A Truth and Reconciliation process should provide an opportunity for the people of [ a given country] to address the past so as to identify the root causes of the armed conflict, and also an opportunity for meaningful justice for the thousands of victims of the violence, and their families by bringing to account the perpetrators of serious human rights violations and violations of international humanitarian law.
The chronic failure to bring to account perpetrators of such violations will only undermine the chances for peace that is lasting.
In international law there are violations which fall under human rights law, for example those which fall under the International Covenant on Civil and Political Rights, the Convention against Torture and other treaties. Such violations can occur both during peace time and during conflict. And you have violations of international humanitarian law which are violations committed only during an armed conflict, whether it is of an international nature or of an internal nature. These fall under another body of law called the Geneva Convention which just relate to armed conflict. In [ specific countries where ] , there was an internal armed conflict during which there were both violations of international human rights law and international humanitarian law. The violations and abuses included torture, disappearances, executions and other unlawful killings, sexual violence, recruitment and use of children in the armed-conflict.
[In a Truth and Reconciliation process ] only victims who reconcile with perpetrators will be eligible for compensation. There are no other larger truth-seeking elements to the reconciliation process and little hope for justice since those perpetrators, who are reconciled with their victims or victims’ families, will not be recommended for prosecution. This is the case even if perpetrators committed gross violations of human rights, including torture, extrajudicial killings and enforced disappearances.
Lessons learned from looking at the experiences of other truth commissions which were set up in different countries around the world indicate that the selection process must first of all be transparent, involving a full array of actors, not only government but civil society, religious organizations, castes, ethnic groups, academics, lawyers, etc.
The intention is to have a body that can be considered credible. But if the body is too politicized, too close to the government or one of the groups involved in atrocities, this undermines its work and credibility.
The obligations under the international law are the treaties that the country has signed and ratified. When a government ratifies an international treaty, the treaty supersedes anything the domestic law says; international law takes precedent over domestic law. Most important are provisions of international law and principles which relate to the fact that those responsible for serious human rights violations cannot be amnestied.
Such amnesties would place [ a country ] in violation of its treaty obligations and international human rights standards. Moreover, [ such a process ] would deny victims their right to justice.
International law is quite clear that amnesties for such offences are not available. As the Nuremburg trials of Nazi officials made clear, political motivation or acting under orders are not defenses to such atrocities.
International law allows amnesty in certain circumstances. However, international law and UN principles state that amnesty cannot be granted for what are called gross violations of human rights: genocide, war crimes, crimes against humanity and other serious violations of human rights such as torture, disappearances, extra judicial killings.
There is no one model for how a nation addresses mass crimes of the past, though there are best practices and principles that have been garnered from more than 30 truth commissions established since the 1980s. Any transitional justice process must be a national choice and not imposed from the outside, though it must not violate international standards and principles.
Secondly, the timing for a truth commission is key: the conflict must have ended. Addressing past crimes during conflict or in the early transition period after a conflict is not a conducive environment in which victims and their families can come forward and feel safe and secure to tell their stories and identify perpetrators.
Thirdly, there must be genuine political will from government to cooperate with an independent and impartial body like a truth commission.
Fourthly, such processes must be part of a multi-faceted and comprehensive transitional justice strategy in which truth commissions are complimentary to other transitional justice processes such as prosecutions, vetting and reparations.
Sandra Beidas, who has been working in the UN system in various countries for decades , was the Acting Representative of the UN High Commissioner for Human Rights for Nepal in 2006. She was interviewed by Kamal Raj Sigdel of The Kathmandu Post on the government’s efforts to establish a Truth and Reconciliation Commission (TRC), centering particularly on its recently unveiled draft TRC Bill. This is a edited version of the interview.