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The truth commissions and the lack of finding the perpetrators in the chilean case

Excerpt [uncorrected, not for citation] Introduction The National Theater of Guatemala City hosted an unusual crowd on February 25, 1999. Members of the political elite must have been comfortable enough, thinking that the truth commission, systematically deprived of resources and juridical powers to carry out its mandate, would present relatively uncontroversial results.

However, the chair of the truth commission, Christian Tomuschat, took the stage to present the findings that little by little took the comfort away from political leaders: South Africa's famous Truth and Reconciliation Commission was facing accusations of bias since its inception. Opposition figures kept insisting that the African National Congress ANC established the panel to discredit political rivals and impose its interpretation of history as the official truth.

When the commission completed its task, the expectation was that ANC's opponents, especially the members of the outgoing apartheid regime, would object to the final report, while the ANC would endorse it wholeheartedly.

The opposition did not surprise the observers. However, some sectors within the ANC leadership, disappointed to learn that the commission had implicated their movement in past atrocities, sought a last-minute political maneuver to prevent the final report from getting published.

It was only Nelson Mandela's personal intervention in favor of the commission that saved the report. Pieces of the past flew out of dusty archives, echoed in prison walls and presidential palaces, and erupted onto the political stage, sometimes through the choking voice of an old woman searching for a lost son, other times in the solemn words of a politician apologizing for past wrongs, and yet other times in the form of angry protests against the "unpatriotic" human rights defenders.

Although it does not enjoy the status of universal consensus, the demand that every polity confront its past in an open-minded and critical fashion has become widely accepted. Human rights violators in Argentina and Rwanda, Guatemala and Serbia, face domestic or international courts; legislatures all around the world recognize genocides and impose punitive measures against denial; governments apologize for past abuses to rectify historical injustice; and victims receive material and symbolic reparations in many countries.

All these measures address but a fraction of all political violence and human rights violations, and the forces of impunity and amnesia still prevail in most cases, but, arguably, individual and civil society advocacy in the wake of atrocities elicits official responses at a greater rate than any other period in human history.

One novel institution that appears to embody this zeitgeist of coming to terms with the past is called "the truth commission. Even after the third wave of democratization ebbed, consolidated democracies like those in Uruguay and South Korea and reformist authoritarian regimes such as the one in Morocco resorted to truth commissions to set the historical record straight.

A glance at the news over the last few years shows that truth commissions are here to stay. A section of the Basque Left izquierda abertzale called for an international truth commission in Spain's Basque region in 2012, and the UN high commissioner for human rights, Navi Pillay, asked the same for Zimbabwe.

Some politicians and the media are testing the waters for a commission in Northern Ireland. Of course, not every truth commission initiative ends in success. Civic groups and legislators have recently proposed to establish commissions, to no avail, in settings as diverse as Indonesia and the United States, Mexico and Turkey.

Nepal's Supreme Court blocked an attempt to establish a truth commission in 2013 out of fear that such a panel would grant amnesties for serious crimes.

A similar proposal met the same fate at the hands of the Legislative Assembly in Bolivia the same year. Yet, even failed attempts reveal the extent to which this institutional response to past atrocities and disagreements over the meaning of truth, justice, memory, reconciliation, recognition, and forgiveness has become central to the political controversies of today.

The introductory anecdotes from Guatemala and South Africa point to a simple fact: Outgoing and incoming politicians, government and opposition parties, victims' groups, human rights organizations, transnational advocacy networks, the judiciary, state security institutions, rebel groups, and the media participate in truth commission processes to achieve multiple, and often contradictory, objectives.

The fact that commissions are the stage on which the complexity of interests, incentives, and values associated with nation building and truth telling is played out does not mean that commissioners and the staff simply replicate the political and ideological struggles taking place in society. Commissions are attentive, but not servile, to the broader political context.

What makes them essentially political is that the commissioners and the staff constantly make choices when they define such basic objectives as truth, reconciliation, justice, memory, reparation, and recognition, and decide how those objectives should be met and whose needs should be served.

Inevitably there will be winners and losers in a truth commission process. Thus, assessing the achievements and shortcomings of truth commissions requires identifying the complex set of actors, interests, values, and expectations that play into the politics of truth commissions and also recognizing commissions' agency as a crucial factor.

The anecdotes reveal an important pattern: Politicians often lend them the truth commissions and the lack of finding the perpetrators in the chilean case support in the hope of taming the societal pressure for justice and historical truth and imposing their vision of nation building.

Yet, commissions have managed to surprise and upset powerful individuals and institutions many times. Even when they legitimize an incoming regime by laying bare the crimes of the previous one, their findings and conclusions may prove inconvenient for the new leaders, as the example of South Africa demonstrates. Of course, commissions are neither fully subversive nor fully docile.

Comparative analysis should account for the unintended and unforeseen consequences of a truth commission process and explain why some commissions influence politics and society the way they do, whereas others do not. This is what this book sets out to do.

For national governments and foreign donors, the question of impact is closely related to funding choices, as transitional justice measures often compete with other state- and nation-building initiatives during difficult transitions.

Furthermore, reckoning with past wrongs can be politically sensitive, controversial, even destabilizing. Therefore, incoming regimes want to weigh the expected political benefits and costs before jumping on the global transitional justice bandwagon.

Finally, the ethical stakes of invoking truth, justice, and reparation in the face of individual trauma and social dissolution necessitate studies of transitional justice impact. Scholars and practitioners in the fields of transitional justice and peace studies often disagree on the very definition of such essentially contested concepts as justice, reconciliation, and truth. Even if normative disagreements are suspended, empirical research on the effectiveness of transitional justice yields widely divergent results, reflecting the deep the truth commissions and the lack of finding the perpetrators in the chilean case and methodological divisions across disciplines.

Are we observing a "justice cascade" increasingly overpowering obstacles to human rights accountability, or should we adjust our expectations to some form of justice "in balance" with amnesty? Should governments and foreign donors sequence their policy and funding decisions in search of a future political context conducive to human rights accountability, or should they stand firm in support of human rights and the rule of law from the start, ignoring the short-term political costs of such support?

Some answers come from detailed case studies, whereas others rely on comparative data from many countries. In the end, however, the enormous divergence in the answers and the difficulty of initiating dialogue across methodological and disciplinary boundaries limit our ability to make sense of the achievements and shortcomings of transitional justice. After decades of journalistic and scholarly work on coming to terms with past human rights violations, it seems that we know a lot, but understand little.

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This book offers a deeper understanding of truth commissions, one of the chief mechanisms of postconflict justice and repair in today's world. The motivation comes from three key observations.

First, many truth commissions have published findings, historical explanations, and recommendations that proved inconvenient to endorse and implement into policy for the political leaders, as explained above. Second, some of the bolder and more comprehensive truth commissions have generated surprisingly little impact in terms of policy reform and the public acknowledgment of human rights violations by key political actors.

The Chilean Truth and Reconciliation Commission

And third, even when some commissions have failed to generate observable policy impact, they have managed to inspire civil society activism in unanticipated ways by triggering the creation of new victims' organizations, promoting public debates over social memory, and inducing civil society actors to monitor the country's human rights policy. The motivating question is: What are the practical and normative implications of a truth commission for a society coming to terms with a violent and divisive past?

This is an admittedly ambitious quest, which I divide into smaller, more manageable questions throughout the course of the book: In what ways do truth commissions facilitate policy reform, human rights accountability, and the public recognition of human rights violations? What is the nature of state-civil society interactions during a commission's work? To what extent have truth commissions maintained, challenged, or transformed public discourses on memory, truth, justice, reconciliation, recognition, nationalism, and political legitimacy?

What explains cross-national variation in their impact on politics and society? In what ways do truth commissions take part in the struggles for social memory in societies deeply divided over the meaning of past political violence? What does the popularity of truth commissions say about the relationship between truth and politics in today's world? Democratization and transitional justice scholars have posed similar questions.

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Under what conditions do governments establish truth commissions? How does the political balance of power shape these commissions?

How do commissions serve, if at all, justice, truth, and reconciliation? This book has developed out of thought-provoking academic debates around these questions. However, its scope, as well as central concern, is distinctive.

It documents the ways in which truth commissions not only reflect the balance of power during delicate political transitions but also unsettle this balance in unforeseen ways. It seeks to explain commissions' impact on policy, political attitudes, judicial behavior, and social norms by embedding commissions in the context of societal and political struggles over historical truth and justice, yet also acknowledging the independent agency of commission members.

Truth commissions should be rethought as an inherently conflictive space for action and reflection by virtue of the tensions and contradictions built into their institutional design. They are established as investigatory bodies free from direct political intervention—at least ideally.

The truth commissions and the lack of finding the perpetrators in the chilean case

Politicians and the commissioners themselves often portray a commission's task as the ethical and practical reconstruction of the nation. Commissions' autonomy, political efficacy, and transformative potential are therefore crucial for understanding what they expect to accomplish in contemporary societies. Yet, the very conditions under which commissions are set up, supported, and endorsed reveal their dependence on, and vulnerability before, influential decision makers and institutions that set limits on commissions' ability to transform politics and society.

The tension between agency and vulnerability defies simplistic explanations of what truth commissions should or can achieve. Truth commissions arise from, and generate impact through, complex political and social processes.

Naturally, the sponsoring institution frequently the government, but also the parliament, courts, or international organizations pursues a narrow, if not entirely self-serving, set of political goals.

The willingness of incoming governments to set up commissions has led critical commentators to label these bodies as instruments of political legitimation. In addition, the widespread resort to truth commissions during negotiated transitions where the outgoing authoritarian elites enjoy significant de facto and de jure power has led many observers to portray commissions as a second-best policy option to criminal prosecution. Accordingly, incoming democratic governments take into consideration the popular demand for the prosecution of human rights violators, but the threat of an authoritarian backlash prevents them from pursuing retributive justice.

Instead, they adopt the less controversial policy of establishing a truth commission to satisfy the demands of victims, victims' relatives, and human rights organizations. Thus, truth commissions are modeled as a policy outcome reflecting the interests and balance of power across influential political and social actors.

However, the convenience that truth commissions offer political elites is only part of the story. The findings, historical narratives, and recommendations of truth commissions frequently surprise, upset, and delegitimize influential individuals and organizations, including the sponsors and advocates of the commission.

Furthermore, the changes truth commissions have produced in policy and political attitudes do not necessarily conform to the anticipations of politicians, human rights advocates and scholars.

Governments sometimes implement commissions' recommendations, but politically driven impact often falls short of the original aspirations, as governments can ignore the recommendations or implement them selectively.

Despite the near-universal expectation that commissions should promote reconciliation, they have instead heightened tensions over the meaning of the national past, at least in the short run. Perpetrators and their political allies have acknowledged their responsibility for past abuses and sought reconciliation only in a small number of countries, and only if they are given material incentives such as amnesty or if the long-term political and judicial transformations make such a gesture necessary.

Likewise, prosecutors have made use of the findings of a truth commission only in a small number of countries where the legal, political, and institutional context is auspicious.

Nonetheless, even if truth commissions do not contribute to retributive justice everywhere, it is also true that they do not undermine human rights accountability: While truth commissions do not always generate impact in expected ways, their unanticipated effects need to be acknowledged. Civic pressures have resulted in the delayed adoption of recommendations into policy in several countries where governments initially ignored the commission's work.

  1. The chilean truth and reconciliation commission by finding the disappeared was acted upon mark 1994 truth commissions for chile and el salvador. Even after the third wave of democratization ebbed, consolidated democracies like those in Uruguay and South Korea and reformist authoritarian regimes such as the one in Morocco resorted to truth commissions to set the historical record straight.
  2. Despite initial action outlined above, addressing the past has often been overshadowed by other national concerns.
  3. It documents the ways in which truth commissions not only reflect the balance of power during delicate political transitions but also unsettle this balance in unforeseen ways. Parliamentary Affairs 46 4.
  4. First, many truth commissions have published findings, historical explanations, and recommendations that proved inconvenient to endorse and implement into policy for the political leaders, as explained above. As it concluded its work, sixty-eighty percent of Chileans approved of the Rettig commission Pion-Berlin 1994.

Civil society mobilization has been stronger in cases where domestic and international human rights organizations and victims' groups take active part in structuring the commission. Since truth commission impact is by and large determined by a commission's capacity to exercise agency, as well as its reception by politicians and civil society actors, variation across truth commissions in terms of agency and reception should be explained. This book documents sources of variation in truth commission impact at every stage of a commission process: A note of caution: There is considerable variation across commissions in terms of power dynamics, stated objectives, actual processes, and outcomes.

Throughout the book truth commissions refer to ad hoc panels with characteristics similar enough to make conceptualization and comparative analysis possible, while acknowledging the need to account for variation across experiences.