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Redesigning the Definition a Truth Commission, but Also Designing a Forward-Looking Non-Prescriptive Definition to Make Them Potentially More Successful

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Abstract

This article argues that two new definitions are needed for what constitutes a truth commission. The first new definition that is needed is a different backward-looking definition that is used reflectively to contrast, compare and research past and present truth commissions. It is argued that the variety of definitions that exist about what constitutes a Truth Commission (TC) have a number of problems, and that a better definition is needed to categorise past mechanisms, make comparisons and improve comparative research. The second goal of the article is to investigate why it is necessary to create a non-prescriptive explanatory forward-looking definition focusing on the compositional elements of a TC. This is because definitions are also useful to assist those who wish to establish TC on what the compositional elements need to be, to ensure that these institutions are less likely to fail in their endeavours. This is important, as TCs have been extensively criticised for not achieving the goals that they are meant to. To determine why a new backward-looking definition is needed, which is broader and more inclusive than existing definitions, some of the current TC definitions are deconstructed. The various elements are re-examined and reconstituted to ensure a more holistic and relevant definition for what a TC is. As far as a forward-looking definition is concerned, the article examines what the compositional elements ought to be to make them more likely to be contextually applicable, to have more of a positive effect and have more of a constructive role in the places where they are created. Issues focused on that need greater delineation include the idea that TCs—besides focusing on the past—also, in some cases, investigate on-going human rights abuse. It is contended that TCs must be created with the support of the people in the country and be reflective of their needs. It is maintained that a TC should be a temporary body and that independence, legitimacy and sufficient resources are crucial factors in determining whether a TC will be successful. Also, considered is why having an independent process to choose commissioners, who are diverse and representative of that society is critical to the outcome of the process.

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Notes

  1. See a more positive study Olsen et al. (2010).

  2. On the background see Forsberg and Pesu (2016).

  3. On determining impact of truth commissions see further Skaar and Malca and Eide (2015). Conclusions. In E. Skaar, C. G. Malca, & T. Eide (Eds.), After violence pp. 174–197. New York, NY: Routledge.

  4. Hayner’s 1994 definition of what a TC is: “bodies set up to investigate a past history of violations of human rights in a particular country—which can include violations by the military or other government forces or armed opposition forces” (Hayner 1994, 558).

  5. The Paris Principles, known formally as the Principles Relating to the Status of National Institutions, were adopted by the UN General Assembly Resolution 48/134 in 1993 and establish guidelines, methods and responsibilities of national human rights institutions as far as the way they are created and run. Many of those principles are established to promote the independence of the institutions. These include independence through legal status, independence through composition and independence through operation.

    http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx

  6. This focus is of particular importance when compared to historical commissions who may not focus on human rights violations.

  7. On some issues concerning how TCs ought to be established see Sarkin 1999.

  8. See further Lanegran (2015) 3.

  9. See Robins and Wilson (2015).

  10. See Roper and Barria (2009) pp. 373–391

  11. Until today, there has been only one TRC that has granted amnesty, namely the South African Truth and Reconciliation Commission. Many TCs have been given the powers to recommend amnesty to government that has not been a successful model (Sarkin 2017).

  12. See further Sarkin and Fowler (2010) pp. 35–87.

  13. Bakiner (2016, p 25) notes that a commission should have “autonomy from direct intervention by political actors.” See also Vinjamuri and Snyder (2015) on the influence of politics.

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  1. University of South Africa (UNISA) and Distinguished Visiting Professor of Law and member of CEDIS at NOVA University, Lisbon Law School, Lisbon, Portugal

    Jeremy Sarkin

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Correspondence to Jeremy Sarkin.

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The author wishes to thank Theresa Bender-Säbelkampf for her assistance with this article.

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Sarkin, J. Redesigning the Definition a Truth Commission, but Also Designing a Forward-Looking Non-Prescriptive Definition to Make Them Potentially More Successful. Hum Rights Rev 19, 349–368 (2018). https://doi.org/10.1007/s12142-018-0509-3

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