A. Understanding truth and reconciliation commissions

A truth and reconciliation commission is an official form of inquiry into the event or events surrounding a massive abuse of human rights. Usually a truth commission is created by the government of the nation that has undergone the violations, but it can also be formed by a non-governmental organization (NGO) or the United Nations, or a combination of these entities. The concept is fairly new, and to date there have been more than twenty of these commissions created in various forms and stages, all with different names and mandates.

The idea behind a truth commission is that after a period of severe abuse of human rights, as in the case of a violent era of disappearances, civil war or years of massacres, a society needs a forum in which victims and their families, as well as witnesses, can share their stories and begin to heal from the suffering and devastation. Further, a truth commission's findings become a permanent record of investigation, evidence and testimony that can later be used in courts and elsewhere as a reminder of the events of an era of human rights abuse.

While legal mechanisms and political change may bring a civic form of justice, there is also a need for ‘truth-telling' of some fashion, so that the individuals involved and affected can be heard and therein compensated for their pain. The philosophy behind having a truth commission involves a belief in the healing power of truth, as a tangible report of the history of the abuses is published and disseminated for people around the world to read and understand. A massive violation of human rights is more than a crime, it is an abuse of human dignity and therefore needs resolution that the courts alone cannot provide. A truth commission therefore contributes to finding justice for the victims and their families by publicly admitting the atrocity in all its detail as well as allowing for those involved to give their testimony and then move forward. It is only when the truth is acknowledged and justice sought, that reconciliation within a society can occur. Reconciliation is ultimately the work of civil society, not the governments or the courts. It is in this concept of reconciliation that the potential of these commissions lies.

A short history of the Argentine and Chilean commissions is given below. The most important aspect of these commissions relate to the role played by civil society in the commissions' inception and progress. These should be noted and readers should consider the implications for Asia, particularly with regard to the issue of caste discrimination.

Argentina

In Argentina, under the military junta's 'Dirty War' that lasted from 1976-1983, some 10,000 people were disappeared at the hands of the state. The military detained, tortured and executed anyone deemed 'threatening' to the authoritarian regime, specifically targeting young liberal intellectuals, although people of all careers and social standing were killed. State officials murdered pregnant mothers, threw drugged victims out of airplanes and secretly tortured and killed thousands without ever even admitting that they had been detained at all. This secret siege continued for seven years under a total lack of rule of law, for the military had nullified habeas corpus and dissolved the congress, granting itself immunity. However, with the help of a growing human rights movement in the country, after their defeat in the Falklands War of 1982, the military's power declined enough to force them out of power in 1983. Raul Alfonsín of the Radical Civil Union party was then elected president and the 'dirty war' was officially over.

Since the beginning of the military's campaign of forced disappearances in Argentina, various groups were active in the struggle to obtain information concerning the victims and to stop the abuse, organizing themselves into what became a highly effective movement for human rights in Argentina. Of the groups demanding justice, the Mothers of the Plaza de Mayo stand out as a triumph of grassroots activism and dedication. Founded in 1976 by a woman who eventually disappeared herself, the 'Madres' came together, as mothers of disappeared children, in order to mourn their losses together and to demand information and change through protests. They gathered each week at the Plaza de Mayo, in front of the Casa Rosada (presidential palace) and held signs with photos of the disappeared while they demonstrated against the government.

The Madres continued their outspoken condemnation of the regime through forming a huge organization of families and friends of victims that found and distributed information concerning the victims, spoke with international agencies, and published evidence of the abuses and murders committed by the Junta. Their partner organization, the Grandmothers of the Plaza de Mayo, was also hugely successful in their cause, eventually working with the National Genetic Data Bank and the National Commission for the Right to Identity to reunite children who had been kidnapped and given to military officials with their biological families. The Madres still come together every Thursday at 3:30 at the Plaza de Mayo, and have received international acclaim and support for their persistent demands for justice and truth.

The Argentine truth commission:

As a result of such active individuals and groups in Argentine civil society who demanded a formal investigation into the disappearances, President Alfonsín formed CONADEP in 1983, which consisted of thirteen Argentines from various walks of life on the political and social spectrum. After nine months of intensive investigation and documentation, the 1984 Nunca Más report was published. The commission received no information or assistance from the armed forces despite numerous attempts to interview military officials. The final document consisted of some 50,000 pages that formally found 8,960 persons missing, although these numbers do not reflect the information that came to the commission after the initial stage of gathering testimony. While the commission was unable to detail in depth the massive number of cases handled, it did mention the names of all known victims, added individual testimony from various witnesses, recounted the history of the repression and made recommendations for future action. The final report sold 300,000 copies, became a national best seller and began a pattern of official truth telling that has been growing ever since, in the form of some twenty truth commissions and their subsequent reports, most of which have in some form imitated the structure of the Nunca Más report, that was the first of its kind.

Chile

In Chile in 1973, three years before the beginning of the repression in Argentina, the Chilean military staged a coup d'etat against socialist President Salvador Allende. Allende supposedly 'committed suicide' in the La Moneda presidential palace, and Agosto Pinochet, with the help of the United States, was installed in power. From 1973 to 1976, some 3,000 Chileans disappeared without a trace, after which both domestic and international pressure eventually forced the government to stop the torture and murder it had been committing for the past three years. While at first the country was too confused and shocked to organize any decisive action against the oppression, finally the efforts of various domestic and international human rights organizations forced the regime to stop its campaign of disappearing its citizens.?

The Church yields enormous power and credibility in Chile, therefore, when it denounced the dictatorial regime, Chile attracted the attention of international organizations that respect the legitimacy of the Chilean Church as well as the religious leaders who endow the Church with incredible authority as a governing body. The Committee for Peace (Comit?pro Paz), an activist organization of the Church, was founded immediately after the coup d'etat took place. This committee gave legal assistance to 15,313 cases and medical assistance to 16,992 people throughout Chile. After Pinochet ordered the dissolution of the Committee for Peace in 1975, the Vicariate of Solidarity (Vicaría de Solidaridad) of the Catholic Archdiocese of Santiago was founded in 1976 as a replacement committee. Helping families as best they could, this organization recorded testimony from witnesses and bravely spoke out against the disappearances.?lt;/p>

In 1975, the Foundation of Social Help of the Christian Churches (FASIC) was also created, and slowly the growing opposition to the government became more confident in its local movement against the dictatorship in Chile. Unlike Argentina, Chile gained most of its local support for human rights from these Church-related organizations. Leaders from the Church were among the first to speak out against the violations and they gathered the initial information, including testimony concerning the disappeared, that became the foundation for the formal truth commission's report.

Along with the Church were a handful of local organizations that came to be widely considered by the international human rights community as among the most effective groups working under a dictatorship. In 1974 the Group of Relatives of the Detained and Disappeared was created, and was one of the first groups of its kind ever founded in Latin America. Several other local organizations also joined the struggle, including a Chilean branch of Amnesty International and The Committee of Defense of the Rights of the Pueblo. What began as initial opposing reactions turned into a highly organized movement known world-wide, even more so than in Argentina. Chile had the benefit of hindsight, having learned that when civil society became active in Argentina, they were highly effective. However, Pinochet did remain in office until he was defeated by election in 1989, after which Patricio Aylwin became president and created the National Commission for Truth and Reconciliation in 1990.

The Chilean truth commission:

The Chilean Truth and Reconciliation Commission was comprised of eight members, four of which actually supported Pinochet, with the other four supporting the opposition. The Rettig Report (named after the head commissioner), which had nine months to complete its work, was published seven years after the Nunca Más report, and actually covered sixteen and a half years of state oppression, nearly double the amount of time covered by the Nunca Más report. Chile had a much smaller number of disappearances to investigate and record, and therefore was able to manage a much more detailed account of the disappearances, describing with admirable accuracy the location of the abuses and biographical information of almost all of the victims. Each chapter also included any victims of abuse by the leftist guerrillas, in an effort to record all violations committed, including the relatively small amount of abuses committed by the leftist 'insurgency' against agents of the state. However, those who survived their torture (estimates are anywhere from 50,000-200,000 people) were not included in the report. The goals for Chile were 'prevention' and 'reparation' of crimes committed, and the Chilean Commission had learned from the experience in Argentina that a commission could not attempt to solve every problem related to the era of the disappearances. A reasonable course of action could be sustained by limiting the mandate of the report to fact-finding and truth telling.

The commission put much emphasis on the recommendations section of their report, highlighting the need for trials of the perpetrators by an independent judicial body, revisions to the criminal procedural code (both civil and military), as well as reparations for the families of victims and an adherence to international standards of human rights. In the end, the crucial importance of the commission was not in the report itself, but rather the information and suggestions provided by the document for legal action and political change.

POINTS FOR REVIEW

1. What were the deciding factors in the end of the Chilean era of disappearances and the Argentine 'dirty war'?

2. Discuss the role of civil society in both the Argentine and Chilean fight for justice.

3. What lessons did the Chilean commission learn from Argentina? How did these lessons make the commission more effective?

While both the Argentine and Chilean commissions dealt with military regimes, and were established after the fall of these regimes, this does not always have to be the case. In fact, there have been several instances in Asia and outside, where such commissions were established to look into crimes other than those committed by military governments.

As mentioned earlier, the concept of truth and reconciliation commissions is still fairly new, and is thus evolving. This being the case, perhaps in Asia, these commissions can evolve by taking up more unconventional issues such as caste discrimination. Although there has been some international talk regarding the formation of a truth commission in Burma, which is also currently under a military dictatorship, this lesson would like to focus instead on the issue of caste discrimination, which is a larger and more complex issue. (To know more about the situation in Burma, and the prospects of a truth commission there, read the article in the appendix of this lesson.) Before focusing on caste discrimination though, let us first look into the success of the Argentine and Chilean commissions, and see what Asia can learn from them.

One of the main political obstacles to the establishment of such commissions in Asia is that the governments involved (whether passively or actively) in the gross human rights violations occurring throughout the region today, are still in power. In many cases these governments are authoritarian in nature. As it is the government that is most often the body that must instigate such a project, including providing the funding and resources, for this reason, the few truth commissions/inquiries that have been established in the Asian region (Sri Lanka, Philippines, Nepal, South Korea), have either failed to issue a comprehensive final report or have dissolved without much progress.

• Most Asian countries not only lack strong civil society organizations that are able to channel opinion, support victims and demand justice, but also lack any real 'people's movement'.
• The purpose of having a truth commission is to find answers to questions concerning the history of events and fate of the victims of human rights violations; the culture of denial and silence in many parts of Asia makes this aspect of having a formal truth commission quite difficult.
• The general censorship and lack of reliable information, combined with a fear of speaking out on the part of victims, witnesses and even those who would be involved in the truth and reconciliation process, make the formation of such commissions in many Asian countries very tedious.
• In Asia there is no visible 'need' for the healing of a society, as even when the truth about human rights violations is known it is merely forgotten or erased. And in too many cases, the truth is not even made public. The victims of the violations suffer in silence. There is no sense or expectation of justice, so forgiveness is never an issue.

A combination of the above factors has led to varying degrees of success to truth commissions in Asia. The three examples below illustrate this

Nepal

Nepal created a commission to deal with abuses of the Panchayat system (1962-1990), but amidst controversy over qualifications of the first commission head, this commission was dissolved. Then two of the commissioners of a second commission resigned and so the commission was generally unsuccessful, even though in 1994 the Commission of Inquiry to Find the Disappeared Persons did produce a report on the abuses of the Panchayat system (1962-1990). Of course, most of its recommendations were never implemented.?

South Korea

In 2000, President Kim Dae-Jung formed the Presidential Truth Commission on Suspicious Deaths (http://truthfinder.go.kr/eng/index.htm) to investigate deaths of citizens opposed to past authoritarian regimes in South Korea. By September 2002 the commission had investigated 82 cases. Only 19 of these were recognized as deaths by government agencies, while 33 cases were dismissed out of hand and in 30 cases the commission was unable to discern the facts due to its limited investigative authority. Similarly, it had no authority to prosecute the perpetrators. Even when cases were brought to trial, justice was not necessarily obtained: in one case where the commission clearly established that a student was beaten to death by the police, the district prosecutor was able to get an acquittal by using selective testimony.?

A second commission is now in progress, its mandate ending in June 2004. Civic organizations in South Korea are campaigning for the commission to be made permanent and for it to be given more authority.

Sri Lanka

In November 1994, President Chandrika Bandaranaike Kumaratunga appointed three Commissions of Inquiry into the Involuntary Removal or Disappearance of Persons to investigate disappearances beginning in 1988. The commissions looked into the cases of 16,742 people, and submitted a single final report to the president in September 1997. Eventually the final report was made public, compensation paid to the relatives of some of the victims, and over 400 members of the country's security forces were duly charged with human rights violations. However, most of them were never prosecuted.

POINTS FOR REVIEW

1. Which of these commissions do you see as the most successfull? Why?2. Compare these commissions to the Argentine and Chilean ones. If you were to go back and recreate one of the above commissions, how would you do so differently?

D. Lessons to be learnt

In the end, it is for each Asian civil society to decide whether or not it is ready to hold these commissions for the massive violations that have occurred in so many Asian countries, and that are sadly, continuing to occur.

What can Asia learn from the Argentine and Chilean commissions?

One member of the Chilean commission, Jose Zalaquett noted that, "Most of [the relatives of the victims] stressed that in the end, what really mattered to them was that the truth be revealed, that the memory of their loved ones not be denigrated or forgotten, and that such things never happen again." These requests are common among the families of victims of human rights abuse, and can be served in part by the production of a report that details the past and provides a guide for a new future without state repression.

After a state recovering from a repressive past considers all possible options, it is the right to truth that is most often demanded by those still living after massive human rights abuses. The silence of a nation that denies its past only corrupts its chances at reconciliation. The truth commission is founded on the right of the victim and her family to know the truth about what happened. Of course, the truth commission is merely a beginning; it must be followed by the implementation of the commission's recommendations and the information compiled must be used to prosecute the perpetrators. The truth revealed by the commission must be continuously used to seek justice. In the end, the intrinsic value of the truth commission is its focus on the individual victim, because only those who suffered can forgive. And it is only through forgiveness can we become free.

Keeping this in mind, it would be useful for us to note certain aspects of the commissions and consider how they could be improved upon/used in our own context:

Neither commission report ever mentioned the individual names of perpetrators, nor had any legal authority to subpoena people to court. Further, neither report offered amnesty in exchange for information. The South African Truth and Reconciliation Commission later introduced this concept in a successful attempt to improve upon the earlier commissions which barely received any crucial information from military officials.

Neither report was meant to replace proper criminal trials or political action; they were both a public record of victim and witness testimony, as well as a written history of human rights abuses to be used as a part of the reconciliation process.

A key obstacle for the Chilean and Argentine commissions was the concept of impunity that was written into the law. Pinochet had declared himself senator for life, and in addition granted both himself and all state officials general amnesty for any crime committed before 1978. Similarly, Alfonsin, feeling pressure to compromise with the ex-military government, enacted two amnesty laws that resulted in a total barrier to justice concerning the cases of the disappeared, because the military had no legal obligations to divulge information concerning the fate and whereabouts of the victims.

Nonetheless, the truth commissions were able to set a precedent of publicly announcing abuses and therefore condemning the state for its crimes on a domestic and international scale.

As mentioned previously, much of the pressure to create the truth commissions in both Chile and Argentina came from civil society organizations such as the Mothers of the Plaza de Mayo (Argentina) and the Church (Chile). Not only were these organizations active in supporting the victims during the era of human rights abuses, but they were just as active after the military regimes lost power in demanding justice.