ICTJ Program Report: Truth and Memory


In the wake of armed conflict or repression, societies and individuals are entitled to know the truth about mass human rights violations. International law clearly recognizes the right of victims and survivors to know about the circumstances of serious violations of their human rights and about who was responsible.

In this edition of the ICTJ Program Report, we look at the work of our Truth and Memory Program. Below, ICTJ Senior Associate Felix Reátegui discusses the principles behind the program, and the imperatives of uncovering, acknowledging, and memorializing the past. He explains the intricate connections between truth-seeking and other justice measures such as reparations and criminal accountability, and provides an in-depth look at countries embarking on processes of truth-seeking, including Colombia, Nepal, and Tunisia.

#### In many ways, truth about the past is at the very heart of reckoning with legacies of human rights abuse. Victims have the right to know the truth about grave violations of human rights, and this right is recognized under international law. Can you give an overview of the objectives of truth-seeking in the broader context of transitional justice? Why does the truth about the past matter?

Truth-seeking is a component of the more integral process of transitional justice, which may also include other efforts related to reparative justice or institutional reforms. So any reflection on what the purposes of truth-seeking are should be related to the goals that we also have with these other components.

Truth-seeking of course is an element in this area for doing justice and also for making sound reparation proposals for victims. Of course it is necessary to know something about the causes of massive human rights violations in order to be able to make institutional reforms. So, there is an integral approach which would be the first response to the question of why truth matters. But if we are looking at why societies seek the truth, we could say it serves as a primary step in the effort to seek more comprehensive justice.

In the wake of mass human rights violations, there is a tendency to rush to establish peace or a new political regime and to forget about the people who suffered the most from the past wrong-doings—the victims. There is always a hesitancy to acknowledge the existence of those victims or to give them a measure of recognition: not just as citizens, but as people with human dignity who are entitled to their rights.

This leads me to the second tier of the relevance of truth, which is the act of setting the record straight in order to strengthen victims’ capacity to demand their rights. If victims and survivors of past abuses can approach these states and societies with some objective account of what has happened during the period of violence—what kind of violations and with what intensity those violations were committed—they will be better positioned to demand their rights and, of course, gain the support of other social networks and institutions for their claims to the whole spectrum of victim’s rights.

The objective of the Truth and Memory program is to promote the right to the truth for victims in societies that are emerging from gross human rights violations, particularly periods of authoritarian rule or armed conflict. Promoting the right to the truth means that we try to ensure that the mechanisms the government establishes to comply with its obligations can function well and meet the expectations of the victims and the society at large.

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As a thematic program of ICTJ, the Truth and Memory Program provides what ICTJ calls “technical assistance” to governments, civil society organizations, and directly to transitional justice initiatives around the world. In the context of truth-seeking and memorialization, what does that mean exactly?

The technical assistance that we provide means at least two different things: the first approach deals with how best to organize the research, structure or investigations of a mechanism such as a truth commission, or any other initiative with truth-seeking as a goal. In this way, we offer advice on how to develop the necessary tools and capacity for the research; for example, how best to design statement-taking forms, hold public hearings, or outreach strategies to ensure good rapport with civil society and victims’ associations. So, we deal a lot with the technical elements of organization, strategies and methodology of these truth-seeking mechanisms.

But there is also a part of this advice that is always guided by an intention to ensure the rights of victims will be respected; particularly their right to truth. This is important because as truth commissions increasingly become a common or “standard” tool in transitional contexts, we find that countries that start a transitional justice process often choose to establish a truth mechanism just as part of a kind of “check list,” but are not necessarily convinced of the right to truth or not necessarily aware of what kind of commitments are necessary to have a sound and effective truth commission. A truth commission cannot be devised as a closed, official mechanism that can somehow tell the society what the truth was: a truth commission should be participatory, and open to hearing victims’ experiences and demands.

So, in all of the assistance that we provide, our task is to reaffirm amongst all different parties involved that truth-seeking efforts revolve around the very specific rights of victims to know the truth about the abuses suffered, and that right should be at least partially fulfilled through this mechanism.

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ICTJ has been actively involved in Tunisia as the country establishes its Truth and Dignity Commission. What kind of obstacles had to be overcome in order for the TDC to be established? How has ICTJ supported this process and what has been the role of the Truth and Memory program?

Tunisia is in very interesting scenario right now, following the country’s adoption of a major Transitional Justice Law. The law not only establishes a truth commission, but also calls for the creation of other measures for justice and reparations.

The Truth and Dignity Commission (TDC) is at the core of the law, and is well on its way to beginning its substantive work. Fifteen commissioners have now been appointed and are in the preparatory phase. For us, this is interesting because not all commissions have an explicit preparatory phase, a time that is essential: this is when the structure of the commission will be decided, and it is now when the general approach and sense of a mission among commissioners will be established and assumed. It is this moment when their relations with the society and general research strategy will also be devised.

In this critical period, the Truth and Memory Program—in very close collaboration with our office in Tunis—is working very actively to provide technical advice on many issues before the TDC. The first is the elaboration of their bylaws, which should establish the basic governance rules for the commission mechanism, the relationship between the staff and the commissioners, the territorial presence of the commission throughout the Tunisia, etc. These tools are critical for a well-functioning commission.

We are paying attention to how the commissioners choose to understand and adopt their mandate and identify the kinds of activities they must begin to undertake. Questions remain about how the commission will approach its investigations, how it will develop future recommendations on reparations, how they understand the relation between the commission and the specialized judicial chambers also set up by the transitional justice law to prosecute human rights violations. Additionally, they’ll determine how they go about collecting information and testimonies, and then how to receive such a great volume of information. The answer to all of these questions will inform the larger strategy.

At the same time, in our conversations with the commissioners we are also emphasizing that a good truth commission is not only about investigations: it must maintain good relations with broader society through outreach, which includes communication dimensions involving public information and media relations. So, this is the moment for the commissioners to build trusting, open, and very fluid relations with victims’ organizations as well as with other relevant and critical civil society institutions like universities, professional groups, and others that can lend critical support—maybe not for research, but to help spread the word about the importance of the TDC’s work. We are confident that this very solid team of commissioners will made the right choices in this initial phase and, through their work, contribute to the consolidation of the rule of law in their country.

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Recently, legislators in Nepal voted to establish a Truth and Reconciliation Commission (TRC), as well as a Commission of Inquiry on the Disappeared. However, victims’ groups and human rights organizations have rejected these laws, as they allow for the truth commission to recommend amnesty for crimes against humanity. What is ICTJ’s position?

Nepal has gone through a long and complex process in order to establish this truth commission. This is a typical case, where the actors involved in negotiating the establishment of a truth commission were at the same time negotiating an agreement to end a conflict—in this case, the armed conflict between the government of Nepal and the Maoist rebels that consumed so much of the country between 1996 and 2006.

The key problem is that –regrettably—the right of victims to seek information remains hostage to the fears of very powerful political actors, who are afraid of potential judicial consequences. Therefore, the legislation that the government insists on passing subjects any possibility of finding the truth to institutions that would be able to recommend amnesties to perpetrators of the most heinous crimes. This is not only lamentable but illegal, and the Supreme Court of Nepal has already struck down previous iterations of the current law, due to the politicians’ insistence in allowing amnesties for war atrocities.

A truth seeking exercise that subjects truth to amnesty or forces victims to “forgive” would not meet basic international standards, and will not help build sustainable peace and rule of law in Nepal. Currently, victims’ groups in Nepal are challenging the flaws in the legal design of the commission.

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Often, during and after truth-telling processes, questions arise about how the truth that is presented or discovered by a commission can be prosecuted in a court of law. Recognizing that perpetrators often can shed much light to details about the past, how do commissions deal with the testimony of these kinds of individuals?

First, I should note that there are not many examples of commissions where the perpetrators have come forward in an important way with their stories. Of course, the Truth and Reconciliation Commission in South Africa is a salient one, though very particular, because there was the possibility of amnesty. Here I should add that among experts, there is significant disagreement with the idea that such an amnesty-for-truth deal was ultimately effective. But generally, in other cases, instances of perpetrators participating in truth commissions have been–and still tend to be—very rare.

Depending on the mandate, what alleged perpetrators say before a truth commission may have potential judicial consequences for them, which is why they need to be properly informed about their rights, and the use of the information they will share. A truth commission needs to respect the basic principles of fairness, as it conducts its work. Truth commissions with a mandate to collaborate with criminal justice should be diligent to establish an understanding with the judiciary governing the sharing of information, the treatment of persons holding critical information, and other elements.

The current truth commission in Tunisia, which has a legal mandate to contribute to the fight against impunity, is addressing right now this issue. We believe that it is possible to establish a harmonious relation between the commission and the Prosecutor’s office (Ministere Public) that is respectful of the constitutional prerogatives of the Judiciary and also takes advantage of the unique access the commission will have to the testimony of thousands of persons.

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During peace negotiations in June, the Colombian government and the rebel group FARC agreed to set up a truth commission to investigate the 50-year conflict there. The country has already launched several truth and memory initiatives, through museums, organizations and commissions of historical clarification, all who are working to establish a record of the conflict. Why has the demand for truth in Colombia been so strong in your view, and why has ICTJ supported the proposal for a truth commission there?

The Colombian conflict is a very old one—at least 50 years. It is interesting to consider that maybe for 40 of those years, the language around victims, truth-seeking and transitional justice and so on did not exist in all the very complex discussions on how to put an end to the conflict.

In many of its various iterations of internal conflict, Colombia has had a tradition of negotiating peace without the participation of victims. So, it is also interesting to note that over the past decade, the language of victims’ rights and transitional justice was slowly and steadily strongly adopted—not only by victims and civil society organizations, but also by the Colombian State, to the point where it’s very common for the government to speak of memory, and victims’ rights, truth, reparations and transitional justice in general.

And of course in this context—and this is maybe one of the most interesting features of the Colombian context in the last decade—several truth-seeking initiatives started to appear, both governmental, and launched by civil society. Forced by the circumstances of an ongoing conflict, these initiatives have been partial and incomplete, but they show a country with a momentum for peace, and the conviction that peace with truth will be more sustainable and decisive.

As part of a very complex institutional framework dealing with transitional justice, Colombia did establish the National Center for Historical Memory, which has done a good job documenting many different massacres and conflict scenarios in Colombia. They have produced many interesting books and reports that provide integral reflections of the historical meaning of these internal conflicts.

So, while the National Center for Historical Memory exists as an official body in charge of memorialization, Colombian society is still waiting for a full-fledged national truth commission. It is expected that a national truth commission will be an outcome of the current peace negotiations between the government of Colombia and the FARC. It is unclear, however, what kind of truth commission it would be, and whether or not it will be able to gain the victims’ trust, collaboration, and involvement.

The Truth and Memory program works closely with our team in Colombia which has been very active for the past several years, and we are currently working on many different fronts. We are trying to maintain a public conversation in Colombia about truth seeking, and what can be expected and demanded from a truth commission. We are certainly ready to give advice to the truth commission, whenever it is finally established.

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Colombia is only one example of a country where a truth commission has emerged out of a peace negotiation. ICTJ recently collaborated with the Kofi Annan Foundation (KAF) to produce a joint publication titled, Challenging the Conventional: Can Truth Commissions Strengthen Peace Processes? Could you provide some background about why we took this initiative with KAF, and how the need for this research was identified? What are some of the findings of this research?

Our collaboration with the Kofi Annan Foundation was a very interesting project that grew from seminal questions about how truth commissions are decided in the context of peace negotiations. We knew for a fact that many peace negotiations had started to include as an obligatory element the creation of a truth commission, a practice that goes back maybe to the Central American peace accords in places like El Salvador and Guatemala. This also happened in Sierra Leone, in the DRC, and many other places.

We wanted to know: why do negotiating parties and peace mediators decide that a truth commission is necessary? How aware are they of the obligations and commitments that arise from the establishment of a truth commission? How do the mandates determine the success or failure of the truth commission coming out of peace negotiations? So, these initial questions led us to examine other trends we’ve identified, such as the tendency for making truth commission mandates more and more complex, and the increased expectation of commissions to be bodies to deliver answers about too broad a scope for such a limited time period of investigation.

In the Kofi Annan Foundation (KAF), we found a very inspiring partner. They understood and assumed very readily our concerns and questions and we found that we were on the same page in terms of trying to give a deeper reflection as to what happens in the context of peace negotiations.

We held a major conference last fall, which brought together experts from the peace building field, truth commissions, and others to discuss in a more integrated way what considerations should be taken into account in the context of peace negotiations when you decide to create a truth commission. For example: what are the interests of the negotiating parties? What do they expect, and what do they not expect to get from the truth seeking exercise?

We also discussed questions about the timing for establishing the truth commission; about whether there is a local demand for the truth commission and if there is the ability to carry out the exercise. And of course we had discussions about the scope of the mandates and how the scope has an influence on how a commission is able to deliver or not or whether a commission will be regarded as an efficient one or as a body that will always be found wanting, because it’s scope is so large it cannot meet important demands. So you have the first truth commissions that were originally fact finding bodies and then on the other side you have these huge commissions that are asked to reflect on economic injustice, and so on. There are many different situations that lead to different assessments of whether the commission was able to deliver or not.

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Cote d’Ivoire is another country where ICTJ works that has established a truth commission, the Commission Dialogue, Vérité et Réconciliation (CDVR), to investigate past human rights abuses, particularly in relation to the violence during the 2010 presidential election that pitted between former President Laurent Gbagbo against current President Alassane Outtara. How would you assess the truth-seeking initiatives there, and how is the Truth and Memory program involved?

The case of Cote d’Ivoire can be closely linked to what we were just discussing. First off, the CDVR has not been a successful experience so far. Some of the factors that have complicated the life of this commission include a long delay to effectively initiate activities, compounded by little information to society on the plans and priorities of the commission. The commission reached its deadline—September 2013, two years after its creation—without having conducted interviews of victims and survivors of violence. When it received an extension to finalize its mandate, several processes were rushed due to the scarcity of time, such as statement-taking and holding public hearings. The effectiveness and quality of the products of the commission remain to be seen.

Our experience in Cote d’Ivoire has led us to ask a number of questions. What is the best structure for a truth commission? Commissions that are very centralized do not seem to be very efficient in their decisions or creating a reasonable plan of action. If the commission is organized mainly around the individual commissioners, rather than according to a vision and specific objectives, it becomes unwieldy and disorganized.

We could also ask ourselves, too, whether or not there was a social demand and eagerness to be a part of efforts to seek the truth about the past in the first place. If a commission is created “in a void” without a certain social process of appropriation and reflection, it may face significant problems later, as it will be more difficult for it to establish partnerships and a sense of national urgency around the truth.

On the bright side, it is also important to keep in mind whether there are windows of opportunity to advance some of the rights of the victims, in areas such as reparations. Our experience has been that there is useful work to be done with children and young people, and other groups in civil society.

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Can unofficial, or civil society truth initiatives be used to build a foundation for larger, official processes; or to help correct the weaknesses of a previous truth commission? How is ICTJ pursuing research on these types of initiatives?

The Truth and Memory program considers these unofficial civil society truth initiatives as valuable strategies to open the path to truth seeking in some contexts where the State is not eager to start an official exercise. Of course, before going further down that path it is always very important and essential to assert that truth seeking is a legal State obligation, that no unofficial truth exercise even if it is successful can exonerate the State from its obligation to provide truth to the victims and society at large. Having said that, we find that in many cases having an unofficial truth seeking initiative is a good way to start opening the avenues for official truth seeking.

There are many examples and maybe the most famous would be found in the Guatemalan case. They had an official truth commission, a very important one, the Historical Clarification Commission (CEH); but before that commission began its work, there was a Catholic Church based initiative for the recovery of historical memory (REMHI) which could be a good example of what a successful unofficial truth seeking mechanism can do. REMHI helped to set helped to set a very high standard for the incoming truth commission. On the other side, these unofficial mechanisms help to break the habit of silence and of course to mitigate the fear of talking among the affected population.

We are conducting new research, together with an expert who participated in a very strong civil society truth commission in Greensboro, in North Carolina. We are examining five initiatives in different continents, trying to identify the key elements that practitioners and victims and civil society agents need to take into account when they think about establishing one of these mechanisms.

What we’ve found was that in societies where unofficial mechanisms take place, maybe the most important legacy they can leave is a new social dynamic, oriented towards truth-telling and truth-seeking. And while we’ve found that unofficial truth-seeking helped the official commission to work, it’s also evident us that unofficial truth mechanisms have helped to set the record straight when official exercises has fallen short of that task.

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Are there other projects on which the Truth and Memory program is currently working?

Currently, we are trying to reflect on new different ways of supporting truth seeking initiatives, such as unofficial initiatives which I mentioned earlier. On the other side we are also interested in giving new attention to the “memory” side of the problem: we have talked a lot about truth seeking but there is another aspect which deals with the symbolic side of these efforts, such as memorialization and how to transform public discourse in relation to the revelation of truth. So memory and memorialization, as well as symbolic and artistic ways of continuing the work of truth is something we plan to dedicate more effort to in the future.

And the other aspect of our work we have not mentioned is the aspect of formation and building capacities. We’re committed to continuing our training courses, for example, the Barcelona course about truth commissions, as well as the pursuit of other opportunities to continue training and capacity building in other contexts.

(PHOTOS: Relatives of victims killed in a massacre carry coffins during a re-burial ceremony (Enrique Castro, Reuters/ Corbis); Visitors to the new Peace Museum at the former premises of the Special Court for Sierra Leone (Seth Frankel/Studio Tectonic); Tunisian President Moncef Marzouki speaks during a ceremony to unveil the 'truth and dignity commission' on June 9, 2014, in the capital Tunis. The commission formed to identify and compensate victims abused under decades of dictatorship, is made up of human rights activists, representatives of victim groups, opponents of Ben Ali and judges, and is tasked is with identifying voluntary homicide, rape, extrajudicial killings and torture, as well as economic crimes and corruption. (FETHI BELAID/AFP/Getty Images); A public memorial and vigil for the International Day of the Disappeared in Nepal, 2013 (Santosh Sigdel/ICTJ); A young visitor to the Museo de la Memoria in Chile (Flickr); Community leaders from various parts of Ivory Coast arrive for the launch ceremony of the new national Commission on Dialogue, Truth and Reconciliation, at the entrance of the Foundation Felix Houphouet-Boigny in Yamoussoukro, on September 28, 2011. Ivory Coast launched a truth and reconciliation commission with a mandate to help the country heal following a post-election crisis that left some 3,000 dead (ISSOUF SANOGO/AFP/Getty Images); Demonstrators on Bolivar Square, Bogota, during the march on National Victims Day, April 9, 2014 (Geraldkurt).