Two Instruments of Justice – A Comparison between Truth- and Reconciliation Commissions and Court Proceedings
Truth- and Reconciliation Commissions (TC) were developed during the second half of the 20th century as new instruments to reappraise war atrocities. TCs are put up and authorized by a state as independent organs that investigate serious crimes and violations of human rights which were committed during an armed conflict or dictatorship. They are not judicial bodies and aim at a societies coping with a particular period of violence, the investigation and exploration of a particular period of violence as well as TCs try to integrate both the victims and former low-level perpetrators and to reconcile former enemies in a society. They essentially focus on victims, their needs, experiences, views and preferences in contrast to conventional court proceedings. The literature and experts disagree whether a TC or a court proceeding (CP) is the suitable measure to cope with the legacy of atrocities of war as both measures have their specific advantages and disadvantages. This essay compares both instruments of justice with reference to their different tradition and history, their dissimilar focus and attention, their diverse powers, and, ultimately, the instruments unlike approaches to influence and to contribute to societies in a lasting way.
A first major difference between a TC and a CP is diverse history and tradition. The first CPs were already developed in ancient Greece, the birthplace of democracy, although the CPs at that time were not yet the CPs we know from today. Their authority was usually limited and their methods of conviction were dubious at best. However, they established themselves as important pillars in states and have played a major role in societies since the days of the Roman Empire. The CPs’ golden age started at the end of the 18th century when the concept of nation-states, the separation of powers into a legislative, executive and judicature and the rule of law became more and more prominent. Unfortunately, there were dark periods in the past when law was either abused and changed or abolished as happened during the German Third Reich or in the Soviet Union and China under the reigns of Stalin or Mao. However, CPs which interpret and apply the law in order to carry out the administration of justice in accordance with the rule of law, have established themselves as indispensable, reliable and trustworthy instruments of justice which ameliorated their way of just prosecution and punishment to a maximum. They are instruments of justice with a long tradition and history whereas TCs are inventions of the present time. They were developed during the 1970s as new instruments to work up atrocities of war. However, their concept was not prominent until the mid-1980s even though the first TC was already implemented in 1974 in Uganda. Like the CPs, they suffered under teething troubles, too, as their mandate and authority was often only limited or that they did not enjoy an adequate treatment by the respective country they were established in. The first globally recognized TC was set up in 1983 in Argentina for investigating the mass killings and kidnappings under the previous military dictatorship. Since this time, they have been established worldwide and became more and more prominent for investigating human rights violations. Probably the most prominent examples are the TC’s in Chile investigating the Pinochet-era and the South African TC which investigation the crimes committed during the apartheid-era. Until today, 51 TC’s were established in opposite to CPs as thousand of proceedings are held every year in most countries worldwide.
A second decisive difference between a TC and a CP is their particular concentration on victims or perpetrators respectively. In order to work up a particular period of violence of a country, a CP usually focuses on the perpetrators, individuals that have committed serious war crimes and specific cases of crimes against human rights for which evidence is available. The conviction of perpetrators, aimed at bringing juridical justice, is the main focus and interest of a CP. In this context, a CP concentrates its attention on the perpetrators and tries to prosecute and to sentence those, who are mainly responsible for war crimes. However, it is not unusual that most of high-level perpetrators get off scot-free so that the satisfaction of victims often remains unanswered. Therefore, a TC is particularly victim-centered and as such represents a host-like status towards victims. It is the only instrument that represents a place where victims can tell their stories, views, needs and experiences as they are heard and their stories are noted down in public or private hearings. TCs can thus help victims to assimilate their experiences easier. The recording of the victims’ stories can also help to determine potential perpetrators and to prosecute them through the testimony of victims. As a further step, telling ones story can lead to a judicial conviction as well. Furthermore, the possibility for victims to tell their story can result in a societal acknowledgement of the victim’s faiths, which again might lead to a better reintegration of them in the society. Normally, victims then have much better chances to claim a (financial) compensation for their faiths due to an official acknowledgement.
However, only official CPs actually have the juridical power to prosecute, and to sentence perpetrators effectively and to ensure that they get a just punishment. In a democratic society, a CP is by a state legitimized, independent organ – separation of powers is an essential keyword– whose task is to investigate the guilt of an accused person and, if there is proved evidence for the person’s guilt, to sentence such a person in a just way. Consequently, it is equipped with particular measures through its legitimated juridical power. Due to its officially legitimated character, a CPs decisions and judgments are nationwide valid as it considers only the facts and evidences without prejudices or the influence of emotions, although a CPs decision can be contested in through higher authorities. In this context, a CP tries to guarantee that everyone enjoys the same rights and an objective treatment. TCs merely have a “moral” but no legal power to convict perpetrators as they are no judicial bodies, although their establishment is usually based on an extensive mandate authorized by the respective state. A TCs “moral” power consists of the occasion to drop names, which means that names of perpetrators for whose committed crimes absolute evidence is available are published and are made open to anybody. Usually, such names are “dropped” in the final report which a TC normally publishes and which documents its results. Such name-dropping can lead to public denunciation and conviction by the society through societal sanctions such as the exclusion and disregard of perpetrators. Furthermore, it needs to be mentioned, that usually only names of high-level perpetrators are published because they normally come-away scot-free and without any punishment. However, neither it is ensured that naming names lead to further investigations and prosecutions or that the recommendations given in the final report will be realized adequately nor that the application of a lynch law to named perpetrators by parts of the populations is prevented. In this context, a TCs decisions and judgments do not have the legitimated power to prosecute or to realize their decisions on its own in contrast to a CP.
As a CP particularly focuses on the perpetrators, its main task is to sentence the accused individual with their legal power and therefore bring juridical justice. In most cases, CPs were developed to concentrate their attention mainly on individuals and specific cases where crimes have been committed and for which absolute evidence is available. Juridical justice is significant for a country’s stability as a just CP not only represents a pillar of democracy but also gives a population the consciousness to be secured by a functioning judicature that ensures ones rights. However, the procedure of legal proceedings was not constructed to prosecute, hear and convict as many cases as possible. Even if they would be, not even all the courts in Chile, for instance, would have been sufficient to hear all the cases of committed crimes during the brutal dictatorship of Pinochet and to pronounce a verdict for all of them. The suitability of a CP to really cope sufficiently and in an extensive way with committed crimes during a particular period is therefore dubious, whereas a TC might have the necessary far-sightedness to cope with the legacy of a period of crimes in a sustainable way. While a common CPs aim is the prosecution of individuals, it is not the primary objective of a TC as it mainly concentrates on victims, their stories and their acknowledgement and reintegration in the society. Therefore, a TC more has the societal collective in its vision. This means, primarily, that the publication of the victims’ testimonies and thus the spreading of the absolute truth might result in an extensive acknowledgement of the victims and their faiths as well as it might result in an acknowledgement of the committed crimes of a former regime. This leads to an increased awareness of the committed wrongs of a society. Feelings of guilt result in a new consciousness of a society to correct and to improve former bad situations in order to reach an extensive social solidarity and reconciliation. Ultimately, the reintegration of victims and low-level perpetrators in the society is a decisive step to reach this. As a second consequence a TCs aim for a united collective which is based on a correction of a historiography of an affected country. A truthful writing of history is decisive for a country’s dealing with new critical situations that threat the (democratic) political system as it emphasizes social balance, solidarity and claims for reconciliation. ´
Some say that TCs have contributed to truth, justice, reparation, reform and reconciliation significantly and thus have earned a justifiable privileged place in the arsenal of responses to mass atrocities while others on the other hand emphasize that TCs are important but only are a sort of second-best deterrent measures and that court proceedings are more acknowledged and thus effective and just. While there is disagreement among the specialized literature, I, personally, think that TCs are much more than a second-best measure to cope with the legacy of war atrocities. Effective and just court proceedings or better said a well functioning judicature as an instrument to bring judicial justice is an absolute necessity in a society transitioning to a fully developed democracy. CPs are suitable measures to cope former war atrocities by prosecuting and convicting high-level perpetrators. They are, however, unsuitable if viewed in a broader societal context. CPs do not aim at a societal reconciliation or an extensive spreading of the full truth or the rectification of the societies views of the happenings in the past and especially they do not concentrate on the victims. TCs usually try to correspond to all of those criteria. In my opinion it is decisive that they are victim-centered and as such represent a place where their voices are heard. The conviction of perpetrators is necessary to keep the balance within a society but the victims themselves are not heard in an appropriate way all too often. Therefore, TCs indeed have earned a justifiable privileged place in coping with consequences of war atrocities. With regard to this, it is questionable why TCs have not yet become a more common tool to cope with the legacy of a period of war.
