Transitional justice
Truth revelation processes
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 10 November 2021

TRC
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-Why alternative justice?
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-Legal v political justice
-Internal (domestic)
-Retribution v restoration
-Individual criminal liability v reconciliation

Access to Secret Files and National Memory Institutes
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-Why alternative justice?
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-Was it alternative justice in your cases?

TRC
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-Temporary mandate
-Financing? (GOV, PARL, UN, NGOs)
-Independence
-Investigation

Meaning of Truth in TJ
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-It is only through generating such understanding that the horrors of the past can effectively be
prevented from occurring again. Knowledge and understanding are the most powerful deterrents
against conflict and war (SL TRC)

Meaning of Truth in TJ
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Commission of inquiry
Court proceedings
Truth commissions
Historical commissions
- goals, methodologies, mandates, tools

Meaning of Truth in TJ
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Court proceedings: legal approach, determine the culpability of perpetrators, aim: establishment of
punishment.
TRCs: much broader inquiry, provide narrative of the abuses during certain historical period.
Typically, they have mandate to establish an authoritative and historically accurate record of the
past
Historical commission: address events of the past affecting specific ethnic, racial, other groups.
They are not part of political transitions, might not even deal with current issues

Tasks of TRCs
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•Historical account of the past
•Overcome communal and official denial of the atrocity
•Identify victims
•Certify whether applicants qualify as victims to obtain reparations
•Identify the architects of the past violence
•Restore dignity to victims, promote psychological healing
•End and prevent violence
•Legitimate and promote the stability of the new regime
•Educate the population
• forge the basis for a democratic political order that respects and protects R
•Recommend ways to deter future violations and atrocities
•Determine eligibility of applicants for amnesty

Tasks of TRCs
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•Limitations
•What is the truth / confirmation of beliefs about the past
•How to find objective truth
•Do we really want to establish the truth?
•
•How to reconcile the truth with the lack of prosecutions?
•
•The truth is so commonly use that it seems to be a transparent notion, clear to all who are
involved or interested in redressing past abuses, but ‘truth’, like ‘justice’ and ‘reconciliation’
is an elusive concept that defies rigid definitions (Parleviet 1998)
•
•Cultures vary in how they approach and value truth telling

Africa
•Aim and context?
•Legitimacy?
•Indepenence?
•Cooperation?
•Budget?

East & South-East Asia
•Aim and context?
•Legitimacy?
•Indepenence?
•Cooperation?
•Budget?

Europe
•Aim and context?
•Legitimacy?
•Indepenence?
•Cooperation?
•Budget?

Individualised access to files of secret service and intelligence was typical only to Eastern
Europe!!!

What have we learnt?
Posthumus and Zvongbo 2021
•Varieties of Truth Commissions Project
•Used also to address non-transitional issues, racial injustices mostly, HR abuses of indigenous
people
•Multilevel TRCs: international, national, subnational (USA, Brazil, Colombia, Mexico)
•Redistribution of responsibility for HR abuses and redistribution of responsibility to provide
redress. Important for federal countries
Lawther 2021
•Construction of victimhood: TRC as a truth recovery platform, but: may lead to creation of
hierarchies of truth
•Truth as trumps

What have we learnt?
Kochanski 2021
•Legitimacy crisis of TJ – attempts to solve it via locally rooted mechanisms
•Why? TRCs susceptible to elite manipulation. Plus prioritisation of democratisation and justice
for civil and political rights violations over social and economic justice
•Answer: localization of truth-seeking
•Local level of knowledge, prioritisation of victims‘  needs (paritcipation)
•Rests on shaky assumptions about benefits of local TJ
•Why? TRCs susceptible to elite manipulation. Plus prioritisation of democratisation and justice
for civil and political rights violations over social and economic justice
•TRCs romantised

What have we learnt?
Hayner 2010
•Overstated role of truth
•But: El Salvador: reforms based on TRC recommendations. South Africa: few ppl would try to defend
the systém of apartheid
•Generally more visible work than that of (particularly international) courts
•Some level of disappointment is necessary as the goals are too big to be reasonably achievable
•Some repercussions and consequences not foreseen: future criminal trials relying on materials
documented by TRC
•Benefits: wider reach than limited criminal trials
•

What have we learnt?
Hayner 2010
•Truth, Justice and Peace
•TRCs – fewer powers than courts
•Varied relationship, but typically only collection of material and outline of state‘s
responsibility
•They often strengthen prosecutions
•What happens when they work in the context of amnesties?
•Autorization of the state
•+ better access to official sources of information, increased security, greater likelihood that
RRC report will receive serious attention
•- abuse of power
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Thank you for your
attention
Katarína Šipulová
katarina.sipulova@law.muni.cz
Masaryk University