1
TRUTH COMMISSIONS, TRANSITIONAL JUSTICE,
AND CIVIL SOCIETY
David A. Crocker
(Forthcoming in Robert I. Rotberg and Dennis Thompson, eds. Truth v. Justice: The Moral Efficacy of
Truth Commissions: South Africa and Beyond (Princeton, NJ: Princeton University Press)
Many societies seeking a just transition from authoritarian regimes or civil wars to
democracy have employed official truth commissions to investigate systematic violations of
internationally recognized human rights.1
These abuses – which include extrajudicial killing,
genocide, disappearance, rape, torture, and severe ill treatment – may have been committed
by a previous government against its own citizens (or those of other countries), by its
opponents, or by combatants in a civil or international armed conflict. Recently utilized in
South Africa and Guatemala, such investigative bodies have been employed in at least 20
countries and are being considered for such nations as Bosnia, Cambodia, Indonesia, and
Kenya. Truth commissions can contribute to achieving many important goals in societies
during the transition to democracy. But, as we shall see, they must be supplemented by
other measures and institutions, such as trials and judicial punishment.
This paper will first clarify eight goals for reckoning with past wrongs and, in the light
of this framework, assess the strengths and weaknesses of official investigatory bodies.
Second, the paper shows that a nation's civil society – especially when it practices public
deliberation or deliberative democracy – is often indispensable to the success of truth
commissions and, more generally, to reckoning with past wrongs. Third, the essay contends
that international civil society may play a useful role in advancing the goals of national truth
commissions and transitional justice.
2
The Challenge of Transitional Justice
The question of “transitional justice,” as I shall be employing the term, is how should a
fledgling democracy reckon with severe human rights abuses that earlier authoritarian
regimes, their opponents, or combatants in an internal armed conflict have committed?
Sometimes the term “transitional justice” is used to refer exclusively to penal justice and
even to retributive interpretations of trials and punishment. I employ the term more broadly
to cover in addition such concerns as compensatory, distributive, and restorative justice.
The challenge for new democracy is to respond appropriately to past evils without
undermining the new democracy or jeopardizing prospects for future development.2
Societies in transition to democracy have employed many means in reckoning with
human rights abuses that a prior regime or its opponents have committed. In addition to
domestic trials, amnesties, and investigatory bodies, these measures embrace but are not
limited to international war crime tribunals; social shaming and banning of perpetrators from
public office (“lustration”); public access to police records; public apology or memorials to
victims; reburial or reparation of victims; literary and historical writing; and general or
individual impunity (the ignoring or accepting of past violations).
To decide among these tools, as well as to fashion, combine, and sequence them, a
society ideally should consider what it is trying accomplish as well as its institutional and
political capabilities and limitations.
Strengths and Limitations of Truth Commissions
To evaluate truth commissions as one kind of measure, as well as any particular truth
commission, requires standards of assessment. What standards should be used and where
should they come from? In earlier essays, I clarified and defended a plurality of goals that
3
have emerged from worldwide moral deliberation on transitional justice.3
In the present
essay I employ these goals as criteria to evaluate truth commissions and to indicate where
such bodies need to be supplemented or corrected by other tools.
1. Truth. To meet the challenges of transitional justice, a society should investigate,
establish, and publicly disseminate the truth about past atrocities. What Alex Boraine calls
“forensic truth“ or “hard facts”4
is information about whose moral and legal rights were
violated, by whom, how, when, where and why. Given the moral significance of individual
accountability, the identity of individual perpetrators should be brought to light. There is
also what has been called “emotional truth” – knowledge concerning the psychological and
physical impact on victims and their loved ones of rights abuses and the threat of such
abuses. Just as important is less individualized and more general truth, such as reasonable
interpretations of state actions and those of its opponents, as well as causal explanations of
the chain of command, institutional structures, and economic problems that resulted in
rights violations.
Knowledge about the past is important in itself. One way to make this point is to say
that victims and their descendants have a moral right to know the truth about human rights
abuses. Moreover, without reasonably complete truth, none of the other goals in transitional
justice, to be discussed presently, are likely to be realized. Appropriate sanctions are
impossible without having a reasonable certainty about the identity of perpetrators and the
nature of their involvement. Public acknowledgment must refer to specific occurrences,
while reparations presuppose the accurate identification of victims and the kinds of harms
they suffered. If reconciliation in any of its several senses is to take place, there must be
4
some agreement about what happened and why. Former enemies are unlikely to be
reconciled if what count as lies for one side are verities for the other.
It is not enough to discern the truth; the truth also should be accessible to the public,
especially if it is to contribute to other urgent goals such as public deliberation. Some
commissions – in order to safeguard witnesses if not the commissioners themselves – have
been forced to conduct their hearings and deliberations in private. South Africa’s Truth and
Reconciliation Commission (TRC), however, has been particularly successful in making its
activities public and transparent: it gathered testimony in various locations throughout the
nation; its proceedings have been accessible to many South Africans. The media in many of
the country’s languages extensively covered these activities, especially the hearings on
individual human rights violations and amnesty applications.
Although some truth commissions have “named names,” their chief virtue is discerning
overall patterns, institutional context, and, to a lesser extent, the general causes and
consequences of atrocities. In taking testimony directly from the principals, sometimes not
long after the violations being investigated, truth commissions play an indispensable role in
getting a reasonably full picture of what happened and its ongoing consequences in people’s
lives. Unlike judicial efforts to determine legal guilt or innocence, official investigatory
bodies also can profile examples of moral heroism in the face of barbarism. Proponents of a
truth commission for Bosnia, for example, emphasize the role of such a body in profiling
Serbs that aided their Muslim neighbors (and vice versa): “Against the backdrop of all the
evil that has taken place, the tale of the good is a part of the history to be revealed.”5
Truth commissions, however, also have limitations with respect to revealing truth. In
order to get their work done in one or two years, truth commissions must select only a few
5
among a multitude of cases to investigate in depth. Furthermore, truth commissions usually
lack the power of trials to subpoena and cross-examine witnesses, search and seize
evidence, and independently corroborate witness testimony. Finally, official investigatory
bodies, even when they avail themselves of historical studies, are often disadvantaged in
comparison with historians. For professional historians are likely to have more time and
skill in gaining access to documents, sifting through facts, unmasking distortions and lies,
assessing explanatory hypotheses, and ascribing responsibility.6
One of the most difficult issues for a truth commission with respect to the goal of truth
concerns the issue of whether there is “one truth or many.” Although most “forensic truths”
will be relatively noncontroversial, citizens and even members of the truth commission itself
may differ over comprehensive patterns of interpretation – especially over who or what is
most responsible for atrocities. How should these differences be handled in a truth
commission’s final report? One way, which Chile’s National Commission on Truth and
Reconciliation practiced, is to employ general (and sometimes vague or ambiguous) terms
in order to achieve unanimity at the expense of precision. A second method is to strive for
agreement but also identify issues that remain matters of contention. In a third approach,
which would resemble the practice of the U.S. Supreme Court, unresolved disagreements
would be formulated as majority and minority judgments in the same or even in separate
reports. Although these last two approaches to disagreement would be respectful of societal
pluralism and stimulate further public deliberation, they would have the serious
disadvantage of undermining the authoritative or collective character of an official truth
commission’s final report.
6
2. Public Platform for Victims. In any society meeting the challenge of transitional
justice, victims or their families should be provided with a platform to tell their stories and
have their testimony publicly acknowledged. When victims are able to give their accounts
and when they receive sympathy for their suffering, they are respected as persons with
dignity rather than – as before – treated with contempt. The public character of the platform
is essential, for secrecy about human rights abuses, enforced through violence and
intimidation, was one of the conditions that made possible extensive campaigns of terror.
Depending on the number of testimonies taken and the context in which this is done,
truth commissions often do well in attaining the present goal. South Africa’s TRC took
more than 22,000 testimonies from victims or their families, made its sessions public,
encouraged extensive media coverage, including extensive radio coverage and nightly and
weekly TV recaps of highlights, and maintains a web site.
3. Accountability and Punishment. Full transitional justice requires that there be fair
ascriptions to individuals and groups on all sides of responsibility for past abuses and the
meting out of appropriate sanctions to the perpetrators. Sanctions may range from legal
imprisonment, fines, compensatory payments, and prohibitions on holding public office to
public shaming.
Many questions about responsibility and punishment remain to be answered. How, for
example, should accountability be assigned? How should we understand the degrees and
kinds of responsibility with respect to the planning, execution, provision of material support
for, and concealment of atrocities? How should “sins of commission” be morally compared
to “sins of omission”? To what extent are groups -- particular police units, political parties,
or professional groups such as medical associations -- responsible for rights violations?
7
Without a suitably nuanced view of accountability or responsibility, a society falls into the
morally objectionable options of, on the one hand, whitewash and amnesia,7
or, on the other
hand, the demonization of all members of an opposing group.
Similar questions may be asked with respect to sanctions, whether criminal, civil, or
nonlegal. What types of sanctions are appropriate for what violations, and on what bases?
Should a theory of criminal punishment include a retributive element and, if so, how should
it be understood, can it be distinguished from revenge, and how should it institutionalized in
relation to the other functions of punishment such as protection, deterrence, rehabilitation,
restoration, and moral education?8
At first glance it might appear that truth commissions make no contribution to
accountability and sanctions.9
Indeed, it might be argued that truth commissions are
designed precisely as a morally second-best alternative when attributions of guilt and
punishment are ruled out because of fears that legal prosecution would further divide a
society in need of healing or imperil a new and incomplete democracy by provoking an
authoritarian or military takeover. And societies have often chosen truth commissions when
amnesty or other laws enacted by the prior authoritarian government to protect itself and its
functionaries have (largely) blocked the legal route. Alternatively, some have defended the
claim that truth commissions – and especially the TRC – are not a moral second best but
have advanced beyond penal and retributive justice to something called “restorative justice,”
defined as rehabilitating perpetrators and victims and (re)establishing relationship based on
equal concern and respect.10
This judgment – that truth commissions are incompatible with accountability and
sanctions – is, however, mistaken, for three reasons. First, when a truth commission names
8
the names of (likely) individual and group perpetrators, that commission is contributing to
ending a culture of impunity in which rights violators get away scot-free. In Argentina
those named by that country’s truth commission report, Nunca Mas [Never Again], have
been subject to social stigmatization. Fellow citizens shun former military leaders and
publicly express opprobrium by public cursing and spitting. In South Africa perpetrators
from many walks of life – including doctors and scientists as well as police and military
personnel – have to face their own families who, prior to truth commission hearings, may
have had no idea that their spouses or parents were complicitous in horrendous acts.
Sanctions need not be legal in order to impose a burden and control rights abuses.
Moreover, with respect to holding perpetrators accountable, truth commissions often have
an advantage over trials and legal punishment because – in comparison with the latter – the
former usually can be launched and concluded more rapidly, cost less, and address the
(alleged) crimes of more people.11
Second, as the cases of Argentina, Chile, Guatemala, and South Africa make clear, the
work of truth commissions can be compatible with trials and punishments. In South Africa,
the trial, verdict, sentencing, and imprisonment of police death squad commander and
assassin Eugene de Kock took place just as the TRC began its proceedings.12
In Argentina
and Chile, criminal proceedings followed the publication of each country’s truth commission
report. Hence, those countries that choose to make a just transition by means of official
investigatory bodies need not forgo the additional tool of trial and punishment. Even more,
in South Africa trials and truth commissions worked together, for the threat of trial and
punishment was a powerful incentive for those suspected of atrocities to apply for amnesty
and tell the truth. As an editorial in a South African newspaper observed in 1996, “the
9
perhaps unintended combination of judicial stick and truth commission carrot has emerged
as a potent force in flushing out former operatives who have adopted a wait-and-see-
attitude.”13
Third, truth commissions often contribute directly to judicial processes by which
perpetrators are held legally accountable and sanctioned by fines, imprisonment,
compensation to victims, community service, or prohibitions on public careers. The
Argentine and Chilean truth commissions recommended to their respective judicial
authorities that certain individuals be prosecuted and the commissions provided evidence for
judicial processes. Furthermore, the Amnesty Committee of the South African TRC has
rejected amnesty requests from and urged prosecution of persons whom the Committee
judged to have lied, violated rights with nonpolitical intent, or caused harm disproportionate
to the agent’s political aim. And, of course, those who never applied for amnesty are
subject to legal prosecutions and civil suits.
Guatemala’s CEH, initially criticized because its mandate prohibited it from having any
judicial intent or effect, surprised most observers when it took advantage of provisions in
Guatemala’s National Reconciliation Law (NRL) that held that amnesty could not be
granted for genocide, torture, and forced disappearance. Finding that state agents
committed acts of genocide against the Mayan people in four locations in 1981 to 1983, the
CEH was not content merely to recommend further investigation (by government and civil
society) of those disappeared, exhumation of bodies, and reparations. It also urged trials
and -- for those found guilty -- punishment for those who committed those acts in violation
of the international Genocide Convention and not exempted by the NRL amnesty
agreement.14
10
Finally, insofar as a truth commission makes recommendations to remedy the earlier
causes of rights violations, it is in a good position to help transform the judicial system and,
thereby, increase the possibility of fair judicial processes and punishment in the future.15
Hence, a truth commission’s success in getting at the truth is compatible with and often
contributes to the assignment of responsibility and imposition of legal and other sanctions.
While truth commissions have particular merit in promptly addressing the causes and
consequences of systematic abuses and the related contours of collective responsibility,
trials are more suitable for holding accountable individual political leaders and the architects
of atrocities. The either/or of “truth v justice” must be avoided; both truth commissions and
trials have distinctive and mutually supplementary roles in achieving the multiple goals of
transitional justice.
4. Rule of Law. Transitional societies should comply with the rule of law, which, as
Luban argues, is one of the abiding legacies of Nuremberg.16
The rule of law includes
respect for due process, in the sense of procedural fairness, publicity, and impartiality. Like
cases must be treated alike, ex post facto laws eschewed, and private revenge prohibited.
Rule of law is especially important in a new and fragile democracy bent on distinguishing
itself from prior authoritarianism, institutionalized bias, or the “rule of the gun.”
The most obvious application of the ideal of the rule of law is in and through a nation’s
courts and its other judicial bodies. Yet truth commissions also may presuppose, illustrate,
and strengthen the rule of law. Truth commissions depend on the rule of law to the extent
that enabling legislation or constitutional provisions – such as the Postamble to South
Africa's Interim Constitution – authorize them. Even a duly constituted investigatory body,
however, might be biased against one side in an earlier conflict or dictatorship. And in
11
encouraging victims to give testimony, truth commissions often fail to give those accused or
their attorneys the right to confront and cross-examine their accusers.
On the other hand, truth commissions can implement the rule of law to the extent that
they are public, investigate all sides in a conflict, recognize ways in which perpetrators can
also be victims, and adopt measures to reduce bias.17
One such measure is to appoint
commission members who represent various and opposing political factions and who have a
reputation for fairness. Those who write the final report must be vigilant against (but not
overcompensate for) unintentional racial, class, or ideological bias.18
Further, a truth
commission respects due process when persons who come before it are treated
evenhandedly and impartially. TRC hearings by and large were successful in avoiding a
“kangaroo truth commission” and in respecting in their own way the rule of law:
5. Compensation to Victims. Compensation, restitution, or reparation, in the form of
income, medical services, or educational and other opportunities, should be paid to
individuals and groups whose rights have been violated. Depending on the scope of its
mandate and the duration of its existence, a truth commission may contribute to
compensation. In Chile, a body institutionally separate from the nation’s Truth and
Reconciliation Commission has compensated the survivors of human rights abuses and the
families of victims. This division of labor came about because while the truth commission
had to complete its work in a relatively short time, a longer period was needed for deciding
on criteria for compensation and for identifying and treating harms, some of which emerge
years after being inflicted. The TRC’s Reparation and Rehabilitation Committee (R & R) is
following the Chilean model. Although it implemented some “Urgent Interim Relief” toward
the end of the TRC’s life, the R&R’s power was almost exclusively that of making
12
recommendations to Parliament, which – if accepted – would be implemented by a
permanent body, the President’s Fund. Though truth commissions should not be artificially
limited to achieving only one aim, such as truth, they should not be expected to do too
many things, either. Following Chile’s example, South Africa is implementing a nuanced
“reparation and rehabilitation policy” that defends reparation on both moral (“restoration of
dignity”) and legal grounds and provides several types of both individual and communal
reparation. Individuals are compensated both through monetary packages that take into
account severity of harm, number of dependents, and access to services, and through
services such as reburials and providing of headstones.
One criticism of the TRC, however, is that it has failed to provide needed support for
those who testified before it. After having testified before the TRC, some victims reported
that afterwards they suffered flashbacks, sleeplessness, and depression. Not receiving
material or other compensation that they believed they were promised or due, these victims
insist they have become expendable means to the end of the TRC’s work.19
It would seem,
however, that these criticisms should be directed less at the TRC and more at the South
African government for failing, up to this point at least, to aid and compensate victims in a
timely and adequate manner.
6. Institutional Reform and Long-term Development. To reckon fully with past wrongs,
an emerging democracy must identify the causes of past abuses and takes steps to reform
the law and basic institutions to reduce the possibility that such violations will be repeated.
Basic institutions include the judiciary, police, military, land tenure system, tax system, and
the structure of economic opportunities. One temptation in postconflict or postauthoritarian
societies is to permit euphoria (which comes with the cessation of hostilities and the
13
launching of a new democracy) to preempt the hard work needed to remove the
fundamental causes of injustice and guard against their repetition.
In both Guatemala and South Africa, for example, the fundamental causes of repression
and human rights abuses were racism and economic inequality. A transitional democratic
society must try to remove such deep causes of human rights abuses, and do so in a way
that will deepen its democracy and promote just economic development in the future. The
long-term development goal should be that all persons, regardless of race, ethnicity, or
inherited wealth, should have opportunities to participate politically and live minimally
decent lives.
What, if anything, can a truth commission contribute to such an ambitious goal for
transitional justice? First, insofar as its search for truth involves a grasp of the complex
causes of past human rights abuses, a truth commission is well positioned to make
recommendations for institutional reform. Because of its public prominence, an official
investugative body is likely to provoke public debate and encourage national and
international efforts to ensure “nunca mas.” Second, a truth commission's actions can be
directly linked to reduction of poverty and racism. For example, confessed perpetrators may
make reparations to their victims by contributing time or money to society-wide poverty
alleviation. Third, the TRC’s sectoral approach to institutional reform and long-term
development was an important breakthrough in transitional justice; the TRC held hearings in
such sectors or institutions as health, business, the judiciary, the media, prisons, and faith
communities, and encouraged each to engage in a process of institutional self examination
and reform. Fourth, as Gutmann and Thompson argue, a truth commission can contribute to
14
long-term democratization and equal respect for all citizens by practicing in its “process”
what it preaches in its “product.”20
7. Reconciliation. A newly democratic society in transition from a conflictual or
repressive past should aim to reconcile former enemies and reintegrate them into society.
There are at least three meanings of reconciliation, ranging from “thinner” to “thicker”
conceptions. On the most minimal account, reconciliation is nothing more than “simple
coexistence,”21
which means no more than that former enemies comply with the law instead
of killing each other. Although this modus vivendi is better than violent conflict, transitional
societies should aim for more: while they may continue to disagree and even be adversaries,
former enemies must not only live together nonviolently but respect each other as fellow
citizens. Osiel calls this kind of reconciliation "liberal social solidarity"22
while Gutmann and
Thompson term it “democratic reciprocity.”23
Among other things, this means that people
hear each other out, enter into a give-and-take with each other about matters of public
policy, build on areas of common concern, and forge compromises with which all can live.
A third and more robust conception of reconciliation has sometimes been attributed to
the truth commissions of Chile and South Africa – reconciliation as a shared comprehensive
vision, mutual healing and restoration, or mutual forgiveness.24
(Both of these commissions
include the word “reconciliation” in their names.) These thicker conceptions of
reconciliation are much more difficult to defend than the thinner notions, especially if we are
considering the contributions of truth commissions. There are both practical and moral
reasons to favor the first and second over the third notion of reconciliation.
First, the reduction of enmity between former adversaries — let alone the seeking and
granting of forgiveness — is less likely to happen through the short-term efforts of a truth
15
commission than when former enemies work together on common projects over a period of
years, for example, in the same political, economic, and civil organizations. Transitional
justice takes time (often many generations) and goes through several phases, and there are
limits to what a truth commission can do in one or two years. The best hope is often lies in a
new generation that has not experienced past conflicts. Second, truth commissions can
permit and even encourage both confessions of guilt and mutual forgiveness, especially in a
society in which a religious imperative to forgiveness is widely accepted. Yet to prescribe
these acts legally would be to compromise the moral autonomy of both victims and
perpetrators as well as promote feigned professions of guilt and contrition. More generally,
it is morally objectionable as well as impractical for a truth commission or any other
governmental body to force people to agree about the past, forgive the sins committed
against them, or love one another.
8. Public Deliberation. Given the second sense of reconciliation just discussed, a newly
democratic and transitional society should aim to include public debate and deliberation in
its goals and strategies for transitional justice. It is unlikely that in any given society there
will be full agreement about the aims and means for dealing with past abuses. Moreover, all
good things do not always go together, for sometimes achieving one end will be at the
expense of (fully) achieving another. Legal sanctions against human rights violators can
imperil a fragile democracy in which the military responsible for the earlier abuses still
wields social and political power. In order to protect witnesses or secure testimony from
alleged perpetrators, a truth commission’s interrogation of witnesses or alleged perpetrators
sometimes may have to take place behind closed doors. Testimony by victims and
confessions by perpetrators at least in the short run may worsen relations among former
16
enemies.25
Truth commissions, let alone trials, use resources that could be employed in
poverty alleviation.
What can be aspired to is that disagreements about ends, trade-offs, and means will be
reduced as much as possible through public deliberation that permits a fair hearing for all
and promotes morally acceptable compromises.26
The goal of public deliberation is relevant
for an investigative body’s composition. One reason the Argentine, Chilean, and South
African truth commissions gained legitimacy was that their respective members represented
a wide spectrum of political positions.
The public deliberation norm should also guide a commission’s mode of operation. A
truth commission’s activities should go on in public rather than behind closed doors and be
accessible — linguistically and in other ways — to every citizen. Various truth commissions
have realized this goal of public deliberation and decision-making in different ways and to
different degrees. The TRC, for example, sought to practice deliberative give-and-take
internally; publicly vetted its procedures, problems, and preliminary conclusions; it
stimulated enormous public debate and comment; it was willing to respond to public
criticism; and its eventual report stimulated at least as much public discussion as did those in
Argentina and Chile.
Domestic Civil Society and Transitional Justice
A nation's civil society is often well suited to decide on and prioritize the ends of
transitional justice as well as to design, implement, monitor, and improve various means. In
particular, without a vigorous domestic civil society, backed up on occasion by certain types
of international civil society, new democracies are unlikely to establish effective truth
commissions.
17
Three models emphasize different aspects of civil society relevant to transitional justice.
An antigovernmental model, in which civil society includes all and only nonstate bodies,
emphasizes that civil society can be a bulwark of freedom against an oppressive state.27
An
associational model conceives of civil society as a third sector between the (coercive) state
and the market.28
It recognizes that private associations can generate civically valuable
byproducts (social trust, civic capacities)29
as well as civically noxious attitudes
(clannishness, private revenge, and resistance to democratic change). A third – the public
sphere model – focuses on how civil society groups, especially those that are internally
democratic and egalitarian, nourish the kind of informed public opinion that makes viable
democratic government possible.30
These three models alert us to the positive and negative roles civil society organizations
can play in transitional justice and to the challenge that social pluralism poses to a just and
democratic transition. Although usually appointed by a government’s executive or
legislature, official truth commissions can be viewed either as parts of civil society or as
hybrid entities that mediate between the state and civil society. For truth commissions are
normally composed of prestigious and respected citizens not holding public office, and often
these citizens represent important NGOs, a spectrum of political outlooks, commercial
groups, and religious institutions. Desmond Tutu, for example, the head of South Africa’s
TRC, is an Anglican archbishop. Let us consider some of civil society's contributions,
limitations, and dangers.
Formation of Truth Commissions. Civil society groups have played crucial roles in
establishing truth commissions. Conversely, in countries with a weak civil society, such as
18
the Republic of the Congo, neither official nor unofficial truth commissions have been
established.
Groups in South Africa’s civil society – through conferences and public hearings –
helped forge the idea of a truth commission. A presidentially appointed committee, many of
whose members represented civil society, received nominations for TRC commissioners and
recommended twenty-five to President Mandela, who appointed seventeen of them.31
In the difficult and drawn-out peace negotiations between the Guatemalan government
and the 20-year-old guerrilla movement, the Guatemalan National Revolutionary Union
(URNG), civil society played a strong role. The UN-brokered Framework Agreement
signed in January 1994 "recognized the role played [in earlier negotiations] . . . by the
various sectors of organized civil society and gave them a legitimate place within the
negotiating process in an Assembly of Civil Society (ACS)."32
Chaired by the highly
respected cleric Monsignor Rodolfo Quezada ToruZo, the ASC formulated and transmitted,
to the negotiating parties and the UN mediator, the ASC’s consensus positions on the
various topics being negotiated, including the formation of a truth commission, an
agreement on indigenous rights, and an agreement on socioeconomic goals.33
Moreover, the
Guatemalan Alliance against Impunity was crucial in influencing a National Reconciliation
Law that, in advance of similar Latin American laws, excludes crimes such as genocide from
its amnesty provisions.34
Investigation. Civil society groups can be enormously helpful and even indispensable in
obtaining the truth about the past. During the seventeen-year Pinochet dictatorship, two
religious organizations — the ecumenical Comité de Cooperación Para la Paz en Chile
(1974-75) and the Roman Catholic Church’s Vicaría de la Solidaridad (1976-92) —
19
collected thousands of judicial transcripts concerning disappearances. Such records were
invaluable for the investigations of the presidentially appointed National Commission for
Truth and Reconciliation, which had to complete its work in only eighteen months. In
Uruguay a non-governmental report on governmental abuses committed between 1972 and
1985 was more comprehensive, accurate, and widely distributed than the little-known and
anemic government report.35
In Guatemala, prior to the peace accords and the founding of Guatemala’s official truth
commission, the Historical Clarification Commission (CEH), the Guatemala City
archdiocese’s human rights office launched an unofficial Project for the Recovery of
Historical Memory (REMHI). Increasingly dissatisfied with CEH’s limited mandate, meager
resources, and initially slow progress, REMHI engaged in what Popkin has called “the most
comprehensive civil society effort to investigate a country’s past atrocities.”36
Local
citizens, whom REMHI trained as “ambassadors of reconciliation,” recorded more than
6,000 testimonies, which communal leaders, elected by their villages, gave in their native
(Indian) language. On April 24, 1998, REMHI presented and summarized its report,
“Guatemala: Nunca Mas.” A press release and public lecture charged that the army and socalled
civilian self-defense patrols were responsible for by far the greatest percentage of the
150,000 deaths and 50,000 disappearances in the war. Because Guatemalan illiteracy is so
high, diffusion of the report employed theater, radio, videos, public workshops, and
ceremonies. REMHI, like other Guatemalan human rights groups and the CEH itself, has
directly contributed to truth about the past and manifested respect for victims by providing
them a platform in their own language.
20
The challenges and dangers involved in uncovering truth about past evil were tragically
underscored two days after the presentation of REMHI report: Auxiliary Bishop Gerardi
Conedera, the director of the archdiocese’s human rights office and coordinator of the
report, was brutally bludgeoned to death in his home in Guatemala City.
Adversarial Public Action. Some organizations in a nation’s civil society devote
themselves to monitoring and evaluating the government’s (and wider society’s) actual
steps toward achieving peace, democratization, and transitional justice. One role of civil
society is to constitute an independent site to assess whether promises are kept and rhetoric
becomes reality. Such monitoring and assessment is part of what Sen calls “public action”
designed to advance the public good.37
Possible actions include public petitions, protests
and marches (sometimes with pictures of the “disappeared”), strikes, press conferences,
public forums, public burials of the remains of those recently exhumed, and complaints
addressed to public officials.
Each of these activities helps undermine what Leo Valladares, the Honduran human
rights ombudsman, calls the "culture of impunity." In such a culture, government officials,
the police and military, and ordinary citizens routinely break the law without fear of
punishment, for there is a shared understanding that each person will be silent about the
other’s abuses as long as the favor is returned. Many NGOs in transitional societies are
seeking to replace such a culture of impunity with a "culture of responsibility" or a "culture
of rights" in which citizens are responsible for respecting human and legal rights and
publicly protesting their violation. As the 1996 report of Honduras’s National Commission
of Human Rights puts it:
21
Civil Society ought to join forces so that judicial reform is a reality, and this requires the
strengthening of a democratic and human rights culture in order to halt the epidemic of
corruption and be able to save our democratic institutions. As the Commissioner has
expressed it: 'Democracy is shown not only at the ballot box but also by accusations, by
opposition to official abuse and corruption, and by the system of justice. Hence, democracy
ought to fight so that injustice is the exception and justice the rule.'38
In Guatemala, NGOs have not always agreed in their assessment of governmental
efforts to implement transitional justice. Some civic groups pressured the official
Guatemalan truth commission to violate their legal mandate and name perpetrators. Others
urged that “naming names” risks a blanket amnesty (as occurred in El Salvador) or a return
of military repression (as was threatened in Argentina), subjects those incorrectly named to
undeserved abuse, and distracts attention from the general pattern (and remedy) of human
rights abuses. Even an investigative body as internationally applauded as the South African
TRC is not immune to criticism from South African civil society. Groups such as the Centre
for the Study of Violence and Reconciliation and the Khulumani Victim Support Group, for
example, criticized the TRC for overemphasizing the ideal of reconciliation-as-forgiveness
and failing to give sufficient attention to other goals of transitional justice such as
accountability, punitive justice, and compensatory support for victims. They argue that the
TRC should collaborate more fully with NGOs – for example, by contributing to NGO
efforts to organize survivor support groups.39
The Public Sphere and Public Deliberation. The civil public sphere clearly functions in
countries undergoing transitional justice insofar as the mass media and civic groups promote
22
a society-wide debate that evaluates and seeks to improve the ends and means of
transitional justice. For instance, South African newspapers and television reported daily on
the TRC’s work. They also provided opportunities for a spectrum of critics and defenders
of the Commission. Likewise, since the mid-eighties, many Guatemalan newspapers have
enlarged and invigorated the public sphere by reporting and commenting on the peace
process and by opening their pages to a variety of public opinion.
The foregoing examples illustrate what a country’s civil society, however conceived,
and its civil public sphere in particular may do to advance the aims of transitional justice.
Civil society, however, is not without some limitations, and there are some dangers in
putting undue (and the wrong kind of) emphasis on it.
Groups in civil society, especially following prolonged authoritarianism, may be very
weak and disunited, thereby limited in their potential impact on transitional justice. Just as
civil society groups can differ considerably within a given national society, so too the civil
societies of particular nations or regions exhibit much variety. Civic groups and national
civil societies as a whole differ with respect to longevity, vitality, formality, resources and
sustainability, orientation (inward or outward), internal structure (democratic vs.
hierarchical), and external relations (grassroots, regionally/nationally federated, or
internationally linked). Depending on their type and social context, many groups and
networks are limited in what they can contribute to transitional justice, for often they have
scant resources, outreach, and staying power. They may rise and fall before they are able to
make much of a difference in the lives of their members or the larger society. Their
knowledge of similar groups or networks also may be limited, so that they are unable to
learn from each other. Their scope may be entirely at the "grass roots," preventing them
23
from influencing national institutions. Even worse, some civil society groups may be bent on
vengeance or amnesia, two morally defective goals for societies in transition.40
Given these limitations, societies undergoing transitional justice should beware of
certain dangers in thinking about the potential roles of civil society in meeting the challenges
of transitional justice and democratic development. First, civil society must not be annointed
as the new source of salvation, permanently assuming roles that other actors, including
national and local governments, should play. As innovator, facilitator, critic, educator, and
(temporary) substitute, there is much that civil society can contribute to transitional justice.
Yet, here as in other areas, the state must be "brought back in,"41
for government has an
indispensable role with respect to some forms of prosecution, punishment, investigation,
compensation, and commemoration. And just as civil society can supplement and correct
the state; a democratizing state may fortify and help unify a weak, timid, and fragmented
civil society. This outcome is especially likely when a truth commission conducts activities
that are public and decentralized; seeks civil society’s continual evaluation of its work;
cooperates with parallel or supplemental civil society initiatives (such as medical attention
to victims); and, upon the conclusion of its work, recommends ways in which civil society
might continue the struggle to right past wrongs.
A second peril is the opposite of the first, namely, that civil society will narrow its
scope, functioning as an assortment of exclusively inward-oriented voluntary associations,
and thereby fail to assess, debate with, and influence other institutions that affect transitional
justice. A self-help group of human rights victims or perpetrators, while important in a free
and pluralistic society, is not all that civil society can be in relation to the challenge of
transitional justice. Especially when trials and truth commissions finish their work, citizens
24
and civil society groups have important outward-oriented responsibilities and opportunities.
In a radio interview at the end of the TRC’s work, Tutu observed that the commission by
itself could not bring about reconciliation and that “each south African is going to have to
say, ‘What is the contribution I am going to be making to what will be a national
project?’”42
A third peril is that civil society will lose its independence and become a mere rubber
stamp – rather than monitor and critic – of the government. Cases in point are Uruguay’s
truth commission43
and Yugoslavia’s television since 1989.44
International Civil Society and Transitional Justice
It is in relation to the strengths, limitations, and dangers of domestic civil societies
(DCS) that we can best understand the ways in which international civil society (ICS) may
contribute to a nation’s approximating the goals of transitional justice. The paradigm case
of international civil society, as I am using the term, would be voluntary associations such
as the Roman Catholic Church, Doctors Without Borders, the International Campaign to
Ban Land Mines, the International Red Cross, and the International Soccer Federation.
These nonstate organizations and movements are composed of members whose concerns
extend to other nations and to international structures and issues.45
My emphasis here is on
globally-oriented networks of individuals and voluntary institutions and not merely on the
world moral opinion, let alone the public opinion of powerful Western nations.
Let us first distinguish two types of ICSs and a closely related type of international
institution: civil society groups from one country that aid the efforts of civil society groups
in another country, which is undergoing transitional justice; international not-for-profit
organizations and movements; and transnational institutions such as the Organization of
25
American States and institutions within the United Nations system. The first type, an
internationally oriented DCS, is illustrated by the Washington Office on Latin America
(WOLA), a group that emphasizes police, judicial, and economic reform. Composed largely
of U.S. citizens, this U.S. advocacy group supplies moral and financial support and U.S.
speaking opportunities to representatives of NGOs from countries such as Guatemala.
Moreover, WOLA transmits lessons that DCSs learn about transitional justice in one
country to DCSs confronting the challenge of transitional justice in another country.
The second type of ICS is illustrated by a profusion of heterogeneous international
NGOs and movements composed of members from many nations. The term "globalization"
is often used to denote global capital flows and transnational economic institutions. There
is, however, another kind of globalization — movements and NGOs that investigate,
debate, and help implement policies of many kinds in particular nations and regions. This
network is constantly changing and often lacks formal institutional definition; sometimes an
ICS is little more than a "virtual community" committed to a common cause and linked by
e-mail, fax, and list servers. Still the contributions to transitional justice by groups of this
second type should not be underestimated. Let me indicate a few of these ICSs and what
they are providing.
Consider the global scholarly community concerned with issues of righting past wrongs
in the context of democratic transitions.46
It generates conferences, often subsidized by
private philanthropic organizations such as the Aspen Institute, the Soros Open Society
Foundation, the Friedrich Ebert Foundation (Germany), the Instituto de Defensa Legal
(Peru), and the World Peace Foundation (USA) that bring together scholars, policymakers,
and policy analysts to understand, compare, and improve approaches to transitional justice.
26
A notable achievement in this area is the United States Institute of Peace’s important threevolume
study entitled Transitional Justice: How Emerging Democracies Reckon with
Former Regimes.47
Emphasizing both national and international assessments of the ends
and means of transitional justice, these three volumes include general essays, twenty-one
country studies, and a collection of laws, rulings, and reports that have emerged in the last
fifty years. Thanks to these and similar studies, when a country embarks on a path to
transitional justice, its government and DCS will have intellectual resources and practical
models on which to draw. They will not, as ex-President Raúl Alfonsín said about
Argentina’s efforts in the eighties, have to invent "their approach from nothing."48
With
international philanthropic support, those designing and implementing South Africa’s TRC
were able to learn valuable lessons from the Chilean and other truth commissions.
Also noteworthy are the international investigatory/advocacy groups that conduct
inquiries into and denounce human rights violations, monitor human rights compliance, and
make recommendations as to how past abuses should be treated and future violations
prevented. By providing international attention and support, these international groups can
also lend legitimacy to and strengthen the hand of domestic civil groups and democratically
elected governments in pursuing the goals of transitional justice.49
Funded by a variety of
private and national sources, these ICSs include Amnesty International and Human Rights
Watch, the NGO Coalition for an International Criminal Court, and the Joint Evaluation of
Emergency Assistance to Rwanda, the latter being an international team that investigated
the international response to the Rwandan massacres. Through their published documents
and press conferences, these sorts of groups can inform domestic and world opinion and
contribute to public deliberation about what should be done.
27
Closely related to international civil society, but a product of inter-governmental
cooperation, are those organizations of the United Nations system that play a variety of
roles in national transitional justice. Although the UN has been beset with financial problems
(largely due to the United States), waste, and inefficiencies, it has contributed to transitional
justice in several significant ways. In 1991, responding to a request by the Salvadoran
government and the political opposition, the UN established, funded, and provided
personnel to the Salvadoran truth commission. Later in Guatemala the United Nations
Human Rights Observer Mission in Guatemala (MINUGUA) facilitated the peace
negotiations, including agreements between the contending parties with respect to truth
commissions and other measures of transitional justice. The UN also established and funds
two ad hoc international criminal courts, the International Criminal Tribunal for the Former
Yugoslavia and the International Criminal Tribunal for Rwanda.
In sum, the UN has tried to influence and assist states in transition, encouraging them to
forgo morally untenable approaches, such as private revenge, victor’s justice, and impunity,
and to adopt mechanisms likely to realize the multiple legitimate aims of transitional justice.
In these efforts the UN has a mixed record, ranging from an important — if not unqualified
— success in El Salvador, to slow progress in Guatemala, Bosnia, and Rwanda, to a
controversial and still unimplemented agreement for an International Criminal Court.50
I conclude by suggesting some distinctive merits, effects, and limitations of ICS with
respect to transitional justice when assessed in relation to the roles of national governments
and domestic civil societies. We have seen that ICS (and international regimes) can promote
transitional justice by providing to domestic civic groups and democratically elected
governments such things as material resources, lessons learned by other new democracies,
28
international legitimacy, and moral support. Such assistance may be indispensable as
domestic civil groups and fledgling democracies face the forces of revenge or appeals to
social amnesia. ICS can also adopt an adversarial role and criticize or temporarily substitute
for domestic civic groups and national governments when there is good reason to believe
that these have succumbed to unjust or antidemocratic forces.
Finally, whether in a collaborative or adversarial relation to domestic civil societies and
national governments, ICS plays an important role in hammering out, justifying and
diffusing universally applicable norms relevant to transitional justice.51
Conversely, these
norms, which include universally accepted human rights, are one impetus for what Mandela
calls “the creation of an international community predicated on human dignity and justice.”52
International civil society is deepened and widened by appeal to a fundamental normative
perspective that includes, in addition to universal human rights, the fundamental goals to
which a new democracy should aspire in designing and evaluating its attempts to deal with a
terrible past.53
Yet, ICS can also weaken or prevent a society from effectively meeting the challenges
of transitional justice. As Nino rightly insists, too much or the wrong kind of international
response to a country’s past rights violations can do more harm than good.54
International involvement and intemperate appeals to universal human rights can give
some factions — for instance, the military — in a nation the pretext to reject, as an "outside
job," international recommendations or pressure. In El Salvador, the fact that three nonSalvadorans
composed the Salvadoran Truth Commission was used as public justification
for the government to declare — the week after the Commission’s report was released — a
general amnesty for all those individuals charged with violating rights during the civil war.
29
Furthermore, international aid for domestic transitional justice can backfire. Instead of
nurturing robust domestic civil societies, public deliberation, and responsive governments,
international support for a nation’s democratic transition in fact may insulate governmental
efforts from domestic criticism. In turn this insulation may cause reduction of public
deliberation, the narrowing of the national consensus, and, thereby, the loss of popular
support for the government’s efforts. For example, instead of trying to address the
objections of some of its most trenchant critics, South Africa’s TRC sometimes took refuge
in the consolation offered by its many international supporters.
Finally, due to ignorance of a transitional society’s particular challenges, ICS’s timing
may be wrong.55
It may act too soon, before conditions are ripe and to the detriment of
future domestic efforts. Both within and without Bosnia, there is a vigorous debate about
whether this divided country is ready for the truth and reconciliation commission currently
being promoted by such groups as the United States Institute of Peace.56
Or ICS may stay
involved too long, and hence prevent a nation’s government and civil society from
developing its own capabilities. Finally ICS may act too late, after a window of opportunity
has been closed.
To mitigate such risks, groups in ICS must interact with both governmental and civil
groups in the transitional society. Moreover, ICS must become knowledgeable about the
particular society in transition as well as recognize that each new democracy has the
primary and ongoing responsibility for achieving the multiple goals of transitional justice.
Not only does this responsibility imply the government’s duty – often by means of an
official truth commission -- to investigate, sanction, and compensate rights violations but
also citizens’ rights to public deliberation, adversarial public action, and democratic rule.
30
Like domestic civil society, however, a well-informed international civil society is often
helpful, sometimes indispensable, but never sufficient if a new democracy is to utilize truth
commissions and other means to meet the complex challenges of transitional justice.57
NOTES
I am grateful to Patrick Ball, David P. Crocker, Edna D. Crocker, Cristián Parker,
Margaret Popkin, Robert Rotberg, Michael Slote, Dennis Thompson, Wilhelm Verwoerd,
and my colleagues at the Institute for Philosophy and Public Policy and the School of Public
Affairs — especially Sue Dwyer, Peter Engelke, Arthur Evenchik, Robert K. Fullinwider,
and William A. Galston — for helpful comments on earlier versions of this essay. I also
owe thanks to the South African Truth and Reconciliation Commission Conference, World
Peace Foundation, Somerset West, South Africa, 28-30 May 1998.
1
The best multidisciplinary collections on transitional justice are Neil J. Kritz (ed.), Transitional
Justice: How Emerging Democracies Reckon with Former Regimes, I, General Considerations;
II, Country Studies; III, Laws, Rulings, and Reports (Washington, D.C., 1995); Naomi RohtArriaza,
(ed.), Impunity and Human Rights in International Law and Practice (New York,
1995); and A. James McAdams (ed.), Transitional Justice and the Rule of Law in New
Democracies (Notre Dame and London, 1997. See also Martha Minow, Between Vengeance
and Forgiveness: Facing History after Genocide and Mass Violence (Boston, 1998).
2
Nations other than new democracies also have occasion to decide what they “should do
about a difficult past,” (Timothy Garton Ash, “The Truth About Dictatorship,” New York
Review of Books, XLV [February 19, 1998], 35. For these broader issues, see Ash’s essay
31
and David A. Crocker, “Reckoning with Past Wrongs: A Normative Framework,” Ethics &
International Affairs, XIII (1999), 43-64.
3
David A. Crocker, “Transitional Justice and International Civil Society: Toward a
Normative Framework,” Constellations, V (1998), 492-517; “Civil Society and Transitional
Justice, “ in Robert Fullinwider (ed.), Civil Society, Democracy, and Civic Renewal
(Lanham, MD, 1999), 375-401; and “Reckoning with Past Wrongs.”
4
Alex Boraine, “The Societal and Conflictual Conditions that are Necessary or Conducive
to Truth Commissions,” South African Truth and Reconciliation Commission Conference,
World Peace Foundation, Somerset West, South Africa, 28-30 May 1998.
5
Neil J. Kritz, “Is a Truth Commission Appropriate in the Former Yugoslavia?”
International Conference on War Crimes Trials, Belgrade, Yugoslavia 7-8 November 1998,
3. See also Neil J. Kritz and William A. Stuebner, “A Truth and Reconciliation Commission
for Bosnia and Herzegovina: Why, How, and When?”, Victimology Symposium, Sarajevo,
Bosnia, 9-11 May 1998.
6
In Santos Juli< et al, Las Victimas de la Guerra Civil (Madrid 1999), Spanish historians
and social scientists give an insightful accounting of the horrendous wrongs committed by
all sides in the Spanish Civil War of 1936-39 and by the Franco dictatorship that lasted
until 1976. The volume, shattering the conventional image of Spain as a successful example
32
of “forgive and forget,” also details the way in which Franco as well as his democratic
successors dealt – in very different ways – with forty years of atrocities and repression.
7
See Carlos Nino, Radical Evil on Trial (New Haven and London, 1996), ix-x.
8
See, for example, Jean Hampton, “The Retributive Idea,” in Jeffrie G. Murphy and Jean
Hampton, Forgiveness and Mercy (Cambridge, 1988), 111-161; Naomi Roht-Arriaza,
“Punishment, Redress, and Pardon: Theoretical and Psychological Approaches,” in RohtArriaza
(ed.) Impunity and Human Rights, 13-23; Michael Moore, Placing Blame: A
General Theory of the Criminal Law (Oxford, 1997); and Aryeh Neier, War Crimes:
Brutality, Genocide, Terror and the Struggle for Justice (New York, 1998), 80-85.
9
See Jennifer Llewellyn, “Justice for South Africa: Restorative Justice and the South
African Truth and Reconciliation Commission,” in Christine Koggel (ed.), Moral Issues in
Global Perspective (Peterbourough, ON, 1999), 96-107.
10
Ibid., 103-105.
11
See Kritz and Stuebner, “A Truth and Reconciliation Commission.”
12
See Eugene de Kock, as told to Jeremy Gordin, A Long Night’s Damage: Working for
the Apartheid State (South Africa, 1998).
33
13
“Between the Carrot and Stick,” Sunday Independent, 14 July 1996, 10.
14
Margaret Popkin and Nehal Bhuta, “Latin American Amnesties in Comparative
Perspective,” Ethics & International Affairs, XIII (1999), 117-118. See also “Guatemala
Memory of Silence, Report of the Commission for Historical Clarification, Conclusion and
Recommendation” (25 February 1999), 58.
15
Priscilla Hayner, “Official Truth-Seeking: A Tool for Peacemaking?,” Preliminary
Discussion Paper, Committee on International Conflict Resolution, National Research
Council, 16 June 1998, 15-16.
16
David Luban, “The Legacies of Nuremberg,” in Legal Modernism (Ann Arbor, 1994),
344-346. Cf. Lon L. Fuller, The Morality of Law, rev. ed., (New Haven, 1977), 33-39.
17
See Sanford Levinson, “Investigatory Bodies and the Due Processes of Law” (in this
volume).
18
Wilhelm Verwoerd, “The Commission Report: History? Advocacy? A Verdict,” South
African Truth and Reconciliation Commission Conference, World Peace Foundation,
Somerset West, South Africa, 28-30 May 1998.
19
Susanne Daly, “In Apartheid Injury, Agony is Relived but Not Put to Rest,” New York
Times, 17 July 997, A1, A10.
34
20
Amy Gutmann and Dennis Thompson, “The Moral Foundation of Truth Commissions,”
(in this volume), 2-3, 17.
21
Charles Villa-Vicencio, “A Different Kind of Justice: The South African Truth and
Reconciliation Commission,” Contemporary Justice Review (forthcoming).
22
Mark Osiel argues that what he calls "liberal" or "discursive social solidarity" can be
promoted "through public deliberation over continuing disagreement, a process by which
rules constrain conflict within nonlethal bounds and often inspire increasing mutual respect
among adversaries" (Mass Atrocity, Collective Memory, and the Law [New Brunswick and
London, 1997], 17, n. 22; see also 47-51, 204, n. 136, 263-65).
23
Gutmann and Thompson, “Moral Foundations,” 15-24.
24
Villa-Vicencio, 12-14. See also Donald Shriver, An Ethic for Enemies: Forgiveness in
Politics (New York, 1995).
25
See Gilbert A. Lewthwaite, “In South Africa, Much Truth Yields Little Reconciliation,”
Baltimore Sun, 30 July 1998, 12.
26
See James Bohman, Public Deliberation: Pluralism, Complexity, and Democracy
(Cambridge, 1996). See also Amy Gutmann and Dennis Thompson, Democracy and
Disagreement (Cambridge, MA, 1996).
35
27
See Michael Ignatieff, "On Civil Society: Why Eastern Europe’s Revolutions Could
Succeed," Foreign Affairs, LXXIV (1995), 128-136. Ignatieff captures the spirit of the
antigovernment model when he observes that for the East European intellectuals in the
1970s and 1980s civil society was “the kind of place where you do not change the street
signs every time you change the regime (128).
28
See Benjamin R. Barber, "Clansmen, Consumers and Citizens: Three Takes on Civil
Society," in Fullinwider (ed.), Civil Society, 9-29.
29
See Robert D. Putnam, "Bowling Alone: America’s Declining Social Capital," Journal of
Democracy VI (1995), 65-78.
30
See Jean L. Cohen, "American Civil Society Talk," in Fullinwider (ed.), Civil Society, 55-
85.
31
Alex Boraine, “Truth and Reconciliation in South Africa: The Third Way,” (in this
volume), 10-14.
32
Teresa Whitfield, "The Role of the United Nations in El Salvador and Guatemala: A
Preliminary Comparison," paper presented at the conference "Comparative Peace Processes
in Latin America," Woodrow Wilson International Centre for Scholars, 14-15 March 1997,
16-17.
33
Ibid., 17.
36
34
Popkin and Bhuta, “Latin American Amnesties,” 116.
35
Priscilla Hayner, “Fifteen Truth Commissions – 1974-1993: A Comparative Study,”
Human Rights Quarterly, XVI (1994), 232-233.
36
Margaret Popkin, personal communication, April 22, 1998.
37
Amartya Sen and Jean Drèze, Hunger and Public Action (Oxford, 1989), 275-279.
38
El Difícil tránsito hacia la democracia: 1nforme sobre derechos humanos, 1996
(Honduras, 1996), 20-21. The translation is my own.
39
Graeme Simpson, “Lessons for the World: The Uses of Truth Commissions,”
presentation to South African Truth and Reconciliation Commission Meeting, Somerset
West, South Africa, 28-30 May 1998.
40
See Crocker, “Transitional Justice and International Civil Society,” 495-496.
41
See Michael Schudson, "The 'Public Sphere' and Its Problems: Bringing the State (Back)
In," Notre Dame Journal of Law, Ethics and Public Policy, VIII (1994), 529-546. For a
compelling argument that (un)civil society also contains groups that imperil democratization
and justice, see Xiaorong Li, “Democracy and Uncivil Society: A Critique of Civil Society
Determinism,” in Fullinwider (ed.), Civil Society, 403-18.
42
Cited in Lewthwaite, 12A.
37
43
Hayner, “Fifteen Truth Commissions,” 616-617.
44
Warren Zimmerman, “The Last Ambassador: A Memoir of the Collapse of Yugoslavia,”
Foreign Affairs, LXX (1995), 12.
45
Cf. Gordon A. Christenson, “World Civil Society and the International Rule of Law,”
Human Rights Quarterly XIX (1997), 731.
46
See Naomi Roht-Arriaza, "Conclusion: Combating Impunity," in Roht-Arriaza (ed.),
Impunity and Human Rights, 295.
47
See above, note 1.
48
Kritz, “The Dilemmas of Transitional Justice,” in Kritz (ed.), Transitional Justice, I, xxi.
49
Roht-Arriaza, "Conclusion: Combating Impunity," 302.
50
See Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities
in International Law: Beyond the Nuremberg Legacy (Oxford, 1997); and Belinda Cooper
(ed.), War Crimes: The Legacy of Nuremberg (New York, 1999).
51
Roht-Arriaza, "Conclusion: Combating Impunity," 294. For the role of ICS in forging and
promoting international human rights, see Michael Ignatieff, “Human Rights: The Midlife
Crisis,” New York Review of Books, XLVI (20 May1999), 58-62.
52
Nelson Mandela, “Foreword,” in Kritz (ed.), Transitional Justice, I, xi.
38
53
Kathryn A. Sikkink points out “Chilean organizations formed to confront government
repression, especially the Vicaria de Solidaridad, became models for human rights groups
throughout Latin America and a source of information and inspiration for human rights
activists in the United States and Europe.” (“Nongovernmental Organizations, Democracy,
and Human Rights in Latin America,” in Tom Farer (ed.), Beyond Sovereignty: Collectively
Defending Democracy in the Americas (Baltimore and London, 1996), 155.
54
Carlos Nino, "Response: The Duty to Punish Past Abuses of Human Rights Put into
Context: The Case of Argentina," in Kritz (ed.), Transitional Justice, I, 417-436.
55
See Anita Isaacs, “International Support for Democratization: A Map and Some Policy
Guidelines Derived from the Four Case Studies,” in Farer (ed.), Beyond Sovereignty, 281-
282.
56
Kritz and Stuebner, “A Truth and Reconciliation Commission.”
57
See Sikkink, “Nongovernmental Organizations,” 160-168.