Transitional Justice Forum: Views of Liberia's TRC

July 16, 2006

Views of Liberia's TRC

Posted by Helena Cobban at 09:07 | TrackBack

Amnesty International has recently published a thought-provoking 80-page report that examines the legislative basis of Liberia's new TRC in light of the country's international human rights obligations. It is titled Liberia: Truth, Justice, and Reparation - Memorandum on the Truth and Reconciliation Commission Act (AI Index: AFR 34/005/2006), and is available here.

Francesca Pizzutelli, the Legal Advisor of Amnesty International, wrote to me recently, "The memorandum is also intended to contribute to the wider debate about the role of human rights law in the establishment and functioning of truth commissions and other transitional justice mechanisms." I am happy to push that debate forward by posting that link to the memorandum here, in the hope that TJF readers can also further enrich to the debate by contributing to the comments board here.

In memo's Introduction, AI's own position is defined as follows:

Amnesty International welcomes the establishment of the Truth and Reconciliation Commission. To overcome its painful and violent recent history, Liberian society must critically face the reality of past violence and violations of human rights. Transition to lasting peace and the rule of law must be based on truth, justice and reparation. The organization hopes that the Commission will be one of the key building blocks in this process of transition, playing an important role in providing a full account of the human rights violations committed during the conflict, contributing to their investigation and eventual prosecution, preventing their repetition, and ensuring that victims and their relatives are granted full reparation.

Later, it notes,

In general references, Amnesty International uses the term "truth commission" in preference to "truth and reconciliation commission". This is because, while some form of reconciliation may be the desired outcome of a truth-telling process over the medium or longer term, that cannot be imposed by either a truth commission or any other body or procedure... In using the term "truth commission", however, Amnesty International notes that, as commissions of inquiry, truth commissions have the task of investigating and publicizing facts, particularly facts which have hitherto been hidden or misrepresented, rather than uncovering the ‘truth’ in an historical or philosophical sense.

As longtime TJF readers might have guessed by now, I for one don't believe that that needs of "reconciliation": can be disposed of so neatly. After all my experience of having lived in and also studied societies plagued by chronic, atrocity-ridden violence, I conclude that the establishment of a sustainable and rights-respecting political order going forward is the most important task that these societies face; and in order to do that, the needs of inter-group reconciliation must be placed in center stage. In the absence of such reconciliation no system of governance can emerge that can provide any guarantee that people's most basic human rights-- including those to life, liberty, and physical security-- will be assured.

The AI authors, by contrast, simply sweep the needs of reconciliation aside in that very cavalier fashion. Instead of recognizing any link at all between reconciliation and the establishment of a rights-respecting order going forward, they focus on other dimensions in which they argue that truth commissions can help atrocity-plagued states to meet their human rights obligations under international law, as follows:

Amnesty International has particularly followed the work of the truth commissions in Chile, Timor-Leste, Ecuador, El Salvador, Guatemala, Haiti, Morocco, Nepal, Nigeria, Peru, Sierra Leone, South Africa, Sri Lanka and Uruguay. On the basis of this experience, the organization considers that truth commissions can help to ensure a state’s compliance with its obligation to respect, protect and fulfil the right of victims of human rights violations to an effective remedy. This obligation includes three elements:

Truth: establish the facts about violations of human rights that occurred in the past;
Justice: investigate past violations and prosecute the suspected perpetrators;
Reparation: provide full reparation to the victims and their families, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

There is a reference there to the "Basic principles on the right to a remedy and reparation" that were adopted by the UN General Assembly in resolution 60/147 of 16 December 2005. The memo also, soon after, cites something that UN Secretary General Kofi Annan said in March 2003:

"There are times when we are told that justice must be set aside in the interests of peace. It is true that justice can only be dispensed when the peaceful order of society is secure. But we have come to understand that the reverse is also true: without justice, there can be no lasting peace".

(That quotation certainly bears further unpacking and examination. In my view, the second sentence is a very important one-- and it is in no way over-ridden or negated by the third one. Just how the interests of "peace" and "justice" are to be reconciled in war- and atrocity-scarred societies is something Annan apparently did not expand on there.)

The AI document tells us that in order to meet those three goals in the fields of truth, justice, and reparation, "societies emerging from a history of crimes under international law and other serious human rights violations should create a long-term strategic action plan, developed and led at the national level." This is excellent as far as it goes. I am fully in favor of the various national "societies" taking and implementing these very serious decisions as much as possible on their own, without having the range of their choices constricted by international bureaucrats, aid donors, or other outside actors. But by speaking about national "societies" rather than national "governments" the document once again, it seems to me, elides the all-important question of how the antecedent political differences within those societies are thought to have been resolved. (Just to reiterate one of my main arguments here: Where there are atrocities on the scale addressed by international law there are nearly always, in the present era, serious concurrent political differences. We are not talking about basically settled societies in which a single small group of sociopaths acts out its sick fantasies. We are talking about societies reeling from deep recent political differences that may or may not have been sustainably resolved at the point that the enactment of transitional justice measures comes under consideration...)

I do not, alas, have time to go through the whole of the AI memo with this same degree of care. I did, however, look at the section it has (secn. III-C) that specifically addresses the question of whether and how the Liberian TRC might set about Promoting community and national reconciliation, and I hope to write more about that section later.

The section starts with a quote from the TRC's Chairman, Councillor Jerome Verdier:

"The focus of the TRC will be on the truth more than on reconciliation. Forgiveness is a very personal individual process. The Commission cannot compel anyone to forgive. What Liberia needs to focus on is finding a way to live together as one people in one country. The TRC can help us to learn to live together – it is a step in the right direction".

The memo then continues thus,

The Liberian TRC Act lists one among of the objectives of the Commission as providing "an opportunity for both victims and perpetrators of human rights violations to share their experiences in order to create a clear picture of the past to facilitate genuine healing and reconciliation" (article IV, section 4(b)). In particular, the TRC is given the function of "helping restore the human dignity of victims and promote reconciliation by providing an opportunity for victims, witnesses, and others to give an account of the violations and abuses suffered and for perpetrators to relate their experiences, in an environment conducive to constructive interchange between victims and perpetrators, giving special attention to the issues of sexual and gender based violence, and most especially to the experiences of children and women during armed conflicts in Liberia" (article VII, section 26(f)). The Act also allows the Commission, "where it deems it necessary", to seek assistance from traditional and religious leaders "to facilitate its public sessions and in resolving local conflicts arising from past violations or abuses or in support of healing and reconciliation" (article VII, section 26(q)).

Some truth commissions, most notably the Truth and Reconciliation Commission in South Africa, have designed their activities, in particular public hearings, to provide victims and perpetrators with a forum for public and private acts of reconciliation. Individual reconciliation between victims and perpetrators was seen as conducive to collective, political reconciliation. Undoubtedly, the establishment of the facts is a precondition for, and can help to promote, individual and collective reconciliation. However, reconciliation, both at the individual and at the collective level, cannot be imposed by either a truth commission or any other official body or procedure.

The memo then cites a 2006 document from the United Nations High Commissioner for Human Rights titled Rule of Law Tools for Post-Conflict States: Truth Commissions (UN Doc. HR/PUB/06/1, 2006) as saying this:

"While some countries have constructed a truth commission around the notion of advancing reconciliation – or have seen such a commission as a tool that would naturally do this – it should not be assumed that such an inquiry will directly result in reconciliation either in the community or in the national or political sphere... Reconciliation is usually a very long and slow process, and the work of a truth commission may be only a part of what is required."

It then proposes AI's own recommendations on this matter:

If the Liberia TRC decides to adopt specific procedures to promote individual reconciliation, such as traditional mechanisms of conflict-resolution, it is essential that they fully respect the rights and dignity of both victims and alleged perpetrators. In particular, victims and their families should not be forced to meet alleged perpetrators or to engage in any act of reconciliation. On the other hand, reconciliation procedures should not be at the expenses of fair trial: they should not involve specific punishment or humiliation of alleged perpetrators.

As I said, I do plan to write more about that portion of the memo later. But in the interest of getting the broader discussion started here as early as possible, for now I will just post this introduction to the topic.

Comments

I think this post gets at one of TJ's "dirty little secrets": what exactly are we talking about when we use the word "reconciliation"? You call it "inter-group reconciliation," but this still does not really define what reconciliation might look like or how to go about effecting it.

Intuitively, I think many of us assume the work of truth commissions is inherently linked to the project of reconciliation, but do we have any kind of research to support this link? The field of TJ and post-conflict states would both benefit from this.

I echo your concerns about AI's view that truth, justice and reparations should be "developed and led at the national level," though for slightly different reasons. First, the problem is not only political differences at the state level, but often complete or partial state failure. So, relying on the state, whether it is divided or simply not functioning, is extremely problematic. Secondly, a top-down approach is not ideal; TJ should be as much driven by the needs and concerns of local communities as it is by state governments. Consider the backlash in South Africa by many who felt that the negotiated settlement and subsequent TRC was negotiated amongst black and white elites to benefit themselves, rather than the populations they purport to represent.

Just my two cents. Thanks for posting this!

By the way, anyone can follow the work of Liberia's TRC at http://www.trcofliberia.org/

Posted by: Courtney Cole at July 28, 2006 10:24 AM

Courtney, I do think some people and institutions have done some good work in looking at the constituents of satisfactory, sustainable reconciliation... E.g., the Institute for Justice & Reconciliation in Cape Town. One can also track it at the country level using the kinds of metrics developed by the Swisspeace FAST system (see e.g. here and here), or the Fund for Peace.

Having said which, I should note that most people working in the classic TJ institutions (war-crimes courts and truth commissions) seem not to have spent very much time at all looking at these issues systematically...

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Posted by: veigue at May 12, 2007 10:40 AM

I want to grant versimilitude to the statement of Amnesty International that " to overcome the painful violent recent history,Liberian society must critically face the reality of past violence and violation of Human Rights." As the situation appears in Liberia, it does not seem that the current TRC is capable of unearthing the past by critically investigating the role played by certain personalities currently in high government offices proir to, and during the Liberian crisis. This maybe due to the structural error in the composition of the TRC.

In addition,the Liberian TRC's tenure of 2years under the Legislative Act is about to expire and the various massacres have not been investigated in order to understand what really happened and why it happened. The process of conflict transformation where the victims and the perpetrators are often seen on a larger scale in the aftermath of a war, is held in abeyance in the Liberian case. Some people saw Charles Taylor as the problem and since he is out of the picture, all is well,therefore the process of reconcilliation can take a snail pace, it does't matter. This assertion is not justifiable. The truth is, the TRC should free itself from government's favor, and carry out its mandate without fear or favor so as to gain both local international supports. It is better to act now in the presence of the international forces in Liberia and document the causes of the conflict, as well as take future preventive measures.This will help curtail the culture of impunity.

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