THE ROLE OF TRUTH COMMISSIONS IN ACHIEVING JUSTICE
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.
Tags: political, punishment, rule of law