Truth and Reconciliation Commissions:

The Promise and Reality of Restorative Justice

The telephone rings. It's Kofi Annan. He wants to know how things are coming along. He's expecting your report in two weeks, on the 9th of December to be exact. You reassure him that you have all the work of the members of the committee and that you will be pulling their contributions into a single report by the 9th as promised. "Please," you say, "not to worry." "I am not worried," says the Secretary-General of the United Nations in that calm, settling way of his. "I know I chose the right person for this job, when I picked you n the first place."

Several months ago you were appointed to Chair a Special Committee established by the United Nations to look into the promise and reality of Truth and Reconciliation Commissions and, in particular, to look into the lessons to be gained from the South African experience with truth and reconciliation, since "the South African commission has become the model for all future commissions," and to address a number of "hard" questions put to you by the Secretary-General as part of his "charge" to the Committee.

These questions included, but were not intended to exhaust, the questions that the Committee might address. You were encouraged, as Chair of the Committee, to select what you believed were the most pressing questions to address, what you believed were the "key" questions. Among the questions you were given to consider were the following: "'Never again!' has been a central rallying cry of truth commissions," as Robert Rotberg points out in his overview of the contributions by the other members of the committee and that you now have in your hands, Rotberg having delivered his "overview" to you a short while ago. "Do truth commissions fare better in this regard than other forms that have traditionally been used in confronting mass violence from the past?" "Do truth commissions succeed in this regard where international criminal courts have failed? "Whatever else might be said about truth commissions, their point and purpose surely is preventative and restorative and in this light, one might suspect that they are well-placed to make good on this promise. Are they?"

Other questions that you yourself had asked members of the committee to address have also been neatly summarized by Rotberg in his "overview." You find yourself mulling them over in your mind. "Does the amnesty process satisfy various criteria for justice?" "Does it distort the criminal justice system that societies usually use to punish transgressors and prevent evil-doing?" "Assuming reconciliation is both desirable and possible, does truth commission method with its transparency and attendant publicity, retard or advance the process?"

"Would standard forms of prosecution be preferred?"

And as Amy Gutmann and Dennis Thompson ask in their submission: "Do truth commissions trade criminal justice for a general social benefit?" "Do truth commissions ultimately satisfy only political needs, not moral ones?" And as Kent Greenawalt asks in his submission: "Is the granting of amnesty an injustice?"

To fulfill the mission you were given by the Secretary-General of the United Nations you have asked a number of experts in the field to prepare preliminary reports addressing just these questions. You have asked for these reports by November 25th, so you will have two weeks to look them over, digest what they have to say, and offer your own conclusion and answers to these questions in the final report which you shall draft and hand to the Secretary-General on December 9th, 2002.

"I need your contributions and conclusions," you tell your fellow members of the Committee, "by Monday, the 25th of November, so I can have at least two weeks to come up with a final analysis and report. The Secretary-General is counting on me," you add for emphasis, but then feel badly that you had thought it necessary to rely on the Secretary-General's good name to get members to submit their contributions to you on time.

Assume now that the contributions of your fellow committee members are finished and "on your desk."* It is time to pull together the final report. You have a wonderful team that has been assembled and that has now completed the preliminary work of drawing their own conclusions and placed those conclusions before you, for you to sift through and digest and draw some sort of final conclusion. Rajeev Bhargava, Alex Boraine,David Crocker (1) , David Crocker (2) , Susan Dwyer,Kent Greenawalt, Amy Gutmann, Elisabeth Kiss,Sanford Levinson.Charles Maier,Martha Minow,Dumisa Ntsebexa,Robert Rotberg,Ronald Slye,Dennis Thompson,Andre du Toit,.Charles Villa-Yicencioand Wilhelm Vewoerdnow have all turned in their work. It is hard to imagine a more far-reaching and thoughtful examination of truth commission experience by a more qualified group of experts.

Your job is two-fold: to describe the truth commission process and defend it or not against some of the more common criticisms that have been raised against it, identified and discussed by members of the Committee and, then, having detailed the process, to make the case for truth commission as a "prescription for the future," as Rotberg says in his contribution, "whether in the Balkans, in Cyprus, or elsewhere in Africa," to identify and respond to the most compelling objections to relying on the truth commission process as a prescription for the future, and to respond to those objections.


* Indeed their contributions can be found in TRUTH V. JUSTICE: The Morality of Truth Commissions, edited by Robert Rotberg, whose "overview" appears on pp. 3-21 and Dennis Thompson, Princeton University Press, 2000 on the reading list for the Human Rights Class and now on reserve aswell in the Main Library.

And the contribution, Reconciliation for Realists," by Susan Dwyer and the added contribution, "Retribution and Reconciliation" by David Crocker have been conveniently put online.












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November 26, 2002

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