Truth, Justice, and the Pragmatic Way

Julian describes the East Timorese decision to have a “Truth and Friendship Commission” as “another country’s decision (like South Africa) to avoid ‘justice’ in favor of ‘peace’ (some might say ‘impunity’).” This characterization (at least of South Africa’s Truth Commission) is off the mark. The South African Truth and Reconciliation process did allow for prosecutions; essentially people who did bad acts could come clean before the Commission by a certain date or afterwards face prosecution. The potential indictees also knew that the Commission would be compiling more and more evidence from other people coming forward so, if they did not immunize themselves by confessing, they would be facing a prosecutor flush with evidence.

This is not impunity because there was politcal consensus in South Africa that getting as much of the truth out as possible (who was killed when and where) and having fewer, but more effective prosecutions, was a just result. It was not just about political peace but about the former oppressors having to sit there and, in public, confess to what they did. Given that this was what the majority of the public wanted, that is not impunity.

But what about East Timor? I didn’t immediately say that Julian’s characterization was on or off the mark in that case because we need to see the actual design of the Truth Commission. There has been interesting work on the comparative design of truth commissions and you just can’t lump them all together, especially when trying to assess whether one decreased “justice” and increased “impunity.” The political climate, the desires of the public, and the structure and power of the Commission are all key variables. South Africa’s Commission is considered very successful and very difficult to replicate (due to the widespread public support); Haiti’s, by contrast, was almost completely dysfunctional (underfunded, underutilized, no real power at all).

The other point that Julian made that I wanted to point out was his argument that “in future conflicts, countries like East Timor probably won’t have the option to forego prosecutions like it is choosing to here because it would be subject to the demands for prosecution by the International Criminal Court.” First of all, Article 17 does not need to be read to require domestic prosecution; at issue is whether the state in undertaking an “investigation or prosecution.” (The rest of the Article refers simply to domestic proceedings.)The ICC may step in if “[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court.” Thus, the ICC could only seek jurisdiction if the domestic proceeding is just an attempt to shield one or more persons from prosecution. That does not describe the South African truth commission.

Actually, ICC deference to truth commissions is an issue that is being carefully considered. (See here, here, and here.) Unsurprisingly, the issue of deference relates to assessing issues of the design of the commission and whether it is an actual attempt at conflict resolution or merely a sham undertaken to shield a criminal. As Professor James Crawford of the University of Cambridge has said in relation to Article 17:

“I think there is a question about truth commissions, because you can’t say a priori which ones are a reasonable response to the situation, and which ones are a cover-up. It’s going to require extreme care by the prosecutor. There may be some problem there with the capacity to subvert those processes if they are reasonable, and we’ll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don’t necessarily involve prosecutions of individuals, so there’s no reason why the principle of complementarity ought not to cover an appropriately constituted truth commission.”

Professor Crawford said that he expected that over time the ICC would develop criteria for deference. So, rather than Julian’s concern that the ICC will stifle Truth Commissions or his concerns that such Commissions just sign off on impunity, the ICC may play a role in the development of a set of “best practices” for truth commissions.

Fool proof? Of course not. But not as dire as Julian fears. And, pragmatically, not a bad idea.