Truth Commissions and Colonial Atrocities: Moving the Needle Further Towards State Responsibility?

Truth commissions have been in the news of late. A truth commission in The Gambia has started its work recently. In Tunisia, the Truth and Dignity Commission has just issued a report, four years after its establishment. In countries such as Nepal and Colombia, truth commissions (or variations thereof) are mired in controversy and have severe challenges. What is clear is that truth commissions are increasingly being established, and not just in situations with transitions from war to peace, or dictatorship to democracy, but also in democratic contexts, such as in Canada (residential schools) and the U.S.A (Greensboro). 

At a recent conference in relation to colonial atrocities against the Ovaherrero and Nama peoples’ in Namibia, Professor Makau Mutua suggested the creation of a truth commission. While not privy to the details of the discussion, I am curious to assess those aspects of truth commissions which might be most relevant for a colonial context.

While some features of truth commissions would seem to be perfectly suited to an assessment of colonial atrocities, other aspects may be of less relevance. (It is also good to remember that there are multiple and diverse models of truth commissions, and therefore much to choose from). This post seeks to raise questions relating to the conceptualization of such a truth commission, and what the possibilities and limitations of such a body might be. (A caveat – the title refers to ‘colonial atrocities’ – arguably, this could be specific instances within the colonial period, or indeed the whole period itself. Again, something that is up for discussion.)

Setting the record straight 

At its most basic, this is fundamental to the conceptualization of a truth commission in any context – setting the record straight and establishing the truth, which is often bitterly disputed. In the context of colonialism, this would be the most obvious and relevant aspect of a truth commission, particularly in light of denial, scant awareness of the negative impacts of the colonial project, or even pride in colonialism. 

But what would such a straightening of the record entail? Given there are concerted efforts by many historians to question widely accepted historical narratives, what would a truth commission do that is different? Key to the functions of most truth commissions are public hearings, and which usually include a diversity of topics and participants. Hearings could include not only testimony of descendants and those impacted, but also historians, for the broader context. 

The only truth commission thus far established to deal explicitly with a colonial past, and address questions of slavery is the Mauritius Truth and Justice Commission. While others have dealt with periods of a colonial past, in their effort to address current problems, there have been no stand-alone commissions for colonial atrocities solely.  

The Truth and Justice Commission Act of Mauritius, 2008 included as part of the mandate of the commission, to “…make an assessment of the consequences of slavery and indentured labour during the colonial period up to the present”. This was perhaps the most comprehensive truth commission to squarely address colonialism and its impact as a core component of the mandate, and not as an incidental aspect, or as the foundation for the real focus of the commission. (As with many truth commissions, it had considerable difficulties in its establishment and functioning, for which the introduction to the truth commission report by the chairperson, Alex Boraine, is illuminating. The lack of implementation of the recommendations of the commission has also been severely criticized.) 

Structural violations 

Typically, the purpose of truth commissions has been to adduce and lay bare the structural reasons for particular events or time periods. The focus is not on individual responsibility, usually within the remit of criminal proceedings. While prosecutions have resulted due to testimony at a truth commission, this is clearly not the aim or a possibility in the case of a colonial commission. 

Rather, such a commission would be an opportunity to shed light on institutional and structural causes for violations that occurred during colonial rule, and that have continued subsequently. In many instances, such as the Kenyan Truth Justice and Reconciliation Commission and the Canadian Truth commission, the colonial period served as the sub-strata on the which the truth commission functioned. For instance, while the temporal mandate of the Kenyan TJRC was post-independence, it did address a period of colonial rule, and much of the analysis of economic, social and cultural rights still derived from the period of colonialism. As assessment of laws emanating from the colonial context and that continue to discriminate or widen inequality, are some examples.  

However, for a truth commission to be set up to inquire into colonial crimes, then the very essence of the commissions mandate would be to inquire into colonialism per se, and not merely as an underlying facet within which to assess actions. In this sense, it would be a much more focused assessment of a colonial period. 

It also poses the question whether establishing such truth commissions would inch closer towards state responsibility of erstwhile colonial states? A cursory review of the ILC Draft Articles on State Responsibility pose the question whether historical injustices could be construed as ‘continuing acts’ for instance within the remit of Article 14, to establish responsibility? (Points for another blog post?)

Reparations

The ability to recommend or to grant reparations is often viewed as the more tangible and impactful outcome of a truth commission. Reparations may include the payment of compensation, memorialization and further investigation. Previously, truth commissions that have issued recommendations for reparation include Morocco and Chile (the Rettig Commission, which included search for remains of the disappeared). 

Clearly, reparations are dependent on the political will and financial ability of the government, and they are a powerful step in providing a measure of redress for mass atrocities and historical injustices. The Mauritius truth commission placed responsibility on the colonial powers in addition to Mauritius, and recommended that the Mauritian government ask for reparations from Holland, France and the U.K. However, there is in general resistance to acknowledgement and reparations. The strong resistance to issuing apologies in a colonial context, such as recently in the case of the Jallianwalla Bagh massacre in India, is a further indication of the difficulties in holding colonial states to account. 

A truth commission would open the door wider to reparations claims, independent of those that may be issued by the commission itself. In that sense, a truth commission could move the needle further in establishing additional legal claims. Ideally, a truth commission constituted with former colonial powers would be the most effective in the granting of reparations and establishing legal responsibility, but this is clearly unlikely.    

Conclusion 

Truth commissions address some of the most complex scenarios. Their establishment and functions are difficult enough in ‘regular’ circumstances, and a potential truth commission needs to be approached with care in the case of the colonial context as well. While some dilemmas such as the role of perpetrators, prosecutions and amnesties will not arise, it will nonetheless be a complex task to grapple with.

As calls grow for greater recognition of colonial era crimes, as well as colonialism as a whole, a truth commission may contribute significantly to the discourse and legal claims pertaining to such an era.