Truth Commissions and Bureaucratic Harms: A Call for Humility in Transitional Justice

[Adriana Rudling (@adrianarudling) is a Post-Doctoral Researcher at the Chr Michelsen Institute, Bergen Norway and a Post-Doctoral Visiting Fellow at the Instituto Pensar, Bogota, Colombia working on issues relating to the interactions between victims and transitional justice mechanisms.]

The practice of transitional justice (TJ), and particularly truth commissions, emerges as “the bureaucratic response to bureaucratic murder” (p. 78). Given the perils of human rights prosecutions in the immediate aftermath of negotiated, often fragile, transitions, truth commissions were initially adopted as a second-best option to dealing with the human rights abuses committed under military regimes. The rising popularity of these bodies, now peaking at nearly 70 reports on human rights violations taking place in established democracies, (post-)transitional societies and authoritarian states, leads us to consider what, if any, are their downsides (see Transitional Justice Research Collaborative database here).

This post reflects on bureaucratic harms generated within or by truth commissions. I use this term here to refer both to the harms inflicted on those who operate these mechanisms as well as those who engage with them. I argue that bureaucratic harms originate for both groups in the three moments of TJ: rationale, design, and implementation. The increasing normalization of TJ since the early 2000s, especially with the 2004 UN Secretary General report on the Rule of Law and Transitional Justice, has brought with it a flurry of loose and often untested promises that have over-charged the paradigm. As TJ transitioned from a practice that addressed primarily civil and political rights violations during military regimes to armed conflict and then again to established democracies and authoritarian regimes, it has increasingly been asked to do more (sometimes with fewer resources). Truth commissions now deal with historic injustices, human rights abuses by state and non-state armed actors in transitioning societies, corruption and other economic crises and harms occurring in ongoing authoritarian regimes. This expansion of TJ has increased victim expectations as well as demand for resources and capacity from the state institutions but may actually deliver few benefits in return.

Rationale

Bureaucratic capacity is a core critical assumption of TJ alongside relative political stability, acceptance of TJ as a long-term state project, absence of large-scale violence, territorial control by state security forces, manageable levels of socioeconomic inequality, and a relatively well-functioning legal system. To put it differently, the meaningful application of TJ pre-supposes not only the end of extensive and sweeping violence, but also at least a minimally functioning state apparatus with some reach around the country.

There is an ongoing discussion about whether TJ is a lower form of ordinary justice or an extraordinary justice altogether given the bounds on what can be done in the aftermath of large-scale violence. Making a name for themselves in Teitel’s second phase of TJ that takes place in post-Cold War TJ, truth commissions were believed to hold the key to giving victims some measure of justice while maintaining peace and consolidating the gains of the democratic transitions. The fame of truth commissions lies in a largely untested belief that ‘revealing is healing’ both in a social and individual sense. While victims of human rights violations now have an internationally recognised right to truth, many have expressed concerns about whether truth commissions are good guarantors of truth due to design problems and implementation gaps further discussed below. Truth might be harmful for both victims and society at large, not to mention the bureaucrats involved in operating a truth commission, if it is poorly linked with reparations or legal measures. Establishing a truth commission in lieu of doing other things that victims also have a right to might do more harm than good as society, and especially victims, loses faith in the benefits of the transition. If the critical assumptions of TJ mentioned above are not met, the bureaucrats involved in the truth-seeking processes risk their well-being as state employees and may even risk their security and personal integrity if politically motivated violence has not been brought in check.

Design

Despite the growing ministerialization of transitional justice measures in the last two decades, notably reparations and justice, truth commissions remain truthful to their origins as temporary ad hoc bodies. To successfully carry out their task of providing a narrative of the causes, impacts and patterns of human rights violations, they rely on ordinary state institutions for information provision, either through access to archives or witnesses. Some of these, like the security forces or the judiciary, may bear some of the responsibility for the abuses the commissions are mandated to document and, in the absence of specific incentives stipulated in the transitional legislation, have few reasons to take part. The risks associated with an official state narrative that presents society with a partial truth brings us back to the question of what kind of right to truth do truth commissions embody and whom does it serve. For instance, if reparations are expected to build directly on the truth commission report and it either misidentifies or excludes certain victims because of incomplete information or distrust, this can compound harms for victims.

Truth commissions also remain poorly integrated with other pillars of TJ. While some may be expressly prohibited from forwarding their findings to the judiciary, all truth commissions make recommendations that include but are not limited to reparations and guarantees of non-repetition. With the exceptions of Sierra Leone and El Salvador, recommendations have not been legally binding and, although a recent study on 13 Latin American truth commissions found reasons for optimism with regard to implementation, it often takes decades to see concrete and sustainable results of steps taken towards implementation.

This means that participation is a double-edged sword for victims: their contribution and active involvement is in equal measure necessary for these mechanisms to work but may actually deliver very few benefits of substance. Calls for better funding, ensuring more streamlined access to information and even offering appropriate protections to those who testify have been known to come from the frustrated bureaucrats involved in truth-seeking processes. While psychosocial support was clearly necessary for those testifying, the designs of truth commissions did not include counselling for their staff until the mid-90s. Depending on the type of contract they are covered by, some categories of truth commission operators may not even have access to health insurance. This is the case of the volunteers who collect testimonies from exiled Colombians in the so-called international nodes of the ongoing Colombian Truth Commission. Despite the fact that their work provides an important element of innovation for the Commission and completes the picture in terms of truth, due to the fact that their relationship is not formally considered a labour, they are not covered by the same protections due employees. This is particularly problematic given that the Commission did not suspend activities throughout the COVID-19 pandemic and testimony-gathering activities could have exposed the volunteer to health-related risks.

Implementation

Implementation problems have received most attention in TJ literature. As Acevedo Arango et al. and Weber document for the cases of psychosocial support and land restitution, innovative legal systems that hold a lot of promise come up short on delivery. With more than 9 million registered for reparation in Colombia it is perhaps unsurprising that they find that the gap between theory and practice is largely due to lack of bureaucratic capacity.

An element of promise that the ongoing Colombian Truth Commission inherited from previous legislation focusing on reparations are the differential approaches, or enfoques diferenciales. This refers to both a practice and a method of analysis that aims to both capture the distinct ways in which conflict has affected the different constitutionally protected classes and give visibility to their harms without discrimination. Based on a mix of constitutional jurisprudence and Peace Agreement mandates, the Commission implements a territorial approach, a gender(-inclusive) approach, an ethnic approach, and a life course approach (referring to children, seniors, and youth as well as those living with disabilities). The work is carried out with psychosocial support and taking into account the regional differences, the latter of which is known as the territorial approach. The Commission has gone to great lengths to further develop their use applied to memory work, but the fictions of expertise still creep in. An evaluation of the outreach work carried out by the Truth Commission showed that while participants generally appreciate taking part in its activities, an unwelcome consequence is also that they are now exposed to more severe security risks. It is now well established that these risks also affect protected groups more due to their already vulnerable situation. The same evaluation also shows that there are significant vertical and horizontal coordination problems that breed frustration and tensions amongst the operators of the Truth Commission. Information bottlenecks hamper the full implementation of the territorial approach because national-level coordinators are not only not fully aware of the security risks faced by the different local branch offices of the Truth Commissions, but they insist on mainstreamed rigid approaches that are not always fit-for-purpose locally.

Conclusions

I do not mean to suggest here that we should do away with truth commissions but I want to advocate for a return to humility in TJ. The gap between promise and reality with respect to truth commissions is not only due to the lack of earnest examination of TJ critical assumptions and the contextual limits of TJ, it is also due to the increasing over-reliance on truth commissions to do more. For instance, given that previous legislation had established a national research centre dedicated to the construction of historic memory since 2005 in Colombia, it seemed that, like in the case of Morocco,  a truth commission was simply the “done thing” in the human rights performance of the transition and it was not clear what it would add. While the rationale of the Commission may still be questioned by some, the past three years of its operations, especially its strategy to adapt to the ongoing COVID-19 pandemic and its involvement in the National Strikes of 2021, have shown some positive implementation results and increased the numbers of its supporters. While we wait for the report due in June 2022, the question of design and how its findings will be received by the ordinary state as well as the other transitional justice bodies is still open. An earnest look at the relationship between the critical assumptions of TJ and the potential downsides of this increasingly popular mechanism would help us balance the growing expectations of those participating in truth-seeking processes and the capacity of those operating them as well as the transitioning state more generally.