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TRANSCRIPT
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World's Transitional Justice Ironically Ensures Freedom to the Perpetrators Further Limiting Justice to the Victims
- Professor Bishnu Pathak1
The objective of this writing is to dig out the abstract meanings from a Nepali language paper on
Transitional Justice Practices in the World: Truth, Justice and Prosecution Being Shadowed.
Transition is a gap period between the two-Government systems: old (past) and new (present and
future). This is the situation when neither the old system (government) is completely collapsed
nor a new one is fully established. In general, the satisfaction of victims serving or achieving
justice during the Transition is called Transitional Justice (TJ). TJ is directly linked with the
Truth Commission. It means, Transitional Justice is a core component of the Truth Commission.
In the contemporary world, TJ belong to State to State, State to non-State and non-State to non-
State conflicting mechanisms. At the beginning, the concept of TJ relied on State to State and
State to non-State conflicting judgements only, but it, now expends non-State to non-State
perspectives, too.
A few TJ Bodies, for instance, Greensboro Truth and Reconciliation Commission (USA), Truth
and Reconciliation Commission (Canada) and Citizens’ Truth Commission (Kandy, Sri Lanka)
were formed to investigate the past human wrongdoings (atrocities and crimes) whose human
rights were violated and or abused by the group of non-State Actors. Moreover, Chadian
Commission worked even against illicit narcotics trafficking. Thus, it pursues the formal and
informal investigation of the past crimes through inter-and-intra-national conflicts and intra-and-
inter-group conflicts.
The Transitional Justice Commission purviews a retrospective investigation. Ruti G Teitel said
that transitional justice is a bridge between two ruling systems. Former United Nations
Secretary-General Kofi Annan stated that transitional justice is to ensure accountability, serve
justice and achieve reconciliation against the legacy of past violations and abuses. The UN
appointed the Special Rapporteur Pablo de Greiff for the promotion of truth, justice, reparation
and non-recurrence dimensions. Transitional justice encompasses the accountability of (a grave
loss of) person and family; highlights his or her economic, social, cultural, civil and political
rights that were encroached during the past armed conflict or civil war; and seeks recovery of
justice to the victims. TJ is a four-decade old concept, initiated from Uganda establishing
Commission of Inquiry of Disappearances in June 1974, but a complex politico-legal
phenomenon. It collects structural facts, evidences and testimonies breaking down the silence of
memory of the victims, witnesses and other concerned persons. Transitional justice refers to six-
pillar set of judicial and non-judicial mechanisms. Among the pillars, justice and prosecuting
1 Dr. Pathak has been working as a Senior Commissioner at the Commission of Investigation on Enforced
Disappeared Persons (CIEDP), Nepal since February 11, 2015. Professor Pathak can be reached at
[email protected]. This paper is published by TRANSCEND Media Service on July 30, 2018. Please link in
https://www.transcend.org/tms/2018/07/worlds-transitional-justice-ironically-ensures-freedom-to-the-perpetrators-
further-limiting-justice-to-the-victims/comment-page-1/#comment-88206.
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belongs to judicial measures; reparation and non-recurrence comply with non-judicial apparatus
and truth and vetting fall under semi-judicial bodies.
The objective of TJ is to explore how different countries or a country officially or unofficially try
or tries to find out truth through Commission on the course of responding wrongdoings that
happened during the past intra-and-inter-national conflicts, colonial, slavery, anarchical and
cultural genocide periods. Each Commission gathers documents and evidences or testimonies
from the complainants or victims and witnesses to examine and evaluate a complete cause,
nature, degree and patterns of truth of punitive human rights violations or abuses, crimes against
humanity, war crimes and genocide. It recommends the concerned authority to ensure
accountability by prosecuting perpetrators, repairing or healing the damages in the communities
or societies, serving justice to the victims or survivors, paying respect to them, satisfying them
(through relief and reparation), accepting reconciliation among concerned actors, and reforming
institutions eliminating the chances to recur such conflict in future.
More than 70 transitional justice bodies have already been established across the continents. The
countries which formed one form or other form of transitional justice bodies like Truth
Commissions include: Albania, Algeria, Argentina, Armenia, Azerbaijan, Balkans, Bangladesh,
Bolivia, Bosnia-Herzegovina, Brazil, Burundi, Cambodia, Canada, Chad, Chile, Columbia, DR
Congo, Croatia, Cyprus, Czech Republic, East Timor, Ecuador, El Salvador, Eretria, Ethiopia,
Fiji, Former Yugoslavia, Georgia, Germany, Ghana, Greece, Guatemala, Haiti, Honduras,
Indonesia, Iran, Iraq, Ivory Coast, Jordon, Kenya, Kosovo, Kuwait, Lebanon, Liberia, Libya,
Macedonia, Mali, Mauritius, Mexico, Morocco, Namibia, Nepal, Nicaragua, Nigeria, Panama,
Paraguay, Peru, Philippines, Poland, Republic of Central Africa, Russia, Rwanda, Sierra Leone,
Solomon Islands, Somalia, South Africa, South Korea, Sri Lanka, Sudan-Dafur, Togo, Tunisia,
Uganda, United States, Uruguay, Vietnam and Zimbabwe.
Sri Lanka has the youngest transitional justice mechanism. It established a seven member1 body,
including Major General of the Army to the Office of the Missing Persons (OMP), on March 1,
2018 with a single objective to ensure reparation to more than 20,000 disappeared victims. The
District Inter Religious Committee of Kandy appointed an unofficial Citizens’ Truth
Commission to find out the root causes of the communal (Singhalese vs. Muslims) conflict that
was spread in early March 2018 for a week where Sri Lanka imposed a nationwide state of
emergency. Kosovo has the second youngest transitional justice body that was formed with a 9-
member2 led preparatory team to set up Truth and Reconciliation Commission in December
2017. The team is now working towards preparing TRC's legal and technical infrastructures
within a given mandate for one year. National Commission on the Search for Disappeared
Persons in El Salvador has been the third youngest Commission which has been established on
August 21, 2017 by means of Presidential Decree.
An NGOs Coalition campaigning for the establishment of the RECOM (Regional Fact-Finding
Commission) in the Western Balkan States was expected to sign first Regional Truth-Seeking
Commission through the Western Balkans Summit that was held in London on July 9-10, 2018.
Kosovo, Macedonia, Montenegro and Serbia were ready to establish RECOM, but some of the
highest levels of victimization occurring in Croatia and Bosnia and Herzegovina during the
conflict barred any such past promises from being materialized. In July 2018, Spain planned to
establish a Truth Commission under the Historical Memory Law 2007 to investigate the cases of
crime against humanity committed by the former dictator Francisco Franco3 (1939-1975), who
died more than four decades in 1975. Human remains of 120,000 people were exhumed from
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2,591 unmarked graves. It is to be noted that Spain (estimated 140,000) is just behind Cambodia
with the highest number of disappeared persons in the world.
A dozen countries have established more than one Truth Commission. These countries are:
Colombia, Burundi, Uganda, Uruguay, Ecuador, South Korea, Mali, Philippines, Central African
Republic, El Salvador, Sri Lanka and Nepal. Notwithstanding that Nepal has established two
Commissions: Commission of Investigation on Enforced Disappeared Persons (CIEDP) and
Truth and Reconciliation Commission (TRC) at a time by a single Act 2014. Formation of
CIEDP and TRC in Nepal has been the first case in the world.
More than a dozen transitional justice bodies in countries such as Argentina, Uganda, Uruguay
(1st), Philippines (1st), Chile, El Salvador, Haiti, Ecuador (1st), Morocco, USA, Darfur-Sudan,
Burundi and Nepal (2nd, 1990) functioned for the shortest time, less than a year (12-month
period). Moderately, one-and-half dozen Truth Commissions served for one to three years. Such
commissions were formed in the following countries: Bolivia, Chad, Germany (1st and 2nd),
Guatemala, Nigeria, Uruguay (2nd), South Korea (1st), Panama, Former Yugoslavia, Peru,
Sierra Leone, Ghana, Algeria, Ecuador (2nd), Mauritius, Solomon Island, Eretria and
Philippines (2nd). A number of countries, namely Ivory Coast, Uganda (2nd), Sri Lanka (1st),
South Africa, East-Timor, Rwanda, DR Congo, Paraguay, Liberia, Canada, Togo, Brazil, Tunisia
and Kenya had worked for longer periods, more than three years. The permanent transitional
justice Commissions were formed in Ethiopia (1993), Colombia (2000) and Rwanda (2002).
Likewise, there were no time-limitations for the Commissions established in Honduras (1982)
and Fiji (2005).
The United Nations was involved in seven countries, viz. El Salvador, Guatemala, East-Timor,
Sierra Leone, Liberia, Solomon Islands and Eritrea on the issue of TJ. The tenure of many TJ
bodies namely in South Africa, Guatemala, Kenya, South Korea, and Nepal among others has
been extended. The last UN founded Commission of Inquiry on Human Rights in Eritrea
presented its report to the Human Rights Council on June 21, 2016. And, the three-member team
of Commissioners were neither the staff of the United Nations nor were they remunerated. They
served in their independent personal expert capacity4. The UN established its Commissions in
Sierra Leon, El Salvador and East-Timor, but failed to restore normalcy in Kosovo.
The Liberian truth commission threatened the government to submit its findings to the
International Criminal Court if the government failed to establish an international tribunal. Most
Truth Commissions are Court-like judicial and non-judicial processes bodies, but without
binding authority, except in Sierra Leone.
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No public hearings were conducted in Argentina and former Yugoslavia, but only 8 public
hearings in Ghana, 8 national hearings in East-Timor and 15 in Brazil were conducted. Moroccan
Commission held public hearings after signing the bond paper for not to disclose the names of
the perpetrators whereas Guatemala did not include the perpetrators’ names in the report.
The Shining Path’s activists have been serving sentences based on civil-anti-terrorist court.
Former President Alberto Fujimori who had been convicted for 25 years was pardoned in
November 2017. Fujimori has been four year younger than Abimael Guzmán 'Gonzalo', but
Gonzalo has been in life imprisonment since 1992. Thousands of Fujimori's victims protested
against the Government's decision.
Haiti prosecuted 50 perpetrators whereas Guatemala prosecuted its former military dictator. The
Philippines’ Commission had limited investigation jurisdiction over the army, but treated the
insurgents differently. In El Salvador, the State security forces were responsible for 85 percent
and the non-state actors for 15 percent similar to CIEDP, Nepal. The TRCs of Argentina, East-
Timor, Guatemala, Morocco, Peru and South Africa partially succeeded. A large number of
victims have failed to register the complaints fearing possible insecure consequences in the
future.
Observing, reviewing and analyzing more than five-dozen Truth Commissions formed around
the world, the author himself reached the conclusion that immediately after the conflict is over,
the alleged perpetrators order their chain of command to destroy remaining structural facts,
documents, evidences and testimonies that might prove them guilty. The same perpetrators take
special attention to draft the perpetrator-centric Act or Decree further weakening the voices
(pains, grievances and sufferings) of the victims, survivors and other concerned actors. The
alleged perpetrators prioritize cronyism to select or appoint Commissioners in the course of
forming Truth Commissions. And such Commissioners defend their respective vested interest
institution(s) and individuals rather than pursuing free, fair and independent investigations. In
such cases, the people in general, severely criticize to the Commissioners as the past crimes of
the alleged perpetrators go unpunished; controversially they are granted amnesty. Even South
Africa pursued 'let's forget and forgive' in the name of Christianity. As a corollary, the victims,
survivors and people still blame Nelson Mandela for selling out black people’s struggle.
If the Commission initiates 'rightly investigate the truth' based on the storytelling, ante-mortem
data, public inquiry, public hearings, interrogation, exhumation, DNAs' test, collection of
structural facts, documents, evidences and testimonies from the victims, survivors, witnesses and
complainants, it either faces acute financial-resource crises or human capitals. Almost all TRCs
together with Liberia, Paraguay, Philippines, South Africa and Uganda worked under low
budget, lacked officials and experts, faced inadequate laws and regulations, infrastructures, and
constraints of moral support. A few Commissions such as in Bolivia, Ecuador, Haiti, former
Yugoslavia and Zimbabwe were disbanded (without their reports) before their tenures expired.
In some cases, the forefront leaders of the victims and their organizations who were or are
manipulated by the alleged perpetrators try hard to defame the Commissioners calling them
incompetent and unqualified. Such leaders often blame that the 'Commission adopts perpetrator-
centric investigation processes'. The victims who reside in the urban centers of the country often
look upon self-opportunities including more relief and reparation supports, whereas countryside
poor victims seek justice by means of finding out the 'truth' (either alive or dead) and
whereabouts of their loved ones. Transitional justice has been a long neglected history owing to
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anarchical-powerful roles of the perpetrators and weak, poor, docile and silent nature of the
victims. Moreover, victims and witnesses always feel insecure from the perpetrators if they tell
the truth to the Commissions. On the other hand, they undergo uncertainty of how such
politically motivated Commissions maintain secrecy of their statements and testimonies.
Thus, perpetrators influence all the mechanisms of concerned Government for ‘forgetting the
victims to forgive the perpetrators’. Ironically, the perpetrators have received freedom, but the
victims and survivors have been further victimized limiting their access to justice. As a counter
effect, such trends generally propel the country to increase the culture of impunity.
Most of the Truth Commissions formed around the world did not follow proper Census Method
of investigation. And no such Commissions reached all poor victims in the countryside.
However, the Commission of Investigation on Enforced Disappeared Persons (CIEDP), Nepal
tries hard to deliver World's Best Model on transitional justice mechanism. Here are some
reasons how the CIEDP is ensuring one of the best models. First, the CIEDP has collected
complaints on enforced disappearances from 76 places including 75 district-based Local Peace
Committees and one from its own Head Office. The complaint registration was opened in three
phases (i) April 14 to August 10, 2016, (ii) March 24 to April 28, 2017, and (iii) February 13 to
March 14, 2018. Second, it has already completed preliminary action and preliminary
investigation of all creating individual file of each complaint registration.
Third, the CIEDP is, now leading the detailed investigation following networking tracking
method or snow-ball techniques. The detailed investigation heads to several steps: (i) collecting
additional information (wh-questions: what, where, when, why, how and by whom happened) on
disappeared 'loved-one' as Storytelling from the complainant or key informant, filling the form of
Ante-Mortem Data Collection and Reparation, and endowing the Statements from the concerned
witness following Participant Observation. For these specific tasks, the Research Team from the
CIEDP Headquarters is deployed to district headquarters and then complainant houses in the
remote villages. The CIEDP is ensuring Census Method for all complaints registration. Fourth, it
provides an ample opportunity of interrogation of all alleged perpetrators: 'right to know' and
'right to defend' purposes. Fifth, closed-opened and issue-wise public hearings will be held in
near future. Sixth, emblematic exhumation including excavation will also be conducted. DNAs
matching will also be carried out conducting DNA test of the degenerated remains and collecting
reference samples from the concerned family members. Lastly, the final report with full
recommendations for reparation and non-recurrence will be submitted to the Prime Minister of
Nepal. And the complete name lists of the perpetrators will be handed down to the Attorney
General to file the case at the Special Court to ensure accountability.
There are certain victim-centric norms to be an autonomous Commission. The principles of such
Commission tend to be humanity, neutrality, impartiality and independence. Such Commission
needs to have more power to summon the alleged perpetrators, as well as high-ranking
Government officials and leaders, to appear before the Commission for interrogation, to get
inspection permission at the police custody or prisons, military barracks, to have lawful authority
to confiscate structural facts and testimonies from the inspected houses or areas, to conduct
exhumation without prior notice, to obtain official cooperation during the course to ensure
security of entire proceedings including offices and officials, victims, survivors and witnesses
(For the complete papers, please follow the link
http://www.scholink.org/ojs/index.php/wjssr/article/view/990/1142 or
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http://www.scholink.org/ojs/index.php/wjssr/article/view/604 for English and language in
https://nagariknews.com/news/46328/ for Nepali).
**
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