This article evaluates the conventional view in the social sciences and in socio-legal scholarship that courts cannot generally produce satisfactory accounts of political violence, on the grounds that their methods and aims are too narrow, or because they are too focused upon other objectives, such as judging the guilt or innocence of individuals. These arguments have been used in support of new, non-legal institutions such as truth commissions, which are held to produce more comprehensive view of the past. The article assesses these arguments by examining the reports of truth commissions in Guatemala, South Africa, and Peru and the judgments of international criminal tribunals for the former Yugoslavia and Rwanda. It notes that international truth commissions and tribunals tend to produce more comprehensive and undistorted accounts of the past because they are less constrained by nation-building imperatives and since they employ international law concepts such as genocide which require examining the more systematic and collective dimensions of a conflict. It concludes that the important factor in writing an adequate historical account of political conflict may lie less in whether an institution is legal or non-legal and more in its organizational relationship to the nation-state and in the concepts of international humanitarian law that guide it.
Richard A. Wilson is Gladstein Chair of Human Rights, Professor of Anthropology and Director of the Human Rights Institute at the University of Connecticut. He is the author of numerous works on political violence and social movements in Guatemala, including the book Maya Resurgence in Guatemala (1995). His research on questions of memory, truth and justice and the South African Truth and Reconciliation Commission led to the monograph The Politics of Truth and Reconciliation in South Africa: legitimizing the post-apartheid state (2001, Cambridge University Press). He has edited or co-edited five books; Low Intensity Democracy (1993) Human Rights, Culture and Context (1997), Culture and Rights (2001) and Human Rights in Global Perspective (2003) and Human Rights and the ‘War on Terror’ (Cambridge University Press, 2005). He is presently co-editing a book titled Humanitarianism and Suffering: the mobilization of empathy.
Human Rights Histories:
Historical Debates at International Tribunals and Truth Commissions
I. The Problem of History Since the trials of high-ranking Nazi war criminals in Nuremberg during 1945-6, commentators have been asking whether courts are the best place to write a history of war crimes and crimes against humanity. This debate gained momentum during the 1961 Eichmann trial in Israel and the Holocaust trials in France in the 1970s and 1980s, and took on new relevance during the wave of democratizations in Africa, Latin America and Eastern Europe in the 1980s and 1990s. During the 1990s, the international community in the form of the United Nations and major donor governments, began to assert that the task of writing a new official history was central to facilitating both co-existence and accountability, and promoted new institutions to fulfill this undertaking. This begs a whole series of questions, including: Have international tribunals or quasi-legal commissions of inquiry actually provided significant insights into the origins and causes of political violence? How might state or international institutions document human rights violations in a way that is comprehensive and engages in a meaningful reckoning with the past?
First of all, of course, one might reasonably ask why documenting the past should matter at all, and several objections have been raised. Why should state or international legal institutions become entangled in the business of writing history-why not just judge the leading perpetrators, punish the guilty and leave history to the historians? One position asks us to put aside both justice and history and to just focus upon the task of consolidating democracy. This has been the dominant view in Spain and Mozambique, and these countries have been no less successful than many others in building durable democratic institutions.
Over the past 15 years, commentators have countered with a number of justifications for some kind of historical reckoning. For some writers, humans everywhere have a propensity to turn seemingly haphazard events into a meaningful narrative; that is one way that we human create meaning and identity in the world1. A related position states that victims have an inalienable right to justice and this involves an accurate explanation of what happened to whom. Human rights lawyers such as Frank La Rue, Presidential Adviser for Human Rights in Guatemala, have argued in favor of a ‘right to truth’ that is distinct from, but linked to, the right to justice2. Finally, given the denial of mass human rights violations by perpetrators who continue to occupy positions of political power, some writers have emphasized the need to create a record to confront those who seek to refute the horrors of the past3. These arguments became widely accepted in the 1990s among many of the larger donor governments and at the United Nations, which now officially views historical documentation as a key dimension of accountability and the rule of law and as an essential part of any post-conflict reconstruction program4.
If getting the historical record right has become an issue for governments and international organizations, the question then becomes, what kinds of institutions can deliver an adequate historical account of mass atrocities? After the end of the Cold War in 1989, there has been an explosion in the number and type of institutions dedicated to writing an historical record of human rights violations. In particular, we have seen the spread of truth commissions, institutions whose primary goal is to publish an official account of human rights violations in a country during a determined period. These commissions usually arose as a response to amnesty laws which precluded formal legal punishment of perpetrators, thus heightening the need for some kind of non-legal, non-retributive (but nonetheless accurate) accounting for past events. All truth commissions are different, but we can discern at least three main types: 1. International or UN-sponsored truth commissions as in Guatemala. 2. National truth commissions as in South Africa, Chile, and Argentina; and 3. Hybrid truth commissions as in Sierra Leone which are comprised of a mixture of national and international personnel5.
In the 1990s, the first international tribunals since Nuremberg were established to hear cases involving crimes against humanity and genocide. Their main function is to determine guilt or innocence and to punish the guilty, but they could not avoid engaging with the historical debates surrounding specific conflicts. Again, can discern three types: 1. International or UN-sponsored tribunals such as the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC); 2. National domestic courts such as the South African court that convicted Colonel Eugene de Kock in 1996 for apartheid-era crimes; and 3. Hybrid tribunals such as the Special Court for Sierra Leone and the Cambodian Khmer Rouge Tribunal which are comprised of a mixture of foreign and national judges and personnel.
This article evaluates the historical records left by this plethora of legal and non-legal institutions. It asks; which institutions of the six types mentioned above have produce the most accurate, compelling and comprehensive historical accounts? What guiding concepts or principles, legal and otherwise, have they employed, and with what results for their understanding of a particular conflict? Truth commissions and courts are evaluated together, in a comparative fashion. By and large, commentators have evaluated courts and truth commissions separately, and two relatively disconnected worlds of scholars and practitioners have emerged- the ‘reconcilers’ [scholars of truth commissions] and the ‘punishers’ [who tend to focus on courts]. This intellectual division of labor has sometimes obstructed relevant comparisons and obscured the similarities in their approach to historical documentation.
In creating a framework to evaluate both truth commissions and courts, firstly we need to look closely at their constitution within national or international bureaucracies, and secondly we need to ask what legal categories motivate their investigation. After reviewing the evidence, I arrive at the view that international truth commissions and courts have tended to deliver more comprehensive historical accounts than national institutions which are often more heavily constrained by national governments and domestic politics. Secondly, truth commissions and courts employing collective legal categories such as genocide and persecution tend to write more contextually-rich and complex histories of armed conflicts.
II. The State of the Debate Over the past twenty years, there has been a great deal of consensus in the literature on post-conflict justice that pursuing justice and writing history are contrary activities. This view has not been advocated solely by one group, but is held across the ideological spectrum and is shared [albeit for different reasons] by liberals and conservatives, practicing lawyers and literary critics, postmodernists and Enlightenment rationalists.
The view that rendering justice and writing history are contradictory was illustrated poignantly in the aftermath of the Milosević trial at The Hague. In an article titled ‘Lessons for prosecutors of war crimes trials’, Financial Times writer Quentin Peel drew a stark opposition: ‘the court confused the need to bring one man to account with the need to produce a clear narrative of war crimes and atrocities for the history books.’ [Financial Times March 13, 2006]. There we have it: writing history books is incompatible with bringing Milosević to book.
If we look more closely, there seem to be two components to this view, firstly the normative position that the justice system should not even attempt to write history and secondly, the empirical observation that even when courts try to provide an historical commentary, they are bound to fail. I deal with these in turn. The normative view is closely associated with the philosophy of ‘liberal legalism’, which holds that the point of the legal process is none other than to examine whether a crime occurred and determine whether an indicted individual is responsible for this crime (Bass 2000). In Eichmann in Jerusalem, Hannah Arendt (1965) argued that courts should never provide a history lesson; they should not attempt to answer the broader questions of why a conflict occurred in a particular place and time and between certain peoples. To do so undermines the right of the accused to due process and procedural fairness, and with it the credibility of the law. In the 1961 trial of Nazi bureaucrat Adolph Eichmann, Arendt (1965:19) protested the prosecution’s forays into the past, calling it “bad history and cheap rhetoric.”
According to my interviews with a number of members of the staff of international criminal tribunals6, the liberal legalist view is widely held in such institutions, as might be expected. Even if the point is qualified in various ways by tribunal staff, by and large it forms the basis of their understanding of the core function of an international tribunal. For example, one Senior Trial Attorney at the ICTY explained,
Historical evidence is not a significant part of the case proving that individual X committed Y crime. I may lead it in a trial, but only as background to give the judges a bearing on the context.
If liberal legalism holds that history writing should not be a key function of a trial chamber, then critical legal studies approaches go a step further to determine that courts inevitably fail in this task, even if they try. These critics point to the distinct modus operandi of jurists and historians. Whereas courts seek knowledge about events on the basis of falsifiable and verifiable evidence, historians adopt a more pluralistic, open, and interpretative approach. Law is concerned with social context only when it impinges on questions of guilt or innocence, whereas historians place individual actions within societal and cultural contexts as a matter of course. As French historian Henry Rousso (2000:194) articulated in his letter to the president of the Assizes Court in Bordeaux when called as an expert witness in the Papon trial: ‘In my soul and conscience, I believe that an historian cannot serve as a “witness,” and that his expertise is poorly suited to the rules and objectives of a judicial proceedings. . . ..’
A related critique draws from Clifford Geertz’s (1983:173) famous dictum that, “Whatever it is the law is after, it's not the whole story” to contend that courts inevitably overlook the central elements of a conflict. Historians Michael Marrus (1997) and Donald Bloxham (2001) maintain that the Nuremberg trials did not adequately address the most important Nazi crime of all-the mass extermination of European Jews. The Nuremberg trials left an incomplete and impoverished historical record because prosecutors treated crimes against humanity as secondary to crimes against peace.
In recent years, scholars such Martha Minow (1998) and Julie Mertus (2000:157-159), and transitional justice advocates such as Alex Boraine (2001)have invoked these arguments to encourage a move away from retributive justice and towards truth commissions. These new non-legal commissions of inquiry, it is argued, ought to replace courts as the foremost institutions documenting the past, as they will represent a vast improvement in terms of more inclusive methods and more sophisticated outcomes. Since they are not courts of law, they are freed from the task of determining individual guilt or innocence and therefore can conduct more contextual and open ended historical inquiry and analysis. Courts are overly concerned with the actions of the alleged perpetrators and only include a small segment of victim narratives. Truth commissions on the other hand can provide a platform to hear the voices of victims elicit a broader set of truths about an era of political violence.
These arguments are not entirely convincing for a number of reasons. The most obvious one is the polarity that is drawn between the methods of courts and historians and we need to consider more the counter-arguments that draw out the parallels between law and history. Both weigh evidence and assess its facticity. Both utilize eyewitness testimony and search for corroborating evidence. Ideally, both show sensitivity to the context of individual actions and the individual’s social environment. Expressed in the broadest terms, both explore the details of the particular while keeping their eye on the general implications of the case in question.
This line of argument is further reinforced if we entertain the theory that legal argument does not simply rely upon the presentation of facts, but always expresses the facts in a chronological and narrative form.7 In the courtroom, the parties arrange facts sequentially in order to construct a plausible narrative, and in so doing assert a causality between acts, facts and events. The “narrative coherence” of a legal argument- defined as “a test of truth or probability in questions of fact and evidence upon which direct proof by immediate observation is unavailable”8- is crucial in the formulation of a truthful account and its ability to persuade the court. Ronald Dworkin has made such social constructionist and “narrative theories” of law widely accepted, arguing that legal reasoning is not unique but involves semiotic practices found in literary criticism. In hard cases, legal thought is a holistic exercise, as based in social norms as it is facts, which reveal “facts of narrative consistency.”9 In sum, both law and history are centrally concerned with narrative to establish their accounts, and this ought to make us wary of arguments which starkly state that the first casualty of the court process is historical truth. There is evidence of a more empirical kind to reinforce this argument and we now turn to a number of cases of the past ten years or so to evaluate the question further.
III. Taking a Closer Look at the Evidence After over a decade of national, hybrid and UN-sponsored truth commissions and ad hoc tribunals, we need to evaluate the above arguments by engaging in a thorough review and comparison of the empirical records of truth commission reports and court/tribunal judgments.
As critics of courts foresaw, there have been some comprehensive and well crafted truth commission reports which do seem to transcend the narrowness of the legal process. Perhaps the most impressive of these is the report of the UN-sponsored Guatemalan Commission for Historical Clarification10. In February 1999, the Commission publicly released its 12 volume report Guatemala, Memoria del Silencio, a damning account of state terror over three decades. The report found that 200,000 people had been killed or ‘disappeared’, and that 83% of the victims were Mayan Indians11. Although the report was prevented by its mandate from naming individual perpetrators, it found that Guatemalan military had committed ninety-three per cent of the violations and the guerrillas three per cent12.
The Guatemalan Commission became the first truth commission to level an accusation of genocide against a previous regime: ‘agents of the State of Guatemala, within the framework of counterinsurgency operations carried out by the regime of General Rios Montt between 1981 and 1983, committed acts of genocide against groups of Mayan people13.’ Mass violations had occurred ‘by the order of the highest authorities of the State14.’ The use of the term ‘genocide’ forced the commission to go beyond individual violations and the first volume examines in detail the 'causes and origins of the internal armed conflict'. The report engages in a far-reaching social science analysis and identifies three inter-dependent causes of violence: economic exclusion, political authoritarianism and racism. Unusually for a human rights commission, it documents the institutionalized system of racism in the country at all levels-economic, political, cultural, and educational.
The Guatemalan Commission compiled an impressive document which includes most of the elements one should expect in a historical account of widespread political violence. Despite the fact that it did not have an immediately profound impact upon political debate in Guatemala, it contains original documentation, trenchant social science analysis of the country’s political, economic and social institutions, and victim’s stories told in their own voices and represents a comprehensive overview of a country’s history for future generations.
However, the Guatemalan report is the exception rather than the rule, and there have been a surprising number of monumentally poor histories contained in truth commission reports. Never Again, the 1984 report of the Argentine National Commission on the Disappeared avoided any political history of the massive repression by the military juntas that ruled Argentina between 1976-83. The report adopted a narrow legalistic approach, portraying widespread state violence as a straightforward violation of law and a violation of individuals’ rights. The Report only provided a cursory explanation for the violence and did not undertake any real investigation into the historical causes or the structural conditions that created conflict in the first place. Instead, it proposes a ‘doctrine of two demons’ that places responsibility on the extreme right and left rather than mainstream state institutions (e.g., the military) and political parties. Critics have argued that this approach is both depoliticizing and historically inaccurate, and engages in a questionable moral equalization of both parties to the conflict15.
The national South African Truth and Reconciliation Commission (TRC), was widely applauded and it performed a number of functions successfully16. Most importantly, it brought the voices of ordinary Africans at Commission hearings into the mainstream public consciousness in a way that had never happened before. After the months of TRC hearings in 1996, no one could maintain any longer that apartheid was a good neighbor policy that went awry. It was clear to every South African listening to one testimony after another on the radio and on television, night after night, that apartheid was a vicious system of institutionalized racism that destroyed millions of human lives, through violence and through neglect.
While the South African process had a more significant impact upon the public space than in Guatemala, the final TRC Report released in 1998 was a sloppy, shambolic product comprised of 3500 jumbled, barely edited pages with no coherent chronology and no index. It made basic, embarrassing mistakes of fact. To take just one example, the TRC Report made the following finding:
The Commission finds that forty-five people were killed and twenty-two severely injured in Boipatong on 17 June 1972 in an attack perpetrated by residents of the Kwamadala hostel, who were primarily supporters of the IFP17.
However, the infamous Boipatong Massacre actually occurred in 1992, not 1972. Nor do the TRC’s numbers of killed inspire confidence-only a few paragraphs earlier at 587, the Report had stated that only 21 people died, rather than 45. There are a number of such examples but perhaps more significantly was the evasion of the larger historical questions by the authors of the TRC Report. Why, after all the investigation and research, was the system of apartheid created and maintained for over four decades? Was it a form of neo-colonialism as the African nationalists suggested, or a system of capital accumulation as the Marxists stated, or a hybrid combination of both? Why did this system of governance produce such violence? The TRC report did not need to settle these difficult questions, but it ought to have broached them. After all, this is the main rationale for truth commissions -they can address the broader historical questions that courts have to eschew in their determination of individual criminal responsibility.
In the end, the South African TRC Report did not leave a well constructed report that offered many significant and new insights into the violence of the apartheid era. In fact, criminal investigations of apartheid security policemen arguably produced more new and substantial information on the day-to day functioning, if not the entire chain of command of the apartheid state security apparatus. The trial of Colonel Eugene de Kock presented a chilling picture of a mass murderer of anti-apartheid activists receiving clear orders and commendations from his superiors. In 1994-5, Attorney-General Jan D’Olivera launched a major investigation of Northern Province security policemen Jack Cronje, Jacques Hechter and Paul van Vuuren, and this prompted them to apply for amnesty at the TRC just as their indictments were about to be filed. Any prospect of prosecution was suspended as their amnesty applications were heard and then upheld. Without the criminal justice system snapping at their heels, the TRC would have received none of the information from these perpetrators. If the TRC had not existed, they would have been tried in a court of law and we might have learned more about their activities than were disclosed to the TRC.
If the review of truth commissions has shown a markedly mixed record, what about courts and international tribunals? According to the critics, these should be a dismal failure in terms of the historical record they leave behind. And yet they have not been a failure and indeed some excellent historical accounts have emerged from international tribunals. Tribunals in the United Nations system, while not without their faults, have demonstrated both an adherence to due process and an ability to produce historical accounts which are often superior to either truth commissions or national courts.
This latter point is borne out if we look at the 1997 Tadić judgment of the International Criminal Court of the Former Yugoslavia (ICTY) which, being the first judgment handed down by the ICTY Trial Chamber, set out a historical understanding of the conflict in Bosnia-Herzegovina. The judgment starts in a way that would be inconceivable for a national court with 69 pages of commentary on Balkans history and the place of Bosnia within wider regional conflicts. It deals with the Ottoman and Austro-Hungarian Empires, the Second World War, the collapse of Communism and death of Tito, the rise of ethno-nationalism in multi-party elections and in the media, and the subsequent violent fragmentation of Yugoslavia along nationalist lines. The Tadić judgment contains a contextual and historical approach that delineates the main origins, patterns and methodical plans of a policy of persecution of a non-Serb civilian population and places Dusan Tadić’s acts squarely within a joint criminal enterprise. The Tadić judgment offers an authoritative account of the conflict in Prejidor and Bosnia, and while reasonable people may disagree with parts of it, at least it engages with the past in a systematic and comprehensive manner. Given the broad purview of the Tadić judgment, historian and ICTY expert witness Robert Donia is right to comment, “[t]hese chambers have produced histories that are not only credible and readable, but indispensable to understanding the origins and course of the 1990s conflicts in the former Yugoslavia.”18 While it could not be argued that all ICTY judgments maintain the same level of interest in historical reflection, there are a number of other cases where historical clarification plays a central role, notably in the four subsequent cases of Stakić, Brdjanin, Galić and Krstić. General Radislav Krstić was one of the first high level perpetrators to be arrested by NATO in 1998 and brought to the Hague.19 In August 2001, Krstić was convicted of leading the Bosnian Serb Army as it committed genocide against the ‘Bosniak’ [Muslim] male population of Srebrenica during nine days from July 10-19, 1995, when the Drina Corps surrounded the town and methodically slaughtered approximately 7000 men and boys.20 The Krstić judgment offers a comprehensive account of the conflict in the Srebrenica area of Bosnia-Herzegovina from 1991-1995. It begins with the breakup of the Socialist Federal Republic of Yugoslavia and relies on the historical explanations contained in the earlier Tadić Judgment: Marshall Tito discouraged nationalism but then died just before communist rule ended, when a rising nationalist movement took advantage of an economic crisis and filled the ideological gap left by communism.21 The Krstić Judgment differs from the Tadić Judgment in that it is a micro-history of a town, Srebrenica, and it focuses on the strategic importance of the town in the region of Bosnia, and is less concerned with the entire country. The narrative addresses the failure of the UN Protection Force [UNPROFOR] to protect the town from the three heavily armed brigades of the Bosnian Serb “Drina Corps.” While the historical aspect of the judgment withstood appeal, the genocide conviction did not, and General Krstić’s genocide conviction was overturned by the Appeals Chamber 2004. It upheld the view that genocide had indeed occurred in Srebrenica, but found Krstić guilty of the lesser count of aiding and abetting genocide, and sentenced him to 35 years in prison.
IV. Refining the Debate The evidence reviewed above does not confirm the widely-held view that legal institutions produce inept historical commentaries and non-legal institutions such as truth commissions represent a great improvement. Some commissions and courts produce impoverished accounts, whereas others are more accomplished. Indeed, it becomes clear that the differences between truth commissions and courts are not enough in themselves to explain the different outcomes produced by the same institutions, nor why different institutions produce similar outcomes. It is of course true that truth commissions are more centrally concerned with producing an historically accurate account of past mass violations, and courts are more directed towards determining guilt or innocence, and punishing offenders. Yet beyond this, a number of different outcomes are possible, and this does not always depend on whether an institution producing an account of the past is a commission or court. We need to refine the terms of this debate further if we are going to make sense of this perplexing state of affairs.
First, there are good reasons to reject the austere liberal legalist position that courts must only administer justice understood as determining guilt or innocence and punishing the guilty. It is not a question of whether courts write history, but how courts write history. National courts and international tribunals, especially when dealing with human rights violations committed on a massive scale, cannot escape writing history. Jurists are routinely required to pronounce upon questions of historical import and to choose between competing historical explanations. Contentious issues often revolve around the whether perpetrator groups were autonomous or supported and directed by central political authorities; for example, were the Interahamwe militias that carried out the Rwandan genocide armed and directed by political authorities in Kigali? Few international criminal cases arrive in the courtroom without a ‘theory of the case’-that is, an explanation of why the crimes occurred in the first instance, and this theory is often based upon historical factors. It is therefore not a matter of whethercourts produce an historical narrative, but to what extent, and using which methods, guiding investigatory principles and assumptions and with what consequences for the outcome of the trial.
I should make clear here that this view has both its supporters and skeptics within the international criminal tribunals themselves. In my interviews, I encountered Senior Trial Attorneys on the same corridor at the ICTY offering diverging views of the place of history at the Tribunal. One commented:
People criticize us for doing too much history but our task is different from a domestic jurisdiction…we have to prove a widespread and systematic attack upon a civilian population, so we have to explain the whole context of a crime, what was happening around is and how the crime was part of a plan. This cannot be avoided. As long as a crime against humanity is the crime we are prosecuting at the Tribunal, you have to know the background of the crime. That’s why history discussions occur in cases. Even in the Foca case which was a crime-based case, you had to show the goals of the Bosnian Serb leadership. How is it possible not to talk about history?
Another Senior Trial Attorney expressed a more cautious view, noting that historical debate can be an impediment to both truth and justice if it is deployed in the courtroom to obfuscate the crimes, rather than clarify them. He cited occasions such as during the 2000-1 ‘Omarska’ trial (which dealt with crimes at three concentration camps outside Prejidor) when the Defense Counsel sought to undermine the testimony of a prosecution witness by diverting attention away from her specific stories of maltreatment and embroiling her in contentious debates about the wider history of the town and region. He also questioned whether some accused political leaders, and in particular Slobodan Milosević, should be allowed to engage in long discourses on history during the courtroom trial:
Are we furthering the purposes of the Tribunal when we allow him [Milosević] to go on long historical tirades? The purpose of a criminal trial is to get at the truth and produce a judgment and get some finality… so the victims can get some closure. Historians can keep reinterpreting, but we only get one chance.
While these accounts tell us that different value is accorded to historical argumentation by those working in international criminal tribunals, we ought to note that no one is asserting that historical narratives do not play a part in international criminal trials. They are a feature of these cases, and sometimes a prominent one, for better or for worse. Having established that both courts and truth commissions can and do generate historical narratives, let us look at other aspects of their organizational structure and guiding legal concepts to ascertain why their accounts of conflicts seem to vary so much in quality. We might ask whether it is a coincidence that the well-crafted and comprehensive historical reports seem to emanate from international institutions sponsored by the United Nations (the Guatemalan Historical Clarification Commission and the International Criminal Tribunal for the Former Yugoslavia) and the relatively impoverished historical accounts tend to be produced by institutions run by national governments (the Argentine truth commission and the South African TRC).
There might be an explanation for why national institutions produce the most inadequate documents on the past which relates to the inordinate pressure that national governments can place on domestic courts and truth commissions. It is clear that domestic trials and truth commissions become a battlefield over the past and future identity of the country and in these battles, the individual national institutions, whether courts or truth commissions, come under the influence of the governments and elites that direct, supervise, administer and fund them. The interests of these political elites, of which the judiciary can usually be considered a part, often lead to the sacrificing of any comprehensive historical explanation. In places such as Argentina, Chile and South Africa, courts and national truth commissions have become an instrument of a post-authoritarian political project and this has a distorting effect on truth. They serve to manufacture legitimacy internally, to defuse past political opponents, and externally to assert the government’s new human rights credentials to the international community.
Furthermore, the State is usually in a structural situation of a conflict of interest with a domestic court or truth commission. The State is being asked to judge itself, and make itself vulnerable to law suits and demands for reparations from victims of government agents. This is something that post-authoritarian States, often facing massive social pressures and constraints on state resources, are loathe to do. To illustrate this point, we might ponder the situation in South Africa in 1997, when different state institutions were undertaking fairly contradictory activities. In the township of Sebokeng outside Johannesburg in August 1997, the TRC was holding hearings, listening sympathetically to the voices of the many victims of the South African Police or South African Defense Force and formulating its recommendations for reparations to the victims coming before it. Meanwhile, just a few miles down the road at Vanderbijlpark Murder and Robbery Unit, police officers continued to mistreat and torture criminal suspects. Lawyers Tony Evans and Peter Jordi successfully sued the Minister of Safety and Security numerous times that year on behalf of clients who had been tortured and beaten while in police custody. So here we had a situation where one part of the South African state was creating a forum to hear victims’ stories of police violence, while another part was creating more victims, leading to large payouts for damages. This conflict of interest means that the State is not a neutral arbiter and is too embedded in a violent scenario partly of its own making. Both truth commissions and domestic trials are caught up in the State’s material conflict of interest and the State’s imperative to manufacture legitimacy and this explains in part why national truth commissions have not always represented a radical improvement on trials.
International truth commissions and international tribunals on the other hand, have been much more successful in adhering to due process and writing comprehensive histories of past human rights violations. One obvious difference is that UN administered international tribunals and truth commissions are not constituted within the institutional framework of the nation-state. As a result, international courts and commissions do not face the same political pressures and conflicts of interest as their national counterparts. Although international courts and commissions are administered by a bureaucracy, and are certainly subjected to political pressures [the subject of another article altogether], that bureaucracy is not to the bureaucracy of the nation-state. They are administered and funded by the UN, they are staffed by citizens of many countries with no stake in the conflict, and, while these staff clearly have political agendas [not least of which is their commitment to universal jurisdiction and the idea of ‘humanity’], these agendas generally do not include advancing nationalist versions of the political conflict. In the case of the ICTY and International Criminal Tribunal for Rwanda, they are sited outside of the countries where the crimes took place.
Moreover, international tribunals are not bound by the legal conventions of any nation-state and this gives them more freedom to develop flexible and appropriate rules of procedure and evidence. International prosecutors have significantly more discretion in their priorities and the direction of cases than their national counter-parts. Since the nation-state is not in its usual place and not able to interfere in the same way with the daily operation of an international tribunal or truth commission, the political pressures for nation-building, reconciliation and just plain covering-up the facts are just not as acute in international institutions.
There are a number of caveats and qualifications to this argument. I am not saying that nation-states cannot influence and even distort the work of international tribunals or truth commissions. These institutions do not commonly possess their own police force and usually rely upon states to enforce powers of search, seizure, subpoena and, most importantly, arrest. As ICTY head prosecutor Carla del Ponte has pointed out on more than one occasion, the arrest of two individuals indicted for genocide in Bosnia, Radovan Karadzić and Ratko Mladić has not been enough of a priority for successive Serbian governments. States can withhold reports, memoranda, internal documents and other forms of incriminating evidence from staff or provide misleading or false evidence, or simply destroy relevant evidence. Under Rule 70 of the ICTY Rules of Procedure and Evidence, states can provide evidence to the Office of the Prosecutor and Defense Counsel on a confidential basis and withhold consent for the evidence to be used in court or shared with others. States have the capacity through their intelligence services to impede witnesses from traveling to testify in Arusha or the Hague. States can threaten to withdraw their cooperation with an international tribunal or truth commission if it touches upon sensitive topics or persons.
The list could go on, but we must also recognize that even these pressures are not of the same order as a national government can have upon a national institution. The Serbian government cannot terminate the funding of the ICTY and close it down, nor can the Rwandan regime of Paul Kagame remove the judges and prosecutors it finds irritating at the ICTR. National governments can pass amnesty laws or pardons which would effectively end a criminal investigation or prosecution within a domestic jurisdiction as we saw in South Africa, but such laws have no bearing upon a tribunal operating under international law. Governments cannot take a case out of the hands of an international tribunal and transfer to a military court. Finally, and most importantly, I would assert that while individual states clearly can interfere with the work of international tribunals or truth commissions, there is not compelling evidence that this has had a deleterious impact upon the kind of historical accounts that they produce.
Turning now to more specific attributes of international criminal law, the reasons why international commissions and courts might write more fulsome historical accounts than national institutions are not just institutional/organizational, but are also closely related to the legal concepts guiding the investigations. In particular they are related to concepts such as genocide or persecution which involve a collective dimension to criminal responsibility. Even though the Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly in 1948, there were no prosecutions for genocide by an international tribunal until the late 1990s22. At that time, international case law on crimes against humanity was very thin indeed, and terms like genocide and crimes against humanity like persecution required a great deal of novel interpretation to make them applicable to conflicts with ethnic, racial, religious and national dimensions such as the former Yugoslavia, Rwanda or Guatemala.
The application of categories such as genocide and crimes against humanity has had a dramatic effect on the historical approaches of both truth commissions and courts. Since these concepts have a more collective component (the victim of genocide is both the individual and the group), the concern has shifted from individual guilt to the wider political context and the set of policies pursued by a State or political party. If we look at the definition of genocide in the Guatemalan Historical Clarification Commission and in judgments of the International Criminal Tribunals for the former Yugoslavia and Rwanda, we see that genocide is a collective policy of extermination sustained over a period of time by an organized grouping against a number of individuals because of their membership in a designated ethnic, religious, racial or national group. It cannot be random or ad hoc. Its systematic nature must be proved by linking different sites at different times under the same long-term policy of extermination.
Disparate facts about crimes only make sense within a narrative which integrates the local events into an overall plan to commit genocide, undertaken with the sustained military and financial and ideological support of a political organization. As international law scholars Morris and Sharf write, ‘it is virtually impossible for the crime of genocide to be committed without some or indirect involvement on the part of the State given the magnitude of this crime23.’ The category of genocide compels courts to consider evidence that encompasses a broader context and a longer duration than in most conventional criminal trials. The applying of categories such as persecution and genocide has elevated the place of history and context in the reports of truth commissions and judgments of international courts. No longer held back by domestic political imperatives and pushed forward by the collective nature of crimes such as genocide, international tribunals and truth commissions have altered our understanding of the relationship between law and history.
V. Possible Exceptions and Objections Thus far I have maintained that the distinction between legal and non-legal institutions is not sufficient to explain the differences between truth commission and court accounts, and I have turned our attention to other factors, such as the international or national character of the institution and the kind of legal categories it uses. If left as it is, the argument could be challenged by any examples of national truth commissions or domestic courts that have produced excellent historical documents, or conversely, international human rights organizations that have failed miserably in this task. Such examples can be found, and while they do not overturn the thesis advanced here, they do require further qualification and the addition of more layers of complexity to the analysis.
The most obvious recent example of a national truth commission which has performed well is the Peruvian Truth and Reconciliation Commission which released its report in August 2003. Commission investigators interviewed 15,220 individuals, carried out meticulous archival and documentary investigations over two years and the Commission found that 69,000 people had died in political violence between 1980 and 2000. The Commission’s research was overseen by widely-respected Peruvian anthropologist Dr. Carlos Ivan De Gregori, resulting in a report that not only documented individual violations, but also placed them within a wider context of socio-economic inequality, racism against indigenous groups (75% of the victims were Quechua speakers), educational disparities and entrenched divisions between the distinct geographical zones of the country. The Peruvian Commission Report thoroughly examined the role of social institutions in the country, including the universities, human rights organizations, Catholic Church, media, political parties as well as the institutions of the state such as the military and criminal justice system.
The Peruvian Commission proved to be an exception to the rule because of the unusual responsibility which the guerrillas bore for the human rights violations over a 20-year period. The Peruvian Commission shocked many observers when it revealed that the Shining Path (PCP-SL) guerrillas had committed more atrocities than government forces and were responsible for not only starting the conflict but for killing over half of all the victims. Peru represented one of the very few cases, and indeed the only one in Latin America, where the State was not the main perpetrator of human rights violations. Returning to the argument made earlier, this meant that the State was not put into a conflict of interest to the same degree as say, in Argentina or Chile, and thus the state institution charged with examining the past was less encumbered in its historical inquiry.
In addition, the international vs. national distinction made earlier needs refining somewhat. While the Peruvian Commission was nationally constituted, there was a great deal of international participation. As with the South African Truth and Reconciliation Commission, a significant segment (approximately 45%) of the overall budget came from foreign governments, with USAID being the main international donor. International expertise was provided by international non-governmental organizations such as the International Center for Transitional Justice as well as consultants from other Latin American truth commissions. This brings us to another factor that this article has so far not given sufficient consideration to-the role of non-governmental organizations. In Peru, there were many dynamic local human rights organizations which demonstrated an admirable ability to pressure the government commission to do its job correctly, and which engaged in historical documentation and forensic work themselves and thereby facilitated the process of fact finding. This is a crucial factor contributing to the success of a truth commission, although it is a necessary not a sufficient condition, since South Africa also had a well-funded and professionalized non-governmental human rights sector.
Alas, there are additional cases that appear to confound the thesis advanced here, and we might consider the case of an international tribunal, the International Criminal Tribunal for Rwanda (ICTR), that has produced a succession of contradictory and incoherent pronouncements on the historical and social context of the Rwandan genocide24. In the ICTR’s first judgment handed down in 1998, the Akayesu judgment, the Trial Chamber found that the two main groups in Rwanda, the Hutu and the Tutsi, were not racial groups, and were not ethnic groups, but were ‘stable and permanent groups25’ that ought to be protected by the 1948 Genocide Convention. Subsequent ICTR judgments overturned this view and asserted that ethnic differences were the main factor in the Rwandan genocide.
However, consistency did not follow hereafter and the judges changed their understanding of ethnicity no less than three times, oscillating between subjective and objective views of ethnic identity. Finally, in the 1999 Rutuganda judgment, the Tribunal gave up trying to defining its social and historical terms and decided to hear genocide cases without an established approach to Tutsi and Hutu identities. In each subsequent case, the Office of the Prosecutor has had to establish first of all that these groups did indeed exist at the time of the genocide, thus placing an inordinate burden on the prosecution and delaying the entire trial process.
The reason why the ICTR encountered such troubles with Rwandan society and history, when the ICTY encountered no comparable difficulty in deciding that Bosniak Muslims constitute a religious group and Bosnian Croats are a national grouping, was specific to the mandate of the ICTR. The ICTR Statute was written in a peculiar manner and unlike international criminal tribunals, Article 3 of the ICTR Statute required proof of protected status (i.e., membership in a racial, ethnical, religious or national group) for all crimes against humanity, not just genocide26. Therefore discriminatory intent had to be proved not only for genocide, as is always the case, but also for other crimes against humanity such as murder, deportation, extermination or torture.
Prosecuting crimes against humanity under international criminal law does not usually require intent and is not required in the 1998 Rome Statute of the International Criminal Court. Placing a burden of proof of protected status for all the victims of crimes before the Tribunal made the ICTR particularly susceptible to the problems inherent in the defining of racial or ethnic groups. It forced the Tribunal to focus too heavily on objective definitions of categories of race and ethnicity and not enough on the political structures which planned and coordinated the mass violations of international humanitarian law. While the Peruvian case can be dealt with by aspects of my initial argument, the ICTR decisions do represent a real exception and show that even international courts can be set up in such a way so as to obstruct the process of historical inquiry. In the Rwanda case, the critique of law seems to have been borne out, and to quote the character Mr. Bumble in Charles Dickens’ Oliver Twist, ‘the law is a ass, a idiot’ (1970: 489). Law’s special procedures and operating principles can indeed lead to a warped view of social relations, history, ethics and so on.
This forces me to qualify my initial approach and while seeking to preserve its general contours, recognize that detailed analysis requires an immersion in the minutiae of institutions, all of which operate on a somewhat different basis and which ultimately require their own special attention. Nevertheless, it is possible to hold on to the broad picture and even to learn from some of the mistakes that have been made. The problems that the ICTR encountered are avoidable and one clear message to future international criminal tribunals is that their statutes should not require proof of discriminatory intent in all crimes against humanity [with the possible exception of ‘persecution’]. Proving discriminatory intent should be confined only to cases of alleged genocide.
VI. Concluding Thoughts There has been rapid change in the field of post-conflict justice and historical inquiry in the last ten years. Novel legal categories such as genocide have been applied and elucidated in judgments and new institutions such as truth commissions and international tribunals have come to play an important role in establishing accountability and an accurate official record of mass atrocities. Alongside the increased role for national governments and intergovernmental institutions, there has been an explosion in the number of local and transnational NGOs dealing with post-conflict truth and reconciliation issues, adding yet more layers of national and international complexity.
It is possible to make sense of both truth commissions and court prosecutions within the same analytical framework by examining how they are constituted within nation-state structures or intergovernmental bureaucracies such as the UN, and by paying attention to the legal categories which motivate their history-writing. This allows us to think beyond the sterile dualism of history vs. justice, and to understand why some courts and truth commissions have failed or succeeded in producing defensible historical accounts of the past and to think about what kinds of institutions post-conflict countries might seek to establish in future.
As a final caveat, it must be recognized that one official institution or even set of institutions need not provide a final and definitive account of then history of an era. History writing is always a work in progress, to be refined in the light of new evidence and new perspectives offered by the present. When asked in 1949 what he thought of the French Revolution, People’s Republic of China Premier Zhou Enlai is reported as retorting ‘It’s too early to say27. This is perhaps extending the point too far, but nonetheless, our understanding of large scale historical events such as the French Revolution deepens as time goes on, as new evidence is revealed and as historians refine their tools of analysis. Furthermore, one court or truth commission cannot be expected to produce the definitive account of the past, and talented writers of fiction such as Guatemala’s Victor Montejo (1987) can give readers an insight into a country’s epoch of terror that might otherwise be imaginable. Nonetheless, there is still a case to be made for international institutions that, in the early stages of the democratization process, document past violence, in order to provide a baseline of understanding and to establish the boundaries inside which reasonable disagreement can occur.
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