Truth‐seeking after violent conflict: experiences from South Africa and Bosnia and Herzegovina

Abstract

Truth‐seeking efforts have gained an increasingly central position in the process of dealing with a legacy of mass abuse following political transition to democracy or the end of violent conflict. The place that ‘truth’ assumes within the transitional justice framework has often been subject to controversy. What seems to be commonly agreed upon is that creating the conditions for finding and revealing the truth is essential in any process of transition. We posit that restorative justice paradigm can be an attractive approach to inform future truth‐seeking mechanisms. We propose a framework for guiding such truth‐seeking mechanisms based on restorative justice principles that reverberate in current debates as well as in the official discourse laid down in the UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. The significance and application of these principles will be illustrated in the transitional justice processes of South Africa and Bosnia and Herzegovina.

Keywords:

• truth‐seeking
• transitional justice
• restorative justice
• South Africa
• Bosnia and Herzegovina

Notes

1. The South African Truth and Reconciliation Commission, established as a result of a negotiated transition between the former regime and the ANC, opted for granting amnesty to the perpetrators who came before its Amnesty Committee and provided full disclosure of the politically motivated crimes in which they had participated or which they had knowledge of. This meant, on the one hand, that these perpetrators could not be brought before the courts for these crimes, but on the other hand, that the commission was able to gather an impressive amount of data and information about the atrocities that most other truth commissions are not able to access, given the lack of motivation among perpetrators.

2. Parlevliet (1998, p. 142) describes this trend quite bluntly: ‘[I]t has been asserted that the pursuit of justice may be negotiable depending on the political circumstances, but the truth is not. Truth has assumed the position of an absolute value, one that cannot be renounced under any circumstances.’

3. For example, in the interpretation of the Inter‐American Court of Human Rights in the Velázquez Rodríguez case (Inter‐American Court of Human Rights, 1988, paragraph 167), this right stems from the obligation of states to ‘respect and to ensure the free and full exercise of the rights recognised by the [Inter‐American] Convention [on Human Rights]’. According to the Inter‐American Court, the state is thus ‘obligated to investigate every situation involving a violation of the rights protected by the Convention’. See also the decision of the Human Rights Chamber of Bosnia and Herzegovina (2003) in the case Selimovic Ferida v. Republika Srpska.

4. The cathartic effect of telling one’s own stories in public has been highlighted by – among others – Priscilla Hayner (2001). It has, however, been demonstrated that one should be cautious with such assertions, and that in any case the setting of such truth‐telling needs to be carefully prepared.

5. In this paper we have opted to speak about different ‘types’ of truth, following the line adopted by the South African TRC, which referred to ‘notions’ of truth. There is however a parallel between this terminology and that chosen by Parlevliet, who refers to different ‘levels’ of truth. Although in our view these terms can be used interchangeably, we will use the term ‘types’ of truth throughout this paper as we mostly follow the distinction made by the South African TRC.

6. Again, Parlevliet (1998, p. 148) argues: ‘[A] conceptualisation of truth should be pursued that takes the fundamental importance of truth into account, yet one which does not claim to be absolute…. [T]ruth is something which has to be consciously striven for and worked at, rather than being something to be found.’

7. Like many other authors, Kritz (2002, p. 41) has advocated for a coexistence of trials and truth commissions. The author explains:

 It is essential to recognize that mass atrocities – especially those perpetrated in the context of ethnic or religious conflict – generally expose or produce complex problems and rifts in society which are resistant to one‐step solutions; they typically require sophisticated, multi‐faceted and well‐integrated responses.

See also Méndez (2001).