Should Truth Commissions be Viewed as Second-best Alternatives to Prosecutions?
| Author | Gemma Daly |
Should Truth Commissions be Viewed as Second-best
Alternatives to Prosecutions?
Gemma Daly*
This Article provides a comparative analysis of truth commissions and
prosecutions as alternative or complementary methods of transitional
justice in post-conflict societies. The author considers the theoretical
debates around differing aims of transitional societies, and focuses her
comparison on justice, peace and truth. This Article critically analyses a
complementary approach to transitional justice, whilst ultimately
proposing its usefulness instead of the prevalent alternation between
truth commissions and prosecutions.
I. INTRODUCTION
Transitional justice actors and commentators have extensively debated whether
truth commissions (TCs) should be viewed as a second-best alternative to
prosecutions. Proponents of truth commissions argue that they expose and
acknowledge truth about past wrongs whilst maintaining peace; those who
favour prosecutions advocate criminal trials as the best way to achieve justice.
This literature has been criticised for presenting false dichotomies between
truth and justice, peace and justice,1 and truth commissions and prosecutions.
Instead, recent analyses have suggested that complementary approaches should
be adopted in transitional societies. I shall critica lly analyse both standpoints
and suggest that a case-by-case approach is necessary.
I analysed existing literature to conclude that prosecutions are more likely to
achieve retributive justice, whilst truth commissions seek restorative justice. In
their administration, prosecutions have greater safeguards for procedural
justice, but may threaten peace in fragile transitional circumstances. Truth
* Gemma Daly graduated from the Univ ersity of Bristol wit h an LLB in 2012 and is curren tly a
part-time LLM student at SOAS, studying alongside a career in advice work. Gemma specialises
in human rights, conflict and justice.
1 Chandra Lekha Srir am, Confronting Past Human Rights Violations: Justice vs Peace in Times of
Transition (The Cass Series on Peacekeeping, Frank Cass 2004) 212.
(2015) Vol. 2, Issue 1 Gemma Daly 177
SOAS LAW JOURNAL
commissions are able to establish a broader truth, but may be less reliable than
the facts ascertained at trial. Neither mechanism is able to achieve justice, peace,
or truth alone; I therefore agree that the dichotomous approach is unhelpful
and ultimately unrealistic for transitional societies. Whilst I am inclined to
support a collaborative approach between transitional justice mechanisms, I
acknowledge the practical difficulties of such a proposal. The approach that
should be taken will essentially involve a case -by-case exam ination of the
particular circumstances of each transition, with the aim of pursuing justice,
peace and truth. I strongly agree with Orentlicher that international law should
require prosecutions even though they may not be immediately realisable in all
contexts.2 Truth commissions should not be viewed as second-best to prosecutions
because it cannot be said that prosecutions are always best; truth commissions
can be beneficial in certain circumstances; and collaboration between a variety
of mechanisms can be more advantageous. A comprehensive approach to
transitional justice should consider the appropriateness of prosecutions, truth
commissions, reparation and other relevant measures for the case at hand.
1.1 The Transitional Justice Context
It is necessary to outline the boundaries of this discussion: the context to which
this enquiry relates, perspectives and later the outcomes being measured. This
Article will be limited in scope to exploring some key issues around truth
commissions and prosecutions. In an attempt to maintain a broad discussion of
the relevant lit erature, I will not focus on an individual case study but explore a
variety of contexts relevant to the arguments at hand.
Truth commissions developed as a mechanism for addressing past atrocities in
transitional societies emerging from conflict3 but have recently been formed in
established democracies, such as Canada,4 as secondary to criminal5 and civil
2 Diane F Or entlic her, ‘‘Settling Accounts’ Revisited: Reconciling Global Norms with Local
Agency’ (2007) 1 The International Journal of Transitional Justice 10, 22.
3 Li sa J LaPlante, ‘Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice
Scheme s’ (2009) 49(4) Virginia Journal of International Law 916, 917.
4 For example, the Truth and Reconciliation Commission of Canada, established in 2008 as part
of the Indian Residential Schools Settlement Agreement.
5 For example, former school workers p rosecuted for indecent assault of children in Indian
Residential Schools: See ‘Ex-residential school worker convicted of abusing boys’ (CBC News, 5
November 2013) .cbc.ca/news/canada/saskatchewan/ex-residential-school-worker-
convicted-of-abusing-boys-1.2415810> accessed 26 March 2014. However, prosecutions have
been limited and have n ot been pursued against those responsible for the Indian Residential
Schools and systemic human rights violations.
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