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Human Rights Review

, Volume 19, Issue 3, pp 349–368 | Cite as

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

  • Jeremy Sarkin
Article

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.

References

  1. Ainley, Kirsten, Rebekka Friedman, and Chris Mahony, eds. (2015). Evaluating Transitional Justice: Accountability and Peacebuilding in Post-Conflict Sierra Leone. Basingstoke: Palgrave Macmillan.Google Scholar
  2. Anders, G. (2014). Transitional Justice, States of Emergency and Business as Usual: Sierra Leone Between 1999 and 2003. Development and Change, 45(3), 524–542.CrossRefGoogle Scholar
  3. Bakiner, O (2013) Truth Commission Impact: An Assessment of How Commissions Influence Politics and Society. International Journal of Transitional Justice 8(1): 6–30CrossRefGoogle Scholar
  4. Bakiner, O (2016) Truth Commissions: Memory, Power, and Legitimacy. Pennsylvania Studies in Human Rights. Philadelphia, University of Pennsylvania PressCrossRefGoogle Scholar
  5. Beitler III, JE (2013) Redefining “Truth Commission”: Definitional Manoeuvring in the Greensboro Truth and Reconciliation Commission’s Final Report. Remaking Transitional Justice in the United States, Springer US:101–126Google Scholar
  6. Bickford, L (2007) Unofficial Truth Projects. Human Rights Quarterly 994–1035Google Scholar
  7. Bird, E and Garda, Z (1997) Reporting The Truth Commission: Analysis of Media Coverage of The Truth and Reconciliation Commission of South Africa. Gazette Leiden 59.4:331–343CrossRefGoogle Scholar
  8. Borer, T.A. (2005) Truth Commissions. In C. van den Anker & R. Smith: The Essential Guide to Human Rights. Hodder Arnold LondonGoogle Scholar
  9. Bosire, LK and Lynch, G (2014) Kenya’s Search for Truth and Justice: The Role of Civil Society. International Journal of Transitional Justice 8.2: 256–276CrossRefGoogle Scholar
  10. Bronkhorst, D. (1995). Truth and Reconciliation, Obstacles and Opportunities for Human Rights. Amsterdam: Amnesty International Dutch Section.Google Scholar
  11. Bronkhorst, D (2004) Truth Commissions And Transitional Justice: A Short Guide. Retrieved September 12, 2004, from http://www.amnesty.nl/downloads/truthcommission_guide.doc
  12. Call, TC (2004) Is Transitional Justice Really Just? Brown Journal of World Affairs Vol. X1, Issue I:101–113Google Scholar
  13. Daly, E (2008) Truth Skepticism: An Inquiry into the Value of Truth in TImes of Transition. The International Journal of Transitional Justice 2.1:23–41CrossRefGoogle Scholar
  14. Daly, E and Sarkin J (2007) Too Many Questions, Too Few Answers: Reconciliation in Transitional Societies Columbia Human Rights Law Review 35.3: 661–728.Google Scholar
  15. Dancy, G, Kim, H, Wiebelhaus-Brahm, E (2010 ) The Turn to Truth: Trends in Truth Commission Experimentation. Journal of Human Rights 9, no. 1:45–64.CrossRefGoogle Scholar
  16. De Ycaza, C (2013) A Search For Truth: A Critical Analysis of the Liberian Truth and Reconciliation Commission. Human Rights Review 14(3):189–212CrossRefGoogle Scholar
  17. Dimitrijević, N (2006) Justice beyond Blame: Moral Justification of (the Idea of) a Truth Commission. Journal of Conflict Resolution 50.3.:368–382.CrossRefGoogle Scholar
  18. Ferrara, A, (2015) Assessing the Long-Term Impact of Truth Commissions: The Chilean Truth And Reconciliation Commission in Historical Perspective;. Milton Park, Abingdon, Oxon New York, NY RoutledgeGoogle Scholar
  19. Forsberg, T and Pesu, M (2016) The “Finlandisation” of Finland: The Ideal Type, the Historical Model, and the Lessons Learnt. Diplomacy & Statecraft 27.3:473–495CrossRefGoogle Scholar
  20. Freeman, M (2006) Truth Commissions and Procedural Fairness. Cambridge: Cambridge University PressGoogle Scholar
  21. Goldblatt, B and Meintjes, S (1998) Dealing with the Aftermath: Sexual Violence and the Truth and Reconciliation Commission. Agenda 13.36:7–18CrossRefGoogle Scholar
  22. Hamber, B, Nageng, D and O'Malley, G (2000) Telling It like it Is Survivors' Perceptions of The Truth And Reconciliation Commission. Psychology in Society 26:18–42Google Scholar
  23. Hayner, P. B. (1994). Fifteen Truth Commissions-1974 to 1994: A Comparative Study. Human Rights Quarterly, 16, 597–655CrossRefGoogle Scholar
  24. Hayner, PB (2010) Unspeakable Truth: Transitional Justice and the Challenge of Truth Commissions. New York: RoutledgeGoogle Scholar
  25. Hendy, DJ (2005) Is A Truth Commission The Solution To Restoring Peace In Post-Conflict Iraq? Ohio State Journal of Dispute Resolution 20:527–562Google Scholar
  26. Hinton, AL (2010) Transitional Justice: Global Mechanisms and Local Realities After Genocide and Mass Violence. New Brunswick, New Jersey, & London, Rutgers University PressGoogle Scholar
  27. Hirsch, MB, Mackenzie, M and Sesay, M, (2012) Measuring The Impacts of Truth and Reconciliation Commissions: Placing the Global “Success” of TRCs in Local Perspective. 47(3) Cooperation and Conflict: 386–40Google Scholar
  28. Kim, HJ (2012) Local, National, and International Determinants of Truth Commission: The South Korean Experience. Human Rights Quarterly 34(3):726–750CrossRefGoogle Scholar
  29. Kpanake, L and Mullet, E (2011) What Can Reasonably Be Expected from a Truth Commission: A Togolese View. Conflict Resolution Quarterly, 29(2): 201–224CrossRefGoogle Scholar
  30. Lanegran, K (2015) The Kenyan Truth, Justice and Reconciliation Commission: The Importance of Commissioners and Their Appointment Process. Transitional Justice Review 1.3:3Google Scholar
  31. Langer, J (2017) Are Truth Commissions Just Hot-Air Balloons? A Reality Check on the Impact of Truth Commission Recommendations. Desafíos 29.1:177–210CrossRefGoogle Scholar
  32. Llewellyn, J (2008) Bridging the Gap between Truth and Reconciliation: Restorative Justice And The Indian Residential School Truth And Reconciliation Commission. Human Rights Review 13.3:349–367Google Scholar
  33. Lundy, P and McGovern, M (2008) Whose Justice? Rethinking Transitional Justice From The Bottom Up. 35(2) Journal of Law and Society: 271Google Scholar
  34. Mendeloff, D (2004) Truth-Seeking, Truth-Telling, and Post-Conflict Peacebuilding: Curb the Enthusiasm? International Studies Review vol. 6, 2004:355–80CrossRefGoogle Scholar
  35. Nagy, R. (2012) Truth, Reconciliation and Settler Denial: Specifying The Canada–South Africa Analogy. Human Rights Review 13.3:349–367CrossRefGoogle Scholar
  36. Nauenberg, S (2015) Spreading The Truth: How Truth Commissions Address Human Rights Abuses in the World Society. 30(6) International Sociology: 654–673Google Scholar
  37. Olsen, TD, Payne, LA and Reiter AG, (2010) Transitional Justice in Balance, Comparing Processes, Weighing Efficacy. Washington, DC, United States Institute of Peace Google Scholar
  38. Parker, AS (2007) Aboard the Truth Bandwagon: An Examination of Our Fascination With Truth Commissions, 4 Antipoda. Revista de Antropología y Arqueología 4:207–224Google Scholar
  39. Pinto, MCW (2003) Truth and Consequences or Truth and Reconciliation? Some Thoughts on the Potential of Official Truth Commissions. In: Vohrah, LC, Pocar, F Featherstone, Y, Fourmy, O, Graham, C, Hocking, J and Robson (eds) Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese. Kluwer Law International, The Hague, 693–728Google Scholar
  40. Popkin, M and Roht-Arriaza, N (1995) Truth as Justice: Investigatory Commissions in Latin America, Law and Social Inquiry: 20, 79–116CrossRefGoogle Scholar
  41. Quinn, JR (2001) Dealing with a Legacy of Mass Atrocity: Truth Commissions in Uganda and Chile. Netherlands Quarterly on Human Rights 19(4):383–02Google Scholar
  42. Quinn, JR and Freeman, M (2003) Lessons Learned: Practical Lessons Gleaned from Inside the Truth Commissions of Guatemala and South Africa. Human Rights Quarterly 25:1128CrossRefGoogle Scholar
  43. Robins, S (2012) Transitional Justice as an Elite Discourse: Human Rights Practice where the Global Meets the Local in Post Conflict Nepal, 44(1). Asian Critical Studies: 3–30Google Scholar
  44. Robins, S and Wilson, E (2015) Participatory Methodologies with Victims: An Emancipatory Approach to Transitional Justice Research 30(2) Canadian Journal of Law and Society: 219–236Google Scholar
  45. Roper, SD and Barria, LA (2009) Why Do States Commission the Truth? Political Considerations in the Establishment of African Truth and Reconciliation Commissions. Human Rights Review 10.3:373–391CrossRefGoogle Scholar
  46. Sarkin, J (1999) The Necessity and Challenges of Establishing a Truth and Reconciliation Commission in Rwanda. Human Rights Quarterly 21.3: 767–823.CrossRefGoogle Scholar
  47. Sarkin, J (2008) Achieving Reconciliation in Divided Societies: Comparing the Approaches in Timor-Leste, South Africa and Rwanda Yale Journal of International Affairs 3.2: 11–28.Google Scholar
  48. Sarkin, J (2015) Ensuring Justice, Reparations And Truth Through A Truth Commission And Other Processes In Uganda RÜ Verfassung und Recht in Übersee 48.3: 390–401.Google Scholar
  49. Sarkin, J (2017) How Conditional Amnesties Can Assist Transitional Societies in Delivering on the Right to the Truth: Are Such Processes Compatible With International Law? International Human Rights Law Review 6.2: 1–33.CrossRefGoogle Scholar
  50. Sarkin, J and Fowler, C (2010) The Responsibility to Protect and the Duty to Prevent Genocide: Lessons to be Learnt from the Role of the International Community and the Media During the Rwandan Genocide and the Conflict in the Former Yugoslavia. Suffolk University Transnational Law Review 33: 35–87Google Scholar
  51. Sarkin, J and Davi, T (2017a) The Togolese Truth, Justice and Reconciliation Commission: Lessons for Transitional Justice Processes Elsewhere. Peace and Conflict Studies 24.1: 1–27.Google Scholar
  52. Sarkin, J and Davi, T (2017b) Examining the Criticisms Levelled Against Transitional Justice: Towards An Understanding of the State of the Field. Human Rights and International Legal Discourse 11.1: 7–22.Google Scholar
  53. Skaar, E., Malca, C. G and T Eide. (2015) Conclusions. In E. Skaar, C. G. Malca, & T. Eide (Eds.) After Violence: Transitional Justice, Peace, and Democracy. London and New York: Routledge, Transitional Justice Series, pp. 174–198Google Scholar
  54. Stahn, C (2005) The Geometry of Transitional Justice: Choices of Institutional Design. Leiden Journal of International Law 18.3:425–466CrossRefGoogle Scholar
  55. Stewart, B and Wiebelhaus-Brahm, E (2017) Quantitative Turn in Transitional Justice Research: What Have We Learned About Impact? Transitional Justice Review, 1(5), 2017: 97–133Google Scholar
  56. Taylor, LK and Dukalskis, A (2006) Old Truths and New Politics: Does Truth Commission ‘Publicness’ impact Democratization. Journal of Peace Research 49(5):671–684CrossRefGoogle Scholar
  57. Teitel, RG (2003) Transitional Justice Genealogy. Harvard Human Rights Journal 16:69–94.Google Scholar
  58. United Nations (2004) The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. UN doc. S/2004/616Google Scholar
  59. United Nations Office of the High Commissioner for Human Rights (OHCHR) (2006) Rule of Law Tools for Post-Conflict States: Truth Commissions. United Nations, New YorkGoogle Scholar
  60. Usami, M (2015) Defining Truth Commission. Research & Review: Journal of Social Sciences Volume 1 Issue 2 December 2015:56–61Google Scholar
  61. Vinjamuri, L and Snyder, J (2015) Law and Politics in Transitional Justice. Annual Review of Political Science 18:303–327CrossRefGoogle Scholar
  62. Wiebelhaus-Brahm, E (2009) What is a Truth Commission and Why Does It Matter? Peace and Conflict Review 3(2):1-14Google Scholar
  63. Wieblhaus-Brahm, E (2010) Truth Commissions and Other Investigative Bodies in M. Cherif Bassiouni. (ed) The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice. (477–573) (Intersentia)Google Scholar

Copyright information

© Springer Science+Business Media B.V., part of Springer Nature 2018

Authors and Affiliations

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

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