Truth Commissions And Courts: The Tension Between Criminal Justice and the Search for Truth

276 Pages·2004·1.024 MB·English

by  Professor William Schabas (auth.), Professor William Schabas, Shane Darcy (eds.)

TRUTH COMMISSIONS AND COURTS
TO GE´ RARD COHEN-JONATHAN
TRUTH COMMISSIONS AND COURTS
THE TENSION BETWEENCRIMINALJUSTICE AND THE SEARCHFORTRUTH
Editedby
WILLIAM A. SCHABAS
Irish Centre for Human Rights
National University of Ireland
Galway, Ireland
And
SHANE DARCY
Transitional Justice Institute
University of Ulster
Northern Ireland
Reprinted from Criminal Law Forum, Volume 15, Nos. 1–2, 2004
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Table of Contents
Truth Commissions and Courts
The Tension between Criminal Justice and the Search for Truth
WILLIAM A. SCHABAS / Introduction 1–2
WILLIAM A. SCHABAS / A Synergistic Relationship: The
Sierra Leone Truth and Reconciliation Commission
and the Special Court for Sierra Leone 3–54
EDUARDO GONZA´ LEZ CUEVA / The Contribution of
the Peruvian Truth and Reconciliation Commission
to Prosecutions 55–66
SUSAN KEMP / The Inter-Relationship Between the
Guatemalan Commission for Historical Clarifica-
tion and the Search for Justice in National Courts 67–103
MARGARETPOPKIN/TheSalvadoranTruthCommission
and the Search for Justice 105–124
KEN AGYEMANG ATTAFUAH / An Overview of
Ghana’s National Reconciliation Commission and
its Relationship with the Courts 125–134
PATRICK BURGESS / Justice and Reconciliation in East
Timor. The Relationship Between the Commission
for Reception, Truth and Reconciliation and the
Courts 135–158
MARTIN IMBLEAU / Initial Truth Establishment by
Transitional Bodies and the Fight Against Denial 159–192
TRISTRAM HUNT / Whose Truth? Objective Truth and a
Challenge for History 193–198
ANGELA HEGARTY / Truth, Law and Official Denial:
The Case of Bloody Sunday 199–246
CASE LAW / Special Court for Sierra Leone 247–272
WILLIAM A.SCHABAS
INTRODUCTION
Criminaljusticeforhumanrightsabusescommittedduringperiodsof
political repression or dictatorship is one of the great challenges to
post-conflict societies. In many cases, there has been no justice at all.
Sometimes serious political concerns that efforts at accountability
might upset fragile peace settlements have militated in favour of no
action and no accountability. In many cases, the outgoing tyrants
have conditioned their departure upon a pledge that there be no
prosecutions.
But thinking on these issues has evolved considerably in recent
years. Largely driven by the view that collective amnesia amounts to
a violation of fundamental human rights, especially those of the
victims of atrocities, attention has increasingly turned to the
dynamics of post-conflict accountability. At the high end of the
range,ofcourse,sitthenewinternationalcriminaljusticeinstitutions:
the ad hoc tribunals for the former Yugoslavia and Rwanda, the
Special Court for Sierra Leone, the various ‘‘hybrid’’ tribunals in
Kosovo, East Timor and Cambodia, and the new International
Criminal Court. But in terms of sheer numbers, the most significant
new institutions are truth and reconciliation commissions. Of vari-
able architecture, depending upon the prerogatives of the society in
question and the features of the past conflict, they have emerged as a
highly popular mechanism within the toolbox of transitional justice.
Insomecases,thetruthcommissionisheldoutasanalternativeto
criminal justice. Transitional states often may simply refuse to con-
template the criminal justice option, and offer the truth commission
as a modest alternative. In others, a dynamic is created between the
truth commission process and criminal courts, whereby those who
participateinthetruthcommissionprocessareinsomewaysheltered
from prosecution.
But with the emergence of international criminal justice, either
through dedicated institutions or the exercise of universal jurisdiction,
it has become more difficult to adequately address the relationship
between these accountability mechanisms. Even if truth commis-
sions fit within some acceptable domestic compromise, they cannot
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2 WILLIAMA.SCHABAS
be insulated from prosecution in other jurisdictions, including the
international ones. This situation increasingly promises to become
the rule, as the numbers of States parties to the Rome Statute of the
International Criminal Court grows. In joining the Court, States in
effect renounce to any option about the presence of criminal justice
in a post-conflict environment. How the new International Criminal
Court will relate to truth and reconciliation commissions remains a
question for the future. Its answer may well depend upon the per-
sonality and vision of the Court’s independent prosecutor.
The drafters of the Rome Statute of the International Criminal
Court were regularly confronted with the issue of how such a body
would relate to national approaches to accountability falling short
of full-blown criminal prosecution. The Statute might seem to
suggest that the Court will act when national courts fail to prose-
cute, but many observers feel that it would be loathe to intervene if
an effective and credible indigenous process is contributing to peace.
Perhaps the greatest difficulty in the relationship concerns the
reuse of materials developed within a truth and reconciliation com-
mission process for the purposes of subsequent criminal prosecution.
It is a source of concern that a truth and reconciliation commission
might find itself reduced to some sort of inquiry chamber or pre-trial
investigative body for the courts. This seems to devalue the whole
exercise, and may ultimately compromise the operations of such
commissions, discouraging participation and cooperation with them,
especially by perpetrators.
The papers in this special issue of Criminal Law Forum were ini-
tially produced for an international conference on the interrelation-
shipbetweentruthcommissionsandcriminalcourts,heldattheIrish
Centre for Human Rights at the National University of Ireland,
Galway, in late 2002. In addition to the Irish Centre for Human
Rights, two organizations with profound involvement in transitional
justice issues, the International Centre for Transitional Justice and
the United States Institute of Peace, co-sponsored the event.
The contributions review the experience of several of the major
truth commissions in recent years: Peru, Guatemala, El Salvador,
GhanaandEastTimor.TheSierraLeoneexperienceisaddressednot
withanarticlebutwithajudgment,theNovember2003rulingbythe
President of the Special Court for Sierra Leone concerning the rela-
tionship between the Court and the Truth and Reconciliation Com-
mission. In addition, there are thoughtful overview pieces by
Tristram Hunt and Martin Imbleau, and a report on an analogous
body, the Saville inquiry into ‘‘Bloody Sunday’’ in Northern Ireland.
WILLIAM A.SCHABAS*
A SYNERGISTIC RELATIONSHIP: THE SIERRA LEONE
TRUTH AND RECONCILIATION COMMISSION AND THE
SPECIAL COURT FOR SIERRA LEONE
Sierra Leone’s Truth and Reconciliation Commission was a product
of the Lome´ Peace Agreement of 7 July 1999, a negotiated truce
between the Government of Sierra Leone and the rebel Revolution-
ary United Front.1 A truth commission had been on the agenda for
several years at that point, and had also been proposed in an earlier
and subsequently aborted peace settlement to the war that was
reached in Abidjan in November 1996.2 As originally conceived,
there was never any thought of defining how the Sierra Leone Truth
Commission would relate to criminal prosecutions. The model driv-
ing all discussion at the time, that of the South African Truth and
Reconciliation Commission,3 had placed the institution within a
dynamic based on a parallel regime of criminal justice, in that wit-
nesses were encouraged to testify in exchange for amnesty or
immunity from prosecution. But the Sierra Leone peace settlement
promised a full amnesty to combatants on all sides. The Truth
Commission was presented as an alternative to prosecutions, not a
complement to them.
But this all changed a year later, and well before the Truth
Commission was formally established. A resurgence in the conflict
* Professor of human rights law, National University of Ireland, Galway, and
Director, Irish Centre for Human Rights; <[email protected]>. The
author was a member of the Sierra Leone Truth and Reconciliation Commission.
This article was written in his private capacity and does not necessarily reflect the
viewsof the othercommissioners orof theCommission.
1PeaceAgreementbetweentheGovernmentofSierraLeoneandtheRevolutionary
United FrontofSierraLeone, Lome´,7 July1999, art.XXVI.
2PeaceAgreementbetweentheGovernmentoftheRepublicofSierraLeoneandthe
Revolutionary UnitedFrontofSierra Leone(RUF),30November 1996.
3 There is a great deal of literature on the South African Commission. For a
personalaccountbyitsvice-president,see:ALEXBORAINE,ACOUNTRYUNMASKED
(2000).
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4 WILLIAMA.SCHABAS
promptedSierraLeone’sPresidenttorequestthattheUnitedNations
establish an international criminal tribunal. The concept was imme-
diately endorsed by the Security Council, which instructed the Sec-
retary-General to negotiate an agreement between the United
NationsandtheGovernmentofSierraLeonefortheestablishmentof
a court. The preamble to the Security Council resolution acknowl-
edged the truth commission’s position within the overall context of
post-conflict justice, noting ‘the steps taken by the Government of
Sierra Leone in creating a national truth and reconciliation process,
as required by Article XXVI of the Lome´ Peace Agreement (S/1999/
777)to contribute to the promotionof the rule of law’.4 The Security
CouncilsubsequentlyreferredtothecomplementaryroleoftheTruth
and Reconciliation Commission within the overall context of post-
conflict justice in Sierra Leone in its correspondence with the Secre-
tary-General concerning establishment of the Special Court.5 The
Secretary-General shared the view that the Commission was a com-
plementary institution to the Court, writing in a 2001 report that
‘[t]hese twoinstitutionsaremutuallyreinforcinginstrumentsthrough
which impunity will be brought to an end and long-term reconcilia-
tion may be achieved’.6 In a letter to the United Nations Security
Council,dated12January2001,theSecretary-Generalsaidthat‘care
must be taken to ensure that the Special Court for Sierra Leone and
the Truth and Reconciliation Commission will operate in a comple-
mentary and mutually supportive manner, fully respectful of their
distinct but related functions’.7
Nearly two more years were to pass before the two organisations
becameoperational.Aspreparationsprogressed,muchattentionwas
devoted to defining the ‘relationship’ between the Truth Commission
and the Special Court. But when activities actually began, more or
less at the same time for both institutions, in July 2002, how exactly
thetwobodiesweretointeractwasunresolved.Forabout18 months
– the lifespan of the Truth and Reconciliation Commission – the two
4UN Doc.S/RES/1315 (2000).
5 ‘Letter dated 22 December 2000 from the President of the Security Council
addressed to the Secretary-General’, UN Doc. S/2000/1234, p. 1; ‘Letter dated 31
January2001fromthePresidentoftheSecurityCounciladdressedtotheSecretary-
General’, UN Doc.S/2001/95.
6 ‘Eleventh report of the Secretary-General on the United Nations Mission in
Sierra’, UN Doc.S/2001/857, para.66.
7 ‘Letter dated 12 January 2001 from the Secretary-General addressed to the
President ofthe Security Council’,UN Doc.S/2001/40, para. 9.
TRCANDSPECIALCOURTFORSIERRALEONE 5
institutions operated in parallel. By sheer coincidence, they were lo-
cated in neighbouring premises onFreetown’s Jomo Kenyatta Road.
Operating from different perspectives, both institutions attempted to
investigate and understand the complex conflict that brought Sierra
Leone to its knees during the 1990s. In the end, they never clarified
the relationship between the two bodies, at least in a formal sense.
Yet they worked for most of the 18 months without major incident,
and with a public profile of cordiality. Both repeatedly explained to
thepeopleofSierraLeonethattherewasnocooperationbetweenthe
two bodies, but that they respected the role of the other institution
and appreciated its contribution to post-conflict justice.
In the final months of the Truth Commission’s activities, in late
2003, three prisoners who had been indicted by the Court asked to
testify in a public hearing before the Truth and Reconciliation
Commission.TheProsecutoropposedtherequest,andultimatelythe
issuewaslitigatedbeforejudgesoftheCourt.On28November2003,
the President of the Appeals Chamber, Geoffrey Robertson, gave
each side ‘half a loaf’, ruling that the accused could testify, but not
publicly.8 His judgment now represents the principal judicial exami-
nation of the relationship between truth commissions and criminal
prosecutionsandwilldoubtlessinfluencefutureeffortsattransitional
justice where truth commissions and courts operate simultaneously.
Thatthetwobodiesconcludedtheperiodoftheirparalleloperation
withtensionandconflictgivesamisleadingimpressionofthenatureof
their relationship. The final report of the Commission probably does
not assist in this regard either, as it is the product of compromises
withintheorganisationbetweenthosewithdifferentassessmentsofthe
significance of the two institutions to post-conflict justice and recon-
ciliation.Infact,thequarrelovertestimonybyindictedprisonerswas
the only significant dispute between the Truth Commission and the
Special Court. And it showed that when issues did arise between the
two institutions, an appropriate mechanism and procedure could be
devised to resolve differences. The real lesson of the Sierra Leone
experiment is that truth commissions and courts can work produc-
tivelytogether,eveniftheyonlyworkinparallel.Thiscomplementary
8Prosecutorv.Norman(CaseNo.SCSL-2003-08-PT),DecisiononAppealbythe
Truth and Reconciliation Commission for Sierra Leone (‘TRC’ or ‘The Commis-
sion’) and Chief Samuel Hinga Norman JP Against the Decision of His Lordship,
Mr Justice Bankole Thompson Delivered on 30 October 2003 to Deny the TRC’s
Request to Hold a Public Hearing With Chief Samuel Hinga Norman JP, 28
November 2003. Theruling is reproduced infull atpp.247–272 ofthis volume.