Considering Truth. Dealing with a Legacy of Gross Human Rights Violations
| Author | Michelle Parlevliet |
| Published date | 01 June 1998 |
| Date | 01 June 1998 |
| DOI | http://doi.org/10.1177/092405199801600203 |
| Subject Matter | Article |
Considering Truth. Dealing with a Legacy of Gross Human
Rights Violations
Michelle Parlevliet'
Abstract
In our exploration
of
the theme
of
dealing with the past, we must pause
and
ask ourselves
hard questions. Why do we
feel
compelled to deal with the past? What do we hope to
achieve at the end
of
the day? An appeasement
of
our embittered history? What would
constitute such an appeasement? The truth? Whose truth? Truth about what?'
IIntroduction
This article focuses on the notion
of
truth. Truth frequently plays a major role in relation
to human rights, particularly where States seek to deal with a legacy
of
gross human rights
violations following a period
of
violence and repression. The context may be one in which
States have experienced a change
of
power from authoritarian or military rule to some
form
of
democracy, as was the case in El Salvador, Chile, Argentina, Greece, the Czech
Republic, Poland, Bulgaria, Ethiopia, and Haiti. It can also apply to States racked by civil
or ethnic strife,' which includes, amongst others, Burundi, Rwanda, the former
Yugoslavia, and Guatemala. In recent years, a number
of
States has regarded a process
of
coming to terms with their painful past an essential requirement for the development
of
a new and enduring democratic order or a lasting peace. The motivation has been that past
atrocities must be accounted for, in order to ameliorate the damage done and to change
the conditions in which those violations occurred so as to prevent their recurrence. While
the past cannot be undone, the intention
of
recalling it is to mitigate its negative impact
on society.
The quest for justice in transitional situations involves legal, political, moral, and social
aspects, and has been an issue
of
considerable interest in recent years. This stems from the
rising number
of
States which since the mid-1970s have attempted to grapple with
widespread human rights violations. Invariably, issues of acknowledgement and
accountability are at the heart
of
the matter, presenting those seeking to right past wrongs
with dilemmas
of
remembrance versus forgetting, and
of
punishment versus pardon.
Master's degree in Political Science, specialising in international relations, University of Amsterdam and
Master's degree in International Peace Studies, University of Notre Dame; Researcher Truth and
Reconciliation Commission on conceptual issues and security establishment, from February-December 1997.
The author stresses that the thoughts set forth here are her own, and do not necessarily reflect those of the
South African Truth and Reconciliation Commission. She is grateful to John Daniel, Lars Buur, Wilhelm
Verwoerd, Ruendree Govinder, Peter Baehr, Olivier Ribbelink, Daan Bronkhorst, Pieter Pekelharing, and
David Grant, for their comments and support. The article deals with the period
of
the TRC until the
beginning
of
December 1997.
Mamphela Ramphele, Lecture on 'The challenge facing South Africa', in; Alex Boraine, Janet Levy and
Ronald Scheffer (eds), The Healing
of
a Nation", Justice in Transition, Cape Town, 1995, p. 34.
Pointing out that the accountability problems have also arisen in situations where an end to armed conflict
is sought, Mendez strongly argues that the issue should not be solely considered in relation to transitions
towards democracy as is often done. Juan Mendez, 'Accountability for Past Abuses', Human Rights
Quarterly, Vol. 19, 1997, pp. 255-282, at p. 257.
Netherlands Quarterly
of
Human Rights, Vol.
1612,
141-174, 1998.
©Netherlands Institute
of
Human Rights
(81M).
Printed in the Netherlands. 141
NQHR
2/i998
Further complicating the issue is the fact that key actors have to operate within political
parameters determined by the democratisation process and the resulting balance
of
power
between outgoing and incoming authorities. These parameters often pose clear limits upon
the extent to which a new government can hold individuals accountable for their acts and
to which it can press for the investigation of abuses. Ultimately, therefore, the challenge
in dealing with past atrocities has been ' ... to strike a balance between the demands of
justice and political prudence, or, in other words, to reconcile ethical imperatives and
political constraints. oJ
Over time, States have found different ways to deal with legacies of human rights
abuse, and still new ones are being developed as each situation presents its own unique
set of circumstances. No one 'model' can be specified as the complexity of the issue
defies any attempt to subject it to universally applicable rules. Even so, the one common
and recurrent theme is the primacy of the value attached to the notion of truth. In case
after case, it has been asserted that the pursuit of justice may be negotiable depending on
the political circumstances, but the truth is not. Truth has assumed the position of an
absolute value, one that cannot be renounced under any circumstances. It is seen as an
essential precondition for any meaningful and legitimate approach towards past atrocities
'to bring truth to light' and to officially establish what happened. From a practical point
of view, moreover, it is recognised that truth lies at the basis of different approaches
towards past abuses, whether it be prosecution, investigation, the compensation, or
rehabilitation
of
victims.
Yet, despite its fundamental importance, there is little analysis
of
the concept.
It
is so
commonly used 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. On a conceptual level, its significance makes
it worthwhile to examine the concept in more depth. Probing the notion is also compelling
on a practical level, in light of the proliferation in recent years of so-called 'truth
commissions' as compared to the number
of
criminal prosecutions that have been
instituted to settle human rights accounts."
Mandated to establish a comprehensive record on past abuses, these bodies are 'to tell
the truth' about a period
of
ghastly violence and repression. The increasing number
of
such bodies that investigate and record yet do not punish, indicates that 'telling the truth'
has come to be regarded as an important contribution to strengthen the rule of law. This
is remarkable considering that punishment is usually regarded as an effective deterrent and
retribution; criminal prosecutions have thus often been emphasised as the best approach
towards past violations in asserting the rule of law.
Luc Huyse, 'Justice after Transition - Dilemmas of Backward-Looking Justice' ,Lawand Social Inquiry, Vol.
20, No. I, 1995, pp. 51-78, at p. 65.
In 1995, Bronkhorst estimated that approximately 30 countries world-wide have created such investigatory
bodies since 1991. He noted that only in a minority of cases, criminal charges were laid against individuals
allegedly responsible for violations - and in most of them, the persons concerned received afterwards some
form of amnesty (Daan Bronkhorst, Truth and Reconciliation. Obstacles and Opportunities for Human
Rights, Amnesty International, Amsterdam, 1995, p. 10). Although others estimate the number of
commissions to be smaller (due to a more narrow definition), the same trend is also obvious in their
accounts; see Priscilla B. Hayner, 'Fifteen Truth Commissions - 1974 to 1994', Human Rights Quarterly,
Vol. 16,
No.4,
1994; and Rose Bell, 'Truth Commissions &War Tribunals 1971-1996', Index on
Censorship, 1996, Vol. 25,
No.5,
Issue 172.
142
Parlevliet /Considering Truth
Therefore, this article will explore the concept
of
truth as it is used in relation to
redressing past human rights violations, not only to contribute to the debate on transitional
justice on a conceptual level,' but also to shed light on the merit
of
truth-telling. It
primarily aims to address the lack
of
analysis
of
a concept
of
which the value is generally
beyond doubt by clarifying its meaning and scope. By doing so, it also seeks to elucidate
a fairly recent approach towards accountability in order to understand its rising
prominence.
Existing Literature
On the basis
of
the existing literature on transitional justice, two preliminary observations
can be made regarding the notion
of
truth. First, the emphasis on truth is connected with
the nature
of
(certain) human rights violations. Many violations are, as it were, to remain
in the dark: torture and disappearances are examples
of
abuses that exist by the grace
of
secrecy and denial. 'Bringing truth to light' has therefore come to be seen as a direct
response to such violations, countering the atmosphere
of
silence and deceit in which such
crimes were committed." It also satisfies a powerful human need for knowledge and
information. 'After generations
of
denials, lies, cover-ups, and evasions, many people have
apowerful, almost obsessive desire to know exactly what happened', writes Cohen.'
Secondly, in the context of dealing with past violations, truth is generally understood
to entail not only knowledge. but also acknowledgement: the determination
of
facts about
the past,
and
a full, public, and official acknowledgement thereof" The basic facts
of
what happened are often already known to some extent, in which case establishing the
truth comes down to confirming what is already widely believed to be true. The 'added
value'
of
truth-telling is therefore regarded to lie in this aspect
of
acknowledgement: what
was private becomes public knowledge, shared amongst the wider population, and bearing
the official sanction
of
the State.
The value
of
such acknowledgement seems to lie on several levels. On a psychological
level, it is, as Ramphele once said, ' ... an affirmation that one's pain is real and worthy
of
attention.'? On a social level, it puts an end to the isolation and fear that accompany
gross human rights violations. On a political level, it symbolises that the State takes
responsibility for what happened in the past. Symbolically, the State acts as it should have
done when atrocities were committed but failed to do so at the time. This indicates that
the significance
of
truth in relation to human rights violations goes beyond sheer factual
knowledge.
'Transitional justice' is a term of art which refers to the pursuit
of
accountability for (gross) human rights
violations in a transitional situation. See, for example, Mendez, loc.cit. (note 2); Huyse, loc.cit. (note 3);
Stanley Cohen, 'State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing
of
the Past',
Law &Social Inquiry, Vol. 20, No. I, 1995; James McAdams (ed.), Transitional Justice and the Rule
of
Law
in New Democracies, University of Notre Dame Press, Notre Dame, 1997; Neil J. Kritz (ed.), Transitional
Justice: How Emerging Democracies Reckon with Former Regimes. Vol. l-Ill, United States Institute of
Peace, Washington DC, 1996.
The 'terminology of truth' originally came up in relation to the violations that were committed in the Latin
American Southern Cone during the I970s and I980s, where torture and disappearances were widespread.
Cohen, loc.cit. (note 5), p. 18.
This distinction between knowledge and acknowledgement was originally made by Thomas Nagel in the late
I980s, and has received wide acclaim since then (Lawrence Weschler, A Miracle, A Universe, Settling
Accounts with Torturers, Penguin Books, New York, 1990, p. 4).
Ramphele, loc.cit. (note 1), p. 34.
143
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