World Fact Research

Some criticize the usage of truth commissions because of the commission’s inability to
establish legal responsibility and, thus, take a soft approach to justice. Truth and reconciliation
commissions have been referred to as a “second-best alternative” to punitive trials. However,
such a sweeping assessment lacks insight into the context in which each truth commission is
created. It assumes that punitive court trials are the best route to justice. This criticism of truth
commissions as merely a “second-best” method of pursuing justice, behind criminal trials, is
unwarranted.
In the vast majority of truth commission cases, trials have not even been a realistic option for
pursuing justice and reconciliation. If the national judicial system is inefficient, corrupt, or not
reliably independent of political pressuring, the “justice” that results could be even more
problematic. Trials against perpetrators will be too infrequent and isolated in order to benefit a
national-level sentiment toward reconciliation, or will result in disappointing negative or soft
20verdicts. Most of the time, however, a weak judiciary system fails to call perpetrators to court.
In other cases, laws or the threat of new amnesty laws impedes or precludes prosecution. Thus, a
truth commission becomes the only unbiased official body that can investigate and contribute to
accountability by assigning responsibility to individuals or institutions. Truth commissions may
also emerge as the favored avenue for establishing accountability when legal prosecution poses
the risk of further dividing society or disrupting a fragile democracy by provoking remerging
polarization of the country and ensuing uprising. 51
Even though truth commissions cannot label these criminals with official judicial convictions
and punishments, the criminals named or the institutions incriminated in the report are still held
to some level of accountability. If perpetrator identities are publicly known, the people can hold
them accountable for their guilt through the nonviolent retribution of public shaming, insults, and
refusing them service. In order to maximize truth commissions’ contribution to accountability,
the identities of the perpetrators need to be accessible to the public. A list of the perpetrators’
names in the final report, as in the Salvadoran case, is potentially the most significant conclusion
that a commission can print. Naming names immediately to build a base level of accountability
is especially critical when the politically-charged and manipulated judicial system has no hope of
producing just verdicts, much less of prosecuting the perpetrators.
It is not fair to criticize truth commissions based on the goals of punitive trials because their
functions and outcomes are fundamentally designed to be different and complementary. Truth
commissions were not created to legally convict and sentence perpetrators. “Truth commissions
are meant to function as moral panels, not legal courts, “52 according to Jose Zalaquett, a
prominent international rights advocate and former member of the Chilean truth and
reconciliation commission. If truth commissions attempted to assign punishment, they would be
21overstepping their legal bounds and breaking the rule of law. Additionally, during the period of
delicate peace and sensitive political moves that follow cessation of violence, the fact that truth
commissions do not have the power to punish actually makes them less objectionable than trials
in the eyes of the military and government institutions. These damaged societies and countries
need every pro-reconciliation initiative and healing opportunity to reconstruct their lives,
relationships, and trust.

The process of reconciliation must include justice: accountability for perpetrators and the
righting of wrongs committed against innocent civilians. “The ultimate goal of justice is…to
make peace — by repairing damage, protecting victims, and reforming criminals — both apart
from, and also through, retributive punishment,”29 according to Bishop Nigel Biggar. People of
traumatized societies, like those of El Salvador and Guatemala, yearn for a sense that justice has
been done following tremendous violations of human rights, especially committed by
governmental authority. They ache for a definitive resolution. Genevieve Jacques explains, “the
victims need public recognition of the wrongs they have suffered and need to see those
responsible identified, named, and held to account.”
Punishing the guilty has the potential to bring a clear sense of relief and resolution — a sense
that justice has been done — to the victims, families, and general public. After suffering direct
damage or the death of a loved one, it is common to want retribution. The goal is that victims
and families who feel a need to inflict revenge may do so peacefully through the court system,
rather than resorting to one’s own devices. Instead of committing another wrong in response, the
wrong is righted. Court convictions of those responsible for disappearances and torture can be
rehabilitating and give a sense of protection to the families and friends of the victims.
30
Other
punitive measures could include removal from office or public service or obligation of financial
compensation to the victims or families. Agents of such punitive methods of justice argue that
12the convicted “got what they deserved” — social stigma, moral humiliation, and restrictions of
freedom. They are troubled by the perpetrator’s lack of feeling and sympathy in his/her exertion
of power over the victim. Punishment can potentially relieve family of the victim’s emotional
pain because it finally reverses the power relationship. The conviction functions to exert power
over the perpetrator and deny him/her sympathy. Just as the victim and his/her loved ones were
consequently held captive psychologically, emotionally, and physically by the violence inflicted
upon him/her, the perpetrator must be held captive, bound to his own actions, and denied
freedom and human dignity. The victim’s power and sympathy from the authority and society
are restored.
Effective justice comes in other forms besides the above retributive criminal trial method.
Favoring a more constructive restorative justice, Bishop Biggar argues, “Justice is primarily not
about the punishment of the perpetrator, but about the vindication of the victims, both direct and
indirect.”31 Minow writes about the reparative value of restorative justice that it is essential for
national reconciliation of different sectors of society:
Restorative justice emphasizes the humanity of both offenders and victims. It seeks to repair
social connections and peace rather than retribution against the offenders. Building connections
and enhancing communications between perpetrators and those victimized, and forging ties across
the community, takes precedence over punishment or law enforcement. 32
These aims of restorative justice reflect a practical view about human psychology. They are
unlike retributive approaches, which require inflicting suffering of another in order to raise one’s
self up, but may reinforce anger. In contrast, reparative approaches instead aim to help victims
move beyond anger, a sense of powerlessness, and destructive desire for revenge. Restorative
justice specifically seeks to stop a cycle of violence, while empowering the victimized. Typical
restorative justice measures include the exhumation, return, and reburial of relatives’ remains,
the opportunity to tell their stories of suffering publicly, and compensation or reparations to
13victims and families. It is important that when speaking about reconciliation and justice,
punitive court trials are not the only mechanism seen as pursuing justice. Any method used that
raises up the dignity of the victims after having been dehumanized by the offender or holds the
perpetrators accountable to their wrongful acts, furthers the ideal of justice.
Given the above explanation of reconciliation as both a goal to which conflicting parties
should aspire and a process, encompassing three vital ideals of truth, acknowledgment, and
justice, it’s now pertinent to explore truth commissions’ potentials for demonstrating and
promoting these goals of reconciliation. While some truth commissions have earned respect as
model commissions investigating the past, there are no binding rules of structure. Each of the
more than twenty truth commissions established around the world since 1973 is unique. 33 Truth
commissions in general, however, have the same overarching goal of airing the truth of the past
in order to facilitate societal and individual-level healing and reconciliation in the future. A truth
commission can be more or less nurturing of reconciliation, partly depending on its specific
context, structure, and mandates. Still, truth commissions have great potential to make
significant progress towards ideals of truth, acknowledgement, and restorative justice