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THE REPARATIVE EFFECT OF TRUTH SEEKING IN TRANSITIONAL JUSTICE

Published online by Cambridge University Press:  29 January 2015

Merryl Lawry-White
Merryl Lawry-White*
Affiliation:
International Court of Justice, Juriste Adjoint, Judicial Assistant to the Vice-President. Any views or opinions expressed in this article are personal to the author. [email protected].
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Abstract

The benefits of a ‘holistic’ approach to transitional justice are enhanced by considering how synergies between different transitional mechanisms may be optimized. Drawing upon multiple examples, this article explores the potential contribution of truth seeking to reparation efforts at a normative, institutional and operational level. The article emphasizes the importance of an awareness of the reparative potential of truth seeking on the part of those implicated in its design and implementation, as well as an appreciation of the influence of contextual factors on a delicate process. It cannot be conceived of simply as a technocratic exercise, but as an inherent part of empowering victims.

Keywords

basic principlesempowermenthumanitarian lawhuman rightsreparationssatisfactionreparationsschemestransitional justicetruth commissionstruth seeking
Type
Articles
Information
International & Comparative Law Quarterly , Volume 64 , Issue 1 , January 2015 , pp. 141 - 177
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 Williams, M and Nagy, R (eds), Transitional Justice (NYU Press 2012)CrossRefGoogle Scholar 2.

2 P de Greiff, ‘Theorizing Transitional Justice’ ibid 32–3.

3 See eg art 3.1 of UN Regulation 2001/10 (13 July 2001) which sets out the objectives of the Commission for Reception, Truth and Reconciliation in East Timor: ‘The objectives of the Commission shall include:(a) inquiring into human rights violations that have taken place in the context of the political conflicts in East Timor; (b) establishing the truth regarding past human rights violations; (c) reporting the nature of the human rights violations that have occurred and identifying the factors that may have led to such violations; (d) identifying practices and policies, whether of State or non-State actors which need to be addressed to prevent future recurrences of human rights violations; (e) the referral of human rights violations to the Office of the General Prosecutor with recommendations for the prosecution of offences where appropriate; (f) assisting in restoring the human dignity of victims; (g) promoting reconciliation; (h) supporting the reception and reintegration of individuals who have caused harm to their communities through the commission of minor criminal offences and other harmful acts through the facilitation of community based mechanisms for reconciliation; and (i) the promotion of human rights.’ See also UNCHR, ‘Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff’ (28 August 2013) UN Doc A/HRC/24/42, para 32.

4 T Olsen, L Payne, A Reiter and E Wiebelhaus-Brahm, ‘When Truth Commissions Improve Human Rights’ (2010) 4(3) IJTJ 457, 463.

5 UNGA, ‘Report of the Secretary-General to the Security Council on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies’ (23 August 2004) UN Doc S/2004/616, para 26. Or, in the words of Pablo de Greiff that measures be ‘externally coherent’—see De Greiff (n 2) 39.

6 See discussion of the need for courts and truth commissions to ‘develop a detailed understanding of how they will relate to each other’ in Bassin, AS and van Zyl, P, ‘The Story of Samuel Hinga Norman in Sierra Leone: Can Truth Commissions and Criminal Prosecutions Coexist after Conflict?’ in Hurwitz, DR and Satterthwaite, ML (eds) (with D Ford), Human Rights Advocacy Stories (Foundation Press 2008)Google Scholar 265.

7 Olsen, Payne, Reiter and Wiebelhaus-Brahm (n 4) 476. ‘The findings … demonstrate the value of isolating transitional justice mechanisms and studying their interactions to determine when, how and why they achieve important social justice goals.’

8 Hence, the aim of the article is not to analyse the contours of reparative justice, which is sometimes conflated with ‘restorative justice’, and denotes a focus on compensating the victim rather than punishing the criminal. Nor is it to advocate for a particular type of justice. The ‘victim-focused’ nature of the mechanisms as compared to traditional criminal justice mechanisms is a prior assumption of the analysis. For one discussion of ‘reparative justice’, see E Weitekamp, ‘Reparative Justice: Towards a Victim Orientated System’ (1993) 1 EurJCrimPolRes 70–93.

9 UNHCR, ‘Rule-of-Law Tools for Post-Conflict States: Truth Commissions’ (2006) UN Doc HR/PUB/06/1. <http://www.ohchr.org/Documents/Publications/RuleoflawTruthCommissionsen.pdf> 1.

10 Art 6(1) of the Sierra Leone Truth and Reconciliation Commission Act 2000, for example, reads: ‘The object for which the Commission is established is to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the Conflict in 1991 to the signing of the Lomé Peace Agreement; to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered.’

11 de Greiff, P (ed), ‘Introduction’ in The Handbook of Reparations (OUP 2008)Google Scholar 11.

12 The Comprehensive Plan for Reparations (PIR) in Peru, for example, proposes six programmes including symbolic reparations, health-related reparations, education-related reparations, restoration of civil rights, economic reparations and collective reparations. See J Garcias-Godos, ‘Victim Reparations in the Peruvian Truth Commission and the Challenge of Historical Interpretation’ (2008) 2(1) IJTJ 63–82.

13 E Lira, ‘The Reparations Program for Human Rights Violations in Chile’ in De Greiff (n 11) 55–101.

14 Report of the Secretary-General (n 5) 1: ‘[w]e must learn as well to eschew one-size-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments, national participation and national needs and aspirations’.

15 See UNGA Resolution 60/147 (16 December 2005), which adopted and proclaimed the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ (the Basic Principles), Preamble.

Violations of human rights law by non-state actors trigger an obligation on the part of the state to exercise due diligence to investigate, prosecute, punish and provide redress. Human Rights Committee, General Comment 31 (August 2004) para 8. Velásquez Rodríguez case, Judgment, Inter-American Court of Human Rights, Series C No 4 (29 July 1988) para 166.

16 UNCHR, ‘Updated Set of principles for the protection and promotion of human rights through action to combat impunity’, UN Doc E/CN.4/2005/102 (the Impunity Principles) art 1.

17 Commentary to the Articles on the Responsibility of States for Internationally Wrongful Acts, ILC Yearbook 2001/II(2) (ILC Articles Commentary) art 34, para 6. See also C Gray as quoted in Crawford, J, State Responsibility (CUP 2013)CrossRefGoogle Scholar 510

18 Report of the Special Rapporteur (n 3) paras 18–20.

19 The Basic Principles emphasize that they do not create any new international or domestic legal obligations. Basic Principles, Preamble and art 1.

20 Redress, Implementing Victims' Rights: A Handbook on the Basic Principles and Guidelines on the Right to a Remedy and Reparation (March 2006) 3.

21 MC Bassiouni, ‘International Recognition of Victims' Rights’ (2006) 6 HRLR 203, 251.

22 SG Ramirez in C Grossman et al, ‘Conference: Reparations in the Inter-American System: A Comparative Approach’ (2007) 56(6) AmULRev 1375, 1433.

23 Grossman ibid 1376.

24 Sandoval, C, ‘The Inter-American System of Human Rights and Approach’ in Sheeran, S and Rodley, N (eds), Routledge Handbook of International Human Rights Law (Routledge 2013)Google Scholar 439. A detailed survey of human rights jurisprudence is outside the scope of this paper.

25 ibid.

26 See eg The Last Temptation of Christ v Chile, Judgment, Inter-American Court of Human Rights Series C No 73 (5 February 2001) paras 97ff pursuant to which Chile modified its constitution to comply with the order of the Court that looked to guarantee freedom of expression to all persons subject to its jurisdiction. The ECtHR emphasized this point by noting that, where the focus is on structural questions of ‘public order’, and not individual harm, certain available remedies are inappropriate. Cyprus v Turkey (Just Satisfaction) (12 May 2014) ECtHR case no 25781/94, paras 43–44.

27 See eg Loayza Tamayo v Peru Judgment (Reparations and Costs), Inter-American Court of Human Rights Series C No 42 (27 November 1998), in which the IACtHR first considered the possibility of awarding individual compensation based on a life plan (proyecto de vida).

28 See eg Case of the ‘Mapiripán Massacre’ v Colombia, Judgment (Merits, Reparations, and Costs) Series C No 134 (15 September 2005) paras 197–198.

29 Basic Principles, arts 15 and 18.

30 Basic Principles, art 9.

31 The ILC Articles on the Responsibility of States for Internationally Wrongful Acts, ILC Yearbook 2001/II(2), (ILC Articles).

32 ILC arts 34–37 state that compensation is available where restitution is not possible or disproportionate, and satisfaction where restitution and compensation cannot reach the standard prescribed by international law to ‘wipe out the consequences’ of the illegal act.

33 Nairobi Declaration on Women's and Girls' Right to a Remedy and Reparation, March 2007, para 3 <http://www.fidh.org/IMG/pdf/NAIROBI_DECLARATIONeng.pdf>. The full paragraph reads: ‘that reparation must drive post-conflict transformation of socio-cultural injustices, and political and structural inequalities that shape the lives of women and girls; that reintegration and restitution by themselves are not sufficient goals of reparation, since the origins of violations of women's and girls' human rights predate the conflict situation.’

34 ‘Satisfaction, should include, where applicable … verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim's relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations.’ (Emphasis added.) Basic Principles, art 22(b).

35 South Africa Promotion of National Unity and Reconciliation Act 34 of 1995, Preamble and arts 1, 3, 4.

36 Hayner, P, Unspeakable Truths: Transitional Justice and the Challenges of Truth Commissions (2nd edn, Routledge 2011)Google Scholar 150.

37 Mail & Guardian Article, ‘Truth about Dlomo made his mother's grief unbearable’ (19 March 1999) <http://mg.co.za/article/1999-03-19-truth-about-dlomo-made-his-mothers-grief> and <http://allafrica.com/stories/199903190205.html>.

38 Discussion with Paul van Zyl, Director of the Transitional Justice Program Director at the Center of Human Rights and Global Justice, February 2013.

39 Discussion with Eduardo Gonzáles, Director of the International Center for Transitional Justice (ICTJ)'s Truth and Memory Program, April 2013.

40 ILC Articles Commentary, art 31, para 1.

41 Basic Principles, arts 19–23.

42 ibid, art 24.

43 Case of Gelman v Uruguay, Judgment (Merits and Reparations), Inter-American Court of Human Rights, Series C No 221 (24 February 2011) (Gelman) para 259. See also Report of the Special Rapporteur (n 3) paras 18–20. The use of the terms ‘reparata’ implies that violation of the Convention triggers a secondary obligation on the part of the State to provide ‘truth’, and that an investigation ‘repairs’ a failure to comply with this obligation.

44 The Impunity Principles confirm victims' right to know the circumstances in which violations took place, the right of ‘every people’ to know the truth regarding ‘heinous crimes’, and a State's duty to preserve memory and facilitate knowledge of violations of human rights and humanitarian law. Truth commissions are often relied upon to fulfil this right: ‘societies that have experienced heinous crimes perpetrated on a massive or systematic basis may benefit in particular from the creation of a truth commission or other commission of inquiry to establish the facts surrounding those violations so that the truth may be ascertained and to prevent the disappearance of evidence’. See Impunity Principles, Principles 2–5.

45 Impunity Principles, Principle 2.

46 ILC Articles Commentary, art 36, para 1 and art 37, paras 3–4.

47 ibid, art 37, paras 4–7

48 Gelman (n 43) para 312(8).

49 Basic Principles, Preamble.

50 De Greiff (n 2) 42.

51 Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T Ch I (2 September 1998) para 597.

52 De Greiff (n 2) 43.

53 Haldemann draws particularly on the work of Honneth and Margalit. F Haldemann, ‘Another Kind of Justice: Transitional Justice as Recognition’ 41(2) CornellIntlLJ 675, 691.

54 ibid.

55 Interview with Albie Sachs (former Judge of the South African Constitutional Court) by Paul Seils, ICTJ, 17 April 2013, <http://www.ictj.org/news/soft-vengeance-interview-south-africa-albie-sachs>.

56 ibid.

57 Interview with Sylvia Dlomo-Jele regarding her experience before the South African TRC, Hayner (n 36) 150.

58 JL Gibson, ‘On Legitimacy Theory and the Effectiveness of Truth Commissions’ (2009) 72 JContempLegalIssues 123, 138.

59 ibid 137.

60 In their studies on commissions of inquiry, Raanan Sulitzeanu-Kenan and Yifat Holzman-Gazit divide theories of institutional legitimacy between instrumental and procedural models. R Sulitzeanu-Kenan and Y Holzman-Gazit, ‘Form and Content: Institutional Preferences and Public Opinion in a Crisis Inquiry’ (2012) 20 Administration and Society 1, 4. MX Delli Carpini et al, ‘Public Deliberations, Discursive Participation and Citizen Engagement: A Review of the Empirical Literature’ (2004) 7(1) Annual Review of Political Science 315, 327.

61 Hayner (n 36) 33.

62 ibid 158–9.

63 JR Quinn, ‘Constraints: The Un-Doing of the Ugandan Truth Commission’ (2004) 26(2) HRQ 415. For example, the Commissioners had to work other jobs at the same time to support themselves.

64 Hayner (n 36) 240–1.

65 ibid 211.

66 Impunity Principles, Principle 7: ‘Commissions of inquiry, including truth commissions, must be established through procedures that ensure their independence, impartiality and competence …’.

67 Trial Report, ‘Truth Commission in Uganda’ (9 May 2012) <http://www.trial-ch.org/index.php?id=962&L=5>.

68 Report of the Kenya Truth, Justice and Reconciliation Commission (3 May 2013) vol 1, para 38.

69 ibid.

70 United States Institute of Peace, ‘Truth Commission: Kenya, Truth Commissions Digital Collection’ <http://www.usip.org/publications/truth-commission-kenya>.

71 Kenya Truth, Justice and Reconciliation Act 2008, arts 7 and 21.

72 Kenyan Section of the International Commission of Jurists, ‘Complaint against Ambassador Bethwell Kiplagat (14 May 2010) <http://www.icj-kenya.org/index.php/media-centre/press-releases/303-complaint-against-ambassador-bethwell-kiplagat>.

73 Deputy Chair of the TJRC, Betty Murungi, resigned on the basis that it was difficult to fulfil her duties when the Commission Chair faced such accusations. Bloomberg.com Article, ‘Kenya's Truth Commission Vice Chairwoman Quits (Update 1)’ (29 March 2010), <http://www.bloomberg.com/apps/news?sid=aWoBbnkgP.2k&pid=newsarchive>.

74 Africa Review Article, ‘Kenya's reconciliation agency member quits’ (21 October 2010). The Christian Science Monitor Article, ‘US professor quits Kenyan truth commission, citing lack of confidence’, 22 October 2010, <http://www.csmonitor.com/World/Africa/2010/1022/US-professor-quits-Kenyan-truth-commission-citing-lack-of-confidence>.

75 Comments of Patrick Ball in ‘Truth Commissions: can countries heal after atrocities?’ (2010) 4(1) CQ Global Researcher 10.

76 Ciurlizza, J and González, E, ‘Truth and Justice from the Perspective of the Truth and Reconciliation Commission’ in Magarell, L and Filippini, L (eds), The Legacy of Truth: Criminal Justice in the Peruvian Transition (ICTJ New York 2006)Google Scholar 6.

77 The Final Report of the Timor-Leste Commission for Reception, Truth and Reconciliation (CAVR) (1 November 2006) 9.

78 Hayner (n 36) 142.

79 van Zy, Pl, ‘Unfinished Business: The Truth and Reconciliation Commission's Contribution to Justice in Post-Apartheid South Africa’ in Bassiouni, MC (ed), Post Conflict Justice (Transnational Publishers 2002)Google Scholar 748.

80 United States Institute of Peace, ‘Truth Commission: El Salvador, Truth Commissions Digital Collection’ <http://www.usip.org/publications/truth-commission-el-salvador>.

81 Basic Principles, art 6: ‘To the greatest extent possible, decisions to establish a truth commission, define its terms of reference and determine its composition should be based upon broad public consultations in which the views of victims and survivors especially are sought. Special efforts should be made to ensure that men and women participate in these deliberations on a basis of equality.’

82 Hayner (n 36) 216.

83 N Valji, ‘Ghana's National Reconciliation Commission: A Comparative Assessment’ (September 2006), ICTJ and CSVR Occasional Article Series, <http://www.csvr.org.za/wits/papers/papictj1.pdf> 8.

84 Initial consultations may be necessary to explore the various ‘groups’ that require specialist techniques and which approaches are acceptable. Some commissions have created internal ‘gender units’ to ensure a gender perspective is considered throughout their work. V Nesiah, ‘Truth Commissions and Gender: Principles, Policies, and Procedures’ (July 2006) ICTJ Publication 6–7.

85 Comments of Paul van Zyl regarding the South Africa TRC, November 2012.

86 UN Women, ‘Progress of the World's Women 2011–2012 Report: In Pursuit of Justice’, <http://progress.unwomen.org/pdfs/EN-Report-Progress.pdf> 95.

87 S Duquet, ‘Gender Aspects of the Truth and Reconciliation Commission in Sierra Leone’ (February 2010) <http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=sanderijn_duquet> 13.

88 E Gonzales and H Varney (eds), ‘Truth Seeking: Elements of Creating a Successful Truth Commission’ (18 March 2013) ICTJ Publication 68.

89 Basic Principles, art 22(e).

90 Hayner (n 36) 48–9.

91 ibid 51.

92 M Popkin, ‘The Salvadoran Truth Commission and the Search for Justice’ (20 January 2004) Criminal Law Forum.

93 United States Institute of Peace, ‘Truth Commissions: Zimbabwe, Truth Commissions Digital Collection <http://www.usip.org/publications/commission-inquiry-zimbabwe>.

94 Hayner (n 36) 46.

95 Paul van Zyl writes of South Africa: ‘Nevertheless, given the volume of available evidence, the number of potential witnesses unearthed through the TRC's amnesty process and the paucity of prosecutions, it is hard to escape the conclusion that the current government is either ambivalent towards or opposed to prosecutions’ (n 79) 754.

96 However, it is important to note that this is not always the case: in some countries reparations schemes precede truth commissions (as occurred in Brazil) or reparations schemes are implemented in isolation (as was the case in Malawi).

97 United States Institute for Peace, ‘Truth Commission: Chile 90, ‘Truth Commissions Digital Collection’ <http://www.usip.org/publications/truth-commission-chile-90>.

98 ibid.

99 ibid.

100 United States Institute for Peace, ‘Truth Commission: Chile 03, Truth Commissions Digital Collection’ <http://www.usip.org/publications/commission-inquiry-chile-03>.

101 Lira (n 13).

102 See, for example, UNCHR ‘Rule-of-Law Tools for Post-Conflict States: Reparations Programs, 2008’ UN Doc HR/PUB/08/1, 15.

103 As noted above, Pablo de Greiff recommends that such schemes be ‘complex’, ie, comprising a mix of different measures, including pecuniary, symbolic, collective and individualized reparations, social services, medical services, etc. De Grieff (n 11) 11.

104 ICTJ, ICRC and CCDH, ‘The Rabat Report: The Concept and Challenges of Community Reparations’ (12–14 February 2009) <http://www.ictj.org/sites/default/files/ICTJ-Morocco-Reparations-Report-2009-English.pdf> 31.

105 ibid 26–7. The Moroccan L'Instance Equité et Reconciliation (IER) concluded that such repression and exclusion was linked to regions being viewed as centres of political dissent or the locations of clandestine detention facilities set up to ‘deal’ with political dissenters.

106 Final Report of the the Peruvian Comisión de la Verdad y Reconciliación (CVR) (28 August 2003), vol I, 26. Free translation from the Spanish: ‘elaborar propuestas de reparación y dignificación de las víctimas y de sus familiares’.

107 In most transitional contexts, the total reparation awarded pales in comparison to the gravity of the violation and suffering, therefore exacting burdens of proof and testing the edges of the evidence are potentially less of a concern than in other judicial scenarios. However, a commission's legitimacy is affected by its consideration of evidential concerns.

108 ICTJ Briefing, ‘Unfulfilled Expectations: Victims' perceptions of justice and reparations in Timor-Leste’ (1 January 2010) 6.

109 The Final Report of CAVR (n 77) 9.

110 The South Africa TRC was divided into three committees: the Human Rights Violation Committee, the Amnesty Committee and the Reparation and Rehabilitation Committee.

111 The Committee had to locate those who had completed statements in order to complete a separate reparations form. This often required assisting deponents with filling in the form and opening a bank account so that payments could be made. See L Fernandez, ‘Reparations policy in South Africa for the victims of apartheid’ (1999) 3(2) Law, Democracy and Development 215. See also Hayner (n 36) 176, 180.

112 Seeko, M, ‘The TRC's Unfinished Business’ in Villa-Vicencio, C and Du Toit, F (eds), Truth and Reconciliation in South Africa: 10 years On (New Africa Books 2006)Google Scholar 39. The government issued interim reparations prior to the publication of the final volumes of the TRC's report in 2003. BM Urbsaitis, Wounded Healers & Reconciliation Fatigue (2009) 77, which, based on a report by Amnesty International and Human Rights Watch, explains: ‘[t]he South African government announced in February 2001 that it would be setting aside R800 million (U.S. $103 million at that date) for final reparations (i.e. R500 million in addition to the R300 million already set aside for interim reparations)—substantially less than a third of what the TRC had proposed’.

113 Impunity Principles, Principle 32: ‘Reparations may also be provided through programmes, based upon legislative or administrative measures, funded by national or international sources, addressed to individuals and to communities. Victims and other sectors of civil society should play a meaningful role in the design and implementation of such programmes. Concerted efforts should be made to ensure that women and minority groups participate in public consultations aimed at developing, implementing, and assessing reparations programmes’.

114 IER, Final Report, vol III: ‘Justice and Reconciliation for Victims’ (The Advisory Council on Human Rights Publications 2009) 100.

115 ibid.

116 Kingdom of Morocco National Human Rights Council Article, ‘Green Light to Implement Final Phase of Community Reparations Projects’ (January 2012).

117 Women experience certain types of violations disproportionately and are often rendered particularly vulnerable as a result of violations experienced by their husbands and children and/or unequal access to State resources. Interview with K Mudell, ICTJ (21 February 2013) <http://ictj.org/news/ictj-program-report-gender-justice>.

118 Interview with Albie Sachs (n 55).

119 Correa, C, Guillerot, J and Magarrell, L, ‘Reparation and Victim Participation: A Look at the Truth Commission Experience’ excerpted from Ferstman, C, Goetz, M and Stephens, A (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity (Brill Academic Publishers 2009)Google Scholar 17.

120 See eg UN Regulation 2001/10 (n 3) arts 3.4(c), 12.1(j), 36.1.

121 G Wandita, K Campbell-Nelson and M Leong Pereira, ‘Gender and Reparations in Timor-Leste’ (2006) ICTJ Publication 2, 4–6.

122 Correa, Guillerot and Magarrell (n 119) 17.

123 ibid 21.

124 L Magarrell, ‘Outreach to and engagement of victims on reparations – Lessons learned from truth and reconciliation processes’ Conference on Reparations for Victims of Genocide, Crimes against Humanity and War Crimes: Systems in Place and Systems in the Making (The Hague, 1 March 2007) <http://www.redress.org/downloads/events/OutreachEngagementLM.pdf> 3.

125 C Ramírez-Barat, ‘Making an Impact: Guidelines on Designing and Implementing Outreach Programs for Transitional Justice’ (January 2011) ICTJ Publication, 22 and 25.

126 Correa, Guillerot and Magarrell (n 119) 15.

127 Impunity Principles, Principle 6 reads: ‘In recognition of the dignity of victims and their families, investigations undertaken by truth commissions should be conducted with the object in particular of securing recognition of such parts of the truth as were formerly denied’.

128 UNICEF/ICTJ Publication, ‘Children and Truth Commissions’ <http://www.unicef-irc.org/publications/pdf/truth_commissions_eng.pdf>  7.

129 J Zalaquett, ‘Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations’ (1992) 43 HastingsLJ 1357.

130 B Hamber, ‘The Burdens of Truth: An Evaluation of the Psychological Support Services and Initiatives Undertaken by the South African Truth and Reconciliation Commission’ (1998) 55(1) American Imago 9, 18.

131 ibid 17.

132 ibid.

133 Hayner (n 36) ch 11, 145ff.

134 Hayner concludes that even though truth commissions may begin to satisfy a victim's need to tell their story, the assumption that ‘talking leads to healing’ is premised on dialogue over a period of time that does not apply or is not satisfied by a truth commission experience. Hayner (n 36) 147.

135 Even though, the Sierra Leone TRC was mandated ‘to work to help restore the human dignity of victims and promote reconciliation by providing an opportunity for victims to give an account of the violations and abuses suffered and for perpetrators to relate their experiences, and by creating a climate which fosters constructive interchange between victims and perpetrators’, the ‘principal function of the Commission is to create an impartial historical record of events in question as the basis for the task of preventing their recurrence’. (Emphasis added.) Sierra Leone Truth and Reconciliation Commission Act 2000, Memorandum of Objects and Reasons.

136 Hamber (n 130) 21–3.

137 Report of the Chilean National Commission on Truth and Reconciliation (University of Notre Dame Press 1993) vol I/II, 1066–8.

138 Hayner (n 36) 152.

139 R Shaw, ‘Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone’ (February 2005) United States Institute of Peace, Special Report 130, 8.

140 Bishop Joseph Humber, opening ceremony of the Kambia district hearings, June 2003, as quoted in ibid.

141 CBC News Press Article, ‘Truth and Reconciliation Commission says healing requires information’ (24 February 2012) <http://www.cbc.ca/news/canada/british-columbia/story/2012/02/24/bc-truth-reconciliation.html>.

142 B Hamber and R Wilson, ‘Symbolic closure through memory, reparation and revenge in post-conflict societies’ (March 2002) 1(1) Journal of Human Rights 35–53.

143 D Bloomfield, ‘On Good terms: Clarifying Reconciliation’ (October 2006) Berghof Report No 14, 4.

144 Interview with Albie Sachs (n 55).

145 South Africa Truth and Reconciliation Commission Report (28 October 1998) vol 5, 306.

146 PJ Campbell, ‘The Truth and Reconciliation Commission: Human Rights and State Transitions—The South Africa Model’ (2000) 4(3) African Studies Quarterly 41. R Picker, ‘Victims' Perspectives about the Human Rights Violations Hearings’ (February 2005) Centre for the Study of Violence and Reconciliation, 6.

147 The CVR put forward in its report that: ‘the establishment of the CVR itself is the proof of the political commitment of the state to restore the dignity and to address the suffering of those affected by violence, particularly the victims of the conflict’.

148 Hayner (n 36) 148. Similar considerations apply to the recognition granted by other official transitional justice processes, for example, courts. In his discussion of Nuremberg, Richard Goldstone highlights the importance of recognition for victims, noting that victims already know what happened to them, but they seek the official acknowledgement inherent in the process and that for many victims is the beginning of their healing process. R Goldstone, ‘Do War Crime Trials Do More Harm Than Good?’ (3 May 2007) LSE Human Rights Centre for the Study of Human Rights Lecture, 3.

149 Van Zyl (n 79) 748.

150 Interview with Albie Sachs (n 55).

151 Picker (n 146) 7, 16.

152 Hayner interviewed a South African survivor of a shooting, who said the empathy of the statement-taker and the fact that he/she ‘went along with everything I said’, made it easier to talk. Hayner (n 36) 150.

153 Picker (n 146) 16.

154 Valji (n 83) 10–12.

155 Correa, Guillerot and Magarrell (n 119) 8–9.

156 Parmar, S, Roseman, MJ, Siegrist, S and Sowa, T (eds), Children and Transitional Justice: Truth-Telling, Accountability and Reconciliation (Harvard University Press 2010)Google Scholar 218.

157 Correa, Guillerot and Magarrell (n 119) 4.

158 IOM Article, ‘What Hope of Reparations for Sierra Leone's War Victims?’ (18 November 2009) <http://www.iom.int/cms/en/sites/iom/home/news-and-views/feature-stories/feature-story-listing/what-hope-of-reparations-for-sierra-leon.html>.

159 ICTJ Briefing, ‘Unfulfilled Expectations: Victims' perceptions of justice and reparations in Timor-Leste’ (1 January 2010) 9.

160 ibid 12.

161 Picker (n 146) 5–6.

162 UNHCR Rule of Law Tools: Reparations (n 102) 27 and footnote 26. African Business Article, ‘SA's 50bn arms deal scandal’ (June 2001); L Fernandez (n 111) 217.

163 Picker (n 146) 6.

164 C Correa and M Suma, ‘Report and Proposals for the Implementation of Reparations in Sierra Leone’ (December 2009) ICTJ Publication 5.

165 H van Merwe, ‘Reversing Accountability in South Africa: From Amnesty to Pardons and Non-Prosecutions’ (2009) 5(3) Global Studies Review. Picker (n 146) 5–6.

166 D Tolbert, ‘Kenya's truth commission must act now to salvage credibility’ (19 December 2012) ICTJ Briefing.

167 Gonzales and Varney (n 88) 15, 52.

168 Valji (n 83) 43. The Ghanaian government noted the role of CSC in assisting the commission with outreach, statement taking and counselling in rural regions, see Government of Ghana Official Website, ‘The National Reconciliation Commission Report’ <http://www.ghana.gov.gh/index.php/information/reports/117-the-national-reconciliation-commission-report> para 2.3.

169 Gonzales and Varney (n 88) 52.

170 Hayner (n36) 35.

171 As noted above (n 6), AS Bassin and P van Zyl discuss the need for courts and truth commissions to ‘develop a detailed understanding of how they will relate to each other’.

172 Gonzales and Varney (n 89) 50.

173 ibid 51.

174 Hayner (n 36) 243.

175 Freedom House Article, ‘Western Sahara’ (2006) <http://www.freedomhouse.org/report/freedom-world/2006/western-sahara>.

176 Amnesty International Report, ‘Broken Promises’ (January 2010) <http://www.amnesty.org/en/library/asset/MDE29/001/2010/en/63d99172-428d-4717-8c25-866c879c80e9/mde290012010en.pdf> 5.

United States Institute for Peace, ‘Truth Commission: Morocco, Truth Commissions Digital Collection’ <http://www.usip.org/publications/truth-commission-morocco>.

177 Hayner (n 36) 49.

178 ibid 59, 66. See also Human Rights Watch Report, ‘Chad: The Victims of Hissène Habré Still Awaiting Justice’ (2005) <http://www.hrw.org/reports/2005/chad0705/chad0705.pdf>.

179 Basic Principles, art 22(f).

180 See eg Gelman (n 43) para 312(8).

181 Discussion with Paul van Zyl, Director of the Transitional Justice Program Director at the Center of Human Rights and Global Justice, February 2013.

182 Hayner (n 36) 55.

183 O Bakiner, ‘An Assessment of How Commissions Influence Politics and Society’ (2011) Simons Papers in Security and Development 13, 16. Hayner (n 36) 51.

184 Hayner (n 36) 51.

185 Hayner, (n 36) 21.

186 Teitel, R, Transitional Justice (Oxford University Press 2000)Google Scholar 91.

187 Final Report of the CVR: General Conclusions, August 2003, para 13. Sendero Luminoso (or Shining Path) is the Communist Party of Peru. The CVR defined it as ‘a terrorist organization’ that started an internal armed conflict against the State and Peruvian society in May 1980. Free translation from the Spanish: ‘El Partido Comunista del Perú, conocido como Sendero Luminoso (PCP-SL), es una organización subversiva y terrorista, que en mayo de 1980 desencadenó un conflicto armado contra el Estado y la sociedad peruana.’ See ch 1.1 of the CVR Report: El Partido Communista del Peru Sendero Luminoso, August 2003, 13.

188 Prosecutor v Lubanga, ICC Trial Chamber I, Decision establishing the principles and procedures to be applied to reparations, 7 August 2012, para 238.

189 Haldemann (n 53) 710.

190 LJ Laplante and KS Theidon, ‘Truth with Consequences: Justice and Reparations in Post-Truth Commission Peru’ (2007) 29(1) HRQ 238.

191 ibid 241.

192 De Grieff (n 2) 35.