Truth Commissions? Trials? Or nothing?
In the last half century, ethnic and cultural groups around the world have experienced human rights abuses, including genocide. These occurrences mainly result from internal conflicts, since in an interstate conflict the intended victim is primarily the enemy's military, not solely their civilians. In an internal conflict, on the other hand, the state's military often possesses a monopoly on the use of force, leaving the civilian population defenceless against government assaults. In such conflicts, human rights violations are rife, for unarmed civilians are the target. In Guatemala's civil war (1960-1996) nearly 200,000 civilians were killed, exemplifying the extent of human rights abuses that can occur in internal conflicts.
As in Guatemala, when intrastate conflicts end, the transitional government has to contend with victims of human rights abuses as well as their supporters. What options can the government choose to most effectively keep peace in the nation? Does punishment of human rights violators for past crimes fortify the peace or threaten it? When the government does not make the best choice, "the embers of yesterday's conflict can become the fire of tomorrow's renewed conflict."1
After a regime of terror, such as the one that ravaged Guatemala for 36 years, restoring peace is difficult, especially when many call for retroactive justice. By studying the issue of retroactive justice, we can address the hard question: what to do with human rights violators after a conflict? Some would like to see prosecutions and convictions, whereas others want impunity and inaction. Every humanitarian emergency requires a combination -- both civil order and social justice -- to preserve the peace. The question then becomes: What actions should be taken toward human rights abusers to maintain both justice and peace?
Since the end of World War II, large-scale international conflicts have become less frequent. Unfortunately, as they have decreased, brutal domestic violence has risen. That victimization "has included genocide, crimes against humanity, and war crimes, along with, inter alia, extra-judicial executions, torture, and arbitrary arrest and detention, all of which constitute serious violations of fundamental human rights protected by international human rights law."2
Internal, intrastate conflicts and victimization during the 20th century alone claimed 170 million lives in 250 disputes, compared with about 33 million military fatalities. Little has been done to bring to justice those responsible for these crimes. Seldom, indeed, has the truth been exposed about what actually happened during these conflicts.
Globally, since the end of World War II, there have been only two internationally established ad hoc investigatory commissions and two ad hoc tribunals (for Yugoslavia and Rwanda), one international truth commission for El Salvador (which did not generate prosecutions), two national prosecution systems after conflicts in Ethiopia and Rwanda, and selective national prosecutions in Argentina and Chile.3
The world has been lethargic in prosecuting war criminals and nations have grappled with the concept of amnesty within the framework of rebuilding after a peace accord. Since a strong peace combines civil order with social justice, the latter element of peace remains unfulfilled in postwar situations. However, we must question how effective retroactive justice really is in securing a sustainable peace.
With over half of the population considered indigenous, Guatemala has one of the highest indigenous populations in the Americas. For centuries, indigenous people experienced racism and inferior status in the social hierarchy. The Guatemalan civil war broke out after a US-backed coup in 1954 began a series of military or military-controlled governments won by coups and fraudulent elections. Fighting between guerillas and the state began in 1960 and intensified until an all out genocide was perpetrated between 1981 and 1983 against indigenous communities thought to be supporting the guerillas. An estimated 83 percent of the human rights violations that occurred were against the Maya population and 93 percent of the human rights abuses were attributed to the army. Colonial era racism was acted out yet again in the Guatemalan civil war in the form of gross human rights violations.
Human rights violations have impeded the transition to democracy after the conflict in Guatemala, since most of these crimes were committed by officials from the outgoing regime. Whether or not such violations will be prosecuted depends on the relative strength of both the public and the outgoing regime. Elin Skaar asks:
"In situations where state officials of the previous regime have been responsible for murdering, imprisoning, torturing and `disappearing' its citizens, should the new government listen to public demand for disclosure of the truth and prosecution of the guilty? Or should it give in to the outgoing regime's demand for impunity for past crimes?"4
Skaar explains that a democratic transition government's three options are: "truth commissions (disclosing the facts about human rights violations), trials (prosecuting and punishing the guilty), or nothing." The choices among these three may have a direct impact on the stability of both peace and the political arena. In Guatemala all parties involved had different interests at stake and can be summarized in figure 1.5
According to Skaar, (1) If both the public demand and the outgoing regime are strong, one would expect truth commissions as a compromise. (2) A weak public demand and a strong outgoing regime would result in nothing, as this would be the preference of the outgoing regime. Amnesty would be applied. ( 3) A weak outgoing regime and a strong public demand would lead to trials and possibly convictions of the human rights perpetrators. (4) When both the public demand and the outgoing regime are weak, the situation is never fully resolved. In such a situation the new government may offer a truth commission as a compromise solution so that both sides get a bit of what they want. The human rights violators and the victims alike would prefer a compromise in the form of a truth commission rather than renewing the conflict.
Truth commissions have been added to a transitional government's "toolbox" for use when it must address past human rights violations. Such commissions scrutinize human rights abuses perpetrated by a government, military, or rebel group. It inevitably encounters obstacles that are designed to obscure the truth, such as military threats, political opposition or failure of certain parties to cooperate. In Guatemala and El Salvador, the truth commissions were part of a negotiated peace settlement. In these countries this was necessary because large segments of the population are marginalized and lack a political voice. After the war, Guatemala had several truth commissions working throughout the country, recording the stories of thousands of victims through the combined efforts of the Catholic Church, human rights NGOs, and the United Nations.6
In April 1998 the Catholic Archdiocese's Human Rights Office released the first large-scale account of the human rights violations occurring during the conflict in Guatemala. Titled Nunca Más (Never Again), it was a report by the Interdiocesan Project for Recovery of Historical Memory (Recuperación de la Memoria Histórico, REMHI) which collected testimony from over 6,000 people in parishes across the country over three years. The
report registered over 55,000 victims, including over 25,000 murders, attributing some 80 percent of responsibility to the state security forces and 9 percent to the URNG [Guatemalan National Revolutionary Unity]." Guatemala, however, still had a long way to go in acknowledging human rights abuses. Two days after the report was released, Catholic bishop Monseñor Juan Gerardi, the leader of the commission, was beaten to death in his home. Jean Arnault, the chief of the United Nations Verification Mission in Guatemala (MINUGUA) expressed concern that the murder "showed that Guatemala was not yet out of danger."7
In truth commissions there is a struggle between merely uncovering the truth and using the information to prosecute offenders. As a result, truth commissions are a sensitive process. One camp argues that truth commissions do not do nearly enough in bringing violators to justice while others see this as a more stable, "restorative," justice that may help rehabilitate offenders. Given the fragility of a new democracy, this choice is usually the safest way of preserving democratic gains in countries where both the military and public demand are strong.
The civil war of Guatemala and the subsequent peace process can be examined through the following lens: Does trying to achieve social justice after a brutal conflict help preserve, or does it weaken, an already fragile peace? Guatemala is a good case to inspect because of the number of deaths and therefore the number of people who would demand justice for their losses. But Guatemala shows how hard it can be to achieve justice:
"On December 13, 2000, a judge in El Salvador ruled that a ten-year statute of limitations prevented putting former President Alfredo Cristiani and six generals on trial for the killings of six Jesuit priests in 1989. The same day, Spain's High Court rebuffed Nobel Peace Laureate Rigoberta Menchu's effort to put eight Guatemalan officials on trial for genocide. These court decisions underscored the frustrations of human rights advocates from two countries where, several years into the peace processes that marked an official end to their civil wars, survivors and scholars alike are questioning the meaning of peace."8
The Guatemalan military was a strong, efficient force that nearly annihilated all the rebel guerilla groups in the early 1980s, and remained strong until the peace accords in 1994. But the civilians and victims of human rights abuses had the support of the international community and many humanitarian groups, giving them an unusual vigor as well. Since both the government and public sectors were relatively strong, the best policy choice for the government was to establish a truth commission to look at the abuses in Guatemala. Both parties preferred civil order to a renewed conflict, and so both sides were willing to budge a little concerning social justice.
There are several factors to consider when judging whether retroactive justice is good for a nation. Carlos Santiago Nino suggests that trials would be detrimental when a democracy is born through a transformation of an old regime "since the political costs far outweigh the political gains." But they have a better chance of success when there is a total overhaul of the old regime.9
It is the fragility of a new government that makes retroactive justice dangerous. For example, an outgoing regime might try to overthrow its successor government in a coup to block retroactive justice. This would undermine all the gains made toward peace.
The positive reasons for implementing retroactive justice, according to Nino, are few. He argues that the victims of human rights violations who might "benefit" from the prosecutions are the same people who would again be targeted should the democracy break down because of the trials. Nino does concede, however, that trials would "discourage potential perpetrators from overthrowing democracy and instituting an authoritarian regime."10
Other scholars, including M. Cherif Bassiouni, argue that "there truly cannot be peace without justice" and that justice will in the end "dampen the spirits of revenge and renewed conflict...and ultimately prevent future conflict."11
John Moore explains that the way to reach true justice is "to reject the ancient prescription of forgetting past offenses....Overlooking the past is incompatible with any society that purports to follow the rule of law. Simply forgetting past offenses or distorting the criminal record to suit a political strategy manipulates history."12
Furthermore, as Frank LaRue puts it, the peace process "must guarantee the protection and promotion of human rights: this is an essential requirement for all democratic societies...the right to truth should be understood as a human right."13 These are compelling arguments for anyone who believes the establishment of a stable democratic government is the best way to ensure lasting peace, and that a stable government is rooted in transparency.
Clearly there are two different viewpoints on how, if, and why retroactive justice should be issued and implied. There will never be agreement on how best to go about this, but by studying the specifics of a situation, the choice can be examined.
The issue of retroactive justice will remain important, for horrific human rights abuses still occur in Haiti, the Democratic Republic of Congo, and Darfur. Those being left behind in a globalizing world are the most likely to bear silent attacks on their human rights and receive no form of justice in return. At least all people deserve to have their story told and made available to the world, so that others may know their struggle. Their deaths serve as a permanent reminder of the pursuit of justice through truth. As Bassiouni states, "Truth is a means by which to cleanse, at least in part, the misdeeds of the past."14
Zoe Berman lives in Washington, DC and is pursuing a Master's degree in peace operations at George Mason University.