International transitional justice: Truth and reconciliation commission (TRCs) JUSTIN Judicial Studies Institute Masaryk University Katarína Šipulová Brno, 6 October 2021 Transitional Justice Mechanism Transitional Justice Brian Grodsky (2009) Retribution Rehabilitation What are TRCs? • Alternative mechanisms of transitional justice • Typical for Latin America • CEE • Africa Core elements? Core elements? • They address the past • Offer complex picture of HR violations • Temporal character • Financing = sponsor TRCs • 1974-2006 • 35 different TRCs • First one: El Salvador 1974 • Uruguay, Philippines, Chad, Zimbabwe, Etiopia, Uganda, South Africa, Rwanda, Sierra Leone Advantages • Reconciliation • Large scope of targeted perpetrators • Goal: historical documentation of facts instead of „mere“ prosecution • Faster (does that mean more effective?) • More space / focus on victims • General focus • Uncover deeper cleavages and incentives leading to HR violations Disadvantages • Impunity of perpetrators • Costs + cost/benefit effect • Disproportionality of punishments • Dependency on the guarantor (government) • Refusal of justice (amnesties) • Lack of considerations of wider political circumstances • Politicization Disadvantages -> Risks? • Politicization • What is the truth? • National reconciliation? • Creation of deeper resentment • Exacerbation of old issues that have been dug up anew • Implicated persons might argue against revisiting the past • Risk of follow-up violence (Zimbabwe, Rwanda) Disadvantages -> Risks? • What is the truth? • When and to whom to submit the report? • Mandate? Political – referendum? • Reporting on the role of international actors? • Timing? • Under whose name? • Logistic issues Disadvantages -> Risks? • Stuffing and budget • Proportionality • How many clerks • Expenses • Funding from whom? • Public or private? • Confidentiality v fairness • Naming the names TRCs – motives behind introduction • Sikking & Walling (2005), Chapman & Ball: part of transition • Not exclusive to democracies - Gravity of HR violations - Distribution of power before the transition - Distribution of power during the transition - Level of democracy - Stability of the past regime - Distribution of power after the transition Impact + - South Africa • Apartheid • Nelson Mandela (1994) Let us stretch out our hands to those who have beaten us and say to them that we are all South Africans…Now is the time to heal the old wounds and to build a new South Africa. • Reconciliation without forgetting • Museum of apartheid in Johannesburg • Model for future TRCs? South Africa - background • Apartheid – race segregation policy of the National party between 1948-1994 • Roots in colonial era – official policy since 1948, splitting the inhabitants into 4 racial groups • National • White • Colour • Asian • Leading to reconceptualization of South Africa as a country not created by a single nation • 1970s: ban on non-white political representation • Education, health, access to beaches, services, settlement in cities, electoral rights • Legal? • Popular revolt in 1950 -> more restrictions • Engineers of apartheid: South Africans South Africa - background • Promotion of National Unity and Reconciliation Act, no. 34 of 1995 – establishes TRC in Cape Town • Court-like restorative mechanism • Founder: Nelson Mandela • Chairman: Desmond Tutu • Mandate • To bear witness to, record, and grant amnesty to perpetrators of crimes related to HR violations from 1 March 1960 to 6 December 1993 • To offer reparation + rehabilitation to victims • Composed of 3 committees • The HR Violations Committee (HR abuses between 1960-1993) • The Reparation and Rehabilitation Committee (restoration of victims‘ dignity) • The Amnesty Committee – decisions on applications of individuals who applied for amnesty • Cape Town, St George Cathedral South Africa - background • Focuses on storytelling • Victims are given enough space to tell their truth • Apartheid context, clarification of history • Previous president de Klerk denied apartheid as well as the accountability of the National Party • Not all politicians agreed to cooperate and participate on the TRC • Some victims refused to face their HR violations perpetrators South Africa - amnesties • The most controversial part • Requests and applications from many prominent political actors • Symbolic act of forgiveness • In effect between 1996-1998, finished its activity with 85 volume report to Nelson Mandela, 29 October 1998 South Africa - criticism • Would judicial trials and prosecutions be more effective? • Retribution – Reconciliation: only one element • Translations of witness accounts • Not all population supports the amnesties • Lack of understanding what the TRC‘s mandate was • Case of Steve Biko • Activist, apartheid fighter, murdered by the security forces • Case of former president Botha Universal jurisdiction - Spain • Transition and democratization? • Proceedings after Franco‘s death: 1975-1976 – non-confrontational character • End of 1970s: • Economic model of 1950s drained by civil war • Liberalization, opening of markets, Europeanization, value and geographic return to Europe • Regime exhausted also ideologically • Transition: transformation • Milder regime than in Greece and Portugal • Key transition actors: Frankist institutional networks • Juan Carlos Universal jurisdiction - Spain • Juan Carlos – abolishment of the Tribunal for public order • 1976 king amnesty for all persons imprisoned for political crimes and terrorism • 1977 Parliament approves general amnesty: political crimes of both parties • Support of the Communist party • Memories endanger transition • National amnesia • Policy of forgetting (oblivion) • Pacto de olvido • Long time span • Integration • Supported by 61 % of population • Instead of TJ, democratization hoko = European communities + Cold War Universal jurisdiction - Spain • 30 years later…. • 2007 Historical memory act • 16 October 2008 Balrasar Garzon orders investigation of frankist crimes • Systematic murders and forced disappereances • 68 pages long report of the Supreme Court • Crimes against humanity • Statute of limitations • International law Universal jurisdiction - Spain • Baltasar Garzon • First famous by an attempt to try members of the previous Chile junta on the count of crimes of genocide, terrorism and torture during the 1976-1983 dictatorship, including Pinochet • Issued arrest warrant on Pinochet, based on the factual findings of the Chilean TRC • Other examples of the use of universal jurisdiction: • Bin Ladin • Berlusconi • Henry Kissinger Assessing the Effectiveness of TRCs • How? Assessing the Effectiveness of TRCs • Publication of the final report is not enough • Bolivia, Philippines • Influence of the government • Haiti, Uganda • What is the aim of TRC: interpretation or documentation? Assessing the Effectiveness of TRCs • How? • Crocker: 8 goals of reckoning with the past 1. Investigation and establishment of truth - Emotional truth? - One truth or many? 2. Creation of a public platform for victims 3. Accountability and Punishment 4. Rule of Law compliance - Kangaroo truth commission 5. Compensation to Victims 6. Institutional reform 7. Reconciliation (and reintegration of former enemies) 8. Public deliberation • Plus civic society • Plus international society Assessing the Effectiveness of TRCs • How? • Gibson: under some conditions, TRC can contribute to societal transformation. • Effectiveness is dependent upon 2 crucial factors • 1) attention of its constituents • 2) perception of legitimacy among the mass public Assessing the Effectiveness of TRCs • Gibson 2009 Assessing the Effectiveness of TRCs - Rule of Law - Political pluralism - Amnesties - Extent of HR violations - Elites Interaction between different TJ Mechanisms - Independence - Actors - Social awareness, reception Entry independent conditions Transitional justice Evaluation of TRC effects Interaction between criminal trials and TRCs Judicial proceedings Aim - Moral imperative of punishment - Deterrence - Rule of law, democratization - Individualization of guilt Criticism - Danger to peace - Focus on elites - Asymetry of power TRCs Aim - Official record of history - Focus on victims - Reconciliation, healing of the society and social cleveages Criticism - Can the society bear the truth? - Politicization of the truth Interaction 1. Trials TRCs Aim: Administration of justice, uncovering of truth, x amnesties Criticism: time interconnection slows down the activity of TRC 2. TRCs Trials Aim: facts and basis for criminal investigation, help to victims Criticism: amnesties 3. Trials co-exisiting TRC Aim: to secure the benefits of both systems Criticism: functionality of information chanels Bothinstitutions Thank you for your attention Katarína Šipulová katarina.sipulova@law.muni.cz Masaryk University