A Verdade Das Comissões Da Verdade. Haiti, Guatemala e Africa Do Sul

The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa, and Guatemala Author(s): Audrey R.
Chapman and Patrick Ball Reviewed work(s): Source: Human Rights Quarterly, Vol. 23, No. 1 (Feb., 2001), pp. 1-43 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/4489322 . Accessed: 16/02/2012 10:05
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HUMAN RIGHTSQUARTERLY
The Truthof TruthCommissions: Comparative Lessons from Haiti, South Africa, and Guatemala
Audrey R. Chapman* Patrick Ball**
I. INTRODUCTION As the twenty-first century opens, many deeply divided societies are struggling to overcome a heritage of collective violence and severe human rights violations. The twentieth-century may be most remembered for its legacy of gross human rights violations and mass atrocities. Violent conflicts, massacres, and oppression by one group over another have torn apart the social fabric of countries in nearly every region of the world. The killing fields of Cambodia, South Africa's brutal apartheid system, genocide in Rwanda and Burundi, and ethnic cleansing in the former Yugoslavia are
* Audrey R. Chapman is the director of two programs at the American Association for the Advancement of Science, Science and Human Rights and the Dialogue on Science, Ethics, and Religion. She has published widely on a variety of topics related to economic, social, and cultural rights; bioethics; and truth commissions. Currently she is the director of a project with several South African collaborators assessing the legacy and impact of the South African Truthand Reconciliation Commission, specifically its ability to balance truth finding with promoting forgiveness and reconciliation. She is the author, coauthor, or editor of fourteen books including Human Rights and Health: The Legacy of Apartheid. ** Patrick Ball is Deputy Director of the American Assocation for the Advancement of Science (AAAS) Science and Human Rights Program. Since 1991, he has designed information management systems and conducted quantitative analysis for large-scale human rights data projects for truth commissions, nongovernmental organizations, and UN missions in El Salvador, Ethiopia, Guatemala, Haiti, South Africa, and Kosovo. In his most recent report from AAAS, "Policy or Panic? The Flight of Ethnic Albanians from Kosovo, March-May 1999," he reconstructs the flow of refugees by villages across time to show that only a small fraction of Kosovar Albanians fled as a result of NATO bombing raids. Instead, the migration patterns were so regular that they must have been the result of a coordinated policy. Human Rights Quarterly 23 (2001) 1-43 @ 2001 by The Johns Hopkins University Press
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but some of the terrible examples. Added to this collective brutality are the state terrorism and repression of the Soviet and Chinese gulags, the gross human rights violations of many authoritarian regimes, and the disappearances and torture inflicted by military-dominated dictatorships on their own populations. As a step in the process of healing and reconciliation, at least fourteen countries,1 most recently South Africa and Guatemala, have established truth commissions or analogous bodies, and some have had more than one. Recent peace processes and ongoing efforts for national reconciliation have also proposed a role for truth commissions in Sierra Leone, Nigeria, Cambodia, Colombia, and Peru. Truthcommissions are temporary bodies, usually with an official status, set up to investigate a past history of human rights violations that took place within a country during a specified period of time. In contrast with tribunals or courts, truth commissions do not have prosecutorial powers to bring cases to trial. Nor do they act as judicial bodies to investigate individuals accused of crimes. Their role is truthfinding, or more precisely, documenting and acknowledging a legacy of conflict and human rights violations as a step toward healing wounds.2 Truth commissions, as Archbishop Desmond Tutu, the chair of South Africa's Truthand Reconciliation Commission, observed, offer a "thirdway," a compromise between the Nuremberg trials at the end of World War II or the prospective International Criminal Court and blanket amnesty or national amnesia.3 This "third way" is significant for several reasons. Establishing the basis for a shared future requires coming to terms with the past, but it is often very difficult to prosecute architects and perpetrators responsible for political violence and human rights violations, particularly when large numbers of people are involved. Even in the case of Nazi war crimes, fewer than 6,500 of the 90,000 cases brought to court resulted in convictions.4 Given the scale of the collective violence in places like Cambodia, Ethiopia, Bosnia, and Rwanda, it is just not feasible to prosecute all the alleged offenders, and an effort to do so is likely to have thousands of persons languishing in detention for very long period of time. Moreover, few transitional countries have the strong legal institutions and resources
1.
2. 3. 4.
The precise number of countries depends on how strict a definition of truth commissions is applied. Truth commissions, or other mechanisms approximating a truth commission, have been set up in Uganda, Bolivia, Argentina, Zimbabwe, Germany, the Philippines, Uruguay, Chile, El Salvador, Rwanda, Brazil, Haiti, and Guatemala, as well as South Africa. See Priscilla B. Hayner, Fifteen Truth Commissions--1974 to 1994: A Comparative RTS. Study, 16 HUM. Q. 597 (1994). See DESMOND MPILO TUTU, No FUTURE 30 (1999). WITHOUT FORGIVENESS See GEIKOMLLLER-FAHRENHOLZ, THE ART OF FORGIVENESS: THEOLOGICAL REFLECTIONS ON HEALING AND
RECONCILIATION ix (1997).
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required for successful domestic prosecutions. Many of the civil servants, prosecutors, and judges serving the new government may themselves have been complicitous in abuses perpetrated by the previous regime, or at least sympathetic to its philosophy. Critical evidence and records are likely to be missing or destroyed. South Africa's unsuccessful effort to convict General Magnus Malan, army chief and later defense minister, for authorizing an assassination squad responsible for numerous extrajudicial executions shows how difficult it is to gather sufficiently detailed and reliable evidence to successfully prosecute alleged perpetrators. Many transitional societies choose to establish truth commissions because these bodies can potentially provide a far more comprehensive record of past history than the trials of specific individuals and do so in a less divisive manner. In contrast with criminal prosecutions, the purpose of a truth commission is to provide an authoritative account of a specific period or regime, determine the major causes of the violence, and make recommendations about measures to undertake so as to avoid a repetition in the future. By verifying the accounts of victims, official acknowledgment of abuses can support the credibility of victims' suffering and help restore their dignity. Moreover, public identification of perpetratorsand their offenses constitutes one form of accountability, particularly if it leads to their exclusion or ineligibility for public office, and if not, at least imposes the punishment of shame. In addition, a truth commission can go beyond a court of law and render a moral judgment about what was wrong and unjustifiable, and in that way helps "to frame the events in a new national narrative of acknowledgment, accountability, and civic values."' Given the central role assigned to truth commissions, it is relevant to that truth commissions are mandated to ask what is the nature of the "truth" find? Analysts writing on truth commissions often portray truth as a single objective reality waiting to be discovered or found. As an example, Priscilla Hayner has commented that in many situations "the victimized populations are often clear about what abuses took place and who has carried them out. . . Given this knowledge, the importance of truth commissions might be described more accurately as acknowledging the truth rather than finding the truth.""' However, the documentation and interpretation of truth is more complex and ambiguous than many analysts and proponents of truth commissions assume. Social, technical, and methodological constraints, as well as epistemological limitations of what can be known, all affect a
5.
AFTERGENOCIDE AND MASS VENGEANCE AND FORGIVENESS: FACINGHISTORY MARTHAMINOW, BETWEEN
VIOLENCE 78 (1998).
6.
Hayner, supra note 2, at 607.
HUMANRIGHTS QUARTERLY
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account. Developing an commission'sability to produce an authoritative accountof a contestedpast,and especiallydoing so in officialauthoritative of historical an objectiveand carefulmannerconsistentwith strictstandards anecdotal farmorethan accumulating and social science research,requires evidence to supportwidely held beliefs aboutwhat has happenedand who is responsible.If popularassumptionshave little basis in fact, or if more serious violations have been hidden, the commission must refutepopular and conduct deep research. understandings This article identifiessome of the complexitiesand factorsshapingthe effortsof truthcommissions.It also evaluatesthe kindsof truthsthat truth seek to determine.While truthcomcommissions can most appropriately missions are often portrayedas generic bodies, they have very different approachesto the kindof "truth" they are seeking. Theirofficialmandates, the perceptions and prioritiesof their commissionersand key staff, the utilized,and the level of resourcesavailableall methodologicalorientations shape the natureof their findingsand the type of reportthey produce. In addition,decisions made by those workingwithin a specific truthcommisof their implications, often have sion, sometimeswithoutan understanding important consequences for truth-finding.The analysis draws on the experience of the AmericanAssociationfor the Advancementof Science's (AAAS)Science and Human Rights Programin providingscientific and technical assistance to three recent truth commissions-the Haitian Naand Justice(CNVJ), the Truth and Reconciliational Commissionfor Truth tion Commissionof SouthAfrica(TRC), and the Commissionfor Historical in Guatemala. Clarification (CEH)
AND EVIDENTIARY LIMITATIONS II. EPISTEMOLOGICAL
A recentarticlepointsout, "[truth] is so commonlyused that it seems to be in redressing a transparent notion,clearto all who are involvedor interested past abuses, but 'truth,'like 'justice' and 'reconciliation,'is an elusive In contrastwith optimisticassumpconcept that defies rigiddefinitions."7 tions that truth commissions merely need to find or confirm an already existing truth, postmodernphilosopherschallenge the very notion of an objective truthand generallyassertthat there is no objective knowledge, only differingviewpoints and perspectives.The postmodernworld view claims thatwhateverwe accept as truthand even the way we envisiontruth are dependent on the community in which we participateand our own
7.
Michelle Parlevliet,Considering the Truth,Dealing with a Legacyof Gross Human

Rights Violations, 16
NETH. Q.
RTS.142 (1998). HUM.
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social location and experience.8 Michel Foucault would add that every interpretation of reality is an assertion of power and that social institutions invariably engage in a form of violence when they impose their own understanding or interpretation on experience.9 It does not require a postmodern perspective to acknowledge that determining the truth of complex social events, let alone historical periods, is difficult under the best of circumstances. Moreover, truth commissions typically function in an environment in which there are sharply conflicting and politically freighted versions of the past. Indeed, such situations are those in which truth commissions are most desperately needed. Far from facts being self-explanatory and just waiting to be discovered, the writing and interpretationof history under such circumstances is inevitably going to be complex and highly contested. Moreover, truth commissions have intrinsic limitations that make them fundamentally unsuited to provide "the truth, the whole truth, and nothing but the truth." Most truth commissions operate under many of the same constraints that make the legal prosecution of individuals alleged to have committed political crimes so difficult-weak legal institutions, limited resources, dependence on cooperation from officials who served the previous regime, missing data, and political environments that limit their mandates and options. Also, the systematic suppression or destruction of incriminating evidence is a common problem. Records from a secret military archive detailing the fate of 200 victims who were "disappeared"by the Guatemalan military were made available to AAAS and several other human rights organizations after the publication of the Guatemalan truth commission's report, but not to the CEH in Guatemala; these records are likely just a small part of the relevant data that were hidden or destroyed.10 In the case of South Africa, the apartheid regime regularly purged the archives of huge volumes of sensitive documents, particularly those dealing with security issues. On the eve of the political transition, the security establishment became increasingly apprehensive about certain state records passing out of their control and undertook an even more systematic and vigorous effort to destroy state records." Most truth commissions rely on victims' testimony as a primary source of data. Memory is inherently subjective and open to change over time; this
8. 9. 10.
A PRIMER ON POSTMODERNISM 7-8 (1996). See STANLEY J. GRENZ,

AND OTHERWRITINGS,1972-1977, SELECTED See MICHEL INTERVIEWS POWER/KNOWLEDGE: FOUCAULT, at 133 (Colin Gordon ed., 1980). See Guatemalan Death Squad Dossier (visited 15 Nov. 2000) <http://hrdata.aaas.org/ gdsd> (for an analysis of these documents and links to their full content).
AFRICA REPORT 227-29 (1999) 11. See, e.g., 1 TRUTH AND RECONCILIATION COMMISSION OF SOUTH
[hereinafter TRC].
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is especially true for memories related to traumatic experiences and public events. Public memories are likely to be influenced by a variety of interpretative factors, including community, cultural, or traditional myths and personal fantasies. "All social memory, be it documented through the oral, written or visual mediums, is both reconstructed and selective."12 A. Van Dongen of the Dutch Ministry of Foreign Affairs, reflecting on his extensive experience in human rights fact-finding missions as a member of the UN Working Group on Enforcedor InvoluntaryDisappearances, stresses the gap between perception and reality:
I do not believe in truth, I believe in perceptions. . . . People have a certain
impressionof how realityis, which is their perceptionof reality;they call it Thus, objectiverealitythemselves,butessentially,it always is subjectivereality. for most people there is no wedge between realityand perception: perception is reality."1 At the least, facts may be "loaded" with different meaning when considered from divergent perspectives.14An event leading to fundamental abuses of human rights may be recollected and interpreted quite differently by various victims, even by a single person depending on stimuli and specific questions," let alone by a victim and a perpetrator. A paper analyzing the work of the TRC in the EasternCape, for example, identifies three different "truths," that were revealed in its amnesty hearings: the "truth"of the security police, the "truth"of the African National Congress of the public and those involved in Congress of South (ANC), and the "truth" African Students who were not part of any military actions.16 To the (mainly black) supportersof the liberation movements and mass movements,the stories were of their heroes and martyrs-people who were and murdered tortured presentedas courageousactivists,who were ruthlessly by the securitypolice. Tothe securitypolice, these people were terrorist pawns of an international communistconspiracy.17 revolutionary
12.
13.
14. Id. at 147.

15. 16.
Sean Field, Memory, the TRC and the Significance of Oral History in Post-Apartheid South Africa 5 (11-14 June 1999) (unpublished paper presented at a conference on The TRC: Commissioning the Past, at the University of the Witwatersrand), available at <http://www.trcresearch.org.za/papers.htm>. Parlevliet, supra note 7, at 146. This statement is based on an interview given to Michelle Parlevliet in October 1996 and translated by her. For example, a considerable number of victims gave quite different testimony in public hearings in South Africa than they provided in their individual statements. See Janet Cherry, No Easy Road to Truth: The TRC in the Eastern Cape (11-14 June 1999), (paper presented at a conference on The TRC:Commissioning the Past, at the University of the Witwatersrand). Id.
17.
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Further complicating the situation, the source of victim testimony frequently is not the victim himself or herself but a relative. This is because many of the victims of atrocities and gross human rights abuses are deceased; the event in question may have happened more than thirty years before the commission began work, or the violation being testified about is frequently a killing. Thus the testimony often comes from a relative, friend, or neighbor, who may not have witnessed the events in question. At the TRC, about half of all violations were reported by someone other than the victim;18at the CEH, only about 15 percent of victims were witnesses, and about half of witnesses were victims.19 Moreover, there is a significant difference between the private/individual truth of those who have been victims of human rights violations or those who have witnessed human rights violations and the public/social level truth that truth commissions are mandated to present. Many victims who offer testimony to truth commissions understand truth in terms of efforts to document the details of the events in which they participated and to identify those responsible for the abuses and violence in which they were involved. They assume that these efforts will substantiate and validate their memories of these events. This detail-centered truth approximates what judicial investigators might do, and it is truth at an intensely micro-level. The comprehensive record of the past that truth commissions are mandated to establish is quite different in nature. It is not merely the sum of these private experiences of abuses made public. Mandates of truth commissions usually assign them the tasks of assessing the magnitude of the violence, the patterns, the trends, and the locations in which it took place. Typically, truth commissions are also expected to understand the causes of the violence and sometimes to identify the ideological or political justifications that tried to legitimize the abuses. To be able to make these determinations requires extensive research, advanced methods for data collection and processing, and a complex information management system leading to analysis and interpretation of the findings. This is truth at the macro-level. Given the magnitude of their task and the limitations of time and resources, truth commissions have to be very selective in their approach and what they choose to emphasize. The sheer task of attempting to document the past can be overwhelming. For example, the TRC's final report fills five volumes, and yet it is still incomplete.20 Because truth commissions cannot investigate all potential cases or events, they frequently
18. 19. 20. See 1 TRC, supra note 11, at 171. Internal calculations in the CEH database area, November 1998 (on file with author). An additional volume known internally at the TRC as the "codicil" will be published upon completion of the Amnesty Committee's work.
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choose representative or significant ones, what the TRC refers to as "window cases." This raises the question of the criteria used in making the selection and on what basis they are considered representative or significant. Time and writing constraints can also lead to superficiality and oversimplification. Many staff from the TRC research department conveyed their frustrations about the manner in which their papers and reports were cut down to just two or three pages to fit into the five volume report21.One result was that the edited version simplified and distorted the original analysis. The final TRC report was crafted according to particular strategies of inclusion and exclusion, reflecting criteria that are partly epistemological and methodological in nature and partly moral.22 The amount of information required to document the past can be massive. During its three years of operation, the TRC held several hundred public hearings at which over 1,800 victims were heard, it conducted more than 21,000 victim interviews, and it processed approximately 7,000 amnesty applications.23 Similarly, the CEH investigated more than 7,500 cases derived from interviews with more than 11,000 deponents, documenting 24,910 killings.24 In order to convert such massive data into useable information, commissions must decide what will constitute proper methods: not only what they will define as true, but how the commission will make the claim that something is true. In many ways, truth commissions "shape" or socially construct rather than "find"the truth. This may occur either consciously or unintentionally. The work of the Guatemalan commission contains some biases, primarily the focus on violations to the Indian population in the highlands during the 1980s and the relative exclusion of considering violations that occurred among the Ladino population in the late 1960s. In South Africa, TRC commissioners determined who was invited to testify in public hearings, what was presented, and how the testimony was summarized for the record. As we discuss in detail below, an analysis of the public hearing transcripts indicates an over representation of whites, a preference for including leaders of the struggle over less well-known victims, frequent interventions
21. See Cherry, supranote 16. 22. See DeborahPosel,TheTRCReport: WhatKind of History? of Truth? WhatKind (11-14 at a conferenceon The TRC: June1999) (unpublished paperpresented Commissioning of the Witwatersrand). the Past,at the University 23. See AAAS/CSVR Transcript AnalysisProject(a projectof the AAASand the Centerfor a systematic the Studyof Violenceand Reconciliation thatis undertaking analysisof the see also, 1 TRC,supranote 11, at 168, 267. public hearingtranscripts);
24.
FORHISTORICAL See COMMISSION CLARIFICATION REPORT, I, at TOMO
OnlineReport (visited15 Nov. 2000) <http://hrdata.aaas.org/ceh/gmdspdf/index.html> [hereinafter XII,at 238; CEHdatabasearea (Nov. CEH,Tomo I]);see also CEH,TOMO 1998).
28 (copy available at CEH
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by commissioners, and a disparity between the victim's testimony and the manner in which commissioners interpreted it.25Commissions' findings are the product in part of deliberate decisions to focus on particular events and of the limits of their ability to process information. But perhaps more fundamentally, the findings are the product of what commissions decide "truth"means.
III. COMMISSIONS'CONCEPTUALIZATION OF TRUTH What truth means to a commission has sometimes been articulated, but most often not. Like the commissions that preceded them, neither the Haitian nor Guatemalan commissions had an explicit exposition of truth because they assumed truth would automatically result from a rigorous application of their mandate, the relevant legal standards, and a consistent methodology.26 The South African commission articulated a complex and postmodern understanding of truth, but the definitions seem post-hoc and have little connection to the analysis in the volumes of the report in which historical narratives are presented.27 In the CNVJ report, the methodology section describes the legal framework that established the commission, the use of primary (interview) and secondary sources, and how three levels of proof were used to grade the quality of each decision.28 Similarly, the CEH report argues that in each of the cases investigated, there was at least one human rights violation by the government or an act of violence by the guerrilla insurgents: "in order to achieve this first objective, the Commission has used principally juridical categories from International Human Rights Law and International Humanitarian Law."29 But inside the CNVJ and the CEH, debates about truth raged. In the Haitian commission, a conflict between legal and social science approaches to investigation and classification of violations resulted in three fundamental changes to the basic data classification schemes, requiring the analysts to recode the entire set of testimonies twice. The CNVJ'schair was a sociologist, but most of the other commissioners were lawyers, some of whom openly disdained social science methods. In Guatemala, although
25. 26. 27. 28. 29.
See AAAS/CSVRTranscript Analysis Project, supra note 23.
I, at 21-22 (Phillip E. Berryman trans., 1993). See 2 & 3 TRC, supra note 11. See Rapport de la Commission Nationale de V6rite et de justice, ch. 3 (visited 15 Nov. 2000) <http://www.haiti.org/truth/table.htm> [hereinafter cited as CNVJ]. CEH, TOMo I, supra note 24, ?101, at 51-52.
ON TRUTHAND RECONCILIATION, VOL. See REPORT COMMISSION OF THECHILEAN NATIONAL
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there were significant differences in approach and tensions between legal and social scientific concepts,30 Commission researchers incorporated history, anthropology, sociology, economics, and military science into the analysis.3' Of all truth commissions, the TRC was the most self-conscious and intentional about its conception of truth. Its report distinguishes between four notions of truth: factual or forensic truth, personal or narrative truth, Of these four social or "dialogue" truth, and healing and restorative truth.32 factual or forensic truth refers to the impartial and approaches, only have understood as their evidence that most truth commissions objective mandate. The other three concepts of truth articulated in the report sometimes competed with and sometimes complemented the objective and analytical approach to truth-finding. The TRC's "forms of truth" encode as "truths"ideas that other commissions may have had but have expressed as goals to be achieved, not as alternative-and competing-forms of truth. The TRC'sfirst kind of truth is impartial evidence that tells truth at two levels: (1) truth about individual events, cases, and people, and (2) about "nature, causes, and extent of gross violations of human rights, including the antecedents, circumstances, factors, context, motives, and perspectives that led to such violations."33This is the way that most truth commissions have understood truth. The TRC called this "scientific and forensic" or "microscope" truth, both of which imply that the TRCunderstood this kind of truth to play a very limited role in its work. The TRCreport somewhat grudgingly links the use of a social science methodology enabling it to analyze and interpret information contained in its database to its mandate to make findings both at the micro-level (on particular incidents and in respect to specific people) and at the macro-level (to identify the broader patterns Yet, it is obvious that the TRC underlying gross violations of human rights).34 understood this form of truth to play a limited role. The same passage of the report quotes Michael Ignatieff'sremark-"[a]ll that a truth commission can achieve is to reduce the number of lies that can be circulated unchallenged in public discourse."35The narrowness with which this kind of truth was
understoodby the TRCis perhapssurprising since this is explicitly what other truthcommissionsclaimed to seek throughrigorousmethods,though
30. See Sonia Zambrano,The Guatemalan Commission for HistoricalClarification: Database Representation and Data Processing, in MAKINGTHECASE ch. 12 (Patrick Ball et al. eds., 2000), available at Making the Case (visited 15 Nov. 2000) <http://hrdata.aaas.org/ mtc>. See CEH, ToMoI, supra note 24, at 52. See 1 TRC, supra note 11, at 110. Promotion of National Unity and Reconciliation Act ?1(4)(a)(ii)(1995). See 1 TRC, supra note 11, at 111. Id.
31. 32. 33. 34. 35.
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this "micro-truth"was for most commissions a starting point from which generalizations could be drawn. The second truth the TRC defines is narrative truth, explicitly evoking the cathartic benefits of storytelling. Victims make meaning and sense out of their experiences through narration, and under certain circumstances, storytelling contributes to psychological healing after trauma.16 Most commissions noted the importance of this idea, including the Chilean and Guatemalan commissions, though it was not understood as a kind of Narrative truth was central to the work of the TRC, especially to "truth.""37 the hearings of the Human Rights Violations Committee to whom victims told their stories in public hearings. The emphasis on "social" or "dialogue" truth is the one in which the TRC was truly unique. By this term, they referred to the process and dialogue which surrounded their work: as the TRC report said, "[t]he public was engaged through open hearings and the media. The Commission itself was also subjected to constant public scrutiny and critique."38The report traces the idea of "social truth"to a distinction made by Albie Sachs, who played an important role in the establishment of the Commission and now serves as a Constitutional Court judge."3 He contrasted "microscope truth" with "dialogue truth,"arguing that the former is factual, verifiable, and can be documented.40 In contrast, dialogue truth "is social truth, the truth of experience that is established through interaction, discussion and debate."41 Because all other commissions functioned largely out of public scrutiny, "social truth"was less important in other national contexts. The fourth kind of truth-restorative truth-is the truth that comes from putting facts in their contexts: in political context of power between social actors, in historical context of the sequence of contingent events, and in the ideological context in which contending visions of the social world compete. As the commission acknowledges and recognizes what happened, it validates the experience of people. The TRC wrote that "[a]cknowledgement is an affirmation that a person's pain is real and worthy of attention. It is thus central to the restoration of the dignity of victims."42 This
36. 37.
ANDRECOVERY ch. 9 (1997). HERMAN,TRAUMA See, e.g., JUDITHLEWIS CHILEAN See 1 REPORT NATIONAL OFTHE COMMISSION, supra note 26, at 16-17 (for a discussion of the presence of a social worker at each family member interview, and of the utility of collective support after group interviews). The CEH did not explain this goal explicitly. However, their choice of a victim's quotation to appear on the back of each volume (discussed in article), and the internal discussions at the CEH, suggest that they were very aware of the importance of this issue. 1 TRC, supra note 11, at 114. AND JANELEVY,HEALING BORAINE Id. at 113 (quotingfromALEX OF A NATION (1995)). Id. 1 TRC, supra note 11, at 113. Id. at 114.
38. 39. 40. 41. 42.
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elegantly restates the overarching political objective of almost all truth commissions. The CEH, for example, has the following quotation from a testimony on the back of every published volume. A witness showed us the remainsof one of the victim'sbones. He had these remainswrappedin plasticin a stringbag: "Ithurtsso much to carrythem ... it's like carrying death.... I'mnot going to burythem yet ... I do so want him to rest,and to restmyself,too. ButI can't, not yet . .. this is the evidence for my testimony... I'mnot going to burythem yet, I want a piece of paperthatwill say to me 'theykilledhim . .. he hadcommittedno crime,he was innocent. . and then we will rest."43 The idea that public acknowledgment of suffering-the truth about injustice-will begin to restore victims' dignity is perhaps the central premise on which truth commissions are founded. Yet framing acknowledgment as a distinct kind of truth suggests that restorative truth (and the resulting reconciliation) might be somehow different from (or even in contradiction to) the forensic, legal truth demanded by the CEH witness in the quotation above. This may be one of the roots of a contradiction that beset the TRC's report, and indeed, its entire public life: was the TRC the "truth and reconciliation commission," or the "truthor reconciliation commission?" In the Methods and Report under Section D, parts 2 and 3, we will argue that when the TRCfaced decisions between pursuing truthor pursuing reconciliation, they chose reconciliation.
A. Mandate
The mandate assigned to a specific truth commission plays a decisive role in shaping its truth-finding. Its terms of reference determine its priorities and the nature of the truth it will attempt to investigate. Many truth commissions have restricted terms of reference that reflect the political compromises that led to their creation. Typically, truth commissions emerge out of negotiated settlements in which there are not clear victors and vanquished. Often the architects of the violence and abuses or their supporters retain political influence and power. Those ceding their positions of power frequently attempt to impose conditions that will restrictthe powers and findings of the bodies that will be able to investigate the past. Or the mandate may reflect the priorities and concerns of those drafting the mechanisms under which they were established, many of whom believe it is in the country's interest to have a short transition period.
43.
I - XII,supra note 24. See, e.g., CEH, TOMO
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Their assigned mandates circumscribe the truth finding of truth commissions in a variety of ways. Despite the brutality of both Duvalier dictatorships that governed Haiti for some forty years beginning in 1957, the CNVJ was mandated to deal only with the human rights abuses of the Cedras de facto regime. General Raoul Cedras overthrew President BertrandAristide in September 1991 and governed until Aristide returned to Port-au-Prince on 14 October 1994.44 The CEH did have responsibility for a longer period, approximately coinciding with the internal armed confrontation beginning in 1962 through the signing of the 1994 peace accords. But this periodization led to the understanding that the guerrilla insurgents began the war; if the period had begun in 1954 with the CIA-organized military coup d'etat against a democratically elected government, the implication would have been that the coup was the root cause of the conflict.45 The CEH was prohibited by its mandate from naming individual perpetrators, and many critics argued that this terribly weakened their ability to shed light on the past.46The apparent handicap of "no names," however, became a strength, in part because it widened the CEH'sscope, encouraging it to examine the roles of institutions and the social structure that produced the violence, instead of identifying individual perpetrators. That is, the prohibition forced the CEH to focus on the macro issues which are a truth commission's most important goal. The mandate of the TRC focused it exclusively on "gross violations of human rights." In the South African case, there was a further qualification; to fall under its purview the gross human rights abuses had to be committed with a political motive. The period the TRCwas assigned to investigate was 1 March 1960 through the elections in May 1994, but certainly not the full sweep of apartheid history. Gross human rights abuses were defined as "the killing, abduction, torture or severe ill-treatment of any person; or any attempt, conspiracy, incitement, instigation, command or procurement to commit [such an] act . .. with a political motive."47Because the mandate of the TRC was restricted to gross human rights abuses, it did not assess the impact of the institutionalized racism of the apartheid system that arguably had a far more profound and abusive impact on the population. Forced removals alone accounted for many more deaths than direct state violence. The TRC commissioners could have interpreted their mandate more
44. 45. See, e.g., CNVJ, supra note 28, ch. 1. The CEH explicitly recognized the 1954 coup as the crucial turning point toward more exclusive social policies, even as the mandate restricted their investigative scope to the period 1960-1996. See CEH, TOMO I, supra note 24, at 105. During 1994, religious leaders, including Archbishop Juan Gerardi Conadera, criticized the accord, as did popular movement leaders, such as Factor Mendez of the human rights group CIEPRODH. Promotion of National Unity and Reconciliation Act, ch. 1, pt. 1, ix (1995).
46.
47.
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broadly than they did. Among its assignments, the TRC was to establish "as complete a picture as possible of the causes, nature and extent of the gross violations of human rights . . . including the antecedents, circumstances, factors and context of such violations."48As it tried to do in some of the sectoral hearings, the TRC could have used its mandate to determine the causes, antecedents, circumstances and factors to undertake a more systematic analysis of apartheid. Somewhat ironically, despite its limited mandate and decades of international attention to apartheid, the CEH undertook a far more penetrating analysis of the official policy of racism and social exclusion than did the TRC:among the three historical causes of the armed conflict, the second theme is "racism, the subordination and exclusion of the indigenous community."49 The approach of the TRC resulted in the individualization of the gross abuses of the past.50Gross violations of human rights were treated more as the product of individuals' decisions and actions than the outcome of the dynamics of the apartheid system. This enabled white South Africans who were the supporters and beneficiaries of apartheid to escape from acknowledging their complicity in the system's abuses. As one analyst points out, "The increasingly familiar refrain within white South African communities, that apartheid was merely a 'mistake' for which no-one was responsible, that somehow the system propelled itself impersonally, may be one of the more ironic, unintended consequences of the TRC'srendition of the past.""5 Truth commissions have significant time constraints built into their mandates, and indeed, a limited period of existence is part of what distinguishes a commission from a permanent governmental human rights body. Most begin with an explicit time limit, often just six to nine months to complete all investigations and write a report.52 Sometimes the initial period is extended. The Haitian truth commission worked for nine months (April 1995-January 1996), the full TRC two years and eight months (February 1996 through October 1998), and the Guatemalan commission eighteen months plus three months pre-staff preparation (August 1997 through February 1999). While the South African and Guatemalan commissions functioned for longer than prior commissions, they also had longer historical periods to cover. The short official duration of truth commissions, quite inconsistent with an assignment to discover the truth of a disputed
48. 49. 50. 51. Id. ch. 2, pt. 3, at 1a. CEH, TOMO I, supra note 24, at 86. THROUGH TRUTH: A RECKONING OF APARTHEID'S See, e.g., KADERASMAL ET AL., RECONCILIATION CRIMINAL GOVERNANCE 19 (2d. ed. 1997). Posel, supra note 22, at 29. See also Mahmood Mamdani, The TRCand justice, in TRUTH
AND RECONCILIATION IN SOUTH AFRICA AND THE NETHERLANDS
39 (RobertDorsmanet al. eds.,
52.
1999). See Hayner, supra note 2, at 640.
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period of history, necessarily limits the scope of the investigations and the depth of their analysis. The enabling legislation setting forth the powers of specific truth commissions also has a significant impact on its functioning and findings. Of the recent truth commissions, only the TRC has been given extensive powers of subpoena, search, and seizure-although the TRC utilized this advantage very sparingly. None of the Latin American commissions was granted the power to compel witnesses or perpetrators to come forward with evidence, and they generally had considerable difficulty in obtaining official written records from the government and armed forces.5"The quasijudicial power to grant amnesty to individual perpetrators assigned to the TRC was also unprecedented although in the end it did not elicit the detailed accounts from perpetratorsand institutionsthat had been anticipated.
B. BalancingTruth-Finding with Other Objectives

Further,truth commissions have been vested with a wide range of responsibilities ostensibly related to truth-finding, some explicit and others implicit. The dilemma is that these tasks are quite different in nature and entail very different approaches, some of which are likely to be in conflict with others. Typically the mandate includes several of the following responsibilities: * establish an authoritative record of the past; * overcome communal and official denial of the atrocities, violence, or abuses and gain official and public acknowledgment of them; * restore dignity to victims and promote psychological healing; * end and prevent violence and future human rights abuses; * create a "collective memory" or common history for a new future not determined by the past; * forge the basis for a democratic political order that respects and protects human rights; * identify the architects of the past violence and exclude, shame, and diminish perpetrators for their offences; * legitimate and promote the stability of the new regime; * promote reconciliation across social divisions;
53.
See 1 TRC, supra note 11, at 54.
16
HUMANRIGHTS QUARTERLY * educate the population about the past; and
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* recommend ways to deter future violations and atrocities.54 Those who write commissions' mandates seem to assume that a single body vested with the responsibility to discover the truth about the past can manage all or many of these responsibilities. However, these tasks are quite different in nature, and some reflect divergent conceptions of truth and approaches to truth-finding. Establishingan authoritative record of the past, for example, requires an exhaustive research effort using scientific methods. Documenting criminal action will depend on the relevant legal definitions and specific juridical investigation techniques. In contrast, restoring dignity to victims and promoting psychological healing calls for attention to the subjective rather than objective dimensions of the work of a truth commission. Creating a collective memory or common history, nation building, and educating the population emphasize the public dimensions and accessibility of the findings; but if the quality, representativeness or rigor of the content are sacrificed, the gains of the commission's public dimensions may be short-lived. Forging the basis for a democratic political order, legitimating and promoting the stability of a new regime, promoting reconciliation across social divisions, or recommending ways to deter future violations all involve the formulation of long-term public policy. Very little attention has been paid to potential incompatibilities in these assignments and how they affect the work of truth commissions.
C. Resources Truthcommissions typically have severe resource constraints. Nevertheless, the magnitude of this problem varies quite considerably. At one end of the spectrum, for example, the Haitian Commission probably operated on a little more than $1 million, and the report complains that the lack of sufficient funds greatly reduced their ability to complete their work.55The Guatemalan commission had a total budget of approximately $10 million, very generous by truth commission standards. While the South African commission also operated under strained financial conditions, its budget was considerably greater than any other truth commission. The TRC and received something in the range of $28 million from the Treasury56
54. 55. 56.
For lists of tasks assigned to various truth commissions, see Parlevliet, supra note 7, at 149; MINOW, supra note 5, at 88. See CNVJ, supra note 24, ch. 3. Calculated from figures in rand to dollars in the TRC report. See 1 TRC, supra note 11, at 300.
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another $5 million from foreign donors.17 Consistent with its greater financial resources, the TRC also had a much larger staff, over 400 persons at its peak, several times the size of other commissions, and a separate research department. In comparison, the staff size of the Guatemalan commission was approximately 200 people; the Haitian commission was composed of seventy-five persons.
D. Role of Commissioners and Staff Those vested with the responsibility of establishing the truth come to the task influenced by their life experiences, particularly in relationship to the conflict, training, and current roles and status. No matter how qualified and well-trained, commissioners and key staff members cannot be expected to be completely neutral. At the least, their perspectives and training will influence their priorities and approach. To highlight just a few considerations, commissions have differed in whether their commissioners have been selected from within (e.g., Chile, South Africa) or outside of the country (e.g., El Salvador) or a combination thereof (e.g., Guatemala and Haiti). Some commissioners are chosen in order to represent particular ethnic or political constituencies, while others are chosen as nonpartisan experts on key subjects. Whether commissioners choose a legal or social science approach to truth-finding is also important. Because human rights violations have been largely understood as violations of law, the composition of most truth commissions favors commissioners with legal training. Rather than providing balance, the mix of social scientists (2) and lawyers (5) among commissioners at the CNVJled to repeated conflicts among them and contributed to a poor outcome. The commissioners were equally divided between three foreigners who were well-respected international jurists, and four Haitians who represented parts of the government and important nongovernmental organizations (NGOs). There was also differences of approach in Guatemala between the lawyers and social scientists among the commissioners (two lawyers and a social scientist) and the staff. The foreign commissioner had previously been a UN Special Rapporteurto Guatemala, and was clearly an expert. The two Guatemalan commissioners were chosen to represent the country's Ladino and indigenous communities. Perhaps because Guatemala's intellectual life has been dominated by anthropologists committed to intellectual pluralism, or because human rights NGOs in Guatemala had extensive experience
57.
See id. at 317-18. Both sums are calculated at current rand to dollar rates of exchange, down from what they were during the life of the TRC.
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mixing legal and social scientific approaches to investigation, or for some other reason, the clash of perspectives proved fruitful at the CEH. The TRC was unusual in the large number of commissioners, the diversity of their professional backgrounds, and the central role of activists and religious thinkers and clergy. Of the seventeen members, four came from the religious community; five from medicine, psychology, and nursing; seven from the law; three from politics; and three from NGOs. Nearly all of them represented an identifiable political, sectoral, or ethnic constituency. The chair, vice chair, director of research, and several other commissioners all had religious backgrounds. And given the presence of Archbishop Desmond Tutu as the Chair, some of its public hearings had a decidedly religious character. Commentators pointed out that the hearings frequently resembled a church service more than a judicial proceeding, with a definite The Christian atmosphere and discourse of the TRC, "liturgical character."58 and particularly Archbishop Tutu's frequent framing of issues in terms of repentance and forgiveness, was applauded by many South Africans for whom Christian ideals served as the basis for an ethical critique of apartheid, but it was distasteful to others, including some of the commissioners themselves."9 The latter category included both secular academics and some victims who complained about "the imposition of a Christian morality of forgiveness."60 In addition to the question of their backgrounds influencing their approach to truth-finding, the simple number of commissioners appointed to the commission, and whether they work full or part-time, also influences the kind of role that they are likely to play. In Haiti, three of the seven (later six) commissioners lived abroad and visited only for brief meetings. The Guatemalan commission had only three commissioners, all of whom served on a part-time basis. The role of a small number of part-time commissioners is necessarily strategic, to set policy and make major decisions, while senior staff have the responsibility for implementing policy. In contrast, the seventeen South African commissioners,61 all of whom worked on a full-time basis, had tactical roles, with each of them directly administering some office or aspect of the work of the Commission.62 It was
58. See John de Gruchy, Redeemingthe Past in South Africa:The Power of Truth, and Hope in the Pursuit of Justiceand Reconciliation (June1997) (a paper Forgiveness, at DeutscherEvangelischer presented Kirchentag, Leipzig,Germany) (copyon file with author). 59. See LynS. Graybill,SouthAfrica's Truthand Reconciliation Commission: Ethical and (1997) (unpublished TheologicalPerspectives paper)(copy on file with author). 60. Id. 61. Therewere two resignations, so the TRCfinishedwith fifteencommissioners. 62. See 1 TRC,supranote 11, at 246.
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virtually impossible for such a large and deliberately diverse group to reach consensus on specific issues or collectively coordinate the TRC. For example, one commissioner resigned for substantive reasons, and another issued a minority report.63 Furthermore,each commissioner administering a committee or regional office was accountable only to the whole group of commissioners; essentially, the commissioners were accountable to themselves. Staff were directly managed by commissioners who could change direction or refocus attention very rapidly.This put senior staff in structurally weak positions in that it was very difficult to plan work. In the words of the TRC itself, "[t]his explains the structural overlaps and operational duplication that occurred."64 Commissions also differ regarding whether their personnel configurations are static or reorganized for different phases of the process. The Haitian commission deployed eighty interviewers into the field for less than two months; for the other months of its existence, only a small team of analysts, support personnel, and the Haitian commissioners worked in the organization. The TRC maintained the same organizational structure from April 1996 until May 1998, with minor adjustments in August-September 1996.65 In contrast, the CEH went through continuous reorganization, with five distinct structures from July 1997 through February 1999, although the most technical areas (i.e., the database) were kept together.66The chaos that resulted from the CEH's constant reorganization prevented turf battles simply because staff never had time to become accustomed to any given role. The frequent-or constant-reorganization served the most important benefit to the CEH by enabling it to cope with the most difficult challenge which faces a commission. Commissions are never able to define the most important thematic concerns until very late in the life of the organization. How can a team of people investigate massacres if there is no common definition of a massacre until the fieldwork is long complete? How can several dozen analysts begin working on a report before the report has a table of contents and identified core issues? It is difficult to manage collective research without a written plan by which each subgroup knows precisely what parts of the final product are its responsibility. The CEH management team moved people rapidly from role to role, and created new writing assignments for each team in waves. This management process
63.
64. 65. 66.
Christian de Jager resigned from the Commission but retained his seat on the Amnesty Committee. Mapule Ramashala left the Commission for personal reasons. Wynand Malan issued the minority report, see id. at 435-56. Id. at 254. See id. at 258-59. See CEH, TOMo, supra note 24, at 36-40.
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delayed decisions until facts had been gathered and due deliberation given, but it provided short-termwork assignments even before final decisions had been made.67This process, called the insumo model for drafting the report (described in the Report section) was the central product of this management strategy. 1. Legal versus Scientific Methods In their first moments of existence, commissions must decide what they intend to argue, or stated differently, what their working hypotheses will be, and how data will be gathered to support the hypotheses. But what commissions set out to do-argue a case or test a hypothesis-reflects different epistemological and methodological perspectives. Commissions often experience tensions between these two perspectives, legal arguments versus social science evaluation. Commission lawyers will establish a set of legal definitions about what constitutes a violation of a given norm from domestic law, international human rights law, or international humanitarian law. They may then seek examples, in the form of particular cases, which demonstrate the violation of the norm in question. This kind of work seeks to argue that a norm was violated, making the claim in the strongest possible terms. By contrast, social scientists, who tend to be rare in truth commissions, would ask "how often was the norm violated, in absolute and proportional terms? Was the norm violated more frequently in some circumstances or during some periods than in others? Why might the norm have been respected on occasion? And most importantly, how can we find evidence to address these questions by methods which are not selffulfilling?" Truth commissions are charged with broad objectives that require answers to the social science questions posed above. By its mandate, the TRC was directed to examine the "nature . . . and extent" of gross human
which led to such rights,lookingat the "context,motives,and perspectives of abuse."68 violation,"and then identifying "systematic pattern[s] Similarly, the CEHinterpreted theirworkto requirean "examination of the causes and the strategiesand mechanisms originsof the internalarmedconfrontation, of the violence and its consequences and effects."69 None of the broad
67. Note that the difficulty of drafting a report before the core themes were identified and defined was one of TRCCommissioner Wynand Malan's chief criticisms in his minority report. See 5 TRC, supra note 11, at 438 (he objected to drafting material before reaching these agreements). The CEH's insumo method solved this problem, but it did so by using an enormous amount of staff time. See TRCAct ? 4. See also 1 TRC, supra note 11, at 158-64 (for a more detailed analysis of the TRC's methodological needs). CEH, Recommendations and Conclusions, Introduction.
68. 69.
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structural generalizations demanded by the mandate language of either commission can be satisfied by a simple aggregation of cases, no matter how many cases the aggregation includes, because the simple aggregation of cases might exclude cases that would tend to contradict the generalization. Instead, methods must be devised that would find evidence to confirm or, if it exists, evidence that would contradict the assumptions with which the commission began work. However, truth commissions do not usually employ methods that would allow them to frame, test, and potentially reject a series of hypotheses. One way to make generalizations is to seek out all the cases and other evidence which support the claim, and if there are enough such cases, and if they are sufficiently dramatic, conclude that the generalization is valid. A second method is to appoint an arbitrator,permit advocates and opponents of a claim to each make the strongest possible arguments before the arbitrator,and then allow the arbitratorto rule on the generalization. Both of these methods are derived from legal and political procedure, and in fact, these methods dominate decision making at truth commissions. As will be discussed in the methods section below, the TRC's conclusion that all of South Africa's people (not only people of color, or Africans) were victims of apartheid is apparently based on evidence marshaled by the first technique. The CEH's conclusion that genocide was committed against some Mayan communities by Guatemalan state forces was made (in part) after a series of quasi-juridical internal debates that took place in 1998. The first method is entirely vulnerable to the exclusion of information that does not support the hypothesis. The second method is better but is nonetheless vulnerable to a weak presentation of one of the two contending positions. Scientific methods proceed quite differently. Beginning with an hypothesis, the scientific method seeks data with which to test the hypothesis.70For example, to test the hypothesis that South Africans of all races suffered under apartheid, a random selection of people of all races could be taken and the proportion of each who suffered a gross human rights abuse measured. If the proportions were roughly equal, the hypothesis would be confirmed;71 otherwise it would be rejected. The randomness of the selection of respondents protects the conclusion against the possibility that
70. This discussion uses a deductive method; inductivemethods, in which theories are generatedfrom the data, are equally scientific.When used properly,deductiveand inductiveapproaches and analysismethodsdo not both insurethatthe data gathering preordainthe conclusion. The point is to keep separatethe process of creatingthe theoryand the processof testingthe theorywith data,althoughthe two stepscan be in eitherorder. it is saidthata test mayfail 71. Instrictterms,science does not confirmhypotheses.Rather to rejectthe hypothesis,or thatdata are consistentwith the hypothesisand apparently inconsistent with competinghypotheses.
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the evidentiary basis was constructed deliberately to support the conclusion. The analysis of genocide would require a comparative measure of rates of killing among groups hypothesized to be subjected to genocide and similar rates among otherwise similar groups which are not thought to have suffered genocide. If the killing rates were essentially the same among all groups, then this would be evidence of a very violent moment, but not genocide. However, if killing rates were much higher among the groups in which genocide had been hypothesized, this finding would support the genocide hypothesis.72 Not all scientific methods are statistical, obviously; forensic methods, in particular, have been enormously useful to truth commissions. But what scientific methods all share is the possibility of finding the unexpected and refuting underlying assumptions. Legal and other methods based on unsystematically collected evidence do not have this characteristic. Another difference between legal and social science generalization methods is the relative importance each assigns to trends and patterns versus individual cases. The TRC used the "balance of probabilities" method by which something was judged true if there was more evidence in favor than against.7"The balance of probabilities method, derived from civil litigation, served the TRCwell in judgments about individual cases. But the TRCclearly lacked a method for making generalizations from the thousands of findings made by this method. Although charged with finding "systematic patterns,"the TRC'sreport almost exclusively makes findings on cases: there is little broader macro analysis. Commissions prior to the TRC were not much more successful elucidating or applying methods for systematic generalizations. However, in Guatemala the CEH explicitly invoked a range of social science disciplines, and a range of social scientists were employed there.74 This may partly explain the CEH's greater relative success at establishing macro findings. Because truth commissions cannot investigate all potential cases or events, they frequently choose representative or significant ones, what the TRC referred to as "window cases" and the CEH called "illustrativecases." There are hundreds of window cases in volumes two and three of the TRC report, spanning everything from deaths in detention to cases of arson. The presentations range from one paragraph to four pages. The CEH chose its eighty-five illustrative cases using the following criteria: that the case showed an important tactical or strategic change of one or the other of the
72.
73. 74.
See CEH, TOMO XII,ANEXO III,supra note 24, fig. 4, at 255. However, the data on which this analysis was based might have been biased. An evaluation of the possibility of bias in these data found no basis, see id. tbl. 13 at 257, fig. 5 at 258. See, e.g., 5 TRC, supra note 11, at 208. See CEH, ToMoI, supra note 24, at 52.
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parties;75that by its seriousness, had a special impact on the national conscience; or that it illustrated a particular pattern of violence for a region or period.76These cases, from ten to thirty pages in length, were chosen by the legal method described above: they were chosen to make specific points, not to test a generalization. As has been mentioned, the public hearings held by the TRC were a unique feature of the South African experience. Hundreds of hearings were convened by different components of the TRC for different purposes. The Amnesty Committee held hearings at which they questioned applicants and made determinations about whether amnesty should be granted; the Human Rights Violations (HRV) Committee heard victims chosen from among those who presented statements to the TRC, and to event hearings at which particular historical episodes were considered in depth by calling witnesses, victims, and alleged (or confessed) perpetrators; and ad hoc sectoral hearings were called at which the conduct of particular social areas were considered, such as the legal or medical sectors.77 The hearings attracted massive public attention, both within South Africa (where they were the subject of nearly daily press reports and a weekly television show) and internationally. It is clear that the hearings were tremendously successful at generating attention and debate about the violence of the past. It is less clear that they provided objective data so that the debates about the broad truths of the past could be resolved in ways that would withstand subsequent criticism. 2. Data Data are central to the process of truth-finding. A major task of truth commissions is to collect and analyze critical data sources on which to base their findings. Most truth commissions seek and create truth through interviews with victims, witnesses, and survivors as a major source of their data. An interview is an intimate interaction between a representative of the commission and one or more deponents who tell their story. The presentation of information by respondents to the commission is guided by an interview protocol designed to elicit empirical and narrative truth.
75.
76. 77.
In the language of the CEH report, the "parties"were the parties to the Oslo Accord, which was the CEH's mandate, i.e., the Guatemalan National Revolutionary Unity (URNG) guerrillas and the Government of Guatemala. See CEH, TOMO I, supra note 24, at 64. The findings of the sectoral hearings are presented in 4 TRC, supra note 11. For ET AL., AN evaluations of the medical sector hearings, see LAUREL BALDWIN-RAGAVEN
OF THEWRONG COLOUR: HEALTHPROFESSIONALS, AMBULANCE IN SOUTH HUMAN RIGHTS,AND ETHICS
AFRICA THELEGACY OF APARTHEID AND HEALTH: & (1999); HUMANRIGHTS (AudreyChapman
Leonard Rubenstein eds., 1998).
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The National Commission on Truthand Justice in Haiti collected some 6,000 semi-structured interviews utilizing both closed and open-ended questions. Perhaps surprisingly given its other problems, the Haitian commission's fieldwork was excellent and culminated in a dozen area reports, each of which was hundreds of pages long, combining statistics, secondary materials, analysis of interviews, and direct investigations.78The Haitian commission also sponsored a series of forensic investigations of mass graves undertaken by a multinational team of experts assembled by AAAS. Unfortunately the deteriorating condition of many of the sites did not render conclusive evidence. A third data source came from morgue records from the University Hospital in Port-au-Prince.Comparing trends in morgue admissions with the trends from interviews found that the two matched almost identically, thereby validating the interviews as a good measure of political violence. The Haitian commission did not hold any public hearings. The CEH conducted 7,200 interviews. In rural areas populated primarily by indigenous people interviews were sometimes conducted with groups of people simultaneously; sometimes as many as fifteen people met with the interviewer at the same time. This was the closest analogy to the South African hearing model, but no public or members of the press were present. There was also extensive secondary research by a team of Guatemalan historians and public meetings and workshops to discuss policy. Because truth commissions are constrained by limited time and resources, the availability of completed research on which they can build can play an important role. In Guatemala, for example, there were teams of forensic anthropologists, including an initial team founded and trained by AAAS, that had been conducting exhumations of mass graves for seven years prior to the commission. By specifying the cause and manner of death of the victims, the reports of the forensic anthropologists clearly refuted military claims about massacres.79AAAS also worked with a coalition of human rights groups to construct a database of violations. By the time the truth commission began its work, this database had documented over 37,000 killings.80 A project sponsored by the Archdiocese of Guatemala provided a third source.81All of these data were made available to the truth
78. 79. 80.
The area reportswere discarded by the outside expert hired to write the final report. The loss of the area reports was one of the greatest disappointments of the CNVJ. EN RABINAL: DE PLANDE ANTROPOLOGICO DE LASMASACRES ESTUDIO HISTORICO See, e.g., LASMASACRES Y Rio NEGRO (Ronaldo Sanchez ed., 2d. ed. 1997). SANCHEZ,CHICHUPAC IN GUATEMALA, BALL ETAL., STATE VIOLENCE See PATRICK 1960-1996: A QUANTITATIVE REFLECTION 119 (1999).
HISTORICA NUNCA MAS (1998). GUATEMALA: DELAMEMORIA (REMHI), RECUPERACION
81.
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commission. Many of the cases in one of the three databases were not replicated in the others.82The pool of data sources that the CEH could draw upon was far richer than it could have collected on its own, and the combination of databases made possible a scientific estimate of the total number of people killed in Guatemala.83 In South Africa there was also an NGO project to present data to the TRC;the project was undertaken by a coalition of NGOs and was known as the Human Rights Data Project. However, two factors combined to reduce the impact of the Human Rights Data Project on the TRC's analysis. First, the way the NGO data were represented as a database weakened their statistical value because insufficient detail was recorded. Second, the TRC's lack of interest in macro-truth meant that the kinds of statistical and comparative uses to which NGO data were put in other commissions were less important to the TRC than to the commissions in El Salvador and Guatemala. The TRC conducted the most massive data collection effort in the history of truth commissions, yet they collected only a fraction of what was potentially available to it. One rationale for the amnesty provision was that it would provide the TRCwith data about the architects of apartheid and the internal structures which implemented policy, but the results were disappointing. Very few of the former apartheid leaders came forward to take advantage of the offer of amnesty for full disclosure. The flood of applications just before the deadline came primarily from middle and low-level functionaries responding to the successful prosecution of Eugene de Kock. The TRC'sown assessment was that: the spiritof generosityand reconciliation enshrinedin the foundingAct was not matched by those at whom it was mainlydirected. . . . With rare individual and the exceptions, the response of the formerstate, its leaders, institutions predominant organsof civil society of that era, was to hedge and obfuscate.84 But the TRC itself made little use of the materials that came out of the amnesty process. Not until 1998 did the amnesty application materials become part of the TRCdatabase, and as a result, the data from the Amnesty process played almost no role in the substantive evaluations in the TRC report. From the first meetings of the TRC, with the Amnesty Committee in January 1996 and then with the Database Development Group in February 1996,85 the judges who composed the majority on the Amnesty Committee
82. Approximately 22 percentof all the deathsdocumentedin the threeprojectswere held

83. 84. 85. in two or more projects. See CEH, TOMO XII,ANEXO III,supra note 24, at tbl. 4. See CEH, ToMo1, supra note 24, at 71-73; and CEH, ToMoXII,ANEXO III,supra note 24. 5 TRC, supra note 11, at 196. For a discussion of this group's role, see 1 TRC, supra note 11, at 158-61.
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made clear that they would not permit the collection of the kind of data on which a systematic evaluation of the structures of repression might be made. These data, including perpetrators' career histories, unit command structures across time, and other personnel information, had been precisely the key to identifying the military units and particular officers most deeply involved in human rights violations in El Salvador.86 Although the circumstances in South Africa seemed optimal for undertaking this kind of data collection and analysis, the Amnesty Committee's role as construed by the judges was narrowly defined in a legal framework that admitted only information precisely pertaining to the events for which applicants requested amnesty. The focus on the actual cases and acts, but not on the antecedents, causes, organizations, ideologies, and perspectives that gave rise to the acts, was one of the most significant opportunities lost due to the excessively legalistic approach that sometimes bedevils commissions. Because these data were not gathered, the analysis of the structure of organizations that perpetrated state violence is brief and superficial.87There is no assessment of how particular units came to be as violent as they did, nor how units evolved over time, nor how racist beliefs were indoctrinated among new recruits. The concluding section of the report on the state only details that communications links between "contra-mobilization" units in the mid-1980s were regarded as as especially destructive.88 The TRC's analysis section, like other parts of the report, is a listing of cases with little discussion of why the cases occurred, how the structures changed over time, and how individual perpetrators were socialized differently in different parts of the state apparatus. Even within the Human Rights Violation Committee, the quantity, format, and quality of data were subject to conflicting goals. The original interview protocol included narrativeand structuredcomponents, similar to the format used in Haiti and to the format that would later be used in Guatemala. This model was scrapped at the initiative of one commissioner in August 1996, five months after the original forms had been deployed, in an effort to increase the rate at which statements could be taken-that is, to reduce the time each statement giver spent with a representative of the
86.
87. 88.
See, e.g., Todd Howland, El Rescate's Contribution to the Salvadoran Peace Process: Creative Legal and InformationProcessing Applications (unpublished paper on file with AAAS describing the Indices of Individual Accountability Project). For the analogous project undertaken by the Comisi6n de Derechos Humanos de El Salvador (CDHES), see PATRICK BALL, WHO DID WHAT TO WHOM57-68 (1996), availableat (visited15 Nov. 2000) <http://shr.aaas.org/www/cover.html>; Patrick Ball, The Salvadoran Human Rights Commission, in MAKINGTHECASE, supra note 30, at ch. 1. See 2 TRC, supra note 11, at 313-24. See id. at 297.
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commission.89 The new protocol was dominated by closed-ended questions90 and greatly reduced the space available for interviewers to record qualitative and narrative information. In an internal analysis, it was shown that the number of words written for each interview declined, as was intended by the format change. Data processors reported that the quality of the interviews consequently declined, including increases in the rate of missing data.'9 Although narrowing the scope of the conversation with statement givers would seem directly to contradict the TRC'sgoal to promote narrativetruth, the proponents of the reduced interview format argued that it would allow more statements to be taken.92In order for South Africans to become eligible to receive reparations for gross human rights violations they suffered under apartheid, the TRC had to "find"that this person was a victim under one or several of the definitions set out in the TRCAct.9"The need to accumulate the data required to make this administrative judgment about the maximum possible number of people therefore competed directly against the "truth" goals the TRC articulated in the final report. Narrowing the range of information sought in the interview led to lower quality data in each interview, thus diminishing the quality of the TRC's empirical data. The shortened and tightly structured interview process may have seemed to the statement giver more like a police interrogation than the original format (which was organized more like a social work quasi-therapeutic interview), and this change must have had negative implications for both narrativeand
89.
90.
91. 92. 93.
The TRC report describes the process as responding to technical difficulties analyzing "long and complex narrative statements," and the change as "fine-tun[ing] the structure of the protocol." 1 TRC, supra note 11, at 139. However, in a review of the interview process at the time of the change, regional differences in quality were shown, but no systematic technical difficulties were found. See Patrick Ball, Evaluation of the Commission's Information Flow and Database, with Recommendations, Memorandum to the TRC, 9 Sept. 1996 (on file with author). Staff pointed out that the new forms limited the information that could be recorded for each victim such that each type of violation could be noted only once; this was corrected in subsequent data processing by meticulously coding all the remaining narrative text. This analysis was provided by Themba Kubekha, head data processor of the Johannesburg office, at meetings of international human rights data experts held at AAAS in May 1999. If the data representation error had not been corrected, it would have introduced serious bias against counting violations that are more frequently repeated, such as severe ill-treatment. For a discussion of this kind of data representation error, see BALL, WHO Din WHATTO WHOM, supra note 86, at ch. 2. See Gerald O'Sullivan, The South African Truth and Reconciliation Commission: Database Representation, in MAKINGTHE CASE, supra note 30, at ch. 4. This paragraph is based on the author's memory and notes of meetings in the TRC during August-September 1996. The Reparations and Rehabilitation Committee of the TRCwas explicitly constrained to provide only for victims referred to it by the Human Rights Violations Committee or the Amnesty Committee. See TRC Act, art. 26.
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restorative truth. It should be kept in mind that notwithstanding the truthdamaging outcomes of the interview format change, the objective of the change was to open the doors to more South Africans becoming eligible for reparation, and so two laudable goals conflicted with each other.94 After a few months, this format was in turn discarded and a third semi-structured interview protocol was substituted.
3. Methods
The volume and complexity of the data sources truth commissions collect require the application of rigorous and systematic methods. The information analyzed in the report must fairly represent the narratives presented by statement givers. Attempts to document the abuses and write official histories need objective and compelling means to describe patterns among tens of thousands of victims and violations, to evaluate the relative proportions of responsibility for violations, and to estimate the total number of victims killed or missing. The methodologies used play an important role in shaping the nature of the data available to the commission, the conclusions that can be drawn, and their validity and credibility. Information management systems and social science research methods can help make sense of data from thousands or tens of thousands of interviewsliterally hundreds of thousands of pages of questionnaires and transcripts.95 Quantitative tools can help investigators understand history and the story of human suffering in ways that would not have been possible using testimonies alone. For example, the TRC used statistics to show that the police were responsible for the overwhelming majority of killings before 1990.96 As an important step in the analysis of genocide in Guatemala, the truth commission employed quantitative analysis to show that in several crucial regions rates of indigenous people killed by the state were five to eight times greater than rates among nonindigenous people.97 When both commissioners and senior staff lack background in quantitative methods, they may not make full use of the potential analytic capability of the commission's data and information management system.
94.
95. 96. 97.
This said, the commissioner who in August-September 1996 insisted on the elimination of almost all narrative from the protocol, Wynand Malan, later complained in his minority position that the TRC report contained insufficient qualitative analysis. It is ironic that the data Mr. Malan would require for a qualitative analysis was precisely that which his restructuringof the interview protocols attempted to eliminate in 1996. See 5 TRC, supra note 11, at 455. For case studies of data processing, database design, and statistical analysis in truth commissions and NGO data projects, see Patrick Ball et al. eds., Making the Case. See 2 TRC, supra note 11, fig. 17, at 176. See CEH, TOMO III,supra note 24, fig. 4 at 255. III,at 314-423; and CEH, ToMoXII,ANEXO
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There was a considerable difference between the South African and Guatemalan commissions in this regard. At the TRC,few of the commissioners had any experience using social science methods, and since the publication of the report, some commissioners have criticized informationintensive approaches to truth-finding as lacking utility. In a public speaking engagement, for example, one of the commissioners attributed the creation of the victim database to legal requirements and claimed that virtually no use was made of these data.98 Although CEH commissioners and staff were not statistical experts, they engaged the data constantly, so much so that a full-time statistical analyst had to be hired to keep up with the demand.99CEH researchers queried the database for lists of case summaries that fit elaborately precise criteria. Some CEH report chapters used precise statistical analyses, while others compared CEH data to NGO databases given to the commission. It is noteworthy that the first task upon every visit of the methodological advisor to the CEH was to brief some or all of the commissioners on the statistical patterns emerging from the testimonies. Much of this difference can be explained by the dominance of hearings in the TRC process. The public hearings captured the South African public for over two imagination, "defin[ing] the parameters of truth-seeking,"100 years. The hearings appeared on television, on radio, and were covered nearly every day by newspapers.101But the hearings included only about 8.5 percent of the more than 21,000 people who gave statements to the TRC. By law, commissioners were required to make findings on all of the statements given to the TRC, a mundane and tedious process. The intensity of the hearings was such that the findings on statements were put off until the closing moments of the TRC's life. Participating in the hearings simultaneously occupied every available moment of the commissioners' lives and prevented them from engaging with the mass of statements.102 Given the commissioners' quotidian participation in most aspects of the TRC'swork, this meant that almost no staff worked with the statements until the final
98.
99. 100. 101. 102.
Yasmin Sooka made this claim in response to a question at the conference The TRC: Commissioning the Past, held at the University of the Witwatersrand, June 1999. The TRC report contains over 200 graphs. See Eva Scheibreithner, The Guatemalan Commission for Historical Clarification: Generating Analytical Reports, in MAKINGTHE CASE, supra note 30, at ch. 10. Mamdani, supra note 51, at 34. See ANTJIE KROG, COUNTRY()F MY SKULL(1998) (on the ubiquity and moral force of the hearings). Ironically, the TRC understood this dilemma the other way around, that because of the requirement that findings be made on statements, "it became necessary to curtail the public hearings." See 5 TRC, supra note 11, at 9. Malan's minority report similarly dismisses the statement finding process as distracting from the report writing. See id. at 438.
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months, except for those few staff actually engaged in taking statements or data processing. In the last three or four months before the report was published, with the hearings reduced to video and typed transcripts, TRC researchers discovered the power of structured data. Only then were statistics used on a broad scale, and even then, the statistics were used only by the researchers.103 In Guatemala, the CEH had no primarydata except from the interviews. With no hearings to distract them, nearly the entire commission's attention was focused on the interviews. The database was, by design, the easiest way to access the interviews, and as a result, it was used intensively. This is not to say that CEH staffers were happy with the database, but that their complaints had a fundamentally different character than the complaints in South Africa. CEH staffers' complaints tended to be very specific demands that the database should do a particular task that at that moment it did not do.104 Complaints of this kind are indications that the tool is being used and that it needs to be further refined. By contrast, at the TRC it was said (constantly if vaguely) that "the database is not working," but few people had ideas or tasks they wanted to have done that any database would have been capable of doing. 4. Report The preparation and dissemination of a report play a central role in shaping the truth communicated and disseminated by a specific truth commission. The report should elaborate the truths required to fulfill the mandate, and it should be written with a rigor and quality to withstand sustained criticism. Yet the preparation of a report rarely receives the time and attention it deserves. Often the level of fatigue and conflict among the staff and commissioners is so considerable at this point that the commission begins to disintegrate. Key figures in the life of the commission may no longer be available or involved. Despite these limitations, and even if the report itself is not a commission's most important product, the report is what a commission leaves for history. That the final reports of truth commissions vary considerably is clear from a cursory review, but only some of these differences reflect careful or conscious decisions. The Haitian commission provides the most extreme
2 of the methodological 103. Note thatin the TRC report, graphs appearin Appendix chapter which were writtenby the ResearchDepartment. (ch. 6) in vol. I, and in vols. IIand III Thereare no statisticsin vols. IVor V, and the only quantitative analysisin vol. I was used by the Information SystemsManagerin his report.See 1 TRC,supranote 11, at 165-73.
104. See Sonia Zambrano, The Guatemalan Commission for Historical Clarification: Database Representation and Data Processing, in MAKINGTHE CASE, supra note 30, at ch. 12.
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example of terminal conflict and fatigue. Scheduled to complete the fieldwork by August 1995 and produce the report by mid-December 1995, the final report was actually transmitted to President Aristide in February 1996, a few months late. But the report submitted was extremely truncated.105It consisted of five pages of description of the modes of repression, seven of the structures and perpetrators, and twenty-one of recommendations. Most of the report was a listing of the cases of the victims who were identified, with several appendices based on supplementary research conducted by AAAS consultants. Although extensive statistical analysis of data from the interviews and from morgue records had been conducted, these findings were not included. Instead the report printed the headings for a few of the statistical tables without showing any of their data cells. This embarrassing omission reflects the condition of the commission ratherthan the intent of the drafters. In addition, there were serious problems with the translation and production of the appendices, particularly the forensic analysis of the exhumations of graves. In part, the reduced report was the result of organizational collapse. But the hiring of an outside expert in December 1995 to write the CNVJ report also reflected deep disagreements among the commissioners about what the report should say. The regional reports with their rich analytical and contextual material (discussed above in subsection 2 on Data) were excluded in favor of a superficial chronology constituting sixty-one of the report's 105 pages. The analysis and synthesis-a social scientific modelwas eliminated in favor of a legalistic review of the facts. The TRC report consists of five volumes. The first volume includes an introduction by the Chair followed by philosophical and methodological discussions and administrative reports. The second and third volumes present chronologically organized overviews of perpetrating units and geographic areas and were written primarily by a small group of staff, with the Research Director playing the central role. The fourth volume reviews findings from institutional and sectoral hearings. The final report provides a preliminary list of victims, an interim report from the Amnesty Committee, additional details on how the Commission made findings, and in chapter six, the findings and conclusions of the TRC. The TRC report presents substantially different conclusions in different sections. It opens-the first paragraphon the first page-with a statement by Archbishop Tututhat South Africa "is soaked in the blood of her children of all races."I06 His introduction turns on lists of incidents (e.g., paragraphsone and twenty-nine) which seem carefully calibrated to include atrocities
105. 106.
See CNVJ, SI M PA RELE: 29 1 TRC, supra note 11, at 1.
SEPT. 1991-14
OCT.1994 (1995).
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committed by a spectrum of perpetrators against a range of victims. Yet some 2,500 pages later, in volume five, the TRC concludes that "[t]he predominant portion of gross violations of human rights was committed by the former state through its security and law-enforcement agencies," and "[b]lack ... youth were demonized as the 'enemy' by the security forces in The difference between these positions is stark. The first is particular."107 focused on reconciliation, whereas the second is a broad empirical conclusion. While both could be true in a literal sense-there were some victims of every race, although black youth were by far the majority-the moral and empirical implications of the two sections are not consistent. In direct contrast to the rhetorical foreword of the TRC report, the CEH introduces their work with unequivocal conclusions. On 25 February1999, the report was published as a ninety-two page recommendations and conclusions volume, of which more than 40,000 copies were immediately distributed in Spanish and English.108 The first paragraph includes broad statistical findings: that the CEH documented 42,275 victims, 83 percent of whom were Mayan, 29,830 of whom were killed or disappeared. In paragraph two, the CEH estimates that more than 200,000 people were killed, and in paragraph three, they conclude that "the violence was fundamentally directed by the State against the excluded, the poor and above all, the Mayan people, as well as against those who fought for justice and greater social equality."109 The twelve volumes of the CEH report include most of the components in the South African report, but with very different emphases: the administrative report, legal mandate, and technical functioning get less treatment than in the South African report. The historical section is much more detailed, but there are no geographic or chronological reports. The bulk of CEH volumes two and three analyze specific kinds of violations such as sexual violence against women and genocide. None of these sections is strictly chronological. Instead, most sections begin with legal frameworks for what the crime means, offer some statistical overview of what the CEH found in this area (when and where it happened, against whom, and committed by what organizations), and proceed to theoretical arguments about how and why this kind of crime occurred. The expositions are based on frequent quotations from testimonies and occasional graphs or other statistics, as well as references to secondary materials.
107. 5 TRC,supranote 11, at 212, 255. 108. Formore discussionof this point, see the Dissemination section, below. 109. CEH,Conclusions and Recommendations, Introduction. Note thatthiswas republished as Tomo V of the complete report.
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Pages allocated in the CEH report Vol. 1, pp. 1-71 Vol. 1, pp. 77-228 Vol. 2, pp. 18-300 N/a Vol. 2, pp. 301-518, & Vol. 3 Pages allocated in the TRC report Vol. 1, pp. 48-435, Vol. 5, pp. 1-14 Vol. 1, 24-43 Vol. 2, pp. 1-710 Vol. 3, pp. 1-745 N/a
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Section The administrative report, legal mandate, and technical functioning Historical context Perpetratoranalysis Geographic analysis Analysis of specific violations
The CEH and TRC reportswere drafted in fundamentally different ways. As described earlier, the TRC report is a compilation of essays written by individuals, beginning with the Archbishop's foreword, the discussion of kinds of truth by senior staff, reports from technical and administrative staff and consultants, researchers' reports on perpetrators and areas, and then reports by the commissioners who organized particular institutional hearings. In contrast, the CEH report was written in repeatedly restructured drafts, in which authorship of each section rotated among several people. When the CEH office heads returned from the field in February-March 1998, they were immediately required to write extensive area reports, many of which were several hundred pages long. These reports, called building blocks (insumos) became the inputs for the firstof several rounds of evolving drafts of the report. Each geographic field report was then handed to new teams formed during June-August to work on thematic areas. These reports were then passed to new teams (in September-December) who wrote the actual material published in the report. The final stage was guided by a senior "Coherence Advisor" whose job was to assure that all the sections followed the broad outlines of the commissioners' analysis, and that the sections did not contradict each other. The CEH process could easily have collapsed: it required more than a year's time, dozens of analysts, and much, if not most, of the drafted material was wasted (in the sense that it did not appear in the final report). However, given sustained effort and sufficient time, money, and staff, the CEH model proved to produce a more complete, consistent, and coherent reportthan any other commission to date. The report'sgreatest achievement is not the balance of evidence, the use of data, or its legal sophistication. The report's tremendous strength comes from its simple unity of premise: that the origin of the conflict and the overwhelming majority of violent acts were the responsibility of the Guatemalan state. At the end of the day, it is far easier to clarify history than to find truth and promote reconciliation through public hearings. The analysis of whether each commission was successful must be made in its own terms. The TRC report should not be considered the TRC'sonly product. Indeed, the TRCthemselves describe the report as a report on their
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activities, with the activities-hearings, primarily-being the central focus of their enterprise. If the impact of the TRC is to be evaluated, the hearings should be the focus. The success of the CEH rests much more uniquely on the reception and impact of the report because it was the Guatemalan commission's only product. Nonetheless there are several problems with the TRC's approach to truth in their report. That the TRC commissioners believed that the process by which the truth was reached and whether it affirmed the dignity of the participants counted, perhaps as much as the actual outcome or findings,110 had obvious implications for their truth-finding. The zero-sum balance between public hearings focused on reconciliation versus rigorous truthHowever, the value of finding was debated openly within the TRC.111 in terms of its longless empirical truth-macro and micro-was debated term impact on the culture of human rights and more in terms of fulfilling particular articles in law that protected the TRCfrom legal attacks, although South African victims and survivors of gross human rights abuses were explicit that meaningful truthfinding was a precondition to reconciliation.112 In general, the TRC failed to recognize the extent to which its various approaches to truth conflict with one another and with reconciliation. Its characterization of factual or forensic truth is an inadequate and impoverished rendition of what objective research entails and what it can contribute to the analysis and findings of a truth commission. Nevertheless, it probably reflects the attitudes of many of the commissioners. Archbishop Tutu's personal commitment to forgiveness and reconciliation and the presence of others from a religious background likely shaped many other aspects of the work of the TRC. It may account at least in part for the moral rather than factual or analytic orientation of the report and its strenuous effort at fairness that had the unfortunate effect of seeming to balance the systematic abuses of the government with the occasional excesses of the ANC."1 The concern with reconciliation may also be related to the reluctance of the TRC to exercise its considerable powers of subpoena, search, and seizure, which
110. 111.
See 1 TRC, supra note 11, at 114. Personal communication with Charles Villa-Vicencio (Nov. 1999). See also Paul Van
and ReconciliJustice:TheCaseof SouthAfrica'sTruth Zyl, Dilemmasof International

112. ation Commission 52 J. INT'LAFF. 647 (1999). See Survivors' Perceptions of the Truthand Reconciliation Commission and Suggestions for the Final Report (June 1998) (submission to the TRC by Centre for the Study of Violence and Reconciliation and The Khulumani Support Group, Johannesburg, South Africa). On this point we differ from Jeremy Sarkin, who finds that the TRC produced "a relatively large amount of the truth . . . but very little reconciliation." Jeremy Sarkin, The
RTS.Q. 767, n. 317 (1999). Rwanda, 21 HUM.
113.
Commissionin and Reconciliation a Truth Necessity and Challengesof Establishing
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were much stronger than those of most other truthcommissions. It may have contributed toward the process of reconciliation by emphasizing the validation of the individual subjective experiences of those who had previously been silenced or voiceless. In many cases, the reconciliation achieved in the hearings is real. And whatever the criticisms of the process, it is certain that for over two years, the TRC successfully focused South Africa's attention on the evils of the apartheid period such that no South African can now claim that he or she does not know at least some of what happened. The CEH offers a very different model that was in our judgment more successful than the TRC at establishing macro-truth. However, the November 1999 elections resulted in a landslide victory for the party of General Efrain Rios Montt, who was the dictator responsible for many of the most egregious atrocities of the early 1980s. Guatemalans elected the General's party only a few months after the presentation of the report in which his government was indicted for acts of genocide. Given this outcome, it is not clear what positive political impact the CEH's report may have had, no matter how rigorous the report may have been. But the CEH'slessons should be noted, and a new book by the UN Office of Project Services for Guatemala examines the lessons in detail.114
E. Dissemination Acknowledgment, the translation of a private into a public truth, requires widespread dissemination of the findings of a truth commission. Here too truth commissions differ. Again the experience of the Haitian National Commission for Truthand Justice testifies to its breakdown. The final report transmitted to President Aristide during his last hours in office in February 1996 was not published until September 1996, and then only seventy-five copies were made. Conflicts between the supporters of Aristide and the administration of President Rend Preval made the report something of an embarrassment for President Preval. A second edition of 1500 copies was published in March 1997, but these were circulated only in Haiti.'" Although the TRC placed a considerable emphasis on its processes and findings being publicly accessible, its strategy for disseminating its report fell far short of this standard. Its five-volume report was released coincident with its public presentation, but it was published by an outside printerrather
114. 11 5.
U.N. Office of Project Services for Guatemala (forthcoming). AAAS placed a copy of the CNVJ report in the Libraryof Congress. See also the CNVJ report (visited 15 Nov. 2000) <http://www.haiti.org/truth/table.htm>.
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than the government press. As a consequence, the set was priced well beyond the means of most South Africans. The Truth Commission also placed the full text on an open web site, but only for a limited period of time. Its agreement with its publisher, CTP Book Printers,precluded a longterm posting on the Internet because it would have decreased sales for the print version. The original plan was to have a writer or journalist prepare a one volume summary for the general public, but eighteen months after the submission of the official report, this popular version has yet to surface. In contrast, the Guatemalan Commission for Historical Clarification had a coordinated strategy for public dissemination of its findings. It printed 42,000 copies of the CEH's conclusions and recommendations (in English and Spanish) that were disseminated on the day of the report's presentation to the Parties of the Peace Accord. Simultaneously with the presentation in printed form, the full text of both the English and Spanish recommendations and conclusions was placed on the Internet.'16 Copies were distributed to the press, libraries, universities, and other sites at the same time. The Sunday following the public presentation, major newspapers in Guatemala carried supplements with much of the text of the summary. A week later the full text of the report was posted on a permanent dedicated web site, and notices of its availability and how to access it placed on other Internet sites focusing on Guatemala and newspapers. The first five volumes of the complete report were published in Guatemala in July 1999, and the seven supplemental annex volumes were published in October. The difference in dissemination between the South African and Guatemalan commissions may be the difference between choosing a private sector publisher and a public sector publisher. The private sector publisher in South Africa has removed the report from the Internet, priced it at levels unreachable for most South Africans and for many internationals, and generally restricted the circulation of the information."7 In Guatemala, the UN Office of Project Services (UNOPS) has given away tens of thousands of summary volumes, donated hundreds of complete sets to schools, libraries, and NGOs, and financed the publication of an indexed and hyper linked CD-ROM which was given away and sold for a nominal price.
IV. BIASESIN THE REPORTS How commissions arrive at their findings is deeply if subtly influenced by how they gather their information. The methods, focus, and availability of
116. 117. See CEH Report (visited 15 Nov. 2000) <http://hrdata.aaas.org/ceh/report/english>. A CD-ROM version of the report is now available, but only with the purchase of a complete set of the print volumes, at a cost of several hundred U.S. dollars.
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data all shape the ultimate conclusions. This process is beset by complexity and countervailing pressures, and the responses of the commission to these pressures occasionally create biases and inconsistencies. All commissions suffer from biases of this kind, as the examples below make clear.
A. Misspecifying Historical Patterns at the CEH One of the core concerns in an assessment of "macro-truth"is to identify when violence occurred. Fewer than 2 percent of the 24,910 killings documented by the CEH occurred in the period 1960-1977.1"8 Yet in the CEH projection of the total number of dead, about 13.6 percent of the estimated killings occurred in this period; in effect, the CEH undercounted "Undercounted," in this killings before 1977 by more than a factor of six.119 than not statistics on these people. Their means more context, simply having stories were not heard, which means that the social conflicts in which these people were killed were not documented by primary sources, and consequently played a less prominent role in the analysis than would have been true with unbiased data collection. What happened? The killings omitted from the CEH's testimonies and statistics occurred during the late 1960s and early 1970s and were focused on rural agricultural workers in the eastern departments of Zacapa and Izabal, as well as in the flat areas of the southern coast. The primarily Ladino (i.e., not indigenous) workers were organizing trade unions, and the developing authoritarianstate practiced its first counterinsurgency tactics against them. Approximately 22,000 people were killed between 1960 and 1977.120 There are three interrelated reasons that these killings were not well covered by the CEH. First,the political structures in which the victims had been organized were, in the Guatemalan term, "disarticulated."That is, the repression had succeeded in killing enough people that those few who survived left the areas and stopped participating in political activism. The CEH depended strongly on political groups to organize their social bases to give testimonies (by arrangingtransportationfrom remote areas, food, social support). Social sectors that were no longer organized were less able to
118. 119.
120.
See CEH, TOMo XII,ANEXO 11, supra note 24. See CEH, ToMO I, supra note 24, at 72-73. Note that this is an analysis of all deaths, not just arbitraryexecutions which are the standard category in the report. This analysis does not include disappearances. COMO FENOMENO LA VIOLENCIA EN GUATEMALA See GABRIEL 61 EDGARDOAGUILERA PERALTA, POLITICO Y ESCUADRONES DE LAMUERTE PORGUATEMALA: (1971). See also SUSANNEJONAS, LA BATALIA REBELDES, ESTADOUNIDENSE GUATEMALA: THEPOLITICS MELVILLF PODER & MARJORIE MELVILLE, (1994); THOMAS OF
LAND OWNERSHIP (1971).
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bring their people to the commission. Relative to the victims of the 1968 and 1971 killings, the victims of the early 1980s were well-organized. Second, during the killings of the late 1960s and early 1970s, there were very few human rights NGOs in Guatemala around to monitor and document, nor were there many international groups that could focus international attention. There were a few groups documenting state violence in the late 1960s,121 but ten to fifteen years later, the relatively much greater number of domestic and international NGOs assured that most human rights violations would eventually be documented. Partly as a result of the extensive documentation by civil society of the atrocities of the early 1980s, partly by the sheer enormity of the killings, and partly due to the 1992 Nobel Peace Prize awarded to Rigoberta Menchu and the educational campaigns in indigenous communities about 500 years of European colonialization, the 1990s version of the story about human rights violations in Guatemala is about violence in the Western highlands in the early 1980s (i.e., violence against communities populated primarily by indigenous people). The CEH was affected by this, and with its conclusions, the CEH helped to ratify this finding. The historical analysis in the report attempted to rectify the statistical misspecification, and the late 1960s violence is covered in the narrativeof events. But the earlier period does not strongly influence the analysis of specific kinds of human rights violations nor how specific perpetrating units evolved. This bias does not fundamentally change the story told by the CEH. The number of people killed in the 1968 and 1971 period was certainly many fewer than those killed 1979 and 1982. However, the example suggests how, even after elaborate and sophisticated investigations and carefully inductive report drafting, a truth commission may ultimately confirm the implicit hypotheses with which they begin. The TRC provides another example of this problem.
B. Bias from Overdependenceon Hearingsat the TRC

The primary method by which the TRCelicited social and dialogue truth in their effort to promote restorative truth was by means of public hearings at which victims or survivors gave testimony. But if more than 21,000 people gave statements, and only 1,818 appeared in hearings, how did the TRC choose the people who appeared in hearings? The TRC report claims that hearings "should reflect accounts from all sides of the political conflicts of
121.
AND REPRESSION IN THEUNIVERSITY See PAUL KOBRAK,ORGANIZING 1944 OF SAN CARLOS,GUATEMALA, TO
1996 (1999).
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TRCstaff the past," and that women, men, and youth should all be heard.122 often commented on the commissioners' intense interest in finding white, Asian, and colored people to appear. Since hearing time was limited, emphasizing representation from some groups necessarily meant less time and fewer appearances for other groups. Table 1, below, confirms the anecdotal observations and the TRCpolicy noted above. Column A shows the relative population proportions of each of South Africa's racial categories, indicating for example, that Africans constitute 76.1 percent of all South Africans. Columns B and C show the number and proportion of statements given to the TRC by members of each racial category: Africans gave 89.9 percent of all statements, while whites gave 1.1 percent of statements. Columns D and E show the number and proportion of hearing appearances by the racial category of the person appearing. So, for example, 87.5 percent of all people who appeared in hearings were African. Column F combines columns B and D. It shows the proportion of all statement-givers who appeared in hearings. Thus while 8.3 percent of African statement-givers appeared in hearings, 36.4 percent of white statement-givers appeared in hearings. The dramatic outcome in Column F, that white statement-givers were roughly four times as likely to be selected to appear in hearings as African
1 TABLE Relativeand AbsoluteNumbersof Statements and HearingAppearances at the TRC, by RacialCategory
Column A B C D E Number of statements Population given by of group each group
African 76.1% 19,144
Percent of Number of Percent of statements appearances appearances in hearings in hearings given by each group from group from group
89.9% 1,590 87.5%
F Percent of statementgivers in hearings (D/B)

8.3%
Coloured White
Asian Unspecified
8.5% 12.8%
2.6% 0.0%
354 231
45 1,523
1.7% 1.1%
0.2% 7.2%
93 84
23 28
5.1% 4.6%
1.3% 1.5%
26.3% 36.4%
51.1% n/a
Total
100.0%
21,297
100.0%
1,818
100.0%
8.5%
Note: data from columns A and B are from TRC,vol. 1, p. 168; data from column D come from the AAAS/CSVR Victim Transcript Analysis Project (see text); columns C, E, and F are calculated.'2
122. 123.
5 TRC, supra note 11, at 5-6. See 1 TRC, supra note 11, at 168. See also, AAAS/CSVRTranscript Analysis Project, supra note 23.
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statement-givers, is the product of a complex process. Note that Africans are over represented among statement-givers, relative to their proportion of the South African population (Column A), and other groups are correspondingly under represented. However, as the TRC report argues: If the conflicts of the past had affected the populationgroups equally, one would expect that the numbersof deponents in each category would be to the national population.However,the table shows that the proportionate number of deponents [i.e., statement-givers] who described themselves as Africanis much higherthan would be expected fromthe populationstatistics. ... [Andt]he realityis thatthe conflictsof the pastaffectedvery few whites in comparisonto the rest of the population,so very few came forwardto make statements.124 Despite this recognition in the report, the TRC commissioners emphasized the appearance in hearings of non-Africans, selecting them preferentially from among statement-givers. This emphasis was likely one of the effects of Archbishop Tutu'sbelief (in effect, treated as a working hypothesis) that South Africa "is soaked in the blood of her children of all races."125 The effort to show victims of all races may make sense if the objective is to balance hearing appearances as much as possible to represent the population of South Africa, and this effort itself may be the logical outcome of a strategy to organize hearings in order to promote reconciliation. However unintentionally, the emphasis on selecting non-Africans created an unequal opportunity for Africans to appear in hearings, exacerbating the resentment many statement-givers felt at not being tapped for hearings. This resentment has been problematic for the long-term achievement of restorative truth.126 More directly, the racial imbalances between statement-givers and hearing appearances damaged empirical truth. By giving white victims space in hearings far beyond their proportion of statement-givers and out of proportion to their level of victimization, the TRC created the truth that the "children of all races" suffered violations more or less equally. Balancing victim groups also balanced perpetrator groups, and consequently created the impression that all the political actors committed violations in more or less equal ways. The moral equivalence among perpetratingparties and among victim groups implied by the choices
124. 1 TRC,supranote 11, at 168-69. 125. Id. at 1. 126. The TRCrecognizedthat people not selected for hearingsresentedthe exclusion, but the report does not considerthe disproportionate effectthe selectionprocessmay have hadon Africans andthuson social truth.See id. at 6; see also Hugovander Merwe,The Truth a SouthAfrican and Reconciliation and Community Reconciliation: Commission Case Studyof Duduza,Centrefor the Studyof Violence and Reconciliation Working Paper(1998).
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of victims to appear in the hearings and in the Archbishop's reconciliationfocused foreword to the report were so powerful that the detailed histories in volumes two and three, and the unequivocal conclusions in volume five are insufficient to overcome them. The lack of clarity, equivocal positions, and the lack of connection between the TRC'simpressive body of evidence with the findings in the report have made it vulnerable to politically motivated critiques27--which is perhaps the worst outcome for a commission charged with articulating the truth.
V. CONCLUSIONS AND RECOMMENDATIONS This article has explored the nature of the "truth" that truth commissions are mandated to find and the factors affecting the process of truth finding. Clearly, the documentation and interpretationof truth is considerably more complex and ambiguous than many analysts of truth commissions assume-proponents and critics alike. Far from being generic bodies, truth commissions have very different approaches to the kind of "truth"they are seeking. Their official mandates, the perceptions and priorities of their commissioners and key staff, the methodological orientations utilized, and the level of resources available shape the nature of their findings and the type of report they produce. Decisions made by those working within a specific truth commission regarding how they organize their work and perform their tasks may also have important consequences for truth-finding. What then are the implications of the analysis in this article? What kind of "truth"can and should truth commissions seek? First, it is our view that truth commissions are far better suited to pursue what we have termed "macro-truth,"the assessment of contexts, causes, and patterns of human rights violations, than "micro-truth"dealing with the specifics of particular events, cases, and people. To be able to make macro-determinations requires utilizing more of a social science than a legal approach to truth finding. Second, we believe that truth commissions should focus on the objective rather than the subjective dimensions of truth. Doing otherwise amounts to confusing process and outcome. Patterns, trends, tendencies, and the big picture are often the pieces most missing from the history of transitional societies. Victims and their communities know quite a bit about the daily micro-processes of persecution and abuse: they lived it, after all. Although many victims and their survivors may want acknowledgments from perpetrators or the details of
127.
For anexampleof such a critique, THE TRUTHABOUT see ANTHEAJEFFERY, THETRUTHCOMMISSION (1999).
42
Vol. 23
stories,they also want a sense thatthey were not alone, and that particular the perpetrators were not a few "badapples,"but rather thatan entirelegal, and was political, ideological, militarysystem responsible for years, or decades, of humanrightsviolations.This broadexplanationshould not be left to scholarlydebate, but should be the core of a commission'swork. The micro-leveltruths,the forensicor microscopetruth,are important: the facts must be gotten right.However,commissionsare not particularly the detailsof hundreds or thousandsof cases. They lack good at determining the time, staff,and resources to undertake such a massiveinvestigatory task. when a commission does make micro-truth Moreover, findings,inevitably thereare likelyto be errors, which in the aggregatehave littleor no effecton the macro-truth. But these errorsprovide critics with a basis for claiming that the entire process is discredited.Beyonda small numberof illustrative cases and a limitednumberof hearingson eventsor institutions, micro-level truthshould be betterleftto judicialtribunals which specialize in weighing evidence, on a case-by-case basis. Threeof the formsof truthidentifiedby the TRC(narrative truth,social truth)are each important truth,and restorative goals of a truthcommission, and they deserve substantial attention. But these are subjective, not objective. They are process goals, not forms of truth. The distinction between the subjective and objective components of truth commissions does not denigratethe importanceof subjective processes to validating victims'experiencesand ultimately to reconciliation. However, contributing the conflation of the subjective with objective truth-finding weakens the of truthby makingtrutha matterof personal politicaland moralimportance opinion, and not the productof verifiablescientificbest practices.
A. Recommendations
Our analysis in this paper leads to the following recommendations: 1. Mandate:The mandate should specify that the function of the Commission is to make broad findings about the antecedents, causes, patterns, trends, perpetrators'motives, and impact on victimsof the periodof violence being studied.The mandateshould explicitlyspecifythatthe findingsof the Commissionmustbe based on legal and scientific best practices to ensure that working assumptions are tested and that the findings will be robust to sustainedand informedcriticism. 2. Commissioners: Commissioners should play a strictlyadvisoryrole.
That is, they should not participate in the day-to-day operations of the commission, but instead should function as a governing board in
2001
43
setting policy, making broad determinations, and guiding the Commission's strategy. To promote their focus on strategic issues (and not on tactical concerns), there should be relatively few commissioners, and they should work part-time. 3. Staff: Staff should be professional and entrusted with the quotidian operations and all technical questions of the commission. They should be drawn from a variety of intellectual disciplines with an emphasis on qualitative and quantitative rigor. 4. Attribution of responsibility for violations: The goal of the Commission should be primarily to identify institutions, parties, structures, and ideologies that permitted or committed gross human rights violations. Only secondarily should a Commission identify particular individuals who played roles in the abuses. The attribution of responsibility should be centered on the broad proportions or patterns of specific violations attributed to the various parties to the conflict, rather than excessive attention to one or a few illustrative cases. 5. Function of the findings: The findings of a commission, made via event or sectoral hearings or other public processes as well as in the final report, must be unequivocal, massive, objective, and undeniable, and made according to scientific best practices. The findings should be victim-centered, telling the story from their point of view and validating their experiences. A truth commission cannot by itself change the future of a democratizing nation. But at the very least, a commission must present a narrative that becomes the central component in the debates about the past which shape the future.

A Verdade Das Comissões Da Verdade. Haiti, Guatemala e Africa Do Sul

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A Verdade Das Comissões Da Verdade. Haiti, Guatemala e Africa Do Sul

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The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa, and Guatemala Author(s): Audrey R.

The Truth of Truth Commissions

AFTERGENOCIDE AND MASS VENGEANCE AND FORGIVENESS: FACINGHISTORY MARTHAMINOW, BETWEEN

Hayner, supra note 2, at 607.

Michelle Parlevliet,Considering the Truth,Dealing with a Legacyof Gross Human

RTS.142 (1998). HUM.

The Truth of Truth Commissions

A PRIMER ON POSTMODERNISM 7-8 (1996). See STANLEY J. GRENZ,

14. Id. at 147.

The Truth of Truth Commissions

28 (copy available at CEH

The Truthof TruthCommissions

25. 26. 27. 28. 29.

See AAAS/CSVRTranscript Analysis Project, supra note 23.

ON TRUTHAND RECONCILIATION, VOL. See REPORT COMMISSION OF THECHILEAN NATIONAL

31. 32. 33. 34. 35.

The Truth of Truth Commissions

38. 39. 40. 41. 42.

I - XII,supra note 24. See, e.g., CEH, TOMO

The Truth of Truth Commissions

39 (RobertDorsmanet al. eds.,

1999). See Hayner, supra note 2, at 640.

The Truth of Truth Commissions

B. BalancingTruth-Finding with Other Objectives

See 1 TRC, supra note 11, at 54.

HUMANRIGHTS QUARTERLY * educate the population about the past; and

54. 55. 56.

The Truth of Truth Commissions

The Truth of Truth Commissions

64. 65. 66.

The Truth of Truth Commissions

The Truth of Truth Commissions

AFRICA THELEGACY OF APARTHEID AND HEALTH: & (1999); HUMANRIGHTS (AudreyChapman

Leonard Rubenstein eds., 1998).

78. 79. 80.

The Truth of Truth Commissions

82. Approximately 22 percentof all the deathsdocumentedin the threeprojectswere held

The Truth of Truth Commissions

91. 92. 93.

95. 96. 97.

The Truth of Truth Commissions

99. 100. 101. 102.

The Truth of Truth Commissions

See CNVJ, SI M PA RELE: 29 1 TRC, supra note 11, at 1.

The Truth of Truth Commissions

and ReconciliJustice:TheCaseof SouthAfrica'sTruth Zyl, Dilemmasof International

Commissionin and Reconciliation a Truth Necessity and Challengesof Establishing

The Truthof TruthCommissions

The Truth of Truth Commissions

B. Bias from Overdependenceon Hearingsat the TRC

AND REPRESSION IN THEUNIVERSITY See PAUL KOBRAK,ORGANIZING 1944 OF SAN CARLOS,GUATEMALA, TO

The Truth of Truth Commissions

F Percent of statementgivers in hearings (D/B)

The Truthof TruthCommissions

The Truth of Truth Commissions

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