in the country since the trc started its work almost certainlysays something about what kind of impact the commission has had.

Critics of commissions too often make the best the enemy of thegood and confuse the way they think the world ought be with the wayit actually is. Of course the commissions reflect compromises amongthe various goals of new democracies, and of course the results areimperfect. But that is because the goals themselves—to find out whathappened, punish the guilty, unite the country, put the past behind—are often fundamentally irreconcilable. The commissions’ imperfectionsstem from the imperfect situations out of which they arise.

Justice, moreover, remains a scarce commodity. Despite recentadvances, for most human rights abuses trials of any kind remain along way oª, and achieving accountability remains extremely di⁄cult.Too often, the choice faced today is not between truth commissions andtrials, but between truth commissions and nothing. For everyAfghanistan—now the focus of a huge international eªort—there aremany Sudans and Sierra Leones, of little interest to the world at large.In such situations, well-designed truth commissions, embedded in somelarger political process, can make a crucial contribution to history,justice, and democracy. As Harvard’s Michael Ignatieª has written, “allthat a truth commission can achieve is to reduce the number of lies thatcan be circulated unchallenged in public discourse.” This may well betrue. But in the real world, where lies proliferate and too many victimssuªer in silence, airing the truth can be a powerful remedy indeed.∂




Truth and Consequences - Council on Foreign Relations · Truth and Consequences foreign affairs.March /April 2002 [131] 15 Tepperman.pp128-145FIX* 1/30/02 3:17 PM Page 131. also suggests

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