Truth Commissions and Procedural Fairness

Mark Freeman
(Cambridge University Press, New York, 2006, 316 pp)

The emphasis on the ‘right to know’1 as a crucial aspect of ending impunity has
lead to a greater focus on the necessity of holding truth commissions. As many
authors in the fields of transitional justice and International Criminal Law have noted
mass atrocities occur where there has been a breakdown of social order and
significant numbers of individuals commit horrific crimes.2 The sheer number of
participants means it is unlikely that all of those involved will be brought to trial.
To understand the events that precipitated the disintegration of the social fabric
becomes a crucial element in the restoration of the Rule of law as well as the
transition to democracy.

The central theme of the book is that such commissions must conform to
minimum standards of procedural fairness if the findings of a commission are to be
considered credible by both national and international observers of the process.
Given the fact that such commissions are being held to educate the public about
past events and to ensure that the country has an accurate historical record, it is
vital that the outcome be viewed as reliable and relevant. The author nominates
five areas he considers crucial to the work of such commissions: ‘the taking of
statements, the use of subpoena powers, the use of powers of search and seizure,
the holding of public hearings, and the publication of findings of individual
responsibility in a final report.’3 Each of these areas is examined in detail in
separate sections of the book.

Before examining the specific procedural standards central to a fair process, the
author examines the concept of a ‘truth commission’, offering an analysis of
previously published definitions and setting out what the author considers to be a
more refined definition, partly in an attempt to distinguish truth commissions from
other types of inquires such as those undertaken by national human rights bodies:
A truth commission is an ad hoc, autonomous, and victim-centered commission of
inquiry set up in and authorized by a state for the primary purposes of
(1) investigating and reporting on the principal causes and consequences of broad
and relatively recent patterns of severe violence or repression that occurred in the
state during determinate periods of abusive rule or conflict, and (2) making
recommendations for their redress and future prevention.4

The distinction between human rights inquiries and truth commissions is
evident in the focus the definition gives to recent patterns of violence. A range of
individuals in what have become called ‘settler countries’ have suggested that
commissions of inquiry are necessary to deal with the experiences of indigenous
populations as well as those subjected to slavery. As direct witnesses to the events
in issue would be unavailable in the majority of cases, commissions focussing on
historical events with ongoing consequences would fall within the rubric of human
rights inquiries. This is not to suggest that one form of inquiry is superior to
another, but rather, that being clear about the nature of inquiry should assist those
establishing the relevant body to focus on its methods of operation as well as its
composition.

The text offers a comprehensive overview of the commissions that have taken
place thus far; the footnotes are extensive and provide the reader with a treasure
trove of information. It also offers a salutatory reminder on the limits of what such
commissions can accomplish. Just as criminal trials for war crimes and crimes
against humanity are an exercise in ‘partial justice’5 the author observes that ‘every
truth commission will fall short even in the realm of historical clarification.’6 A
range of factors contribute to this systemic problem: insufficient cooperation from
perpetrators, incomplete testimony from victims and witnesses, gaps in
documentary evidence, insufficient time to complete what is a complex and
time-consuming task and resource limitations on the number of cases that can be
investigated. There is also the issue of a truth commission’s relationship with the
criminal process; whilst acknowledging that some governments may attempt to
utilise a truth commission to avoid holding criminal trials the author argues that in
the majority of cases truth commissions have complemented rather than
undermined the work of the criminal justice system.

The discussion of the relevant international standards could have been
expanded: there is no examination of the interplay of rights and specifically how
one could develop a sophisticated understanding of how to resolve apparent
conflicts between the rights of victims and the rights of suspected perpetrators.
Having emphasised the point that truth commissions are not criminal trials and
therefore should not attempt to resolve questions concerning the legal
responsibility of suspected perpetrators, the author does not offer the reader an
analysis of how the interests of victims and of the larger society can be fostered
during this process, while at the same time respecting the general Due Process (or
natural justice) rights of suspected perpetrators. Whilst arguing that the full
panoply of Due Process (or natural justice) rights are not necessary in the truth
commission process, the recommendations made later in the text are, at times, more
focussed on the rights of suspected perpetrators rather than the needs and interests
of victims. The role of the victim in giving evidence is acknowledged, as is the
importance of having procedures that respect the dignity of the victim, but the
concern with the formalities of the process may have the effect of losing sight of
the individuals who, for a moment in time, are an essential part of that process.

As the author moves to an examination of specific aspects of procedural
fairness the main text becomes over-general in its descriptions of what is required
to ensure that due process norms are observed. Although it would not be possible
to describe each of the examples the author canvassed when compiling the
information for the book, the text would have had more ‘life’ to it if there had been
more discussion of case examples. However, the reader willing to give close
attention to the footnotes will be rewarded, as the materials described therein are
replete with concrete examples of both positive and negative processes that will
assist them to understand more fully the concerns being raised by the author.

The author’s depth of knowledge is reflected in the diversity of the issues he
highlights including some that might not have occurred to a non-expert, such as:
the importance of publicity campaigns including amongst exiles; the location of
commission offices in areas deemed safe and accessible by the local population;
warning witnesses if there is a possibility that information cannot remain
confidential due to lack of proper storage facilities and coding mechanisms; the
selection process for choosing witnesses to appear at public hearings; and when to
hold in-camera hearings and the grounds for judicial review.

This book will be a useful addition to university libraries and to the collections
of those engaged in research relating to transitional justice. It is well-researched,
highly readable and contains a vast array of source material.

1 Updated set of principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1 (Part II, Principles 2-5). 2 See eg, M Minow, Between Vengeance and Forgiveness, Facing History after Genocide and Mass Violence (1998); C Chinkin, ‘Women’s International Tribunal on Japanese Military Sexual Slavery’ (2001) 95 American Journal of International Law 335; C Cunneen, ‘Reparations and Restorative Justice: Responding to the Gross Violation of Human Rights’ in H Strang and J Braithwaite (eds), Restorative Justice Philosophy to Practice (2000) 83; M Osiel, Mass Atrocities, Collective Memory and the Law (1997); and S Garkawe, ‘The South African Truth and Reconciliation Commission: A Suitable Model to Enhance the Role and Rights of the Victims of Gross Violations of Human Rights?’ (2003) Melbourne University Law Review 14.

3 M Freeman, Truth Commissions and Procedural Fairness (2006) xv. 4 Ibid 18. 5 G Simpson, ‘War Crimes: A Critical Introduction’ in T McCormack and G Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 1.

6 Freeman, above n 3, 39. See also pages 65-87.

Main source: Tina Dolgopol
ASSOCIATE PROFESSOR OF LAW
FLINDERS UNIVERSITY

Author: international

Mentioned in these Entries

Due Process, International Criminal Law, Rule of law, country.