Set to Fail?:

The Effectiveness of Truth Commissions

“The appeal of truth commissions has not waned, but they face serious challenges, not limited to post-conflict situations.”— Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff

Truth commissions have become a powerful and popular tool to help societies as they transition out of war and conflict. In the last 32 years, 33 truth commissions have been established to investigate past human rights abuses committed during periods of conflict or repression.

The first truth commissions were implemented in post-authoritarian transitions, as in Latin America’s Southern Cone. The first commissions established in post-war conflict settings as a result of peace negotiations were in El Salvador (1992) and Guatemala (1994).

Some suggest that implementing commissions in a post-conflict environment is more challenging than in a post-authoritarian context. Conflicts entail diverse patterns of violations by several different armed agents, in some circumstances blurring the distinction between victim and perpetrator.

Identifying Tendencies

A truth commission does not substitute a judicial process, cannot clarify everything that has not been addressed in a courtroom, and is not designed to let perpetrators off the hook. —Fernando Travesi, ICTJ Deputy Program Manager, and  Félix Reátegui, former ICTJ Senior Associate, Truth and Memory Program.

By examining the practices of truth commissions that have been set up around the world, we can point at some current trends that have a direct influence in the commission’s ability to succeed.

1. Overly Ambitious Mandates

A mandate for a truth commission is its foundational legal document (which usually takes the form of a decree or bill), giving the truth commission its structure, direction, and authority.

Truth commissions today tend to be more complex, with:

• Ambitious objectives
• More functions
• Larger scopes of inquiry
• More powers
• Larger commissions that represent all sectors of society

Additionally, truth commissions are generally implemented under conditions of less-than-ideal political support and scarce resources.

 

 

2. Extensive Social Consultations

Consultations are formal processes of dialogue between government institutions and civil society that are conducted to gauge views, obtain proposals, and determine conditions for future engagement with a truth commission. They may take the form of meetings with representative civil society leadership, public opinion surveys, focus groups, and public fora.

Consultative approaches to creating and operating a truth commission are one of the strongest elements usually cited as good practice. It is important to consider means, goals, and context before implementing a consultation. Consultations have the potential to create a perception of a legitimate, effective truth commission.

However, consultations can slow down truth commissions to the point where they are incapable of achieving their mandate. For example, in Côte d’Ivoire, extensive consultations were held with the public to determine the truth commission’s thematic mandate. However, by the time they were completed, the truth commission’s legal expiration date had already passed.

 

 

3. Legislative Passage of Mandates

In recent years, there has been an increase in the creation of mandates through laws, rather than decrees.

Means of Stablishing a Truth Commission, By Year (Click image to enlarge)

This could be because the growing complexity of commissions may require an instrument stronger than an executive decree and because some may see legislative creation as a stronger source of democratic legitimacy.

However, attempting to establish a truth commission through a law may increase its risk of failure if:

• The mandate does not pass in the legislature
• The integrity of the mandate is compromised

 

 

4. Setting Reconciliation as a Goal

It has become increasingly common for truth commissions to consider reconciliation (or restoration of friendly relations between conflicting parties) as an objective, in the hope that examining and recognizing the past will contribute towards a more peaceful society.

Truth Commissions with Reconciliation as an Objective (Click image to enlarge)

However, reconciliation is often an ambiguous goal that can introduce significant confusion in the mandate of truth commissions and sometimes create misplaced expectations or fears among the public.

The idea of reconciliation can create legitimate fears that victims will be forced to forgive perpetrators and relinquish their rights to effective remedy. The UN Special Rapporteur on truth, justice, reparations, and guarantees of non-repetition has warned against using reconciliation as a way to force or coerce victims into waiving their rights.

Additionally, reconciliation is often focused on nation-wide understanding between groups. However, sometimes transnational reconciliation may be necessary, either between two different countries or between two nations that were forcibly partitioned as a result of conflict.

 

 

Additional Factors

Timing:

A truth commission may have greater ability to help shape discourse and attitudes if it is created in the immediate period after the end of the conflict, to help legitimize further measures for justice and reparations.

Sequencing

Post-conflict justice mechanisms, such as truth commissions, reparations, institutional reform, and criminal prosecutions, do not have to be executed simultaneously. In fact, it may be more time and resource-effective to execute each institution in a sequential method. If policies are implemented together, political resistance against one measure could jeopardize all policies.

Managing expectations

It is important to make an effort to sustain dialogue among stakeholders beyond the peace accord or legal mandate to make clear the potentials and limitations of truth commissions. Without this, there may be overly optimistic public discourse or actors who feel threatened. For example, former child solders may be afraid to participate in a truth commission because they worry that it could be used as evidence in a criminal prosecution against them.

Cooperative decision making

It is important to be flexible during the peace negotiation process and to use international experiences for guidance. Although it is important to identify international standards that are indispensable, there are a number of practices that may not be automatically transferable from one experience to the next. It is important to stay focused on the ultimate goal: establish a truth commission that is independent of political patronage, credible in its work and findings, and ultimately effective to put in motion necessary policy changes.