Professor Méndez participated this month in the International Conference Truth, Trials and Memory. An Accounting of Transitional Justice in El Salvador and Guatemala at the University of Minnesota. After his panel on “Truth-seeking Lessons from the Guatemala Experience”, he shared more insights with Michael Soto (UMN Graduate Student, Sociology). Below, is the second part of their exchange on truth-telling.
Some authors, such as Martha Minow, have suggested that truth commissions are “second best” accountability tools. Could you please share your thoughts in response?
She was writing about South Africa, and I think her writing was very significant, and a great contribution to the transitional justice literature. But South Africa is a very special place, and special circumstance. I think it is true that for South Africa, if amnesty was part of the game, that a truth telling exercise was second best, but it was good to have. And I still think that the truth commission in South Africa made some great contributions.
But the good thing is that the South African model has not been replicated. Even in African countries, nobody goes for amnesty in exchange for truth anymore. Because it hasn’t really worked. Even in South Africa it didn’t work. The truth telling is great, but the giveaway of any possibility of justice, or almost any, because it also not true that prosecutions are completely barred, they are not. But they are not happening.
Nowadays we would say that truth telling is an important component and it is not a substitute for justice. I think that lesson has been learned. Again, if Martha Minow is referring to the very specific context of South Africa, I think she is probably right. In general or theoretical terms, that is not how we conceive of truth telling right now.
We conceive of truth telling as one leg of a process that also has to include justice. Ideally, it should contribute to justice, just as we have discussed in the past couple of days at this conference, the truth commission reports, in both cases, should serve to judicialize some of these cases and conduct the prosecutions. They are separate processes, but they should nurture each other.
During your panel presentation you said, “Truth seeking must be ongoing, and must go beyond the report.” Can you mention a couple cases that are exemplary in this regard?
A truth commission and its report are necessarily limited in time. Sometimes because, as in El Salvador, they have a very short time, only six months, but even if they have two years it is still a picture in time, a snapshot. And because they have to present a picture of the structural weaknesses that made the human rights violations possible, they do a lot of individual case truth seeking and truth telling, but that can by no means cover everything.
The universe of cases is so great, it is very difficult to cover everything. Even though they try, for example, in Chile they made an effort. They narrowed the definition to killings and disappearances and they didn’t deal with torture at first, unless it resulted in death, so the universe of cases was relatively smaller, and they were able to do an individualized truth. Which was then complimented with a second truth commission which specifically dealt with torture.
But those are exceptional cases. When you have literally thousands of disappearances, or massacres in the countryside where you can’t even begin to count the victims, of course a truth commission is not going to be complete and give the final narrative of what happened in every single case.
So, if that is the case, the truth commission report should be the skeleton, the basis that permits, truth telling to continue afterwards. In the case of Argentina for example, the democratic government created a Secretariat for Human Rights which was the repository of all the archives of the truth commission, and they continued to do the same work. They continued to receive complaints after the truth commission had submitted its reports. They continued to investigate them, and they continued to find documentation in government archives. So the truth telling at least on the individual scale continued.
And then when the judicial cases were opened, there was a lot more truth telling as well. There are a lot of things that happened during the Dirty War in Argentina that has been learned after the truth commission. But the truth commission was the vehicle, and especially their files, by which a prosecution could later proceed. And so, now we know a lot more than what the truth commission told us. That is what I was referring to.
In my mind, at least in Guatemala, until recently with these trials it had not been done. There had been a really good truth commission but after its report, not much more effort had been put into continuing to find missing persons. Except of course from civil society, but I mean officially.
You also spoke about the need for individualized truth to families, and a social truth to the nation. Could you please expand upon this too?
Yeah, it is what I was saying about Chile. This insight that what needs to happen is an individualized truth comes from one of the early authors in this area, José Zalaquett, from Chile. He was later a member of the Truth and Reconciliation Commission. And he prevailed on the truth commission to try to do individualized case work and to tell each family what could be established about the fate and whereabouts of their victim. As I said, that is possible in Chile but it is probably not possible in any of the other situations that we have. But it is very good to make an effort. Because if we say that the right to truth is a right of the families than it has to be satisfied by a process, which, as much as possible, gives them everything that they need to know about what happened.
But I also think that truth commissions, and this is also true of the one in Chile, have a different role to play in establishing how it came about that these violations happened. I sometimes call that “structural deficiencies”, or “institutional weaknesses”. And I don’t only mean that Pinochet had the plan to do all these things and conveyed this through the chain of command of the armed forces of Chile. I also mean weaknesses in the setup of the courts, where they were rendered completely useless to protect citizens. After all that is the role of judges, to protect us from abuses of power. Knowing why they failed in doing that is important.
And that can be identified in each truth commission report, in detailed ways, not just, “Well they didn’t do their job.” But why didn’t they do their job? Were they under pressure, were they substituting for partisans of the regime, were some legalities incorporated that didn’t allow them to do their job correctly? And those things then become the basis for recommendations about institutional reform that serve concretely as measures of non-repetition.
Juan E. Méndez, a native of Argentina, is a Professor of Human Rights Law in Residence at the American University – Washington College of Law, where he is Faculty Director of the Anti-Torture Initiative. In February 2017, he was named a member of the Selection Committee to appoint magistrates of the Special Jurisdiction for Peace and members of the Truth Commission set up as part of the Colombian Peace Accords. He has previously held positions as UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, an advisor on crime prevention to the Prosecutor, International Criminal Court, Co-Chair of the Human Rights Institute of the International Bar Association, President of the International Center for Transitional Justice, and the Special Advisor to UN Secretary General Kofi Annan on the Prevention of Genocide.
Michael Soto is a PhD student in Sociology and fellow at the Interdisciplinary Center for the Study of Globalization Change (ICGC). His dissertation research is on the transition to peace in Colombia, with a focus on reintegration and reconciliation processes.