by Mark Freeman. Cambridge and New York; Cambridge University Press, 2006. 422pp. Hardback. $75.00/£45.00. ISBN: 0521850673. Paper. $29.99/£17.99. ISBN: 052161564X.
Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University. E-mail: d.w.jackson [at] tcu.edu.
Marc Freeman’s book will chiefly appeal to practitioners or to those who teach practitioners. The first ninety pages or so of his introductory pages present a solid review of the variable nature of truth commissions and of the substantial literature that has been published about them. Early on Freeman defines his topic:
A truth commission is an ad hoc, autonomous, and victim-centered commission of inquiry set up in and authorized by a state for the primary purposes of (1) investigating and reporting on the principal causes and consequences of broad and relatively recent patterns of severe violence or repression that occurred in the state during determinate periods of abusive rule or conflict, and (2) making recommendations for their redress and future prosecutions. (p.18)
So far most truth commissions have not heard from the perpetrators, the notable exception being the Truth and Reconciliation Commission in South Africa that employed the inducement of amnesty in exchange for perpetrators’ “truthful” acknowledgment and disclosure of crimes. While the Truth and Reconciliation Commission (TRC) received much praise, it is important to note that among the principal criticisms of the South African TRC is that most of the statements before the commission were not sworn to nor tested by cross-examination. Indeed, one critic was disturbed by the suggestion by the TRC that there are different sorts of truth. In addition to discerning “objective factual truth,” the TRC suggested there is also “personal or narrative truth,” “social or dialogue truth,” and “healing or restorative truth” (Jeffrey 1999, at 10). While such distinctions may be justifiable outside a criminal prosecution, they do make the standards for procedural fairness considered by Freeman especially important. However, when he discusses the standards for admissible evidence before public hearings conducted by truth commissions, he concludes that they “should adopt a broadly permissive approach to the admissibility of evidence at public hearings” and that “[r]elevance should be the primary criterion for admissibility (p.247). It is notable that later in his review when he considers the standards for publication of truth commission findings, he does add that the “probative value” and the “reliability” of the source of evidence ought to be taken into account (p.277). Still, he argues that truth commissions’ “attempt to heal a violence-ridden society, and to facilitate social consensus involved concerns that are quite distinct from the localized, more insular, and more precedent-based reasoning of courts,” and that “a truth commission’s heightened concern with victims’ experiences contradicts the usual imperative of courts to neutrally probe [*222] and question the testimony of witnesses” (p.72).
The key point is that while Freeman’s Chapter 2 reviews the background and derivation of the procedural standards that might be applied to Truth Commissions, the balance of the book considers suggested specific standards for statements, subpoenas, searches and seizures, public hearings, and publication of commission findings. The chapters addressing the topics are quite well done, but they may contain too much detail to hold the interests of most readers. Indeed, the summary of standards presented in the final chapter would suffice for most of us.
Transitional justice has become an important theme over the past several decades. Several versions of transitional justice involved transnational or international tribunals. Especially since the 1998 UN Rome Conference that led to the creation of the International Criminal Court, books that consider the different means for dealing with those who commit genocide, serious war crimes or crimes against humanity have been legion. The Hague prosecutions of the International Criminal Tribunal for the Former Yugoslavia (ICTY) have illustrated the heavy commitment of both time and resources that is required in the trial of a major figure such as Slobodan Milosevic, as well as the difficulty of bringing other major figures before the jurisdiction of the court (Radovan Karadzic and Ratko Mladic). Conversely, prosecutions under authority of the International Criminal Tribunal for Rwanda (ICTR) have illustrated its relative incapacity for dealing effectively with a large number of perpetrators who were complicit in the crime of genocide. Prosecutions in national courts for crimes that may be subject to universal jurisdiction, either under jus cogens or under obligations accepted under international covenants, are an alternative, although so far these have been both controversial and infrequent. Truth Commissions are commonly considered, either as an alternative or supplement to criminal prosecutions. Even if they do not overcome impunity, truth commissions win hands down over private or public vengeance—with no procedural safeguards. And we should remember, as does Freeman, that amnesia often is a politically-appealing alternative.
Probably the best overall book on truth commissions is Priscilla Hayner’s 2001 book, UNSPEAKABLE TRUTHS, while one of the best books on war crimes tribunals is Gary Bass’ STAY THE HAND OF VENGEANCE. Hayner’s view of truth commissions is multi-faceted. They ought to serve to clarify and acknowledge the truth, to contribute to justice and accountability, and to outline institutional responsibility and recommend reforms (Hayner 2001: Chapter 2). Later in her book she acknowledges the criticism of truth commissions that “they are likely to weaken the prospects for proper justice in the courts,” or even that they may be “intentionally employed as a way to avoid holding perpetrators responsible for their crimes” (Hayner 2001, at 86). While there may have been tradeoffs between prosecutions and truth telling in Guatemala, El Salvador and South Africa (the only explicit tradeoff), the [*223] weakness of criminal justice systems, especially in Guatemala and El Salvador, belies the prospects of effective prosecutions. Indeed, those countries serve well to illustrate the difficulties of achieving horizontal accountability for human rights abuses through any process in such countries (Mainwaring and Welna 2003: especially Part I).
Another excellent book is the1999 anthology edited by Roy Brooks, WHEN SORRY ISN’T ENOUGH, which contains selections beginning with the Nazi Holocaust and concluding with South Africa. It is interesting that it also includes sections on the persecution of Japanese Americans during World War II and on “Jim Crow” racial segregation in the US. Several of its selections consider the prospect of monetary reparations for the victims of abuses or their heirs, which is still a lively and controversial topic.
Freeman’s book is highly recommended for those who want to engage in the hard work of studying procedural fairness in extraordinary forums in some detail. As he notes, his inquiry “has compelled the conclusion that there is tension among the various guiding principles of fairness and between those principals and other procedural objectives, and between both of these and the practical realities of truth commission work” (p.154).
Bass, Gary Jonathan. 2000. STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIME TRIBUNALS. Princeton and Oxford: Princeton University Press.
Brooks, Roy L. (ed.). 1999. WHEN SORRY ISN’T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS FOR HUMAN INJUSTICE. New York and London: New York University Press, 1999.
Hayner, Priscilla B. 2001. UNSPEAKABLE TRUTHS: CONFRONTING STATE TERROR AND ATROCITY. New York and London, Routledge, 2001.
Jeffrey, Anthea, 1999. THE TRUTH ABOUT TRUTH COMMISSIONS. Johannesburg, South African Institute of Race Relations, 1999.
Mainwaring, Scott and Christopher Welna (eds.). 2003. DEMOCRATIC ACCOUNTABILITY IN LATIN AMERICA. New York: Oxford University Press, 2003.
© Copyright 2007 by the author, Donald W. Jackson.