How do truth commissions and human rights trials interact to facilitate or constrain transitional justice efforts? How might these interactions be affected by different sequencing choices and by legacies of violence and its termination? This article outlines a theoretical framework, and suggests that holding simultaneous truth commissions and trials could offer the advantages of both approaches while mitigating the disadvantages of each. However, contextual factors will be crucial.
There are three main areas of theory regarding trials in transitional contexts: 1) moral arguments about punishment; 2) the consequences and difficulties of individualising guilt; 3) and the effects of trials on social and political systems. There are also two major critiques of the political effects of trials: first, that criminal prosecutions may impede peace and create instability; second, that prosecutions may be illegitimate expressions of asymmetrical power – ‘victor’s justice’.
Many of the theoretical foundations for truth commissions are embedded in the critiques of trials. There are three clusters of theoretical debates about truth commissions: 1) moral arguments relating to the demands of survivors for an accounting of past wrongs (critiqued by arguments such as the moral duty to prosecute and the potential for harmful effects); 2) theory on the value of a public truth (critiqued by the argument that establishing a truth based on singularity or finality is not always appropriate); and 3) arguments about the political and social effects of truth commissions (critiqued by counter-arguments that highlight untested assumptions and the role of power politics in formulating an ‘established truth’).
There are three different sequencing possibilities for trials and truth commissions: trials first, truth commissions first, and simultaneous trials and truth commissions. Each offers possibilities while closing off others:
- Trials then truth commissions: Under this scenario, the establishment of the rule of law and the clear division between the unacceptable past and the hopeful future seems well-served. However, the historical truth may be skewed in the popular imagination toward the trial narrative. Second, prosecutions are generally time-consuming.
- Truth commissions then trials: This approach aims to map the terrain for prosecutions and to frame the violent period in a victim-centred way. However, the formation of the truth commission would have to include or in some way manage the presence of powerful perpetrators.
- Simultaneous truth commission and trials: This approach seems to offer the advantages of both approaches while mitigating the disadvantages of each. Nevertheless, a simultaneous process is bound to meet important barriers, such as in information sharing, given the different concepts of retributive and restorative justice.
Transitional justice institutions are dependent on prevailing political contexts for their operation and legitimacy. The nature of violence or oppression and the manner of its cessation may therefore alter or reinforce the theoretical considerations above. For example:
- The sequencing of trials followed by a truth commission is likely to take place under conditions of power disparity. It is likely that the atrocities of one side will be prosecuted and those of the other side obscured.
- However, provided that enough time has elapsed for a truth commission to not be threatening to a political order, it may expose important truths that were overlooked in the trial phase and help contribute to restorative justice.
- Where the truth commission precedes prosecutions, the power dynamics are likely to be more balanced because of the way in which the conflict was terminated.
- The truth commission may be seen as a palatable compromise for both sides. For prosecutions to occur in this context, the political situation must become sufficiently stable to withstand the pressure.
- Coexisting trials and truth commissions are likely to occur in conditions of military victory, revolutionary overthrow or international primacy.
- Simultaneous operation may lead to public confusion and unclear expectations. A further challenge is transparency. Among other factors, clear and realistic standards for amnesty provision, and effective public consultation and communication would be required.
