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Conflict and Resolution: Selected Articles

Page history last edited by editor 9 years, 10 months ago


 

An Inconvenient Truth by Pranav Bhattarai


My Republica | Published on 2010-12-27 01:00:27 pbhattarai2001@gmail.com

 

A country emerging out of conflict with grave violations of human rights faces a complex challenge of effectively healing and dealing with past wounds. As an approach to deal with the turbulent past, formation of a Truth and Reconciliation Commission (TRC) has helped many countries navigate through the process of healing, justice, forgiveness and amnesty in post-conflict settings. As all victims of crimes against humanity, torture, extrajudicial executions and enforced disappearances have a right to truth, constitution of the TRC is mandatory in post-conflict scenario. More than 30 countries in the last 25 years have established truth commissions as official, temporary and non-judicial fact-finding bodies to investigate and prosecute a pattern of rights abuses and war crimes to establish facts about them, which have often been an "inconvenient truth" for the perpetrators. 


Nepal has been into the peace process for four years now. But no such commission has ever come in sight except the proposed TRC Bill in the legislature-parliament. The delay in TRC formation has distanced the prospects of justice to victims of past conflict. People are waiting for reparation and justice for past crimes and abuses. The truth commission is a globally accepted "redress mechanism" to address people´s past traumatic experiences, hear testimonies from the witnesses, victims of the conflict and provide transitional justice and healing as required. But political apathy is gradually dissipating the prospects of legal redress to various injustices of past conflict. 

WHY IS TRC NEEDED?

Establishing the fact about past crimes is often an inconvenient truth for the perpetrators because the changed post-conflict settings continue to influence while defining powers and functions of the TRC. The political transition process will determine the extent to which the former perpetrators remain in power. The greater the power of former perpetrators, the more limited the investigative power of such commission will be. As political parties of the past regime and the former rebels are powerful entities in Nepal now, maintaining impartiality of the TRC would pose a great challenge to us as well. Therefore, reducing political influence on TRC´s performance has to be a major concern. And whether healing or justice approach will be taken by such commission should also be decided in advance to enhance the TRC´s effectiveness. 

Our failure to provide "restorative justice" and satisfy the expectations of justice of conflict victims through Truth and Reconciliation Commission will have serious ramifications on peace-building and democratic transition.


The TRC is not about fixing blame but about accepting the tragic events of the past, bringing past to a closure and moving together into a better future. It is about acknowledging the tragedy of the past, of those disappeared or killed or displaced. Basically, two types of mechanisms are in practice in different countries. They are truth commissions and war crime tribunals. Many countries such as Chile, El Salvador, Guatemala, Argentina, South Africa, Sierra Leone, Honduras, Haiti, Chad, among others, have preferred truth commissions to war crime tribunals. The TRCs have helped facilitate democratization process and balance the moral and legal obligations of the transitional civilian governments in these countries. 

When victims of conflict are denied justice, the underlying feelings of resentment and revenge don´t get completely alleviated until the perpetrators publicly acknowledge the wrongs. A spate of mortal attacks on Maoist cadres by unidentified groups in some parts of the country is an expression of feelings of revenge by people because of delay in redressing the wounds of the victims and families of the dead during the conflict. This attests to the inevitability of the TRC as important as the peace process itself. 

Any efforts to trivialize the value of TRC will only backfire, especially on the Maoists, in the years to come. In an environment where there is no acknowledgement or accountability for past crimes, tensions in the society continue to persist. Therefore, dealing with the violent past is vital for transition to democracy from the ashes of conflict to pave the way for a peaceful coexistence, social harmony and understanding among the perpetrators and the victims in the social integration process that we frequently talk about. 

Transitions to democracy are rarely possible without some form of amnesty for crimes and human rights violations of the past conflict. Equally, in the context of protracted armed conflict that is ended by negotiations like ours, neither party is likely to completely give up amnesty provisions. Whether an amnesty has been declared prior to the establishment of a commission or will be passed after it has finished its work, whether this amnesty is unconditional and effective for all ranks or conditional upon cooperation, these factors provide a frame for TRC´s legitimacy and effectiveness. 

Without some form of amnesty, the commission will probably encounter widespread and serious opposition from previous perpetrators. But also with a priori amnesty provision, the commission may appear a "scarecrow" with no punitive and restorative power. As our proposed TRC Bill too has priori provisions for amnesty, the commission´s effectiveness and success can´t be ascertained now. However, the best practices from successful TRCs in many countries may serve highly-informative in our context as well. 

BEST PRACTICES 

Out of 20 TRCs as the most active during the last 25 years, cases from Argentina, Chile, South Africa, El Salvador and Guatemala are the most successful and comprehensive examples. Thus, it would be interesting to observe powers and functions of these TRCs, difficulties faced by them while establishing truth and documenting facts on past war crimes while addressing victims´ grievances. 

The National Commission on Disappearance of Persons in Argentina comprehensively investigated and documented facts of rights violations and forced disappearances committed during the military dictatorship from 1976 to 1983. The commission completed its task in 1984 virtually opening doors to the trial of the military juntas. A 50,000 page-long report documented each and every individual case in a numbered file and recorded enforced disappearances of about 9,000 persons from 1976 to 1983. It was also reported that about 600 people were disappeared and 458 were assassinated by death squads such as the Argentine Anticommunist Alliance during the Peronist governments from 1973 to 1976. 

Likewise, National Commission for Truth and Reconciliation in Chile probed human rights abuses resulting in death or disappearance during military rule under Augusto Pinochet from Sept 11, 1973 to March 11, 1990. The report released in February 1991 determined that 2,279 persons were killed for political reasons. In 641 cases, the commission could not determine whether they were killed for political reasons. It found 508 cases beyond its mandate and no information except the name of a disappeared person could be determined in 449 cases. Among other cases, it investigated the 1989 assassination of leader Jecar Neghme concluding that he was assassinated by Chilean intelligence agents.

Truth and Reconciliation Commission of South Africa was given much power to avoid victor´s justice because of which no side was exempt from appearing before the commission. The commission heard reports of human rights violations and considered amnesty applications from all sides, from the apartheid state to the liberation forces, including the African National Congress. The commission had power even to grant amnesty to those who committed abuses during the apartheid era, as long as the crimes were politically-motivated, proportionate, and there was full disclosure by the person seeking amnesty. A total of 5,392 people were refused amnesty and 849 were granted amnesty, out of 7,112 petitioners.

The United Nations established Truth Commission in El Salvador to investigate human rights abuses of the civil war from 1980 to 1992. The commission received testimony from 2,000 people in relation to 7,000 victims, and gathered information of about 8,000 victims from secondary sources. It received 23,000 additional written statements, selected 13,569 cases out of them and highlighted 32 cases illustrating the worst patterns of violence by the armed combatants, death squads and the Farabundo Marti Liberation Front. Five days after the commission issued its report, the Legislative Assembly of El Salvador approved an amnesty law covering all the violent events of the war.

Similarly, the Historical Clarification Commission in Guatemala was also more comprehensive in its power, which even interviewed former heads of state and ranking members of the armed forces, heard testimonies from thousands of survivors and even exhumed secret mass graves. Finally, the report titled Guatemala: Memory of Silence was published in February 1999 that identified a total of 42,275 named victims; of these, 23,671 were victims of arbitrary executions, and 6,159 were victims of forced disappearances. It found that Maya Native Americans accounted for 83 percent of the victims, and that 93 percent of the atrocities were perpetrated by the armed forces from January 1962 to December 1996.

Without providing justice to the victims of conflict during the peace process, there will never be peace and social harmony. Our collective failure to provide "restorative justice" and satisfy the expectations of justice of conflict victims through TRC will have serious ramifications on peace-building and democratic transition. As more time passes on, it would be difficult to establish the truth. Therefore, the urgency of such commission should never be underestimated, delayed and denied because it will precariously undermine our efforts to create a democratic polity and destabilize social harmony and cohesion in post-conflict transformation process.

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