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The International Journal of Transitional Justice Vol 8 2014 6ndash30doi101093ijtjijt025
Advance Access publication 13 December 2013
Truth Commission Impact AnAssessment of How CommissionsInfluence Politics and Society
Onur Bakiner
Abstract1
This article explains whether or not and the specific ways in which truth commissions
established during a political transition in fact transform lessons from history into pol-
itical and judicial impact defined as influence on government policy and judicial pro-
cesses It isolates impact from the causal effects of similar postconflict institution
building and other transitional justice and conflict resolution measures Drawing upon
the existing literature it examines several causal mechanisms through which commis-
sions are expected to influence politics and society These include direct political impact
through the implementation of recommendations and indirect political impact through
civil society mobilization Truth commissions may also have positive judicial impact by
contributing to human rights accountability and negative judicial impact by promoting
impunity The article concludes that truth commissions do promote political and judicial
change albeit modestly especially when human rights and victimsrsquo groups pressure
governments for policy implementation
Keywords truth commissions impact assessment policy change judicial account-
ability vetting civil society mobilization
IntroductionIn what ways do truth commissions influence human rights policy and judicial
accountability The transitional justice literature suggests various mechanisms
through which truth commissions are expected to achieve a set of moral and
political objectives in peacebuilding and democratization contexts However
only a handful of studies have explored commission and postcommission pro-
cesses to assess hypotheses of truth commission impact Taking my cue from this
gap in the literature I explain whether or not and the specific ways in which truth
commissions transform lessons from history into policy and judicial impact
I define truth commission impact as the effect of truth commissions on gov-
ernment policy and judicial processes independent of the simultaneous effects of
Limited Term Assistant Professor School for International Studies Simon Fraser UniversityCanada Email obakinersfuca
1 The author would like to thank the participants of the Fall 2011 Simons Working Papers inSecurity and Development at Simon Fraser University and IJTJrsquos anonymous reviewers for theirhelpful comments on earlier versions of this article
The Author (2013) Published by Oxford University Press All rights reservedFor Permissions please email journalspermissionsoupcom
at Princeton University on A
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postconflict institution building and other transitional justice and conflict reso-
lution measures I employ a two-step research strategy to assess impact first I
identify all plausible causal explanations of how truth commissions are likely to
produce impact and second I assess those explanations in light of empirical
evidence from all transitional truth commission experiences I show that some of
the taken-for-granted explanations of truth commission impact hold in none or
only a few of the cases whereas others hold more often
Drawing upon the existing literature I identify four major explanations for
truth commission impact direct political impact indirect political impact
through civil society mobilization vetting and judicial accountability Political
impact refers to a truth commissionrsquos capacity to make key decision makers
acknowledge human rights violations publicly and to influence policy in the
areas of institutional reform and human rights policy through its findings and
recommendations Almost all truth commissions have produced political impact
albeit to different degrees I distinguish between direct and indirect impact to
separate those cases in which the government demonstrates political will imme-
diately to implement truth commission recommendations from other situations
where the government is pressured to adopt policy The distinction is important
because civil society mobilization around a truth commission is an important
contributor to policy reform when political will is weak or nonexistent Vetting
refers to the policy of removing perpetrators from public office
Truth commissionsrsquo contribution to human rights accountability or impunity
is a controversial issue I find that commissions have produced some positive
judicial impact understood as the use of findings for prosecutions This often
comes with a delay however highlighting the significance of an auspicious pol-
itical and judicial context as well as continued civil society activism for human
rights accountability Truth commissions may also promote impunity through
built-in amnesty procedures Despite the widespread tendency to associate truth
commissions with amnesties only two commissions in South Africa and Liberia
have actually granted or recommended immunity from prosecution Although
these amnesties benefited hundreds it should be noted that the beneficiaries
represent a fraction of the total number of perpetrators In other words the
overall failure of human rights accountability cannot be attributed to truth com-
missions alone even in the few cases where commissions promoted amnesty
I acknowledge that most truth commissions have tried to transform social
norms by cultivating nonviolence and respect for human rights (along with
other norms depending on the specific context) among the political elite as
well as the broader population Likewise they have advocated various concep-
tions of reconciliation It is difficult (if not impossible) however to measure the
independent causal effect of truth commissions on political and social norms
across cases in great part because normative change takes place over a very
long period of time and as a result of many factors Case studies and surveys
(such as James Gibsonrsquos surveys on the South African Truth and Reconciliation
Commission) provide compelling evidence for the achievements and
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How Truth Commissions Influence Politics and Society 7
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shortcomings of reconciliation in specific countries but the evidence for cross-
national normative change is suggestive at best Instead this article focuses on
evidence for truth commission impact on comparable and measurable domains
of public life government policy and judicial change
The first section of the article provides an account of the literature on truth
commissions highlighting some key challenges facing studies of impact such as
definitional inconsistencies biases arising from model specification the difficulty
of establishing causality and insufficient attention to causal mechanism The
second section describes my research strategy to address these challenges and
offers details on my data sources and case selection The third section provides
a theoretical account of causal explanations of truth commission impact and
assesses those theories in light of empirical evidence The article concludes with
some observations on the theory and practice of truth commissions
The Literature on Truth CommissionsTruth commissions are expected to contribute to human rights conduct and
democratic strengthening Ideally truth commissions acknowledge the victim-
hood of those affected by human rights violations under the outgoing regime by
providing a platform for truth telling2 and by setting the stage for symbolic and
material reparations3 They rewrite the countryrsquos history of political violence and
human rights violations focusing on the patterns causes and consequences in
order to forge a shared historical memory and draw lessons from history4 They
make recommendations for institutional reform to create a legal political and
cultural framework conducive to peace and democratic strengthening5 Some
facilitate the removal from office of public officials responsible for earlier cycles
of violence and violations6
Truth commissions may also serve national reconciliation a lsquohealthy social
catharsisrsquo7 as former enemies reach common understandings the incentives
2 Martha Minow Between Vengeance and Forgiveness Facing History after Genocide and MassViolence (Boston Beacon 1998)
3 Pablo de Greiff ed The Handbook of Reparations (New York Oxford University Press 2006)Andre du Toit lsquoThe Moral Foundations of the South African TRC Truth as Acknowledgment andJustice as Recognitionrsquo in Truth v Justice The Morality of Truth Commissions ed Robert IRotberg and Dennis Thompson (Princeton NJ Princeton University Press 2000)
4 Fiona Ross lsquoOn Having Voice and Being Heard Some After-Effects of Testifying before the SouthAfrican Truth and Reconciliation Commissionrsquo Anthropological Theory 3(3) (2003) 325ndash341Molly Andrews lsquoGrand National Narratives and the Project of Truth Commissions AComparative Analysisrsquo Media Culture and Society 25(1) (2003) 45ndash65
5 Lisa J Laplante lsquoOn the Indivisibility of Rights Truth Commissions Reparations and the Right toDevelopmentrsquo Yale Human Rights and Development Law Journal 10 (2007) 141ndash177
6 Lisa Magarrell lsquoReparations for Massive or Widespread Human Rights Violations Sorting outClaims for Reparations and the Struggle for Social Justicersquo Windsor Yearbook of Access to Justice 22(2003) 85ndash98
7 Jose Zalaquett lsquoBalancing Ethical Imperatives and Political Constraints The Dilemma of NewDemocracies Confronting Past Human Rights Violationsrsquo Hastings Law Journal 43(6) (1992)1425ndash1438
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8 O Bakiner
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for revenge diminish and society is (re)united through tolerance and forgiveness
For some truth commissions genuine reconciliation is understood to be based on
the full disclosure of past atrocities and the provision of criminal justice as truth
justice and reparations complement one another8 Others point to the looming
threat of renewed violence or military coups during fragile transitions and con-
ceptualize the relationship between criminal justice and the other objectives of
transitional justice in particular democratic stability as a trade-off Accordingly
truth commissionsrsquo success rests upon their ability to sidestep retributive justice
and promote restorative justice and social reconciliation ndash what one commenta-
tor names lsquocompromise justicersquo9
This abundance of expectations has triggered scholars to evaluate truth com-
missionsrsquo achievements and shortcomings10 International institutions and non-
governmental organizations (NGOs) have published manuals on assessing truth
commissionsrsquo role in promoting postconflict peace and reconciliation using the
best practices approach11 Recently scholars have turned to rigorous hypothesis
testing by employing statistical survey experimental and ethnographic methods
as well as mixed-method strategies Studies that evaluate truth commission
impact tend to focus on the countryrsquos human rights conduct12 democratic sta-
bility13 social reconciliation14 and rule of law15 Although case studies of one or
8 Amnesty International Truth Justice and Reparation Establishing an Effective Truth Commission(2007)
9 Brian Grodsky lsquoInternational Prosecutions and Domestic Politics The Use of Truth Commissionsas Compromise Justice in Serbia and Croatiarsquo International Studies Review 11(4) (2009) 687ndash706Since the early days of transitional justice scholarship the specific applications of a statersquos duty toprosecute have fuelled disagreements For a summary of the debates on the duty to prosecute at the1988 Aspen Institute Conference one of the meetings that framed the field of transitional justicesee Paige Arthur lsquoHow ldquoTransitionsrdquo Reshaped Human Rights A Conceptual History ofTransitional Justicersquo Human Rights Quarterly 31(2) (2009) 321ndash354
10 It should be noted that most of the studies cited below explore the effects of a number of tran-sitional justice measures and not solely those of truth commissions This article has a narrower yet(hopefully) more precise focus the specific contributions of truth commissions
11 Office of the High Commissioner for Human Rights Rule of Law Tools for Post Conflict SocietiesTruth Commissions (2006) Amnesty International supra n 8 David Bloomfield Teresa Barnesand Luc Huyse eds Reconciliation after Violent Conflict A Handbook (Stockholm InternationalIDEA 2003)
12 Eric Wiebelhaus-Brahm Truth Commissions and Transitional Societies The Impact on HumanRights and Democracy (New York Routledge 2010) Hunjoon Kim and Kathryn SikkinklsquoExplaining the Deterrence Effect of Human Rights Prosecutions for Transitional CountriesrsquoInternational Studies Quarterly 54(4) (2010) 939ndash963 Tricia D Olsen Leigh A Payne andAndrew G Reiter Transitional Justice in Balance Comparing Processes Weighing Efficacy(Washington DC US Institute of Peace Press 2010)
13 Jack Snyder and Leslie Vinjamuri lsquoTrials and Errors Principle and Pragmatism in Strategies ofInternational Justicersquo International Security 28(3) (2003) 5ndash44 Wiebelhaus-Brahm supra n 12
14 James L Gibson and Amanda Gouws lsquoTruth and Reconciliation in South Africa Attributions ofBlame and the Struggle over Apartheidrsquo American Political Science Review 93(3) (1999) 501ndash517James L Gibson lsquoThe Contributions of Truth to Reconciliation Lessons from South AfricarsquoJournal of Conflict Resolution 59(3) (2006) 409ndash432
15 James L Gibson lsquoTruth Reconciliation and the Creation of a Human Rights Culture in SouthAfricarsquo Law and Society Review 38(1) (2004) 5ndash40
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 9
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nloaded from
several truth commissions initially dominated the field16 recent studies increas-
ingly use large-n regression analysis17
A striking characteristic of the existing literature is the coexistence of compet-
ing if not outright contradictory theories about truth commission impact18 For
example Tricia Olsen Leigh Payne and Andrew Reiter find that truth commis-
sions when used alone lsquohave a significant negative effectrsquo on democracy and
human rights but yield positive outcomes when combined with trials and amnes-
ties19 Hunjoon Kim and Kathryn Sikkink on the other hand argue that truth
commissions have a positive independent effect on human rights conduct which
increases in magnitude if accompanied by prosecutions Others find truth com-
missions to have weak negative impact20 or no observable impact at all21 on
democracy and human rights
What explains the divergent results between studies that explore the same causal
relationship Qualitative and quantitative research strategies are known to pro-
duce systematically different results in human rights research22 Moreover even
studies using the same data collection and analysis method (eg large-n regres-
sion analysis) arrive at divergent results due to differences in their conceptual-
ization of key variables codification and collection of data as well as model
specification Below I identify the main problems with research on truth com-
mission impact
Definition and Codification
Scholarly disagreement on the definition of a truth commission has implications
for coding data and testing theories Transitional justice databases often codify
the same procedure under different categories which in part explains divergent
16 Examples include but are not limited to Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (Cambridge CambridgeUniversity Press 2001) William J Long and Peter Brecke War and Reconciliation Reason andEmotion in Conflict Resolution (Cambridge MA MIT Press 2003) Emily Brooke Rodio lsquoMorethan Truth Democracy and South Africarsquos Truth and Reconciliation Commissionrsquo (PhD dissSyracuse University 2009)
17 Charles D Kenney and Dean E Spears lsquoTruth and Consequences Do Truth CommissionsPromote Democratizationrsquo (paper presented at the Annual Meeting of the American PoliticalScience Association Washington DC 1ndash4 September 2005) Kim and Sikkink supra n 12Wiebelhaus-Brahm supra n 12 Olsen et al supra n 12
18 Oskar NT Thoms James Ron and Roland Paris lsquoState-Level Effects of Transitional Justice WhatDo We Knowrsquo International Journal of Transitional Justice 4(3) (2010) 329ndash354
19 Olsen et al supra n 12 at 153ndash15420 Wiebelhaus-Brahm supra n 1221 David Mendeloff cites several Amnesty International reports to conclude that truth commissions
do not contribute to human rights progress while Carmen Gonzalez Enrıquez AlexandraBarahona de Brito and Paloma Aguilar Fernandez put into question the democracy-promotioneffects of truth commissions based on four case studies David Mendeloff lsquoTruth-SeekingTruth-Telling and Postconflict Peacebuilding Curb the Enthusiasmrsquo International StudiesReview 6(3) (2004) 355ndash380 Carmen Gonzalez Enrıquez Alexandra Barahona de Brito andPaloma Aguilar Fernandez eds The Politics of Memory Transitional Justice in DemocratizingSocieties (Oxford Oxford University Press 2001)
22 Emilie M Hafner-Burton and James Ron lsquoSeeing Double Human Rights Impact throughQualitative and Quantitative Eyesrsquo World Politics 61(2) (2009) 360ndash401
International Journal of Transitional Justice Vol 8 2014 6ndash30
10 O Bakiner
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outcomes Some scholars count parliamentary investigation commissions (such
as Uruguayrsquos 1985 Commission for the Investigation of the Situation of the
Disappeared and Related Events and Germanyrsquos 1992 Study Commission for
Working through the History and the Consequences of the SED Dictatorship
in Germany) as truth commissions while others object to this classification
noting that a truth commission should have sufficient autonomy from the ex-
ecutive and legislative branches of government Commissions that were dissolved
before terminating their work (such as Boliviarsquos 1982 National Commission for
Investigation for Forced Disappearances and Ecuadorrsquos 1996 Truth and Justice
Commission) are particularly divisive since unfinished commissions invoke con-
ceptual and empirical questions about whether a commission process regardless
of the outcome (or in these cases lack thereof) can generate substantial political
and social change Furthermore some studies identify a relatively large number of
investigative or deliberative procedures as truth commissions with little or no
attention to definitional criteria For example the Transitional Justice Data Base
Project sets the number of truth commissions established between 1970 and 2007
at 6023 while the figure ranges between 28 and 40 in all other studies24
Model Specification
Once the concepts are defined and data codified the specification of relevant
variables can generate differences too For example two recent studies of human
rights accountability disagree over the evidence for a lsquojustice cascadersquo (ie un-
precedented human rights accountability) in the 1990s and 2000s While Kim and
Sikkink get statistically significant results supporting the theory Olsen Payne and
Reiter argue that the incorporation of amnesty laws into the statistical model
eliminates overwhelming support for the justice cascade25 Given the extremely
complex nature of causal relations among relevant variables statistical analyses of
large-n datasets are particularly prone to the omitted variable bias
Multicollinearity
Another set of complications arises from the intrinsic difficulty of measuring
truth commission impact26 Critics rightly warn against confounding other
causal processes with the independent impact of truth commissions27 It makes
23 Olsen et al supra n 1224 Mark Freeman counts 28 commissions excluding five panels listed as truth commissions by
Priscilla Hayner Eric Wiebelhaus-Brahm includes 29 panels as truth commissions for the sameperiod Hayner counts a total of 40 truth commissions including six new ones since 2006 and 34commissions for the period covered by Freemanrsquos and Wiebelhaus-Brahmrsquos accounts MarkFreeman Truth Commissions and Procedural Fairness (Cambridge Cambridge University Press2006) Priscilla B Hayner Unspeakable Truths Confronting State Terror and Atrocity 2nd ed(London Routledge 2001) Wiebelhaus-Brahm supra n 12
25 Olsen et al supra n 1226 Eric Brahm lsquoUncovering the Truth Examining Truth Commission Success and Impactrsquo
International Studies Perspectives 8(1) (2007) 16ndash3527 Snyder and Vinjamuri supra n 13
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How Truth Commissions Influence Politics and Society 11
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intuitive sense to expect improvements in human rights conduct and democratic
governance during and after the truth commission process in great part because
truth commissions are likely to be established during democratic transitions and
when the human rights situation has already improved at least to the extent that
transitional justice becomes a viable possibility
The reverse case that is when the truth commission process is followed by
increasing levels of violence and instability does not offer much analytical lever-
age either Countries that have undergone civil wars are more likely to suffer from
violent conflict in the future28 but truth commissionsrsquo role in provoking such
conflict is unclear Therefore the variety of factors that might lead to democratic
strengthening and nonviolence (which in turn make the creation of a truth
commission possible) or to renewed conflict should not be conflated with the
independent effect of truth commissions
Insufficient Attention to Causal Mechanism
Many scholars prefer regression analysis to make causal inferences on the inde-
pendent effect of truth commissions on democracy and human rights Causal
inference may indeed address the challenges of endogeneity multicollinearity and
counterfactual reasoning but its successful implementation depends critically on
using a large and accurate dataset and as importantly on correct model specifi-
cation Statistical analyses should first have a consistent theory of how and why a
transitional justice mechanism (or combination of them) produces outcomes
and then proceed to testing Insufficient attention to causal processes may aggra-
vate the problems of omitted variable bias endogeneity and multicollinearity
Many of the works mentioned above propose one or several causal mechanisms
to link a truth commission process to the outcomes of interest but even the most
influential studies fail to develop consistent theories and provide supporting
evidence For example Olsen Payne and Reiter attribute the potential positive
effects of truth commissions to their capacity to provide a forum for dialogue lsquoa
fundamental building block for peace and democratic trustrsquo29 However they
conclude that the combination of trials and amnesties without truth commissions
contributes to democracy and human rights as well as the combination of trials
amnesties and truth commissions In what ways then are truth commissions
relevant30 Moreover the claim that truth commissions foster dialogue among
victims perpetrators and bystanders does not conform to empirical evidence
28 Paul Collier Anke Hoeffler and Mans Soderbom Post-Conflict Risks (Oxford Centre for the Studyof African Economies University of Oxford 2006) Barbara Walter lsquoDoes Conflict Beget ConflictExplaining Recurring Civil Warrsquo Journal of Peace Research 41(3) (2004) 371ndash388
29 Olsen et al supra n 12 at 15530 In a recent article drawing largely upon the 2010 book Olsen Payne Reiter and
Wiebelhaus-Brahm leave aside the lsquowith or without truth commissionsrsquo explanation focusinginstead on the conditions under which truth commissions promote human rights most effectivelyThey advocate truth commissions that strike a balance between amnesties and trials stability andaccountability which the authors name the lsquojustice balancersquo Tricia D Olsen Leigh A PayneAndrew G Reiter and Eric Wiebelhaus-Brahm lsquoWhen Truth Commissions Improve HumanRightsrsquo International Journal of Transitional Justice 4(3) (2010) 457ndash476
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from the majority of cases where perpetrators do not testify before a commission
and often try to close the space for dialogue Eric Wiebelhaus-Brahm provides
several explanations for how truth commissions might influence political behav-
ior but his statistical analysis which finds a negative correlation with human
rights conduct and no significant relation with democratic politics tends to
contradict many of the possible causal mechanisms coming from his case
studies31
Kim and Sikkink provide a plausible causal explanation for their findings truth
commissionsrsquo findings and advocacy of human rights norms build pressure on
perpetrators making prosecutions more likely The observable implication of
their theory is that prosecutors would initiate trials following the truth commis-
sion process building their cases on commission findings However their dataset
Human Rights Trials in the World 1979ndash2006 shows that few truth commissions
have created the impulse for prosecution Furthermore even if one assumes that
truth commissions do produce normative transformations their study does not
produce evidence that politicians civil society actors attorneys and judges have
changed behavior as a result of the truth commission process32
Defining and Explaining ImpactlsquoImpactrsquo refers to the causal effect of a truth commission process on individualsrsquo
and institutionsrsquo decisions interests beliefs and values The epistemological and
methodological challenges of establishing causality are well known In the social
sciences and humanities one rarely observes lsquosmoking gunrsquo evidence that con-
firms one hypothesis beyond doubt while discarding alternative explanations33
Transitional justice scholarship has recently taken steps to address the question of
causality by conducting large-n regression analysis to assess the impact of tran-
sitional justice mechanisms on outcome variables (the shortcomings of this ap-
proach to causal inference are discussed above) Studies in the qualitative
tradition meanwhile seek to establish causal connections by getting the causal
mechanism right which raises the evidentiary standards for linking transitional
justice processes to outcomes
What kinds of data amount to lsquosmoking gunrsquo evidence in explaining truth
commission impact Two examples come to mind a political leader declaring
that heshe was urged influenced or inspired exclusively by a truth commission to
enact a policy and a representative sample of the population telling researchers
that their views on human rights or reconciliation changed exclusively or pri-
marily as a result of the truth commission process Such unambiguous evidence
on decisions and values is lacking in most cases and the existing evidence is
insufficient for cross-national comparison
31 Wiebelhaus-Brahm supra n 1232 Kim and Sikkink supra n 1233 Stephen van Evera Guide to Methods for Students of Political Science (Ithaca NY Cornell
University Press 1997)
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Although irrefutable evidence is often lacking I argue that it is possible to set
a reasonably high standard for establishing causal impact if the collected evidence
satisfies two tests For example if there are two hypothesized causal explanations
[TC fi A fi I] andor [TC fi B fi I] where a truth commission process (TC)
generates impact (I) through the intermediary steps A andor B confirming
the veracity of a causal explanation requires that (1) I should be observed
so that policies and judicial processes after a truth commission should re-
flect its findings and recommendations and (2) only A only B or both A and
B should be observed so that the researcher should find empirical evidence
for the intermediate steps (ie intervening variables) that connect a truth com-
mission to the outcomes of interest to confirm or disconfirm contending
hypotheses
The second test is crucial in overcoming problems of equifinality (the likelihood
that an outcome results from a causal mechanism other than that hypothesized by
the researcher) and multicollinearity (the failure to account for the interactions
between various factors that lead to an outcome) There may be more than one
mechanism that produces similar impact As I show in the following section truth
commissionsrsquo recommendations are incorporated into policy in some countries
because politicians take the initiative to implement them whereas in other cases
implementation takes place despite the reluctance or even hostility of the pol-
itical leadership as a result of continuous civil society mobilization Assessing
impact therefore requires accounting for all the intermediate steps in the causal
process
What causes a truth commission to generate impact in the first place This
article is a descriptive account of causal mechanisms that connect truth commis-
sions to postcommission outcomes Due to space limitations it does not address
the causes for the causes that is the sources of variation in impact across coun-
tries Nonetheless it is important to highlight two factors that play into the dir-
ection and magnitude of impact by shaping the precommission and commission
processes First a truth commission is simultaneously enabled and constrained by
its mandate which determines its tasks powers and organizational structure
Second the commissioners and staff exercise considerable agency in terms of
how they interpret the mandate how they identify and carry out their tasks
what they choose to include in the final report and how they interact with victims
presumed perpetrators politicians bureaucrats armed actors and civil society
organizations Part of their impact is attributable to the product that is the final
report which contains findings a historical narrative and recommendations In
addition the truth commission process itself is credited for giving voice to victims
of human rights violations (and occasionally perpetrators) and building linkages
among various civil society actors34
34 For the distinction between product- and process-driven impact see Priscilla B Hayner lsquoPastTruths Present Dangers The Role of Official Truth Seeking in Conflict Resolution andPreventionrsquo in International Conflict Resolution after the Cold War ed Paul C Stern andDaniel Druckman (Washington DC National Academy Press 2000)
International Journal of Transitional Justice Vol 8 2014 6ndash30
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Thus the truth commission process is a constant struggle between forces that
seek to delimit and predetermine a commissionrsquos capabilities and the commis-
sionrsquos striving for autonomy and transformative agency In great part as a result
of this interplay of mandate and agency various decision makers and civil
society actors endorse reject mobilize around or ignore a truth commissionrsquos
findings and recommendations Impact is constituted by the content of the
final report and equally importantly by the process itself It is shaped but not
predetermined by the mandate limits
Data and Methods
Research Strategy
Many of the shortcomings of the literature as described in the first section can
be addressed if the research strategy pays close attention to causal processes rather
than correlations between a truth commission and outcomes of interest such
as democracy human rights and the rule of law In other words what is needed
is a theoretically informed process-tracing approach to generate and assess
theories of impact Thus drawing upon the existing literature on truth commis-
sions I build a theoretical framework to document the specific mechanisms
through which a truth commission experience is expected to influence the
decisions of policy makers armed actors judges civil society activists and ordin-
ary citizens Then I identify the observable implications of the hypothesized
causal mechanisms Finally I look for supporting empirical evidence from
truth commission experiences to confirm those observable implications (see
Table 1)
Case Selection
Aggravating the conceptual and methodological problems of assessing impact is
the failure to account for the heterogeneity of truth commission experiences
Several consolidated democracies like Brazil and ongoing authoritarian regimes
like Morocco have established truth commissions Those commissions tend to
investigate violations that happened decades ago rather than in the immediate
past The political stakes self-declared goals and methodologies are radically
different from those characterizing transitional truth commissions Ensuring
democratic stability or forging reconciliation between victims and perpetrators
(most of whom are too old or perhaps deceased) for example are not outstand-
ing goals for nontransitional commissions In countries like Chile and South
Korea follow-up truth commissions have investigated violations not covered
by an earlier commission Therefore lumping all truth commissions in one data-
base obscures the distinct character of causal processes that produce impact in
transitional and nontransitional settings
Instead of including all truth commissions in a large-n dataset I separate tran-
sitional commissions from nontransitional ones to explain the dynamics specific
to the former group A transitional truth commission is established within zero to
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 15
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Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
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nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
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involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
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postconflict institution building and other transitional justice and conflict reso-
lution measures I employ a two-step research strategy to assess impact first I
identify all plausible causal explanations of how truth commissions are likely to
produce impact and second I assess those explanations in light of empirical
evidence from all transitional truth commission experiences I show that some of
the taken-for-granted explanations of truth commission impact hold in none or
only a few of the cases whereas others hold more often
Drawing upon the existing literature I identify four major explanations for
truth commission impact direct political impact indirect political impact
through civil society mobilization vetting and judicial accountability Political
impact refers to a truth commissionrsquos capacity to make key decision makers
acknowledge human rights violations publicly and to influence policy in the
areas of institutional reform and human rights policy through its findings and
recommendations Almost all truth commissions have produced political impact
albeit to different degrees I distinguish between direct and indirect impact to
separate those cases in which the government demonstrates political will imme-
diately to implement truth commission recommendations from other situations
where the government is pressured to adopt policy The distinction is important
because civil society mobilization around a truth commission is an important
contributor to policy reform when political will is weak or nonexistent Vetting
refers to the policy of removing perpetrators from public office
Truth commissionsrsquo contribution to human rights accountability or impunity
is a controversial issue I find that commissions have produced some positive
judicial impact understood as the use of findings for prosecutions This often
comes with a delay however highlighting the significance of an auspicious pol-
itical and judicial context as well as continued civil society activism for human
rights accountability Truth commissions may also promote impunity through
built-in amnesty procedures Despite the widespread tendency to associate truth
commissions with amnesties only two commissions in South Africa and Liberia
have actually granted or recommended immunity from prosecution Although
these amnesties benefited hundreds it should be noted that the beneficiaries
represent a fraction of the total number of perpetrators In other words the
overall failure of human rights accountability cannot be attributed to truth com-
missions alone even in the few cases where commissions promoted amnesty
I acknowledge that most truth commissions have tried to transform social
norms by cultivating nonviolence and respect for human rights (along with
other norms depending on the specific context) among the political elite as
well as the broader population Likewise they have advocated various concep-
tions of reconciliation It is difficult (if not impossible) however to measure the
independent causal effect of truth commissions on political and social norms
across cases in great part because normative change takes place over a very
long period of time and as a result of many factors Case studies and surveys
(such as James Gibsonrsquos surveys on the South African Truth and Reconciliation
Commission) provide compelling evidence for the achievements and
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 7
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
shortcomings of reconciliation in specific countries but the evidence for cross-
national normative change is suggestive at best Instead this article focuses on
evidence for truth commission impact on comparable and measurable domains
of public life government policy and judicial change
The first section of the article provides an account of the literature on truth
commissions highlighting some key challenges facing studies of impact such as
definitional inconsistencies biases arising from model specification the difficulty
of establishing causality and insufficient attention to causal mechanism The
second section describes my research strategy to address these challenges and
offers details on my data sources and case selection The third section provides
a theoretical account of causal explanations of truth commission impact and
assesses those theories in light of empirical evidence The article concludes with
some observations on the theory and practice of truth commissions
The Literature on Truth CommissionsTruth commissions are expected to contribute to human rights conduct and
democratic strengthening Ideally truth commissions acknowledge the victim-
hood of those affected by human rights violations under the outgoing regime by
providing a platform for truth telling2 and by setting the stage for symbolic and
material reparations3 They rewrite the countryrsquos history of political violence and
human rights violations focusing on the patterns causes and consequences in
order to forge a shared historical memory and draw lessons from history4 They
make recommendations for institutional reform to create a legal political and
cultural framework conducive to peace and democratic strengthening5 Some
facilitate the removal from office of public officials responsible for earlier cycles
of violence and violations6
Truth commissions may also serve national reconciliation a lsquohealthy social
catharsisrsquo7 as former enemies reach common understandings the incentives
2 Martha Minow Between Vengeance and Forgiveness Facing History after Genocide and MassViolence (Boston Beacon 1998)
3 Pablo de Greiff ed The Handbook of Reparations (New York Oxford University Press 2006)Andre du Toit lsquoThe Moral Foundations of the South African TRC Truth as Acknowledgment andJustice as Recognitionrsquo in Truth v Justice The Morality of Truth Commissions ed Robert IRotberg and Dennis Thompson (Princeton NJ Princeton University Press 2000)
4 Fiona Ross lsquoOn Having Voice and Being Heard Some After-Effects of Testifying before the SouthAfrican Truth and Reconciliation Commissionrsquo Anthropological Theory 3(3) (2003) 325ndash341Molly Andrews lsquoGrand National Narratives and the Project of Truth Commissions AComparative Analysisrsquo Media Culture and Society 25(1) (2003) 45ndash65
5 Lisa J Laplante lsquoOn the Indivisibility of Rights Truth Commissions Reparations and the Right toDevelopmentrsquo Yale Human Rights and Development Law Journal 10 (2007) 141ndash177
6 Lisa Magarrell lsquoReparations for Massive or Widespread Human Rights Violations Sorting outClaims for Reparations and the Struggle for Social Justicersquo Windsor Yearbook of Access to Justice 22(2003) 85ndash98
7 Jose Zalaquett lsquoBalancing Ethical Imperatives and Political Constraints The Dilemma of NewDemocracies Confronting Past Human Rights Violationsrsquo Hastings Law Journal 43(6) (1992)1425ndash1438
International Journal of Transitional Justice Vol 8 2014 6ndash30
8 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
for revenge diminish and society is (re)united through tolerance and forgiveness
For some truth commissions genuine reconciliation is understood to be based on
the full disclosure of past atrocities and the provision of criminal justice as truth
justice and reparations complement one another8 Others point to the looming
threat of renewed violence or military coups during fragile transitions and con-
ceptualize the relationship between criminal justice and the other objectives of
transitional justice in particular democratic stability as a trade-off Accordingly
truth commissionsrsquo success rests upon their ability to sidestep retributive justice
and promote restorative justice and social reconciliation ndash what one commenta-
tor names lsquocompromise justicersquo9
This abundance of expectations has triggered scholars to evaluate truth com-
missionsrsquo achievements and shortcomings10 International institutions and non-
governmental organizations (NGOs) have published manuals on assessing truth
commissionsrsquo role in promoting postconflict peace and reconciliation using the
best practices approach11 Recently scholars have turned to rigorous hypothesis
testing by employing statistical survey experimental and ethnographic methods
as well as mixed-method strategies Studies that evaluate truth commission
impact tend to focus on the countryrsquos human rights conduct12 democratic sta-
bility13 social reconciliation14 and rule of law15 Although case studies of one or
8 Amnesty International Truth Justice and Reparation Establishing an Effective Truth Commission(2007)
9 Brian Grodsky lsquoInternational Prosecutions and Domestic Politics The Use of Truth Commissionsas Compromise Justice in Serbia and Croatiarsquo International Studies Review 11(4) (2009) 687ndash706Since the early days of transitional justice scholarship the specific applications of a statersquos duty toprosecute have fuelled disagreements For a summary of the debates on the duty to prosecute at the1988 Aspen Institute Conference one of the meetings that framed the field of transitional justicesee Paige Arthur lsquoHow ldquoTransitionsrdquo Reshaped Human Rights A Conceptual History ofTransitional Justicersquo Human Rights Quarterly 31(2) (2009) 321ndash354
10 It should be noted that most of the studies cited below explore the effects of a number of tran-sitional justice measures and not solely those of truth commissions This article has a narrower yet(hopefully) more precise focus the specific contributions of truth commissions
11 Office of the High Commissioner for Human Rights Rule of Law Tools for Post Conflict SocietiesTruth Commissions (2006) Amnesty International supra n 8 David Bloomfield Teresa Barnesand Luc Huyse eds Reconciliation after Violent Conflict A Handbook (Stockholm InternationalIDEA 2003)
12 Eric Wiebelhaus-Brahm Truth Commissions and Transitional Societies The Impact on HumanRights and Democracy (New York Routledge 2010) Hunjoon Kim and Kathryn SikkinklsquoExplaining the Deterrence Effect of Human Rights Prosecutions for Transitional CountriesrsquoInternational Studies Quarterly 54(4) (2010) 939ndash963 Tricia D Olsen Leigh A Payne andAndrew G Reiter Transitional Justice in Balance Comparing Processes Weighing Efficacy(Washington DC US Institute of Peace Press 2010)
13 Jack Snyder and Leslie Vinjamuri lsquoTrials and Errors Principle and Pragmatism in Strategies ofInternational Justicersquo International Security 28(3) (2003) 5ndash44 Wiebelhaus-Brahm supra n 12
14 James L Gibson and Amanda Gouws lsquoTruth and Reconciliation in South Africa Attributions ofBlame and the Struggle over Apartheidrsquo American Political Science Review 93(3) (1999) 501ndash517James L Gibson lsquoThe Contributions of Truth to Reconciliation Lessons from South AfricarsquoJournal of Conflict Resolution 59(3) (2006) 409ndash432
15 James L Gibson lsquoTruth Reconciliation and the Creation of a Human Rights Culture in SouthAfricarsquo Law and Society Review 38(1) (2004) 5ndash40
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 9
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nloaded from
several truth commissions initially dominated the field16 recent studies increas-
ingly use large-n regression analysis17
A striking characteristic of the existing literature is the coexistence of compet-
ing if not outright contradictory theories about truth commission impact18 For
example Tricia Olsen Leigh Payne and Andrew Reiter find that truth commis-
sions when used alone lsquohave a significant negative effectrsquo on democracy and
human rights but yield positive outcomes when combined with trials and amnes-
ties19 Hunjoon Kim and Kathryn Sikkink on the other hand argue that truth
commissions have a positive independent effect on human rights conduct which
increases in magnitude if accompanied by prosecutions Others find truth com-
missions to have weak negative impact20 or no observable impact at all21 on
democracy and human rights
What explains the divergent results between studies that explore the same causal
relationship Qualitative and quantitative research strategies are known to pro-
duce systematically different results in human rights research22 Moreover even
studies using the same data collection and analysis method (eg large-n regres-
sion analysis) arrive at divergent results due to differences in their conceptual-
ization of key variables codification and collection of data as well as model
specification Below I identify the main problems with research on truth com-
mission impact
Definition and Codification
Scholarly disagreement on the definition of a truth commission has implications
for coding data and testing theories Transitional justice databases often codify
the same procedure under different categories which in part explains divergent
16 Examples include but are not limited to Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (Cambridge CambridgeUniversity Press 2001) William J Long and Peter Brecke War and Reconciliation Reason andEmotion in Conflict Resolution (Cambridge MA MIT Press 2003) Emily Brooke Rodio lsquoMorethan Truth Democracy and South Africarsquos Truth and Reconciliation Commissionrsquo (PhD dissSyracuse University 2009)
17 Charles D Kenney and Dean E Spears lsquoTruth and Consequences Do Truth CommissionsPromote Democratizationrsquo (paper presented at the Annual Meeting of the American PoliticalScience Association Washington DC 1ndash4 September 2005) Kim and Sikkink supra n 12Wiebelhaus-Brahm supra n 12 Olsen et al supra n 12
18 Oskar NT Thoms James Ron and Roland Paris lsquoState-Level Effects of Transitional Justice WhatDo We Knowrsquo International Journal of Transitional Justice 4(3) (2010) 329ndash354
19 Olsen et al supra n 12 at 153ndash15420 Wiebelhaus-Brahm supra n 1221 David Mendeloff cites several Amnesty International reports to conclude that truth commissions
do not contribute to human rights progress while Carmen Gonzalez Enrıquez AlexandraBarahona de Brito and Paloma Aguilar Fernandez put into question the democracy-promotioneffects of truth commissions based on four case studies David Mendeloff lsquoTruth-SeekingTruth-Telling and Postconflict Peacebuilding Curb the Enthusiasmrsquo International StudiesReview 6(3) (2004) 355ndash380 Carmen Gonzalez Enrıquez Alexandra Barahona de Brito andPaloma Aguilar Fernandez eds The Politics of Memory Transitional Justice in DemocratizingSocieties (Oxford Oxford University Press 2001)
22 Emilie M Hafner-Burton and James Ron lsquoSeeing Double Human Rights Impact throughQualitative and Quantitative Eyesrsquo World Politics 61(2) (2009) 360ndash401
International Journal of Transitional Justice Vol 8 2014 6ndash30
10 O Bakiner
at Princeton University on A
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Dow
nloaded from
outcomes Some scholars count parliamentary investigation commissions (such
as Uruguayrsquos 1985 Commission for the Investigation of the Situation of the
Disappeared and Related Events and Germanyrsquos 1992 Study Commission for
Working through the History and the Consequences of the SED Dictatorship
in Germany) as truth commissions while others object to this classification
noting that a truth commission should have sufficient autonomy from the ex-
ecutive and legislative branches of government Commissions that were dissolved
before terminating their work (such as Boliviarsquos 1982 National Commission for
Investigation for Forced Disappearances and Ecuadorrsquos 1996 Truth and Justice
Commission) are particularly divisive since unfinished commissions invoke con-
ceptual and empirical questions about whether a commission process regardless
of the outcome (or in these cases lack thereof) can generate substantial political
and social change Furthermore some studies identify a relatively large number of
investigative or deliberative procedures as truth commissions with little or no
attention to definitional criteria For example the Transitional Justice Data Base
Project sets the number of truth commissions established between 1970 and 2007
at 6023 while the figure ranges between 28 and 40 in all other studies24
Model Specification
Once the concepts are defined and data codified the specification of relevant
variables can generate differences too For example two recent studies of human
rights accountability disagree over the evidence for a lsquojustice cascadersquo (ie un-
precedented human rights accountability) in the 1990s and 2000s While Kim and
Sikkink get statistically significant results supporting the theory Olsen Payne and
Reiter argue that the incorporation of amnesty laws into the statistical model
eliminates overwhelming support for the justice cascade25 Given the extremely
complex nature of causal relations among relevant variables statistical analyses of
large-n datasets are particularly prone to the omitted variable bias
Multicollinearity
Another set of complications arises from the intrinsic difficulty of measuring
truth commission impact26 Critics rightly warn against confounding other
causal processes with the independent impact of truth commissions27 It makes
23 Olsen et al supra n 1224 Mark Freeman counts 28 commissions excluding five panels listed as truth commissions by
Priscilla Hayner Eric Wiebelhaus-Brahm includes 29 panels as truth commissions for the sameperiod Hayner counts a total of 40 truth commissions including six new ones since 2006 and 34commissions for the period covered by Freemanrsquos and Wiebelhaus-Brahmrsquos accounts MarkFreeman Truth Commissions and Procedural Fairness (Cambridge Cambridge University Press2006) Priscilla B Hayner Unspeakable Truths Confronting State Terror and Atrocity 2nd ed(London Routledge 2001) Wiebelhaus-Brahm supra n 12
25 Olsen et al supra n 1226 Eric Brahm lsquoUncovering the Truth Examining Truth Commission Success and Impactrsquo
International Studies Perspectives 8(1) (2007) 16ndash3527 Snyder and Vinjamuri supra n 13
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 11
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intuitive sense to expect improvements in human rights conduct and democratic
governance during and after the truth commission process in great part because
truth commissions are likely to be established during democratic transitions and
when the human rights situation has already improved at least to the extent that
transitional justice becomes a viable possibility
The reverse case that is when the truth commission process is followed by
increasing levels of violence and instability does not offer much analytical lever-
age either Countries that have undergone civil wars are more likely to suffer from
violent conflict in the future28 but truth commissionsrsquo role in provoking such
conflict is unclear Therefore the variety of factors that might lead to democratic
strengthening and nonviolence (which in turn make the creation of a truth
commission possible) or to renewed conflict should not be conflated with the
independent effect of truth commissions
Insufficient Attention to Causal Mechanism
Many scholars prefer regression analysis to make causal inferences on the inde-
pendent effect of truth commissions on democracy and human rights Causal
inference may indeed address the challenges of endogeneity multicollinearity and
counterfactual reasoning but its successful implementation depends critically on
using a large and accurate dataset and as importantly on correct model specifi-
cation Statistical analyses should first have a consistent theory of how and why a
transitional justice mechanism (or combination of them) produces outcomes
and then proceed to testing Insufficient attention to causal processes may aggra-
vate the problems of omitted variable bias endogeneity and multicollinearity
Many of the works mentioned above propose one or several causal mechanisms
to link a truth commission process to the outcomes of interest but even the most
influential studies fail to develop consistent theories and provide supporting
evidence For example Olsen Payne and Reiter attribute the potential positive
effects of truth commissions to their capacity to provide a forum for dialogue lsquoa
fundamental building block for peace and democratic trustrsquo29 However they
conclude that the combination of trials and amnesties without truth commissions
contributes to democracy and human rights as well as the combination of trials
amnesties and truth commissions In what ways then are truth commissions
relevant30 Moreover the claim that truth commissions foster dialogue among
victims perpetrators and bystanders does not conform to empirical evidence
28 Paul Collier Anke Hoeffler and Mans Soderbom Post-Conflict Risks (Oxford Centre for the Studyof African Economies University of Oxford 2006) Barbara Walter lsquoDoes Conflict Beget ConflictExplaining Recurring Civil Warrsquo Journal of Peace Research 41(3) (2004) 371ndash388
29 Olsen et al supra n 12 at 15530 In a recent article drawing largely upon the 2010 book Olsen Payne Reiter and
Wiebelhaus-Brahm leave aside the lsquowith or without truth commissionsrsquo explanation focusinginstead on the conditions under which truth commissions promote human rights most effectivelyThey advocate truth commissions that strike a balance between amnesties and trials stability andaccountability which the authors name the lsquojustice balancersquo Tricia D Olsen Leigh A PayneAndrew G Reiter and Eric Wiebelhaus-Brahm lsquoWhen Truth Commissions Improve HumanRightsrsquo International Journal of Transitional Justice 4(3) (2010) 457ndash476
International Journal of Transitional Justice Vol 8 2014 6ndash30
12 O Bakiner
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nloaded from
from the majority of cases where perpetrators do not testify before a commission
and often try to close the space for dialogue Eric Wiebelhaus-Brahm provides
several explanations for how truth commissions might influence political behav-
ior but his statistical analysis which finds a negative correlation with human
rights conduct and no significant relation with democratic politics tends to
contradict many of the possible causal mechanisms coming from his case
studies31
Kim and Sikkink provide a plausible causal explanation for their findings truth
commissionsrsquo findings and advocacy of human rights norms build pressure on
perpetrators making prosecutions more likely The observable implication of
their theory is that prosecutors would initiate trials following the truth commis-
sion process building their cases on commission findings However their dataset
Human Rights Trials in the World 1979ndash2006 shows that few truth commissions
have created the impulse for prosecution Furthermore even if one assumes that
truth commissions do produce normative transformations their study does not
produce evidence that politicians civil society actors attorneys and judges have
changed behavior as a result of the truth commission process32
Defining and Explaining ImpactlsquoImpactrsquo refers to the causal effect of a truth commission process on individualsrsquo
and institutionsrsquo decisions interests beliefs and values The epistemological and
methodological challenges of establishing causality are well known In the social
sciences and humanities one rarely observes lsquosmoking gunrsquo evidence that con-
firms one hypothesis beyond doubt while discarding alternative explanations33
Transitional justice scholarship has recently taken steps to address the question of
causality by conducting large-n regression analysis to assess the impact of tran-
sitional justice mechanisms on outcome variables (the shortcomings of this ap-
proach to causal inference are discussed above) Studies in the qualitative
tradition meanwhile seek to establish causal connections by getting the causal
mechanism right which raises the evidentiary standards for linking transitional
justice processes to outcomes
What kinds of data amount to lsquosmoking gunrsquo evidence in explaining truth
commission impact Two examples come to mind a political leader declaring
that heshe was urged influenced or inspired exclusively by a truth commission to
enact a policy and a representative sample of the population telling researchers
that their views on human rights or reconciliation changed exclusively or pri-
marily as a result of the truth commission process Such unambiguous evidence
on decisions and values is lacking in most cases and the existing evidence is
insufficient for cross-national comparison
31 Wiebelhaus-Brahm supra n 1232 Kim and Sikkink supra n 1233 Stephen van Evera Guide to Methods for Students of Political Science (Ithaca NY Cornell
University Press 1997)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 13
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nloaded from
Although irrefutable evidence is often lacking I argue that it is possible to set
a reasonably high standard for establishing causal impact if the collected evidence
satisfies two tests For example if there are two hypothesized causal explanations
[TC fi A fi I] andor [TC fi B fi I] where a truth commission process (TC)
generates impact (I) through the intermediary steps A andor B confirming
the veracity of a causal explanation requires that (1) I should be observed
so that policies and judicial processes after a truth commission should re-
flect its findings and recommendations and (2) only A only B or both A and
B should be observed so that the researcher should find empirical evidence
for the intermediate steps (ie intervening variables) that connect a truth com-
mission to the outcomes of interest to confirm or disconfirm contending
hypotheses
The second test is crucial in overcoming problems of equifinality (the likelihood
that an outcome results from a causal mechanism other than that hypothesized by
the researcher) and multicollinearity (the failure to account for the interactions
between various factors that lead to an outcome) There may be more than one
mechanism that produces similar impact As I show in the following section truth
commissionsrsquo recommendations are incorporated into policy in some countries
because politicians take the initiative to implement them whereas in other cases
implementation takes place despite the reluctance or even hostility of the pol-
itical leadership as a result of continuous civil society mobilization Assessing
impact therefore requires accounting for all the intermediate steps in the causal
process
What causes a truth commission to generate impact in the first place This
article is a descriptive account of causal mechanisms that connect truth commis-
sions to postcommission outcomes Due to space limitations it does not address
the causes for the causes that is the sources of variation in impact across coun-
tries Nonetheless it is important to highlight two factors that play into the dir-
ection and magnitude of impact by shaping the precommission and commission
processes First a truth commission is simultaneously enabled and constrained by
its mandate which determines its tasks powers and organizational structure
Second the commissioners and staff exercise considerable agency in terms of
how they interpret the mandate how they identify and carry out their tasks
what they choose to include in the final report and how they interact with victims
presumed perpetrators politicians bureaucrats armed actors and civil society
organizations Part of their impact is attributable to the product that is the final
report which contains findings a historical narrative and recommendations In
addition the truth commission process itself is credited for giving voice to victims
of human rights violations (and occasionally perpetrators) and building linkages
among various civil society actors34
34 For the distinction between product- and process-driven impact see Priscilla B Hayner lsquoPastTruths Present Dangers The Role of Official Truth Seeking in Conflict Resolution andPreventionrsquo in International Conflict Resolution after the Cold War ed Paul C Stern andDaniel Druckman (Washington DC National Academy Press 2000)
International Journal of Transitional Justice Vol 8 2014 6ndash30
14 O Bakiner
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nloaded from
Thus the truth commission process is a constant struggle between forces that
seek to delimit and predetermine a commissionrsquos capabilities and the commis-
sionrsquos striving for autonomy and transformative agency In great part as a result
of this interplay of mandate and agency various decision makers and civil
society actors endorse reject mobilize around or ignore a truth commissionrsquos
findings and recommendations Impact is constituted by the content of the
final report and equally importantly by the process itself It is shaped but not
predetermined by the mandate limits
Data and Methods
Research Strategy
Many of the shortcomings of the literature as described in the first section can
be addressed if the research strategy pays close attention to causal processes rather
than correlations between a truth commission and outcomes of interest such
as democracy human rights and the rule of law In other words what is needed
is a theoretically informed process-tracing approach to generate and assess
theories of impact Thus drawing upon the existing literature on truth commis-
sions I build a theoretical framework to document the specific mechanisms
through which a truth commission experience is expected to influence the
decisions of policy makers armed actors judges civil society activists and ordin-
ary citizens Then I identify the observable implications of the hypothesized
causal mechanisms Finally I look for supporting empirical evidence from
truth commission experiences to confirm those observable implications (see
Table 1)
Case Selection
Aggravating the conceptual and methodological problems of assessing impact is
the failure to account for the heterogeneity of truth commission experiences
Several consolidated democracies like Brazil and ongoing authoritarian regimes
like Morocco have established truth commissions Those commissions tend to
investigate violations that happened decades ago rather than in the immediate
past The political stakes self-declared goals and methodologies are radically
different from those characterizing transitional truth commissions Ensuring
democratic stability or forging reconciliation between victims and perpetrators
(most of whom are too old or perhaps deceased) for example are not outstand-
ing goals for nontransitional commissions In countries like Chile and South
Korea follow-up truth commissions have investigated violations not covered
by an earlier commission Therefore lumping all truth commissions in one data-
base obscures the distinct character of causal processes that produce impact in
transitional and nontransitional settings
Instead of including all truth commissions in a large-n dataset I separate tran-
sitional commissions from nontransitional ones to explain the dynamics specific
to the former group A transitional truth commission is established within zero to
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 15
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nloaded from
Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
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nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
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nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
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nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
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Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
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nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
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nloaded from
shortcomings of reconciliation in specific countries but the evidence for cross-
national normative change is suggestive at best Instead this article focuses on
evidence for truth commission impact on comparable and measurable domains
of public life government policy and judicial change
The first section of the article provides an account of the literature on truth
commissions highlighting some key challenges facing studies of impact such as
definitional inconsistencies biases arising from model specification the difficulty
of establishing causality and insufficient attention to causal mechanism The
second section describes my research strategy to address these challenges and
offers details on my data sources and case selection The third section provides
a theoretical account of causal explanations of truth commission impact and
assesses those theories in light of empirical evidence The article concludes with
some observations on the theory and practice of truth commissions
The Literature on Truth CommissionsTruth commissions are expected to contribute to human rights conduct and
democratic strengthening Ideally truth commissions acknowledge the victim-
hood of those affected by human rights violations under the outgoing regime by
providing a platform for truth telling2 and by setting the stage for symbolic and
material reparations3 They rewrite the countryrsquos history of political violence and
human rights violations focusing on the patterns causes and consequences in
order to forge a shared historical memory and draw lessons from history4 They
make recommendations for institutional reform to create a legal political and
cultural framework conducive to peace and democratic strengthening5 Some
facilitate the removal from office of public officials responsible for earlier cycles
of violence and violations6
Truth commissions may also serve national reconciliation a lsquohealthy social
catharsisrsquo7 as former enemies reach common understandings the incentives
2 Martha Minow Between Vengeance and Forgiveness Facing History after Genocide and MassViolence (Boston Beacon 1998)
3 Pablo de Greiff ed The Handbook of Reparations (New York Oxford University Press 2006)Andre du Toit lsquoThe Moral Foundations of the South African TRC Truth as Acknowledgment andJustice as Recognitionrsquo in Truth v Justice The Morality of Truth Commissions ed Robert IRotberg and Dennis Thompson (Princeton NJ Princeton University Press 2000)
4 Fiona Ross lsquoOn Having Voice and Being Heard Some After-Effects of Testifying before the SouthAfrican Truth and Reconciliation Commissionrsquo Anthropological Theory 3(3) (2003) 325ndash341Molly Andrews lsquoGrand National Narratives and the Project of Truth Commissions AComparative Analysisrsquo Media Culture and Society 25(1) (2003) 45ndash65
5 Lisa J Laplante lsquoOn the Indivisibility of Rights Truth Commissions Reparations and the Right toDevelopmentrsquo Yale Human Rights and Development Law Journal 10 (2007) 141ndash177
6 Lisa Magarrell lsquoReparations for Massive or Widespread Human Rights Violations Sorting outClaims for Reparations and the Struggle for Social Justicersquo Windsor Yearbook of Access to Justice 22(2003) 85ndash98
7 Jose Zalaquett lsquoBalancing Ethical Imperatives and Political Constraints The Dilemma of NewDemocracies Confronting Past Human Rights Violationsrsquo Hastings Law Journal 43(6) (1992)1425ndash1438
International Journal of Transitional Justice Vol 8 2014 6ndash30
8 O Bakiner
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nloaded from
for revenge diminish and society is (re)united through tolerance and forgiveness
For some truth commissions genuine reconciliation is understood to be based on
the full disclosure of past atrocities and the provision of criminal justice as truth
justice and reparations complement one another8 Others point to the looming
threat of renewed violence or military coups during fragile transitions and con-
ceptualize the relationship between criminal justice and the other objectives of
transitional justice in particular democratic stability as a trade-off Accordingly
truth commissionsrsquo success rests upon their ability to sidestep retributive justice
and promote restorative justice and social reconciliation ndash what one commenta-
tor names lsquocompromise justicersquo9
This abundance of expectations has triggered scholars to evaluate truth com-
missionsrsquo achievements and shortcomings10 International institutions and non-
governmental organizations (NGOs) have published manuals on assessing truth
commissionsrsquo role in promoting postconflict peace and reconciliation using the
best practices approach11 Recently scholars have turned to rigorous hypothesis
testing by employing statistical survey experimental and ethnographic methods
as well as mixed-method strategies Studies that evaluate truth commission
impact tend to focus on the countryrsquos human rights conduct12 democratic sta-
bility13 social reconciliation14 and rule of law15 Although case studies of one or
8 Amnesty International Truth Justice and Reparation Establishing an Effective Truth Commission(2007)
9 Brian Grodsky lsquoInternational Prosecutions and Domestic Politics The Use of Truth Commissionsas Compromise Justice in Serbia and Croatiarsquo International Studies Review 11(4) (2009) 687ndash706Since the early days of transitional justice scholarship the specific applications of a statersquos duty toprosecute have fuelled disagreements For a summary of the debates on the duty to prosecute at the1988 Aspen Institute Conference one of the meetings that framed the field of transitional justicesee Paige Arthur lsquoHow ldquoTransitionsrdquo Reshaped Human Rights A Conceptual History ofTransitional Justicersquo Human Rights Quarterly 31(2) (2009) 321ndash354
10 It should be noted that most of the studies cited below explore the effects of a number of tran-sitional justice measures and not solely those of truth commissions This article has a narrower yet(hopefully) more precise focus the specific contributions of truth commissions
11 Office of the High Commissioner for Human Rights Rule of Law Tools for Post Conflict SocietiesTruth Commissions (2006) Amnesty International supra n 8 David Bloomfield Teresa Barnesand Luc Huyse eds Reconciliation after Violent Conflict A Handbook (Stockholm InternationalIDEA 2003)
12 Eric Wiebelhaus-Brahm Truth Commissions and Transitional Societies The Impact on HumanRights and Democracy (New York Routledge 2010) Hunjoon Kim and Kathryn SikkinklsquoExplaining the Deterrence Effect of Human Rights Prosecutions for Transitional CountriesrsquoInternational Studies Quarterly 54(4) (2010) 939ndash963 Tricia D Olsen Leigh A Payne andAndrew G Reiter Transitional Justice in Balance Comparing Processes Weighing Efficacy(Washington DC US Institute of Peace Press 2010)
13 Jack Snyder and Leslie Vinjamuri lsquoTrials and Errors Principle and Pragmatism in Strategies ofInternational Justicersquo International Security 28(3) (2003) 5ndash44 Wiebelhaus-Brahm supra n 12
14 James L Gibson and Amanda Gouws lsquoTruth and Reconciliation in South Africa Attributions ofBlame and the Struggle over Apartheidrsquo American Political Science Review 93(3) (1999) 501ndash517James L Gibson lsquoThe Contributions of Truth to Reconciliation Lessons from South AfricarsquoJournal of Conflict Resolution 59(3) (2006) 409ndash432
15 James L Gibson lsquoTruth Reconciliation and the Creation of a Human Rights Culture in SouthAfricarsquo Law and Society Review 38(1) (2004) 5ndash40
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 9
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nloaded from
several truth commissions initially dominated the field16 recent studies increas-
ingly use large-n regression analysis17
A striking characteristic of the existing literature is the coexistence of compet-
ing if not outright contradictory theories about truth commission impact18 For
example Tricia Olsen Leigh Payne and Andrew Reiter find that truth commis-
sions when used alone lsquohave a significant negative effectrsquo on democracy and
human rights but yield positive outcomes when combined with trials and amnes-
ties19 Hunjoon Kim and Kathryn Sikkink on the other hand argue that truth
commissions have a positive independent effect on human rights conduct which
increases in magnitude if accompanied by prosecutions Others find truth com-
missions to have weak negative impact20 or no observable impact at all21 on
democracy and human rights
What explains the divergent results between studies that explore the same causal
relationship Qualitative and quantitative research strategies are known to pro-
duce systematically different results in human rights research22 Moreover even
studies using the same data collection and analysis method (eg large-n regres-
sion analysis) arrive at divergent results due to differences in their conceptual-
ization of key variables codification and collection of data as well as model
specification Below I identify the main problems with research on truth com-
mission impact
Definition and Codification
Scholarly disagreement on the definition of a truth commission has implications
for coding data and testing theories Transitional justice databases often codify
the same procedure under different categories which in part explains divergent
16 Examples include but are not limited to Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (Cambridge CambridgeUniversity Press 2001) William J Long and Peter Brecke War and Reconciliation Reason andEmotion in Conflict Resolution (Cambridge MA MIT Press 2003) Emily Brooke Rodio lsquoMorethan Truth Democracy and South Africarsquos Truth and Reconciliation Commissionrsquo (PhD dissSyracuse University 2009)
17 Charles D Kenney and Dean E Spears lsquoTruth and Consequences Do Truth CommissionsPromote Democratizationrsquo (paper presented at the Annual Meeting of the American PoliticalScience Association Washington DC 1ndash4 September 2005) Kim and Sikkink supra n 12Wiebelhaus-Brahm supra n 12 Olsen et al supra n 12
18 Oskar NT Thoms James Ron and Roland Paris lsquoState-Level Effects of Transitional Justice WhatDo We Knowrsquo International Journal of Transitional Justice 4(3) (2010) 329ndash354
19 Olsen et al supra n 12 at 153ndash15420 Wiebelhaus-Brahm supra n 1221 David Mendeloff cites several Amnesty International reports to conclude that truth commissions
do not contribute to human rights progress while Carmen Gonzalez Enrıquez AlexandraBarahona de Brito and Paloma Aguilar Fernandez put into question the democracy-promotioneffects of truth commissions based on four case studies David Mendeloff lsquoTruth-SeekingTruth-Telling and Postconflict Peacebuilding Curb the Enthusiasmrsquo International StudiesReview 6(3) (2004) 355ndash380 Carmen Gonzalez Enrıquez Alexandra Barahona de Brito andPaloma Aguilar Fernandez eds The Politics of Memory Transitional Justice in DemocratizingSocieties (Oxford Oxford University Press 2001)
22 Emilie M Hafner-Burton and James Ron lsquoSeeing Double Human Rights Impact throughQualitative and Quantitative Eyesrsquo World Politics 61(2) (2009) 360ndash401
International Journal of Transitional Justice Vol 8 2014 6ndash30
10 O Bakiner
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outcomes Some scholars count parliamentary investigation commissions (such
as Uruguayrsquos 1985 Commission for the Investigation of the Situation of the
Disappeared and Related Events and Germanyrsquos 1992 Study Commission for
Working through the History and the Consequences of the SED Dictatorship
in Germany) as truth commissions while others object to this classification
noting that a truth commission should have sufficient autonomy from the ex-
ecutive and legislative branches of government Commissions that were dissolved
before terminating their work (such as Boliviarsquos 1982 National Commission for
Investigation for Forced Disappearances and Ecuadorrsquos 1996 Truth and Justice
Commission) are particularly divisive since unfinished commissions invoke con-
ceptual and empirical questions about whether a commission process regardless
of the outcome (or in these cases lack thereof) can generate substantial political
and social change Furthermore some studies identify a relatively large number of
investigative or deliberative procedures as truth commissions with little or no
attention to definitional criteria For example the Transitional Justice Data Base
Project sets the number of truth commissions established between 1970 and 2007
at 6023 while the figure ranges between 28 and 40 in all other studies24
Model Specification
Once the concepts are defined and data codified the specification of relevant
variables can generate differences too For example two recent studies of human
rights accountability disagree over the evidence for a lsquojustice cascadersquo (ie un-
precedented human rights accountability) in the 1990s and 2000s While Kim and
Sikkink get statistically significant results supporting the theory Olsen Payne and
Reiter argue that the incorporation of amnesty laws into the statistical model
eliminates overwhelming support for the justice cascade25 Given the extremely
complex nature of causal relations among relevant variables statistical analyses of
large-n datasets are particularly prone to the omitted variable bias
Multicollinearity
Another set of complications arises from the intrinsic difficulty of measuring
truth commission impact26 Critics rightly warn against confounding other
causal processes with the independent impact of truth commissions27 It makes
23 Olsen et al supra n 1224 Mark Freeman counts 28 commissions excluding five panels listed as truth commissions by
Priscilla Hayner Eric Wiebelhaus-Brahm includes 29 panels as truth commissions for the sameperiod Hayner counts a total of 40 truth commissions including six new ones since 2006 and 34commissions for the period covered by Freemanrsquos and Wiebelhaus-Brahmrsquos accounts MarkFreeman Truth Commissions and Procedural Fairness (Cambridge Cambridge University Press2006) Priscilla B Hayner Unspeakable Truths Confronting State Terror and Atrocity 2nd ed(London Routledge 2001) Wiebelhaus-Brahm supra n 12
25 Olsen et al supra n 1226 Eric Brahm lsquoUncovering the Truth Examining Truth Commission Success and Impactrsquo
International Studies Perspectives 8(1) (2007) 16ndash3527 Snyder and Vinjamuri supra n 13
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 11
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intuitive sense to expect improvements in human rights conduct and democratic
governance during and after the truth commission process in great part because
truth commissions are likely to be established during democratic transitions and
when the human rights situation has already improved at least to the extent that
transitional justice becomes a viable possibility
The reverse case that is when the truth commission process is followed by
increasing levels of violence and instability does not offer much analytical lever-
age either Countries that have undergone civil wars are more likely to suffer from
violent conflict in the future28 but truth commissionsrsquo role in provoking such
conflict is unclear Therefore the variety of factors that might lead to democratic
strengthening and nonviolence (which in turn make the creation of a truth
commission possible) or to renewed conflict should not be conflated with the
independent effect of truth commissions
Insufficient Attention to Causal Mechanism
Many scholars prefer regression analysis to make causal inferences on the inde-
pendent effect of truth commissions on democracy and human rights Causal
inference may indeed address the challenges of endogeneity multicollinearity and
counterfactual reasoning but its successful implementation depends critically on
using a large and accurate dataset and as importantly on correct model specifi-
cation Statistical analyses should first have a consistent theory of how and why a
transitional justice mechanism (or combination of them) produces outcomes
and then proceed to testing Insufficient attention to causal processes may aggra-
vate the problems of omitted variable bias endogeneity and multicollinearity
Many of the works mentioned above propose one or several causal mechanisms
to link a truth commission process to the outcomes of interest but even the most
influential studies fail to develop consistent theories and provide supporting
evidence For example Olsen Payne and Reiter attribute the potential positive
effects of truth commissions to their capacity to provide a forum for dialogue lsquoa
fundamental building block for peace and democratic trustrsquo29 However they
conclude that the combination of trials and amnesties without truth commissions
contributes to democracy and human rights as well as the combination of trials
amnesties and truth commissions In what ways then are truth commissions
relevant30 Moreover the claim that truth commissions foster dialogue among
victims perpetrators and bystanders does not conform to empirical evidence
28 Paul Collier Anke Hoeffler and Mans Soderbom Post-Conflict Risks (Oxford Centre for the Studyof African Economies University of Oxford 2006) Barbara Walter lsquoDoes Conflict Beget ConflictExplaining Recurring Civil Warrsquo Journal of Peace Research 41(3) (2004) 371ndash388
29 Olsen et al supra n 12 at 15530 In a recent article drawing largely upon the 2010 book Olsen Payne Reiter and
Wiebelhaus-Brahm leave aside the lsquowith or without truth commissionsrsquo explanation focusinginstead on the conditions under which truth commissions promote human rights most effectivelyThey advocate truth commissions that strike a balance between amnesties and trials stability andaccountability which the authors name the lsquojustice balancersquo Tricia D Olsen Leigh A PayneAndrew G Reiter and Eric Wiebelhaus-Brahm lsquoWhen Truth Commissions Improve HumanRightsrsquo International Journal of Transitional Justice 4(3) (2010) 457ndash476
International Journal of Transitional Justice Vol 8 2014 6ndash30
12 O Bakiner
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nloaded from
from the majority of cases where perpetrators do not testify before a commission
and often try to close the space for dialogue Eric Wiebelhaus-Brahm provides
several explanations for how truth commissions might influence political behav-
ior but his statistical analysis which finds a negative correlation with human
rights conduct and no significant relation with democratic politics tends to
contradict many of the possible causal mechanisms coming from his case
studies31
Kim and Sikkink provide a plausible causal explanation for their findings truth
commissionsrsquo findings and advocacy of human rights norms build pressure on
perpetrators making prosecutions more likely The observable implication of
their theory is that prosecutors would initiate trials following the truth commis-
sion process building their cases on commission findings However their dataset
Human Rights Trials in the World 1979ndash2006 shows that few truth commissions
have created the impulse for prosecution Furthermore even if one assumes that
truth commissions do produce normative transformations their study does not
produce evidence that politicians civil society actors attorneys and judges have
changed behavior as a result of the truth commission process32
Defining and Explaining ImpactlsquoImpactrsquo refers to the causal effect of a truth commission process on individualsrsquo
and institutionsrsquo decisions interests beliefs and values The epistemological and
methodological challenges of establishing causality are well known In the social
sciences and humanities one rarely observes lsquosmoking gunrsquo evidence that con-
firms one hypothesis beyond doubt while discarding alternative explanations33
Transitional justice scholarship has recently taken steps to address the question of
causality by conducting large-n regression analysis to assess the impact of tran-
sitional justice mechanisms on outcome variables (the shortcomings of this ap-
proach to causal inference are discussed above) Studies in the qualitative
tradition meanwhile seek to establish causal connections by getting the causal
mechanism right which raises the evidentiary standards for linking transitional
justice processes to outcomes
What kinds of data amount to lsquosmoking gunrsquo evidence in explaining truth
commission impact Two examples come to mind a political leader declaring
that heshe was urged influenced or inspired exclusively by a truth commission to
enact a policy and a representative sample of the population telling researchers
that their views on human rights or reconciliation changed exclusively or pri-
marily as a result of the truth commission process Such unambiguous evidence
on decisions and values is lacking in most cases and the existing evidence is
insufficient for cross-national comparison
31 Wiebelhaus-Brahm supra n 1232 Kim and Sikkink supra n 1233 Stephen van Evera Guide to Methods for Students of Political Science (Ithaca NY Cornell
University Press 1997)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 13
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Although irrefutable evidence is often lacking I argue that it is possible to set
a reasonably high standard for establishing causal impact if the collected evidence
satisfies two tests For example if there are two hypothesized causal explanations
[TC fi A fi I] andor [TC fi B fi I] where a truth commission process (TC)
generates impact (I) through the intermediary steps A andor B confirming
the veracity of a causal explanation requires that (1) I should be observed
so that policies and judicial processes after a truth commission should re-
flect its findings and recommendations and (2) only A only B or both A and
B should be observed so that the researcher should find empirical evidence
for the intermediate steps (ie intervening variables) that connect a truth com-
mission to the outcomes of interest to confirm or disconfirm contending
hypotheses
The second test is crucial in overcoming problems of equifinality (the likelihood
that an outcome results from a causal mechanism other than that hypothesized by
the researcher) and multicollinearity (the failure to account for the interactions
between various factors that lead to an outcome) There may be more than one
mechanism that produces similar impact As I show in the following section truth
commissionsrsquo recommendations are incorporated into policy in some countries
because politicians take the initiative to implement them whereas in other cases
implementation takes place despite the reluctance or even hostility of the pol-
itical leadership as a result of continuous civil society mobilization Assessing
impact therefore requires accounting for all the intermediate steps in the causal
process
What causes a truth commission to generate impact in the first place This
article is a descriptive account of causal mechanisms that connect truth commis-
sions to postcommission outcomes Due to space limitations it does not address
the causes for the causes that is the sources of variation in impact across coun-
tries Nonetheless it is important to highlight two factors that play into the dir-
ection and magnitude of impact by shaping the precommission and commission
processes First a truth commission is simultaneously enabled and constrained by
its mandate which determines its tasks powers and organizational structure
Second the commissioners and staff exercise considerable agency in terms of
how they interpret the mandate how they identify and carry out their tasks
what they choose to include in the final report and how they interact with victims
presumed perpetrators politicians bureaucrats armed actors and civil society
organizations Part of their impact is attributable to the product that is the final
report which contains findings a historical narrative and recommendations In
addition the truth commission process itself is credited for giving voice to victims
of human rights violations (and occasionally perpetrators) and building linkages
among various civil society actors34
34 For the distinction between product- and process-driven impact see Priscilla B Hayner lsquoPastTruths Present Dangers The Role of Official Truth Seeking in Conflict Resolution andPreventionrsquo in International Conflict Resolution after the Cold War ed Paul C Stern andDaniel Druckman (Washington DC National Academy Press 2000)
International Journal of Transitional Justice Vol 8 2014 6ndash30
14 O Bakiner
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Thus the truth commission process is a constant struggle between forces that
seek to delimit and predetermine a commissionrsquos capabilities and the commis-
sionrsquos striving for autonomy and transformative agency In great part as a result
of this interplay of mandate and agency various decision makers and civil
society actors endorse reject mobilize around or ignore a truth commissionrsquos
findings and recommendations Impact is constituted by the content of the
final report and equally importantly by the process itself It is shaped but not
predetermined by the mandate limits
Data and Methods
Research Strategy
Many of the shortcomings of the literature as described in the first section can
be addressed if the research strategy pays close attention to causal processes rather
than correlations between a truth commission and outcomes of interest such
as democracy human rights and the rule of law In other words what is needed
is a theoretically informed process-tracing approach to generate and assess
theories of impact Thus drawing upon the existing literature on truth commis-
sions I build a theoretical framework to document the specific mechanisms
through which a truth commission experience is expected to influence the
decisions of policy makers armed actors judges civil society activists and ordin-
ary citizens Then I identify the observable implications of the hypothesized
causal mechanisms Finally I look for supporting empirical evidence from
truth commission experiences to confirm those observable implications (see
Table 1)
Case Selection
Aggravating the conceptual and methodological problems of assessing impact is
the failure to account for the heterogeneity of truth commission experiences
Several consolidated democracies like Brazil and ongoing authoritarian regimes
like Morocco have established truth commissions Those commissions tend to
investigate violations that happened decades ago rather than in the immediate
past The political stakes self-declared goals and methodologies are radically
different from those characterizing transitional truth commissions Ensuring
democratic stability or forging reconciliation between victims and perpetrators
(most of whom are too old or perhaps deceased) for example are not outstand-
ing goals for nontransitional commissions In countries like Chile and South
Korea follow-up truth commissions have investigated violations not covered
by an earlier commission Therefore lumping all truth commissions in one data-
base obscures the distinct character of causal processes that produce impact in
transitional and nontransitional settings
Instead of including all truth commissions in a large-n dataset I separate tran-
sitional commissions from nontransitional ones to explain the dynamics specific
to the former group A transitional truth commission is established within zero to
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 15
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Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
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for revenge diminish and society is (re)united through tolerance and forgiveness
For some truth commissions genuine reconciliation is understood to be based on
the full disclosure of past atrocities and the provision of criminal justice as truth
justice and reparations complement one another8 Others point to the looming
threat of renewed violence or military coups during fragile transitions and con-
ceptualize the relationship between criminal justice and the other objectives of
transitional justice in particular democratic stability as a trade-off Accordingly
truth commissionsrsquo success rests upon their ability to sidestep retributive justice
and promote restorative justice and social reconciliation ndash what one commenta-
tor names lsquocompromise justicersquo9
This abundance of expectations has triggered scholars to evaluate truth com-
missionsrsquo achievements and shortcomings10 International institutions and non-
governmental organizations (NGOs) have published manuals on assessing truth
commissionsrsquo role in promoting postconflict peace and reconciliation using the
best practices approach11 Recently scholars have turned to rigorous hypothesis
testing by employing statistical survey experimental and ethnographic methods
as well as mixed-method strategies Studies that evaluate truth commission
impact tend to focus on the countryrsquos human rights conduct12 democratic sta-
bility13 social reconciliation14 and rule of law15 Although case studies of one or
8 Amnesty International Truth Justice and Reparation Establishing an Effective Truth Commission(2007)
9 Brian Grodsky lsquoInternational Prosecutions and Domestic Politics The Use of Truth Commissionsas Compromise Justice in Serbia and Croatiarsquo International Studies Review 11(4) (2009) 687ndash706Since the early days of transitional justice scholarship the specific applications of a statersquos duty toprosecute have fuelled disagreements For a summary of the debates on the duty to prosecute at the1988 Aspen Institute Conference one of the meetings that framed the field of transitional justicesee Paige Arthur lsquoHow ldquoTransitionsrdquo Reshaped Human Rights A Conceptual History ofTransitional Justicersquo Human Rights Quarterly 31(2) (2009) 321ndash354
10 It should be noted that most of the studies cited below explore the effects of a number of tran-sitional justice measures and not solely those of truth commissions This article has a narrower yet(hopefully) more precise focus the specific contributions of truth commissions
11 Office of the High Commissioner for Human Rights Rule of Law Tools for Post Conflict SocietiesTruth Commissions (2006) Amnesty International supra n 8 David Bloomfield Teresa Barnesand Luc Huyse eds Reconciliation after Violent Conflict A Handbook (Stockholm InternationalIDEA 2003)
12 Eric Wiebelhaus-Brahm Truth Commissions and Transitional Societies The Impact on HumanRights and Democracy (New York Routledge 2010) Hunjoon Kim and Kathryn SikkinklsquoExplaining the Deterrence Effect of Human Rights Prosecutions for Transitional CountriesrsquoInternational Studies Quarterly 54(4) (2010) 939ndash963 Tricia D Olsen Leigh A Payne andAndrew G Reiter Transitional Justice in Balance Comparing Processes Weighing Efficacy(Washington DC US Institute of Peace Press 2010)
13 Jack Snyder and Leslie Vinjamuri lsquoTrials and Errors Principle and Pragmatism in Strategies ofInternational Justicersquo International Security 28(3) (2003) 5ndash44 Wiebelhaus-Brahm supra n 12
14 James L Gibson and Amanda Gouws lsquoTruth and Reconciliation in South Africa Attributions ofBlame and the Struggle over Apartheidrsquo American Political Science Review 93(3) (1999) 501ndash517James L Gibson lsquoThe Contributions of Truth to Reconciliation Lessons from South AfricarsquoJournal of Conflict Resolution 59(3) (2006) 409ndash432
15 James L Gibson lsquoTruth Reconciliation and the Creation of a Human Rights Culture in SouthAfricarsquo Law and Society Review 38(1) (2004) 5ndash40
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 9
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nloaded from
several truth commissions initially dominated the field16 recent studies increas-
ingly use large-n regression analysis17
A striking characteristic of the existing literature is the coexistence of compet-
ing if not outright contradictory theories about truth commission impact18 For
example Tricia Olsen Leigh Payne and Andrew Reiter find that truth commis-
sions when used alone lsquohave a significant negative effectrsquo on democracy and
human rights but yield positive outcomes when combined with trials and amnes-
ties19 Hunjoon Kim and Kathryn Sikkink on the other hand argue that truth
commissions have a positive independent effect on human rights conduct which
increases in magnitude if accompanied by prosecutions Others find truth com-
missions to have weak negative impact20 or no observable impact at all21 on
democracy and human rights
What explains the divergent results between studies that explore the same causal
relationship Qualitative and quantitative research strategies are known to pro-
duce systematically different results in human rights research22 Moreover even
studies using the same data collection and analysis method (eg large-n regres-
sion analysis) arrive at divergent results due to differences in their conceptual-
ization of key variables codification and collection of data as well as model
specification Below I identify the main problems with research on truth com-
mission impact
Definition and Codification
Scholarly disagreement on the definition of a truth commission has implications
for coding data and testing theories Transitional justice databases often codify
the same procedure under different categories which in part explains divergent
16 Examples include but are not limited to Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (Cambridge CambridgeUniversity Press 2001) William J Long and Peter Brecke War and Reconciliation Reason andEmotion in Conflict Resolution (Cambridge MA MIT Press 2003) Emily Brooke Rodio lsquoMorethan Truth Democracy and South Africarsquos Truth and Reconciliation Commissionrsquo (PhD dissSyracuse University 2009)
17 Charles D Kenney and Dean E Spears lsquoTruth and Consequences Do Truth CommissionsPromote Democratizationrsquo (paper presented at the Annual Meeting of the American PoliticalScience Association Washington DC 1ndash4 September 2005) Kim and Sikkink supra n 12Wiebelhaus-Brahm supra n 12 Olsen et al supra n 12
18 Oskar NT Thoms James Ron and Roland Paris lsquoState-Level Effects of Transitional Justice WhatDo We Knowrsquo International Journal of Transitional Justice 4(3) (2010) 329ndash354
19 Olsen et al supra n 12 at 153ndash15420 Wiebelhaus-Brahm supra n 1221 David Mendeloff cites several Amnesty International reports to conclude that truth commissions
do not contribute to human rights progress while Carmen Gonzalez Enrıquez AlexandraBarahona de Brito and Paloma Aguilar Fernandez put into question the democracy-promotioneffects of truth commissions based on four case studies David Mendeloff lsquoTruth-SeekingTruth-Telling and Postconflict Peacebuilding Curb the Enthusiasmrsquo International StudiesReview 6(3) (2004) 355ndash380 Carmen Gonzalez Enrıquez Alexandra Barahona de Brito andPaloma Aguilar Fernandez eds The Politics of Memory Transitional Justice in DemocratizingSocieties (Oxford Oxford University Press 2001)
22 Emilie M Hafner-Burton and James Ron lsquoSeeing Double Human Rights Impact throughQualitative and Quantitative Eyesrsquo World Politics 61(2) (2009) 360ndash401
International Journal of Transitional Justice Vol 8 2014 6ndash30
10 O Bakiner
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Dow
nloaded from
outcomes Some scholars count parliamentary investigation commissions (such
as Uruguayrsquos 1985 Commission for the Investigation of the Situation of the
Disappeared and Related Events and Germanyrsquos 1992 Study Commission for
Working through the History and the Consequences of the SED Dictatorship
in Germany) as truth commissions while others object to this classification
noting that a truth commission should have sufficient autonomy from the ex-
ecutive and legislative branches of government Commissions that were dissolved
before terminating their work (such as Boliviarsquos 1982 National Commission for
Investigation for Forced Disappearances and Ecuadorrsquos 1996 Truth and Justice
Commission) are particularly divisive since unfinished commissions invoke con-
ceptual and empirical questions about whether a commission process regardless
of the outcome (or in these cases lack thereof) can generate substantial political
and social change Furthermore some studies identify a relatively large number of
investigative or deliberative procedures as truth commissions with little or no
attention to definitional criteria For example the Transitional Justice Data Base
Project sets the number of truth commissions established between 1970 and 2007
at 6023 while the figure ranges between 28 and 40 in all other studies24
Model Specification
Once the concepts are defined and data codified the specification of relevant
variables can generate differences too For example two recent studies of human
rights accountability disagree over the evidence for a lsquojustice cascadersquo (ie un-
precedented human rights accountability) in the 1990s and 2000s While Kim and
Sikkink get statistically significant results supporting the theory Olsen Payne and
Reiter argue that the incorporation of amnesty laws into the statistical model
eliminates overwhelming support for the justice cascade25 Given the extremely
complex nature of causal relations among relevant variables statistical analyses of
large-n datasets are particularly prone to the omitted variable bias
Multicollinearity
Another set of complications arises from the intrinsic difficulty of measuring
truth commission impact26 Critics rightly warn against confounding other
causal processes with the independent impact of truth commissions27 It makes
23 Olsen et al supra n 1224 Mark Freeman counts 28 commissions excluding five panels listed as truth commissions by
Priscilla Hayner Eric Wiebelhaus-Brahm includes 29 panels as truth commissions for the sameperiod Hayner counts a total of 40 truth commissions including six new ones since 2006 and 34commissions for the period covered by Freemanrsquos and Wiebelhaus-Brahmrsquos accounts MarkFreeman Truth Commissions and Procedural Fairness (Cambridge Cambridge University Press2006) Priscilla B Hayner Unspeakable Truths Confronting State Terror and Atrocity 2nd ed(London Routledge 2001) Wiebelhaus-Brahm supra n 12
25 Olsen et al supra n 1226 Eric Brahm lsquoUncovering the Truth Examining Truth Commission Success and Impactrsquo
International Studies Perspectives 8(1) (2007) 16ndash3527 Snyder and Vinjamuri supra n 13
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 11
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nloaded from
intuitive sense to expect improvements in human rights conduct and democratic
governance during and after the truth commission process in great part because
truth commissions are likely to be established during democratic transitions and
when the human rights situation has already improved at least to the extent that
transitional justice becomes a viable possibility
The reverse case that is when the truth commission process is followed by
increasing levels of violence and instability does not offer much analytical lever-
age either Countries that have undergone civil wars are more likely to suffer from
violent conflict in the future28 but truth commissionsrsquo role in provoking such
conflict is unclear Therefore the variety of factors that might lead to democratic
strengthening and nonviolence (which in turn make the creation of a truth
commission possible) or to renewed conflict should not be conflated with the
independent effect of truth commissions
Insufficient Attention to Causal Mechanism
Many scholars prefer regression analysis to make causal inferences on the inde-
pendent effect of truth commissions on democracy and human rights Causal
inference may indeed address the challenges of endogeneity multicollinearity and
counterfactual reasoning but its successful implementation depends critically on
using a large and accurate dataset and as importantly on correct model specifi-
cation Statistical analyses should first have a consistent theory of how and why a
transitional justice mechanism (or combination of them) produces outcomes
and then proceed to testing Insufficient attention to causal processes may aggra-
vate the problems of omitted variable bias endogeneity and multicollinearity
Many of the works mentioned above propose one or several causal mechanisms
to link a truth commission process to the outcomes of interest but even the most
influential studies fail to develop consistent theories and provide supporting
evidence For example Olsen Payne and Reiter attribute the potential positive
effects of truth commissions to their capacity to provide a forum for dialogue lsquoa
fundamental building block for peace and democratic trustrsquo29 However they
conclude that the combination of trials and amnesties without truth commissions
contributes to democracy and human rights as well as the combination of trials
amnesties and truth commissions In what ways then are truth commissions
relevant30 Moreover the claim that truth commissions foster dialogue among
victims perpetrators and bystanders does not conform to empirical evidence
28 Paul Collier Anke Hoeffler and Mans Soderbom Post-Conflict Risks (Oxford Centre for the Studyof African Economies University of Oxford 2006) Barbara Walter lsquoDoes Conflict Beget ConflictExplaining Recurring Civil Warrsquo Journal of Peace Research 41(3) (2004) 371ndash388
29 Olsen et al supra n 12 at 15530 In a recent article drawing largely upon the 2010 book Olsen Payne Reiter and
Wiebelhaus-Brahm leave aside the lsquowith or without truth commissionsrsquo explanation focusinginstead on the conditions under which truth commissions promote human rights most effectivelyThey advocate truth commissions that strike a balance between amnesties and trials stability andaccountability which the authors name the lsquojustice balancersquo Tricia D Olsen Leigh A PayneAndrew G Reiter and Eric Wiebelhaus-Brahm lsquoWhen Truth Commissions Improve HumanRightsrsquo International Journal of Transitional Justice 4(3) (2010) 457ndash476
International Journal of Transitional Justice Vol 8 2014 6ndash30
12 O Bakiner
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nloaded from
from the majority of cases where perpetrators do not testify before a commission
and often try to close the space for dialogue Eric Wiebelhaus-Brahm provides
several explanations for how truth commissions might influence political behav-
ior but his statistical analysis which finds a negative correlation with human
rights conduct and no significant relation with democratic politics tends to
contradict many of the possible causal mechanisms coming from his case
studies31
Kim and Sikkink provide a plausible causal explanation for their findings truth
commissionsrsquo findings and advocacy of human rights norms build pressure on
perpetrators making prosecutions more likely The observable implication of
their theory is that prosecutors would initiate trials following the truth commis-
sion process building their cases on commission findings However their dataset
Human Rights Trials in the World 1979ndash2006 shows that few truth commissions
have created the impulse for prosecution Furthermore even if one assumes that
truth commissions do produce normative transformations their study does not
produce evidence that politicians civil society actors attorneys and judges have
changed behavior as a result of the truth commission process32
Defining and Explaining ImpactlsquoImpactrsquo refers to the causal effect of a truth commission process on individualsrsquo
and institutionsrsquo decisions interests beliefs and values The epistemological and
methodological challenges of establishing causality are well known In the social
sciences and humanities one rarely observes lsquosmoking gunrsquo evidence that con-
firms one hypothesis beyond doubt while discarding alternative explanations33
Transitional justice scholarship has recently taken steps to address the question of
causality by conducting large-n regression analysis to assess the impact of tran-
sitional justice mechanisms on outcome variables (the shortcomings of this ap-
proach to causal inference are discussed above) Studies in the qualitative
tradition meanwhile seek to establish causal connections by getting the causal
mechanism right which raises the evidentiary standards for linking transitional
justice processes to outcomes
What kinds of data amount to lsquosmoking gunrsquo evidence in explaining truth
commission impact Two examples come to mind a political leader declaring
that heshe was urged influenced or inspired exclusively by a truth commission to
enact a policy and a representative sample of the population telling researchers
that their views on human rights or reconciliation changed exclusively or pri-
marily as a result of the truth commission process Such unambiguous evidence
on decisions and values is lacking in most cases and the existing evidence is
insufficient for cross-national comparison
31 Wiebelhaus-Brahm supra n 1232 Kim and Sikkink supra n 1233 Stephen van Evera Guide to Methods for Students of Political Science (Ithaca NY Cornell
University Press 1997)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 13
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Although irrefutable evidence is often lacking I argue that it is possible to set
a reasonably high standard for establishing causal impact if the collected evidence
satisfies two tests For example if there are two hypothesized causal explanations
[TC fi A fi I] andor [TC fi B fi I] where a truth commission process (TC)
generates impact (I) through the intermediary steps A andor B confirming
the veracity of a causal explanation requires that (1) I should be observed
so that policies and judicial processes after a truth commission should re-
flect its findings and recommendations and (2) only A only B or both A and
B should be observed so that the researcher should find empirical evidence
for the intermediate steps (ie intervening variables) that connect a truth com-
mission to the outcomes of interest to confirm or disconfirm contending
hypotheses
The second test is crucial in overcoming problems of equifinality (the likelihood
that an outcome results from a causal mechanism other than that hypothesized by
the researcher) and multicollinearity (the failure to account for the interactions
between various factors that lead to an outcome) There may be more than one
mechanism that produces similar impact As I show in the following section truth
commissionsrsquo recommendations are incorporated into policy in some countries
because politicians take the initiative to implement them whereas in other cases
implementation takes place despite the reluctance or even hostility of the pol-
itical leadership as a result of continuous civil society mobilization Assessing
impact therefore requires accounting for all the intermediate steps in the causal
process
What causes a truth commission to generate impact in the first place This
article is a descriptive account of causal mechanisms that connect truth commis-
sions to postcommission outcomes Due to space limitations it does not address
the causes for the causes that is the sources of variation in impact across coun-
tries Nonetheless it is important to highlight two factors that play into the dir-
ection and magnitude of impact by shaping the precommission and commission
processes First a truth commission is simultaneously enabled and constrained by
its mandate which determines its tasks powers and organizational structure
Second the commissioners and staff exercise considerable agency in terms of
how they interpret the mandate how they identify and carry out their tasks
what they choose to include in the final report and how they interact with victims
presumed perpetrators politicians bureaucrats armed actors and civil society
organizations Part of their impact is attributable to the product that is the final
report which contains findings a historical narrative and recommendations In
addition the truth commission process itself is credited for giving voice to victims
of human rights violations (and occasionally perpetrators) and building linkages
among various civil society actors34
34 For the distinction between product- and process-driven impact see Priscilla B Hayner lsquoPastTruths Present Dangers The Role of Official Truth Seeking in Conflict Resolution andPreventionrsquo in International Conflict Resolution after the Cold War ed Paul C Stern andDaniel Druckman (Washington DC National Academy Press 2000)
International Journal of Transitional Justice Vol 8 2014 6ndash30
14 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
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nloaded from
Thus the truth commission process is a constant struggle between forces that
seek to delimit and predetermine a commissionrsquos capabilities and the commis-
sionrsquos striving for autonomy and transformative agency In great part as a result
of this interplay of mandate and agency various decision makers and civil
society actors endorse reject mobilize around or ignore a truth commissionrsquos
findings and recommendations Impact is constituted by the content of the
final report and equally importantly by the process itself It is shaped but not
predetermined by the mandate limits
Data and Methods
Research Strategy
Many of the shortcomings of the literature as described in the first section can
be addressed if the research strategy pays close attention to causal processes rather
than correlations between a truth commission and outcomes of interest such
as democracy human rights and the rule of law In other words what is needed
is a theoretically informed process-tracing approach to generate and assess
theories of impact Thus drawing upon the existing literature on truth commis-
sions I build a theoretical framework to document the specific mechanisms
through which a truth commission experience is expected to influence the
decisions of policy makers armed actors judges civil society activists and ordin-
ary citizens Then I identify the observable implications of the hypothesized
causal mechanisms Finally I look for supporting empirical evidence from
truth commission experiences to confirm those observable implications (see
Table 1)
Case Selection
Aggravating the conceptual and methodological problems of assessing impact is
the failure to account for the heterogeneity of truth commission experiences
Several consolidated democracies like Brazil and ongoing authoritarian regimes
like Morocco have established truth commissions Those commissions tend to
investigate violations that happened decades ago rather than in the immediate
past The political stakes self-declared goals and methodologies are radically
different from those characterizing transitional truth commissions Ensuring
democratic stability or forging reconciliation between victims and perpetrators
(most of whom are too old or perhaps deceased) for example are not outstand-
ing goals for nontransitional commissions In countries like Chile and South
Korea follow-up truth commissions have investigated violations not covered
by an earlier commission Therefore lumping all truth commissions in one data-
base obscures the distinct character of causal processes that produce impact in
transitional and nontransitional settings
Instead of including all truth commissions in a large-n dataset I separate tran-
sitional commissions from nontransitional ones to explain the dynamics specific
to the former group A transitional truth commission is established within zero to
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 15
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
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Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
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Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
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nloaded from
several truth commissions initially dominated the field16 recent studies increas-
ingly use large-n regression analysis17
A striking characteristic of the existing literature is the coexistence of compet-
ing if not outright contradictory theories about truth commission impact18 For
example Tricia Olsen Leigh Payne and Andrew Reiter find that truth commis-
sions when used alone lsquohave a significant negative effectrsquo on democracy and
human rights but yield positive outcomes when combined with trials and amnes-
ties19 Hunjoon Kim and Kathryn Sikkink on the other hand argue that truth
commissions have a positive independent effect on human rights conduct which
increases in magnitude if accompanied by prosecutions Others find truth com-
missions to have weak negative impact20 or no observable impact at all21 on
democracy and human rights
What explains the divergent results between studies that explore the same causal
relationship Qualitative and quantitative research strategies are known to pro-
duce systematically different results in human rights research22 Moreover even
studies using the same data collection and analysis method (eg large-n regres-
sion analysis) arrive at divergent results due to differences in their conceptual-
ization of key variables codification and collection of data as well as model
specification Below I identify the main problems with research on truth com-
mission impact
Definition and Codification
Scholarly disagreement on the definition of a truth commission has implications
for coding data and testing theories Transitional justice databases often codify
the same procedure under different categories which in part explains divergent
16 Examples include but are not limited to Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (Cambridge CambridgeUniversity Press 2001) William J Long and Peter Brecke War and Reconciliation Reason andEmotion in Conflict Resolution (Cambridge MA MIT Press 2003) Emily Brooke Rodio lsquoMorethan Truth Democracy and South Africarsquos Truth and Reconciliation Commissionrsquo (PhD dissSyracuse University 2009)
17 Charles D Kenney and Dean E Spears lsquoTruth and Consequences Do Truth CommissionsPromote Democratizationrsquo (paper presented at the Annual Meeting of the American PoliticalScience Association Washington DC 1ndash4 September 2005) Kim and Sikkink supra n 12Wiebelhaus-Brahm supra n 12 Olsen et al supra n 12
18 Oskar NT Thoms James Ron and Roland Paris lsquoState-Level Effects of Transitional Justice WhatDo We Knowrsquo International Journal of Transitional Justice 4(3) (2010) 329ndash354
19 Olsen et al supra n 12 at 153ndash15420 Wiebelhaus-Brahm supra n 1221 David Mendeloff cites several Amnesty International reports to conclude that truth commissions
do not contribute to human rights progress while Carmen Gonzalez Enrıquez AlexandraBarahona de Brito and Paloma Aguilar Fernandez put into question the democracy-promotioneffects of truth commissions based on four case studies David Mendeloff lsquoTruth-SeekingTruth-Telling and Postconflict Peacebuilding Curb the Enthusiasmrsquo International StudiesReview 6(3) (2004) 355ndash380 Carmen Gonzalez Enrıquez Alexandra Barahona de Brito andPaloma Aguilar Fernandez eds The Politics of Memory Transitional Justice in DemocratizingSocieties (Oxford Oxford University Press 2001)
22 Emilie M Hafner-Burton and James Ron lsquoSeeing Double Human Rights Impact throughQualitative and Quantitative Eyesrsquo World Politics 61(2) (2009) 360ndash401
International Journal of Transitional Justice Vol 8 2014 6ndash30
10 O Bakiner
at Princeton University on A
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nloaded from
outcomes Some scholars count parliamentary investigation commissions (such
as Uruguayrsquos 1985 Commission for the Investigation of the Situation of the
Disappeared and Related Events and Germanyrsquos 1992 Study Commission for
Working through the History and the Consequences of the SED Dictatorship
in Germany) as truth commissions while others object to this classification
noting that a truth commission should have sufficient autonomy from the ex-
ecutive and legislative branches of government Commissions that were dissolved
before terminating their work (such as Boliviarsquos 1982 National Commission for
Investigation for Forced Disappearances and Ecuadorrsquos 1996 Truth and Justice
Commission) are particularly divisive since unfinished commissions invoke con-
ceptual and empirical questions about whether a commission process regardless
of the outcome (or in these cases lack thereof) can generate substantial political
and social change Furthermore some studies identify a relatively large number of
investigative or deliberative procedures as truth commissions with little or no
attention to definitional criteria For example the Transitional Justice Data Base
Project sets the number of truth commissions established between 1970 and 2007
at 6023 while the figure ranges between 28 and 40 in all other studies24
Model Specification
Once the concepts are defined and data codified the specification of relevant
variables can generate differences too For example two recent studies of human
rights accountability disagree over the evidence for a lsquojustice cascadersquo (ie un-
precedented human rights accountability) in the 1990s and 2000s While Kim and
Sikkink get statistically significant results supporting the theory Olsen Payne and
Reiter argue that the incorporation of amnesty laws into the statistical model
eliminates overwhelming support for the justice cascade25 Given the extremely
complex nature of causal relations among relevant variables statistical analyses of
large-n datasets are particularly prone to the omitted variable bias
Multicollinearity
Another set of complications arises from the intrinsic difficulty of measuring
truth commission impact26 Critics rightly warn against confounding other
causal processes with the independent impact of truth commissions27 It makes
23 Olsen et al supra n 1224 Mark Freeman counts 28 commissions excluding five panels listed as truth commissions by
Priscilla Hayner Eric Wiebelhaus-Brahm includes 29 panels as truth commissions for the sameperiod Hayner counts a total of 40 truth commissions including six new ones since 2006 and 34commissions for the period covered by Freemanrsquos and Wiebelhaus-Brahmrsquos accounts MarkFreeman Truth Commissions and Procedural Fairness (Cambridge Cambridge University Press2006) Priscilla B Hayner Unspeakable Truths Confronting State Terror and Atrocity 2nd ed(London Routledge 2001) Wiebelhaus-Brahm supra n 12
25 Olsen et al supra n 1226 Eric Brahm lsquoUncovering the Truth Examining Truth Commission Success and Impactrsquo
International Studies Perspectives 8(1) (2007) 16ndash3527 Snyder and Vinjamuri supra n 13
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How Truth Commissions Influence Politics and Society 11
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intuitive sense to expect improvements in human rights conduct and democratic
governance during and after the truth commission process in great part because
truth commissions are likely to be established during democratic transitions and
when the human rights situation has already improved at least to the extent that
transitional justice becomes a viable possibility
The reverse case that is when the truth commission process is followed by
increasing levels of violence and instability does not offer much analytical lever-
age either Countries that have undergone civil wars are more likely to suffer from
violent conflict in the future28 but truth commissionsrsquo role in provoking such
conflict is unclear Therefore the variety of factors that might lead to democratic
strengthening and nonviolence (which in turn make the creation of a truth
commission possible) or to renewed conflict should not be conflated with the
independent effect of truth commissions
Insufficient Attention to Causal Mechanism
Many scholars prefer regression analysis to make causal inferences on the inde-
pendent effect of truth commissions on democracy and human rights Causal
inference may indeed address the challenges of endogeneity multicollinearity and
counterfactual reasoning but its successful implementation depends critically on
using a large and accurate dataset and as importantly on correct model specifi-
cation Statistical analyses should first have a consistent theory of how and why a
transitional justice mechanism (or combination of them) produces outcomes
and then proceed to testing Insufficient attention to causal processes may aggra-
vate the problems of omitted variable bias endogeneity and multicollinearity
Many of the works mentioned above propose one or several causal mechanisms
to link a truth commission process to the outcomes of interest but even the most
influential studies fail to develop consistent theories and provide supporting
evidence For example Olsen Payne and Reiter attribute the potential positive
effects of truth commissions to their capacity to provide a forum for dialogue lsquoa
fundamental building block for peace and democratic trustrsquo29 However they
conclude that the combination of trials and amnesties without truth commissions
contributes to democracy and human rights as well as the combination of trials
amnesties and truth commissions In what ways then are truth commissions
relevant30 Moreover the claim that truth commissions foster dialogue among
victims perpetrators and bystanders does not conform to empirical evidence
28 Paul Collier Anke Hoeffler and Mans Soderbom Post-Conflict Risks (Oxford Centre for the Studyof African Economies University of Oxford 2006) Barbara Walter lsquoDoes Conflict Beget ConflictExplaining Recurring Civil Warrsquo Journal of Peace Research 41(3) (2004) 371ndash388
29 Olsen et al supra n 12 at 15530 In a recent article drawing largely upon the 2010 book Olsen Payne Reiter and
Wiebelhaus-Brahm leave aside the lsquowith or without truth commissionsrsquo explanation focusinginstead on the conditions under which truth commissions promote human rights most effectivelyThey advocate truth commissions that strike a balance between amnesties and trials stability andaccountability which the authors name the lsquojustice balancersquo Tricia D Olsen Leigh A PayneAndrew G Reiter and Eric Wiebelhaus-Brahm lsquoWhen Truth Commissions Improve HumanRightsrsquo International Journal of Transitional Justice 4(3) (2010) 457ndash476
International Journal of Transitional Justice Vol 8 2014 6ndash30
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nloaded from
from the majority of cases where perpetrators do not testify before a commission
and often try to close the space for dialogue Eric Wiebelhaus-Brahm provides
several explanations for how truth commissions might influence political behav-
ior but his statistical analysis which finds a negative correlation with human
rights conduct and no significant relation with democratic politics tends to
contradict many of the possible causal mechanisms coming from his case
studies31
Kim and Sikkink provide a plausible causal explanation for their findings truth
commissionsrsquo findings and advocacy of human rights norms build pressure on
perpetrators making prosecutions more likely The observable implication of
their theory is that prosecutors would initiate trials following the truth commis-
sion process building their cases on commission findings However their dataset
Human Rights Trials in the World 1979ndash2006 shows that few truth commissions
have created the impulse for prosecution Furthermore even if one assumes that
truth commissions do produce normative transformations their study does not
produce evidence that politicians civil society actors attorneys and judges have
changed behavior as a result of the truth commission process32
Defining and Explaining ImpactlsquoImpactrsquo refers to the causal effect of a truth commission process on individualsrsquo
and institutionsrsquo decisions interests beliefs and values The epistemological and
methodological challenges of establishing causality are well known In the social
sciences and humanities one rarely observes lsquosmoking gunrsquo evidence that con-
firms one hypothesis beyond doubt while discarding alternative explanations33
Transitional justice scholarship has recently taken steps to address the question of
causality by conducting large-n regression analysis to assess the impact of tran-
sitional justice mechanisms on outcome variables (the shortcomings of this ap-
proach to causal inference are discussed above) Studies in the qualitative
tradition meanwhile seek to establish causal connections by getting the causal
mechanism right which raises the evidentiary standards for linking transitional
justice processes to outcomes
What kinds of data amount to lsquosmoking gunrsquo evidence in explaining truth
commission impact Two examples come to mind a political leader declaring
that heshe was urged influenced or inspired exclusively by a truth commission to
enact a policy and a representative sample of the population telling researchers
that their views on human rights or reconciliation changed exclusively or pri-
marily as a result of the truth commission process Such unambiguous evidence
on decisions and values is lacking in most cases and the existing evidence is
insufficient for cross-national comparison
31 Wiebelhaus-Brahm supra n 1232 Kim and Sikkink supra n 1233 Stephen van Evera Guide to Methods for Students of Political Science (Ithaca NY Cornell
University Press 1997)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 13
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Although irrefutable evidence is often lacking I argue that it is possible to set
a reasonably high standard for establishing causal impact if the collected evidence
satisfies two tests For example if there are two hypothesized causal explanations
[TC fi A fi I] andor [TC fi B fi I] where a truth commission process (TC)
generates impact (I) through the intermediary steps A andor B confirming
the veracity of a causal explanation requires that (1) I should be observed
so that policies and judicial processes after a truth commission should re-
flect its findings and recommendations and (2) only A only B or both A and
B should be observed so that the researcher should find empirical evidence
for the intermediate steps (ie intervening variables) that connect a truth com-
mission to the outcomes of interest to confirm or disconfirm contending
hypotheses
The second test is crucial in overcoming problems of equifinality (the likelihood
that an outcome results from a causal mechanism other than that hypothesized by
the researcher) and multicollinearity (the failure to account for the interactions
between various factors that lead to an outcome) There may be more than one
mechanism that produces similar impact As I show in the following section truth
commissionsrsquo recommendations are incorporated into policy in some countries
because politicians take the initiative to implement them whereas in other cases
implementation takes place despite the reluctance or even hostility of the pol-
itical leadership as a result of continuous civil society mobilization Assessing
impact therefore requires accounting for all the intermediate steps in the causal
process
What causes a truth commission to generate impact in the first place This
article is a descriptive account of causal mechanisms that connect truth commis-
sions to postcommission outcomes Due to space limitations it does not address
the causes for the causes that is the sources of variation in impact across coun-
tries Nonetheless it is important to highlight two factors that play into the dir-
ection and magnitude of impact by shaping the precommission and commission
processes First a truth commission is simultaneously enabled and constrained by
its mandate which determines its tasks powers and organizational structure
Second the commissioners and staff exercise considerable agency in terms of
how they interpret the mandate how they identify and carry out their tasks
what they choose to include in the final report and how they interact with victims
presumed perpetrators politicians bureaucrats armed actors and civil society
organizations Part of their impact is attributable to the product that is the final
report which contains findings a historical narrative and recommendations In
addition the truth commission process itself is credited for giving voice to victims
of human rights violations (and occasionally perpetrators) and building linkages
among various civil society actors34
34 For the distinction between product- and process-driven impact see Priscilla B Hayner lsquoPastTruths Present Dangers The Role of Official Truth Seeking in Conflict Resolution andPreventionrsquo in International Conflict Resolution after the Cold War ed Paul C Stern andDaniel Druckman (Washington DC National Academy Press 2000)
International Journal of Transitional Justice Vol 8 2014 6ndash30
14 O Bakiner
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nloaded from
Thus the truth commission process is a constant struggle between forces that
seek to delimit and predetermine a commissionrsquos capabilities and the commis-
sionrsquos striving for autonomy and transformative agency In great part as a result
of this interplay of mandate and agency various decision makers and civil
society actors endorse reject mobilize around or ignore a truth commissionrsquos
findings and recommendations Impact is constituted by the content of the
final report and equally importantly by the process itself It is shaped but not
predetermined by the mandate limits
Data and Methods
Research Strategy
Many of the shortcomings of the literature as described in the first section can
be addressed if the research strategy pays close attention to causal processes rather
than correlations between a truth commission and outcomes of interest such
as democracy human rights and the rule of law In other words what is needed
is a theoretically informed process-tracing approach to generate and assess
theories of impact Thus drawing upon the existing literature on truth commis-
sions I build a theoretical framework to document the specific mechanisms
through which a truth commission experience is expected to influence the
decisions of policy makers armed actors judges civil society activists and ordin-
ary citizens Then I identify the observable implications of the hypothesized
causal mechanisms Finally I look for supporting empirical evidence from
truth commission experiences to confirm those observable implications (see
Table 1)
Case Selection
Aggravating the conceptual and methodological problems of assessing impact is
the failure to account for the heterogeneity of truth commission experiences
Several consolidated democracies like Brazil and ongoing authoritarian regimes
like Morocco have established truth commissions Those commissions tend to
investigate violations that happened decades ago rather than in the immediate
past The political stakes self-declared goals and methodologies are radically
different from those characterizing transitional truth commissions Ensuring
democratic stability or forging reconciliation between victims and perpetrators
(most of whom are too old or perhaps deceased) for example are not outstand-
ing goals for nontransitional commissions In countries like Chile and South
Korea follow-up truth commissions have investigated violations not covered
by an earlier commission Therefore lumping all truth commissions in one data-
base obscures the distinct character of causal processes that produce impact in
transitional and nontransitional settings
Instead of including all truth commissions in a large-n dataset I separate tran-
sitional commissions from nontransitional ones to explain the dynamics specific
to the former group A transitional truth commission is established within zero to
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 15
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nloaded from
Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
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nloaded from
outcomes Some scholars count parliamentary investigation commissions (such
as Uruguayrsquos 1985 Commission for the Investigation of the Situation of the
Disappeared and Related Events and Germanyrsquos 1992 Study Commission for
Working through the History and the Consequences of the SED Dictatorship
in Germany) as truth commissions while others object to this classification
noting that a truth commission should have sufficient autonomy from the ex-
ecutive and legislative branches of government Commissions that were dissolved
before terminating their work (such as Boliviarsquos 1982 National Commission for
Investigation for Forced Disappearances and Ecuadorrsquos 1996 Truth and Justice
Commission) are particularly divisive since unfinished commissions invoke con-
ceptual and empirical questions about whether a commission process regardless
of the outcome (or in these cases lack thereof) can generate substantial political
and social change Furthermore some studies identify a relatively large number of
investigative or deliberative procedures as truth commissions with little or no
attention to definitional criteria For example the Transitional Justice Data Base
Project sets the number of truth commissions established between 1970 and 2007
at 6023 while the figure ranges between 28 and 40 in all other studies24
Model Specification
Once the concepts are defined and data codified the specification of relevant
variables can generate differences too For example two recent studies of human
rights accountability disagree over the evidence for a lsquojustice cascadersquo (ie un-
precedented human rights accountability) in the 1990s and 2000s While Kim and
Sikkink get statistically significant results supporting the theory Olsen Payne and
Reiter argue that the incorporation of amnesty laws into the statistical model
eliminates overwhelming support for the justice cascade25 Given the extremely
complex nature of causal relations among relevant variables statistical analyses of
large-n datasets are particularly prone to the omitted variable bias
Multicollinearity
Another set of complications arises from the intrinsic difficulty of measuring
truth commission impact26 Critics rightly warn against confounding other
causal processes with the independent impact of truth commissions27 It makes
23 Olsen et al supra n 1224 Mark Freeman counts 28 commissions excluding five panels listed as truth commissions by
Priscilla Hayner Eric Wiebelhaus-Brahm includes 29 panels as truth commissions for the sameperiod Hayner counts a total of 40 truth commissions including six new ones since 2006 and 34commissions for the period covered by Freemanrsquos and Wiebelhaus-Brahmrsquos accounts MarkFreeman Truth Commissions and Procedural Fairness (Cambridge Cambridge University Press2006) Priscilla B Hayner Unspeakable Truths Confronting State Terror and Atrocity 2nd ed(London Routledge 2001) Wiebelhaus-Brahm supra n 12
25 Olsen et al supra n 1226 Eric Brahm lsquoUncovering the Truth Examining Truth Commission Success and Impactrsquo
International Studies Perspectives 8(1) (2007) 16ndash3527 Snyder and Vinjamuri supra n 13
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How Truth Commissions Influence Politics and Society 11
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intuitive sense to expect improvements in human rights conduct and democratic
governance during and after the truth commission process in great part because
truth commissions are likely to be established during democratic transitions and
when the human rights situation has already improved at least to the extent that
transitional justice becomes a viable possibility
The reverse case that is when the truth commission process is followed by
increasing levels of violence and instability does not offer much analytical lever-
age either Countries that have undergone civil wars are more likely to suffer from
violent conflict in the future28 but truth commissionsrsquo role in provoking such
conflict is unclear Therefore the variety of factors that might lead to democratic
strengthening and nonviolence (which in turn make the creation of a truth
commission possible) or to renewed conflict should not be conflated with the
independent effect of truth commissions
Insufficient Attention to Causal Mechanism
Many scholars prefer regression analysis to make causal inferences on the inde-
pendent effect of truth commissions on democracy and human rights Causal
inference may indeed address the challenges of endogeneity multicollinearity and
counterfactual reasoning but its successful implementation depends critically on
using a large and accurate dataset and as importantly on correct model specifi-
cation Statistical analyses should first have a consistent theory of how and why a
transitional justice mechanism (or combination of them) produces outcomes
and then proceed to testing Insufficient attention to causal processes may aggra-
vate the problems of omitted variable bias endogeneity and multicollinearity
Many of the works mentioned above propose one or several causal mechanisms
to link a truth commission process to the outcomes of interest but even the most
influential studies fail to develop consistent theories and provide supporting
evidence For example Olsen Payne and Reiter attribute the potential positive
effects of truth commissions to their capacity to provide a forum for dialogue lsquoa
fundamental building block for peace and democratic trustrsquo29 However they
conclude that the combination of trials and amnesties without truth commissions
contributes to democracy and human rights as well as the combination of trials
amnesties and truth commissions In what ways then are truth commissions
relevant30 Moreover the claim that truth commissions foster dialogue among
victims perpetrators and bystanders does not conform to empirical evidence
28 Paul Collier Anke Hoeffler and Mans Soderbom Post-Conflict Risks (Oxford Centre for the Studyof African Economies University of Oxford 2006) Barbara Walter lsquoDoes Conflict Beget ConflictExplaining Recurring Civil Warrsquo Journal of Peace Research 41(3) (2004) 371ndash388
29 Olsen et al supra n 12 at 15530 In a recent article drawing largely upon the 2010 book Olsen Payne Reiter and
Wiebelhaus-Brahm leave aside the lsquowith or without truth commissionsrsquo explanation focusinginstead on the conditions under which truth commissions promote human rights most effectivelyThey advocate truth commissions that strike a balance between amnesties and trials stability andaccountability which the authors name the lsquojustice balancersquo Tricia D Olsen Leigh A PayneAndrew G Reiter and Eric Wiebelhaus-Brahm lsquoWhen Truth Commissions Improve HumanRightsrsquo International Journal of Transitional Justice 4(3) (2010) 457ndash476
International Journal of Transitional Justice Vol 8 2014 6ndash30
12 O Bakiner
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Dow
nloaded from
from the majority of cases where perpetrators do not testify before a commission
and often try to close the space for dialogue Eric Wiebelhaus-Brahm provides
several explanations for how truth commissions might influence political behav-
ior but his statistical analysis which finds a negative correlation with human
rights conduct and no significant relation with democratic politics tends to
contradict many of the possible causal mechanisms coming from his case
studies31
Kim and Sikkink provide a plausible causal explanation for their findings truth
commissionsrsquo findings and advocacy of human rights norms build pressure on
perpetrators making prosecutions more likely The observable implication of
their theory is that prosecutors would initiate trials following the truth commis-
sion process building their cases on commission findings However their dataset
Human Rights Trials in the World 1979ndash2006 shows that few truth commissions
have created the impulse for prosecution Furthermore even if one assumes that
truth commissions do produce normative transformations their study does not
produce evidence that politicians civil society actors attorneys and judges have
changed behavior as a result of the truth commission process32
Defining and Explaining ImpactlsquoImpactrsquo refers to the causal effect of a truth commission process on individualsrsquo
and institutionsrsquo decisions interests beliefs and values The epistemological and
methodological challenges of establishing causality are well known In the social
sciences and humanities one rarely observes lsquosmoking gunrsquo evidence that con-
firms one hypothesis beyond doubt while discarding alternative explanations33
Transitional justice scholarship has recently taken steps to address the question of
causality by conducting large-n regression analysis to assess the impact of tran-
sitional justice mechanisms on outcome variables (the shortcomings of this ap-
proach to causal inference are discussed above) Studies in the qualitative
tradition meanwhile seek to establish causal connections by getting the causal
mechanism right which raises the evidentiary standards for linking transitional
justice processes to outcomes
What kinds of data amount to lsquosmoking gunrsquo evidence in explaining truth
commission impact Two examples come to mind a political leader declaring
that heshe was urged influenced or inspired exclusively by a truth commission to
enact a policy and a representative sample of the population telling researchers
that their views on human rights or reconciliation changed exclusively or pri-
marily as a result of the truth commission process Such unambiguous evidence
on decisions and values is lacking in most cases and the existing evidence is
insufficient for cross-national comparison
31 Wiebelhaus-Brahm supra n 1232 Kim and Sikkink supra n 1233 Stephen van Evera Guide to Methods for Students of Political Science (Ithaca NY Cornell
University Press 1997)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 13
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Although irrefutable evidence is often lacking I argue that it is possible to set
a reasonably high standard for establishing causal impact if the collected evidence
satisfies two tests For example if there are two hypothesized causal explanations
[TC fi A fi I] andor [TC fi B fi I] where a truth commission process (TC)
generates impact (I) through the intermediary steps A andor B confirming
the veracity of a causal explanation requires that (1) I should be observed
so that policies and judicial processes after a truth commission should re-
flect its findings and recommendations and (2) only A only B or both A and
B should be observed so that the researcher should find empirical evidence
for the intermediate steps (ie intervening variables) that connect a truth com-
mission to the outcomes of interest to confirm or disconfirm contending
hypotheses
The second test is crucial in overcoming problems of equifinality (the likelihood
that an outcome results from a causal mechanism other than that hypothesized by
the researcher) and multicollinearity (the failure to account for the interactions
between various factors that lead to an outcome) There may be more than one
mechanism that produces similar impact As I show in the following section truth
commissionsrsquo recommendations are incorporated into policy in some countries
because politicians take the initiative to implement them whereas in other cases
implementation takes place despite the reluctance or even hostility of the pol-
itical leadership as a result of continuous civil society mobilization Assessing
impact therefore requires accounting for all the intermediate steps in the causal
process
What causes a truth commission to generate impact in the first place This
article is a descriptive account of causal mechanisms that connect truth commis-
sions to postcommission outcomes Due to space limitations it does not address
the causes for the causes that is the sources of variation in impact across coun-
tries Nonetheless it is important to highlight two factors that play into the dir-
ection and magnitude of impact by shaping the precommission and commission
processes First a truth commission is simultaneously enabled and constrained by
its mandate which determines its tasks powers and organizational structure
Second the commissioners and staff exercise considerable agency in terms of
how they interpret the mandate how they identify and carry out their tasks
what they choose to include in the final report and how they interact with victims
presumed perpetrators politicians bureaucrats armed actors and civil society
organizations Part of their impact is attributable to the product that is the final
report which contains findings a historical narrative and recommendations In
addition the truth commission process itself is credited for giving voice to victims
of human rights violations (and occasionally perpetrators) and building linkages
among various civil society actors34
34 For the distinction between product- and process-driven impact see Priscilla B Hayner lsquoPastTruths Present Dangers The Role of Official Truth Seeking in Conflict Resolution andPreventionrsquo in International Conflict Resolution after the Cold War ed Paul C Stern andDaniel Druckman (Washington DC National Academy Press 2000)
International Journal of Transitional Justice Vol 8 2014 6ndash30
14 O Bakiner
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nloaded from
Thus the truth commission process is a constant struggle between forces that
seek to delimit and predetermine a commissionrsquos capabilities and the commis-
sionrsquos striving for autonomy and transformative agency In great part as a result
of this interplay of mandate and agency various decision makers and civil
society actors endorse reject mobilize around or ignore a truth commissionrsquos
findings and recommendations Impact is constituted by the content of the
final report and equally importantly by the process itself It is shaped but not
predetermined by the mandate limits
Data and Methods
Research Strategy
Many of the shortcomings of the literature as described in the first section can
be addressed if the research strategy pays close attention to causal processes rather
than correlations between a truth commission and outcomes of interest such
as democracy human rights and the rule of law In other words what is needed
is a theoretically informed process-tracing approach to generate and assess
theories of impact Thus drawing upon the existing literature on truth commis-
sions I build a theoretical framework to document the specific mechanisms
through which a truth commission experience is expected to influence the
decisions of policy makers armed actors judges civil society activists and ordin-
ary citizens Then I identify the observable implications of the hypothesized
causal mechanisms Finally I look for supporting empirical evidence from
truth commission experiences to confirm those observable implications (see
Table 1)
Case Selection
Aggravating the conceptual and methodological problems of assessing impact is
the failure to account for the heterogeneity of truth commission experiences
Several consolidated democracies like Brazil and ongoing authoritarian regimes
like Morocco have established truth commissions Those commissions tend to
investigate violations that happened decades ago rather than in the immediate
past The political stakes self-declared goals and methodologies are radically
different from those characterizing transitional truth commissions Ensuring
democratic stability or forging reconciliation between victims and perpetrators
(most of whom are too old or perhaps deceased) for example are not outstand-
ing goals for nontransitional commissions In countries like Chile and South
Korea follow-up truth commissions have investigated violations not covered
by an earlier commission Therefore lumping all truth commissions in one data-
base obscures the distinct character of causal processes that produce impact in
transitional and nontransitional settings
Instead of including all truth commissions in a large-n dataset I separate tran-
sitional commissions from nontransitional ones to explain the dynamics specific
to the former group A transitional truth commission is established within zero to
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 15
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nloaded from
Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
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nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
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nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
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nloaded from
intuitive sense to expect improvements in human rights conduct and democratic
governance during and after the truth commission process in great part because
truth commissions are likely to be established during democratic transitions and
when the human rights situation has already improved at least to the extent that
transitional justice becomes a viable possibility
The reverse case that is when the truth commission process is followed by
increasing levels of violence and instability does not offer much analytical lever-
age either Countries that have undergone civil wars are more likely to suffer from
violent conflict in the future28 but truth commissionsrsquo role in provoking such
conflict is unclear Therefore the variety of factors that might lead to democratic
strengthening and nonviolence (which in turn make the creation of a truth
commission possible) or to renewed conflict should not be conflated with the
independent effect of truth commissions
Insufficient Attention to Causal Mechanism
Many scholars prefer regression analysis to make causal inferences on the inde-
pendent effect of truth commissions on democracy and human rights Causal
inference may indeed address the challenges of endogeneity multicollinearity and
counterfactual reasoning but its successful implementation depends critically on
using a large and accurate dataset and as importantly on correct model specifi-
cation Statistical analyses should first have a consistent theory of how and why a
transitional justice mechanism (or combination of them) produces outcomes
and then proceed to testing Insufficient attention to causal processes may aggra-
vate the problems of omitted variable bias endogeneity and multicollinearity
Many of the works mentioned above propose one or several causal mechanisms
to link a truth commission process to the outcomes of interest but even the most
influential studies fail to develop consistent theories and provide supporting
evidence For example Olsen Payne and Reiter attribute the potential positive
effects of truth commissions to their capacity to provide a forum for dialogue lsquoa
fundamental building block for peace and democratic trustrsquo29 However they
conclude that the combination of trials and amnesties without truth commissions
contributes to democracy and human rights as well as the combination of trials
amnesties and truth commissions In what ways then are truth commissions
relevant30 Moreover the claim that truth commissions foster dialogue among
victims perpetrators and bystanders does not conform to empirical evidence
28 Paul Collier Anke Hoeffler and Mans Soderbom Post-Conflict Risks (Oxford Centre for the Studyof African Economies University of Oxford 2006) Barbara Walter lsquoDoes Conflict Beget ConflictExplaining Recurring Civil Warrsquo Journal of Peace Research 41(3) (2004) 371ndash388
29 Olsen et al supra n 12 at 15530 In a recent article drawing largely upon the 2010 book Olsen Payne Reiter and
Wiebelhaus-Brahm leave aside the lsquowith or without truth commissionsrsquo explanation focusinginstead on the conditions under which truth commissions promote human rights most effectivelyThey advocate truth commissions that strike a balance between amnesties and trials stability andaccountability which the authors name the lsquojustice balancersquo Tricia D Olsen Leigh A PayneAndrew G Reiter and Eric Wiebelhaus-Brahm lsquoWhen Truth Commissions Improve HumanRightsrsquo International Journal of Transitional Justice 4(3) (2010) 457ndash476
International Journal of Transitional Justice Vol 8 2014 6ndash30
12 O Bakiner
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nloaded from
from the majority of cases where perpetrators do not testify before a commission
and often try to close the space for dialogue Eric Wiebelhaus-Brahm provides
several explanations for how truth commissions might influence political behav-
ior but his statistical analysis which finds a negative correlation with human
rights conduct and no significant relation with democratic politics tends to
contradict many of the possible causal mechanisms coming from his case
studies31
Kim and Sikkink provide a plausible causal explanation for their findings truth
commissionsrsquo findings and advocacy of human rights norms build pressure on
perpetrators making prosecutions more likely The observable implication of
their theory is that prosecutors would initiate trials following the truth commis-
sion process building their cases on commission findings However their dataset
Human Rights Trials in the World 1979ndash2006 shows that few truth commissions
have created the impulse for prosecution Furthermore even if one assumes that
truth commissions do produce normative transformations their study does not
produce evidence that politicians civil society actors attorneys and judges have
changed behavior as a result of the truth commission process32
Defining and Explaining ImpactlsquoImpactrsquo refers to the causal effect of a truth commission process on individualsrsquo
and institutionsrsquo decisions interests beliefs and values The epistemological and
methodological challenges of establishing causality are well known In the social
sciences and humanities one rarely observes lsquosmoking gunrsquo evidence that con-
firms one hypothesis beyond doubt while discarding alternative explanations33
Transitional justice scholarship has recently taken steps to address the question of
causality by conducting large-n regression analysis to assess the impact of tran-
sitional justice mechanisms on outcome variables (the shortcomings of this ap-
proach to causal inference are discussed above) Studies in the qualitative
tradition meanwhile seek to establish causal connections by getting the causal
mechanism right which raises the evidentiary standards for linking transitional
justice processes to outcomes
What kinds of data amount to lsquosmoking gunrsquo evidence in explaining truth
commission impact Two examples come to mind a political leader declaring
that heshe was urged influenced or inspired exclusively by a truth commission to
enact a policy and a representative sample of the population telling researchers
that their views on human rights or reconciliation changed exclusively or pri-
marily as a result of the truth commission process Such unambiguous evidence
on decisions and values is lacking in most cases and the existing evidence is
insufficient for cross-national comparison
31 Wiebelhaus-Brahm supra n 1232 Kim and Sikkink supra n 1233 Stephen van Evera Guide to Methods for Students of Political Science (Ithaca NY Cornell
University Press 1997)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 13
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Dow
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Although irrefutable evidence is often lacking I argue that it is possible to set
a reasonably high standard for establishing causal impact if the collected evidence
satisfies two tests For example if there are two hypothesized causal explanations
[TC fi A fi I] andor [TC fi B fi I] where a truth commission process (TC)
generates impact (I) through the intermediary steps A andor B confirming
the veracity of a causal explanation requires that (1) I should be observed
so that policies and judicial processes after a truth commission should re-
flect its findings and recommendations and (2) only A only B or both A and
B should be observed so that the researcher should find empirical evidence
for the intermediate steps (ie intervening variables) that connect a truth com-
mission to the outcomes of interest to confirm or disconfirm contending
hypotheses
The second test is crucial in overcoming problems of equifinality (the likelihood
that an outcome results from a causal mechanism other than that hypothesized by
the researcher) and multicollinearity (the failure to account for the interactions
between various factors that lead to an outcome) There may be more than one
mechanism that produces similar impact As I show in the following section truth
commissionsrsquo recommendations are incorporated into policy in some countries
because politicians take the initiative to implement them whereas in other cases
implementation takes place despite the reluctance or even hostility of the pol-
itical leadership as a result of continuous civil society mobilization Assessing
impact therefore requires accounting for all the intermediate steps in the causal
process
What causes a truth commission to generate impact in the first place This
article is a descriptive account of causal mechanisms that connect truth commis-
sions to postcommission outcomes Due to space limitations it does not address
the causes for the causes that is the sources of variation in impact across coun-
tries Nonetheless it is important to highlight two factors that play into the dir-
ection and magnitude of impact by shaping the precommission and commission
processes First a truth commission is simultaneously enabled and constrained by
its mandate which determines its tasks powers and organizational structure
Second the commissioners and staff exercise considerable agency in terms of
how they interpret the mandate how they identify and carry out their tasks
what they choose to include in the final report and how they interact with victims
presumed perpetrators politicians bureaucrats armed actors and civil society
organizations Part of their impact is attributable to the product that is the final
report which contains findings a historical narrative and recommendations In
addition the truth commission process itself is credited for giving voice to victims
of human rights violations (and occasionally perpetrators) and building linkages
among various civil society actors34
34 For the distinction between product- and process-driven impact see Priscilla B Hayner lsquoPastTruths Present Dangers The Role of Official Truth Seeking in Conflict Resolution andPreventionrsquo in International Conflict Resolution after the Cold War ed Paul C Stern andDaniel Druckman (Washington DC National Academy Press 2000)
International Journal of Transitional Justice Vol 8 2014 6ndash30
14 O Bakiner
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nloaded from
Thus the truth commission process is a constant struggle between forces that
seek to delimit and predetermine a commissionrsquos capabilities and the commis-
sionrsquos striving for autonomy and transformative agency In great part as a result
of this interplay of mandate and agency various decision makers and civil
society actors endorse reject mobilize around or ignore a truth commissionrsquos
findings and recommendations Impact is constituted by the content of the
final report and equally importantly by the process itself It is shaped but not
predetermined by the mandate limits
Data and Methods
Research Strategy
Many of the shortcomings of the literature as described in the first section can
be addressed if the research strategy pays close attention to causal processes rather
than correlations between a truth commission and outcomes of interest such
as democracy human rights and the rule of law In other words what is needed
is a theoretically informed process-tracing approach to generate and assess
theories of impact Thus drawing upon the existing literature on truth commis-
sions I build a theoretical framework to document the specific mechanisms
through which a truth commission experience is expected to influence the
decisions of policy makers armed actors judges civil society activists and ordin-
ary citizens Then I identify the observable implications of the hypothesized
causal mechanisms Finally I look for supporting empirical evidence from
truth commission experiences to confirm those observable implications (see
Table 1)
Case Selection
Aggravating the conceptual and methodological problems of assessing impact is
the failure to account for the heterogeneity of truth commission experiences
Several consolidated democracies like Brazil and ongoing authoritarian regimes
like Morocco have established truth commissions Those commissions tend to
investigate violations that happened decades ago rather than in the immediate
past The political stakes self-declared goals and methodologies are radically
different from those characterizing transitional truth commissions Ensuring
democratic stability or forging reconciliation between victims and perpetrators
(most of whom are too old or perhaps deceased) for example are not outstand-
ing goals for nontransitional commissions In countries like Chile and South
Korea follow-up truth commissions have investigated violations not covered
by an earlier commission Therefore lumping all truth commissions in one data-
base obscures the distinct character of causal processes that produce impact in
transitional and nontransitional settings
Instead of including all truth commissions in a large-n dataset I separate tran-
sitional commissions from nontransitional ones to explain the dynamics specific
to the former group A transitional truth commission is established within zero to
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 15
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Dow
nloaded from
Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
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from the majority of cases where perpetrators do not testify before a commission
and often try to close the space for dialogue Eric Wiebelhaus-Brahm provides
several explanations for how truth commissions might influence political behav-
ior but his statistical analysis which finds a negative correlation with human
rights conduct and no significant relation with democratic politics tends to
contradict many of the possible causal mechanisms coming from his case
studies31
Kim and Sikkink provide a plausible causal explanation for their findings truth
commissionsrsquo findings and advocacy of human rights norms build pressure on
perpetrators making prosecutions more likely The observable implication of
their theory is that prosecutors would initiate trials following the truth commis-
sion process building their cases on commission findings However their dataset
Human Rights Trials in the World 1979ndash2006 shows that few truth commissions
have created the impulse for prosecution Furthermore even if one assumes that
truth commissions do produce normative transformations their study does not
produce evidence that politicians civil society actors attorneys and judges have
changed behavior as a result of the truth commission process32
Defining and Explaining ImpactlsquoImpactrsquo refers to the causal effect of a truth commission process on individualsrsquo
and institutionsrsquo decisions interests beliefs and values The epistemological and
methodological challenges of establishing causality are well known In the social
sciences and humanities one rarely observes lsquosmoking gunrsquo evidence that con-
firms one hypothesis beyond doubt while discarding alternative explanations33
Transitional justice scholarship has recently taken steps to address the question of
causality by conducting large-n regression analysis to assess the impact of tran-
sitional justice mechanisms on outcome variables (the shortcomings of this ap-
proach to causal inference are discussed above) Studies in the qualitative
tradition meanwhile seek to establish causal connections by getting the causal
mechanism right which raises the evidentiary standards for linking transitional
justice processes to outcomes
What kinds of data amount to lsquosmoking gunrsquo evidence in explaining truth
commission impact Two examples come to mind a political leader declaring
that heshe was urged influenced or inspired exclusively by a truth commission to
enact a policy and a representative sample of the population telling researchers
that their views on human rights or reconciliation changed exclusively or pri-
marily as a result of the truth commission process Such unambiguous evidence
on decisions and values is lacking in most cases and the existing evidence is
insufficient for cross-national comparison
31 Wiebelhaus-Brahm supra n 1232 Kim and Sikkink supra n 1233 Stephen van Evera Guide to Methods for Students of Political Science (Ithaca NY Cornell
University Press 1997)
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How Truth Commissions Influence Politics and Society 13
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nloaded from
Although irrefutable evidence is often lacking I argue that it is possible to set
a reasonably high standard for establishing causal impact if the collected evidence
satisfies two tests For example if there are two hypothesized causal explanations
[TC fi A fi I] andor [TC fi B fi I] where a truth commission process (TC)
generates impact (I) through the intermediary steps A andor B confirming
the veracity of a causal explanation requires that (1) I should be observed
so that policies and judicial processes after a truth commission should re-
flect its findings and recommendations and (2) only A only B or both A and
B should be observed so that the researcher should find empirical evidence
for the intermediate steps (ie intervening variables) that connect a truth com-
mission to the outcomes of interest to confirm or disconfirm contending
hypotheses
The second test is crucial in overcoming problems of equifinality (the likelihood
that an outcome results from a causal mechanism other than that hypothesized by
the researcher) and multicollinearity (the failure to account for the interactions
between various factors that lead to an outcome) There may be more than one
mechanism that produces similar impact As I show in the following section truth
commissionsrsquo recommendations are incorporated into policy in some countries
because politicians take the initiative to implement them whereas in other cases
implementation takes place despite the reluctance or even hostility of the pol-
itical leadership as a result of continuous civil society mobilization Assessing
impact therefore requires accounting for all the intermediate steps in the causal
process
What causes a truth commission to generate impact in the first place This
article is a descriptive account of causal mechanisms that connect truth commis-
sions to postcommission outcomes Due to space limitations it does not address
the causes for the causes that is the sources of variation in impact across coun-
tries Nonetheless it is important to highlight two factors that play into the dir-
ection and magnitude of impact by shaping the precommission and commission
processes First a truth commission is simultaneously enabled and constrained by
its mandate which determines its tasks powers and organizational structure
Second the commissioners and staff exercise considerable agency in terms of
how they interpret the mandate how they identify and carry out their tasks
what they choose to include in the final report and how they interact with victims
presumed perpetrators politicians bureaucrats armed actors and civil society
organizations Part of their impact is attributable to the product that is the final
report which contains findings a historical narrative and recommendations In
addition the truth commission process itself is credited for giving voice to victims
of human rights violations (and occasionally perpetrators) and building linkages
among various civil society actors34
34 For the distinction between product- and process-driven impact see Priscilla B Hayner lsquoPastTruths Present Dangers The Role of Official Truth Seeking in Conflict Resolution andPreventionrsquo in International Conflict Resolution after the Cold War ed Paul C Stern andDaniel Druckman (Washington DC National Academy Press 2000)
International Journal of Transitional Justice Vol 8 2014 6ndash30
14 O Bakiner
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Dow
nloaded from
Thus the truth commission process is a constant struggle between forces that
seek to delimit and predetermine a commissionrsquos capabilities and the commis-
sionrsquos striving for autonomy and transformative agency In great part as a result
of this interplay of mandate and agency various decision makers and civil
society actors endorse reject mobilize around or ignore a truth commissionrsquos
findings and recommendations Impact is constituted by the content of the
final report and equally importantly by the process itself It is shaped but not
predetermined by the mandate limits
Data and Methods
Research Strategy
Many of the shortcomings of the literature as described in the first section can
be addressed if the research strategy pays close attention to causal processes rather
than correlations between a truth commission and outcomes of interest such
as democracy human rights and the rule of law In other words what is needed
is a theoretically informed process-tracing approach to generate and assess
theories of impact Thus drawing upon the existing literature on truth commis-
sions I build a theoretical framework to document the specific mechanisms
through which a truth commission experience is expected to influence the
decisions of policy makers armed actors judges civil society activists and ordin-
ary citizens Then I identify the observable implications of the hypothesized
causal mechanisms Finally I look for supporting empirical evidence from
truth commission experiences to confirm those observable implications (see
Table 1)
Case Selection
Aggravating the conceptual and methodological problems of assessing impact is
the failure to account for the heterogeneity of truth commission experiences
Several consolidated democracies like Brazil and ongoing authoritarian regimes
like Morocco have established truth commissions Those commissions tend to
investigate violations that happened decades ago rather than in the immediate
past The political stakes self-declared goals and methodologies are radically
different from those characterizing transitional truth commissions Ensuring
democratic stability or forging reconciliation between victims and perpetrators
(most of whom are too old or perhaps deceased) for example are not outstand-
ing goals for nontransitional commissions In countries like Chile and South
Korea follow-up truth commissions have investigated violations not covered
by an earlier commission Therefore lumping all truth commissions in one data-
base obscures the distinct character of causal processes that produce impact in
transitional and nontransitional settings
Instead of including all truth commissions in a large-n dataset I separate tran-
sitional commissions from nontransitional ones to explain the dynamics specific
to the former group A transitional truth commission is established within zero to
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 15
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
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nloaded from
Although irrefutable evidence is often lacking I argue that it is possible to set
a reasonably high standard for establishing causal impact if the collected evidence
satisfies two tests For example if there are two hypothesized causal explanations
[TC fi A fi I] andor [TC fi B fi I] where a truth commission process (TC)
generates impact (I) through the intermediary steps A andor B confirming
the veracity of a causal explanation requires that (1) I should be observed
so that policies and judicial processes after a truth commission should re-
flect its findings and recommendations and (2) only A only B or both A and
B should be observed so that the researcher should find empirical evidence
for the intermediate steps (ie intervening variables) that connect a truth com-
mission to the outcomes of interest to confirm or disconfirm contending
hypotheses
The second test is crucial in overcoming problems of equifinality (the likelihood
that an outcome results from a causal mechanism other than that hypothesized by
the researcher) and multicollinearity (the failure to account for the interactions
between various factors that lead to an outcome) There may be more than one
mechanism that produces similar impact As I show in the following section truth
commissionsrsquo recommendations are incorporated into policy in some countries
because politicians take the initiative to implement them whereas in other cases
implementation takes place despite the reluctance or even hostility of the pol-
itical leadership as a result of continuous civil society mobilization Assessing
impact therefore requires accounting for all the intermediate steps in the causal
process
What causes a truth commission to generate impact in the first place This
article is a descriptive account of causal mechanisms that connect truth commis-
sions to postcommission outcomes Due to space limitations it does not address
the causes for the causes that is the sources of variation in impact across coun-
tries Nonetheless it is important to highlight two factors that play into the dir-
ection and magnitude of impact by shaping the precommission and commission
processes First a truth commission is simultaneously enabled and constrained by
its mandate which determines its tasks powers and organizational structure
Second the commissioners and staff exercise considerable agency in terms of
how they interpret the mandate how they identify and carry out their tasks
what they choose to include in the final report and how they interact with victims
presumed perpetrators politicians bureaucrats armed actors and civil society
organizations Part of their impact is attributable to the product that is the final
report which contains findings a historical narrative and recommendations In
addition the truth commission process itself is credited for giving voice to victims
of human rights violations (and occasionally perpetrators) and building linkages
among various civil society actors34
34 For the distinction between product- and process-driven impact see Priscilla B Hayner lsquoPastTruths Present Dangers The Role of Official Truth Seeking in Conflict Resolution andPreventionrsquo in International Conflict Resolution after the Cold War ed Paul C Stern andDaniel Druckman (Washington DC National Academy Press 2000)
International Journal of Transitional Justice Vol 8 2014 6ndash30
14 O Bakiner
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Dow
nloaded from
Thus the truth commission process is a constant struggle between forces that
seek to delimit and predetermine a commissionrsquos capabilities and the commis-
sionrsquos striving for autonomy and transformative agency In great part as a result
of this interplay of mandate and agency various decision makers and civil
society actors endorse reject mobilize around or ignore a truth commissionrsquos
findings and recommendations Impact is constituted by the content of the
final report and equally importantly by the process itself It is shaped but not
predetermined by the mandate limits
Data and Methods
Research Strategy
Many of the shortcomings of the literature as described in the first section can
be addressed if the research strategy pays close attention to causal processes rather
than correlations between a truth commission and outcomes of interest such
as democracy human rights and the rule of law In other words what is needed
is a theoretically informed process-tracing approach to generate and assess
theories of impact Thus drawing upon the existing literature on truth commis-
sions I build a theoretical framework to document the specific mechanisms
through which a truth commission experience is expected to influence the
decisions of policy makers armed actors judges civil society activists and ordin-
ary citizens Then I identify the observable implications of the hypothesized
causal mechanisms Finally I look for supporting empirical evidence from
truth commission experiences to confirm those observable implications (see
Table 1)
Case Selection
Aggravating the conceptual and methodological problems of assessing impact is
the failure to account for the heterogeneity of truth commission experiences
Several consolidated democracies like Brazil and ongoing authoritarian regimes
like Morocco have established truth commissions Those commissions tend to
investigate violations that happened decades ago rather than in the immediate
past The political stakes self-declared goals and methodologies are radically
different from those characterizing transitional truth commissions Ensuring
democratic stability or forging reconciliation between victims and perpetrators
(most of whom are too old or perhaps deceased) for example are not outstand-
ing goals for nontransitional commissions In countries like Chile and South
Korea follow-up truth commissions have investigated violations not covered
by an earlier commission Therefore lumping all truth commissions in one data-
base obscures the distinct character of causal processes that produce impact in
transitional and nontransitional settings
Instead of including all truth commissions in a large-n dataset I separate tran-
sitional commissions from nontransitional ones to explain the dynamics specific
to the former group A transitional truth commission is established within zero to
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 15
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
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Dow
nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
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nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
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Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
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nloaded from
Thus the truth commission process is a constant struggle between forces that
seek to delimit and predetermine a commissionrsquos capabilities and the commis-
sionrsquos striving for autonomy and transformative agency In great part as a result
of this interplay of mandate and agency various decision makers and civil
society actors endorse reject mobilize around or ignore a truth commissionrsquos
findings and recommendations Impact is constituted by the content of the
final report and equally importantly by the process itself It is shaped but not
predetermined by the mandate limits
Data and Methods
Research Strategy
Many of the shortcomings of the literature as described in the first section can
be addressed if the research strategy pays close attention to causal processes rather
than correlations between a truth commission and outcomes of interest such
as democracy human rights and the rule of law In other words what is needed
is a theoretically informed process-tracing approach to generate and assess
theories of impact Thus drawing upon the existing literature on truth commis-
sions I build a theoretical framework to document the specific mechanisms
through which a truth commission experience is expected to influence the
decisions of policy makers armed actors judges civil society activists and ordin-
ary citizens Then I identify the observable implications of the hypothesized
causal mechanisms Finally I look for supporting empirical evidence from
truth commission experiences to confirm those observable implications (see
Table 1)
Case Selection
Aggravating the conceptual and methodological problems of assessing impact is
the failure to account for the heterogeneity of truth commission experiences
Several consolidated democracies like Brazil and ongoing authoritarian regimes
like Morocco have established truth commissions Those commissions tend to
investigate violations that happened decades ago rather than in the immediate
past The political stakes self-declared goals and methodologies are radically
different from those characterizing transitional truth commissions Ensuring
democratic stability or forging reconciliation between victims and perpetrators
(most of whom are too old or perhaps deceased) for example are not outstand-
ing goals for nontransitional commissions In countries like Chile and South
Korea follow-up truth commissions have investigated violations not covered
by an earlier commission Therefore lumping all truth commissions in one data-
base obscures the distinct character of causal processes that produce impact in
transitional and nontransitional settings
Instead of including all truth commissions in a large-n dataset I separate tran-
sitional commissions from nontransitional ones to explain the dynamics specific
to the former group A transitional truth commission is established within zero to
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 15
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
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Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le1
H
ypo
thes
eso
fT
ruth
Co
mm
issi
on
Imp
act
Nam
eo
fca
usa
lm
ech
anis
mH
ypo
thes
ized
cau
sal
pro
cess
Hyp
oth
etic
alo
bse
rvab
leim
pli
cati
on
sE
mp
iric
alev
iden
ce(s
eeT
able
2fo
rd
etai
led
dat
a)
Dir
ect
Po
liti
cal
Imp
act
Fin
din
gsan
dre
com
men
dat
ion
sfi
Offi
cial
pu
bli
-
cati
on
ac
kn
ow
led
gmen
tan
dim
ple
men
tati
on
-S
tate
men
to
fp
oli
tica
lw
ill
toim
ple
men
tco
m-
mis
sio
nre
com
men
dat
ion
s
-Im
med
iate
pu
bli
cati
on
ac
kn
ow
led
gmen
tan
d
imp
lem
enta
tio
n
-M
ost
com
mis
sio
ns
pro
du
ceim
med
iate
po
lit-
ical
imp
act
-V
aria
tio
nac
ross
com
mis
sio
ns
Ind
irec
tP
oli
tica
lIm
pac
t
thro
ugh
Civ
ilS
oci
ety
Mo
bil
izat
ion
Civ
ilso
ciet
ym
ob
iliz
atio
nar
ou
nd
the
com
mis
sio
nfi
Pre
ssu
reo
n
gove
rnm
entfi
Offi
cial
imp
lem
enta
tio
n
(typ
ical
lyd
elay
ed)
-H
um
anri
ghts
and
vict
imsrsquo
gro
up
so
rgan
izin
g
aro
un
dth
etr
uth
com
mis
sio
nrsquos
fin
alre
po
rt
-G
ove
rnm
ent
imp
lem
enta
tio
nu
nd
erp
ress
ure
-S
om
eco
mm
issi
on
sp
rod
uce
ind
irec
tp
oli
tica
l
imp
act
thro
ugh
civi
lso
ciet
ym
ob
iliz
atio
n
-V
aria
tio
nac
ross
com
mis
sio
ns
Vet
tin
gV
etti
ng
reco
mm
end
edfi
Offi
cial
imp
lem
enta
tio
n-
Rec
om
men
dat
ion
of
vett
ing
-P
oli
tica
lw
ill
toim
ple
men
t
-V
etti
ng
pro
gram
afte
rth
eco
mm
issi
on
El
Sal
vad
or
(19
93
)o
nly
Po
siti
veJu
dic
ial
Imp
act
Acc
ou
nta
bil
ity
Fin
din
gsfi
Jud
ges
and
pro
secu
tors
use
in
pro
ceed
ings
im
med
iate
lyo
rd
elay
ed
-U
seo
ftr
uth
com
mis
sio
nre
po
rtin
pro
ceed
ings
Lim
ited
use
of
som
eco
mm
issi
on
srsquofi
nd
ings
in
do
mes
tic
and
fore
ign
cou
rts
Neg
ativ
eJu
dic
ial
Imp
act
Am
nes
ty
Co
mm
issi
on
sac
com
pan
yam
nes
tyla
ws
or
pro
mo
team
nes
tyfi
Imp
un
ity
for
per
pet
rato
rs
OR
Co
mm
issi
on
sd
amp
enth
ed
eman
dfo
r
retr
ibu
tio
nfi
Imp
un
ity
for
per
pet
rato
rs
-A
mn
esty
bu
ilt
into
o
rle
gisl
ated
alo
ng
wit
h
tru
thco
mm
issi
on
-Im
pu
nit
yre
sult
ing
fro
mtr
uth
com
mis
sio
n
-C
ivil
soci
ety
dem
ob
iliz
atio
n
-C
on
dit
ion
alam
nes
tyb
uil
tin
toco
mm
issi
on
(So
uth
Afr
ica
Lib
eria
)m
ost
per
pet
rato
rsn
ot
cove
red
-N
oev
iden
ceo
fci
vil
soci
ety
dem
ob
iliz
atio
n
International Journal of Transitional Justice Vol 8 2014 6ndash30
16 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
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nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
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Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
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nloaded from
three years after the transition to peace andor democracy35 To date 15 truth
commissions have begun and finished their work in the context of a political
transition36 All other truth commissions either are nontransitional or were dis-
solved before completing their investigations37 For reasons explained above a
new set of conceptual tools is needed to study nontransitional (or one may say
posttransitional) commissions which is why I exclude them in this study
Data
I use two data sources in this article (1) studies that analyze broad patterns for a
large number of truth commissions such as the US Institute of Peace Truth
Commissions Digital Collection as well as articles and books that explore all
truth commissions and (2) case studies which provide in-depth information
about one or a small number of commissions Keeping in mind the various
deficiencies and biases that arise from relying on a few sources or a specific
type of research (say academic or journalistic) I cross-check the veracity of a
variety of sources for each country38
Empirical Evidence for Causal ExplanationsSeveral causal mechanisms have been proposed to evaluate truth commissionsrsquo
capacity to produce changes in policy and judicial practices Most accounts pay
attention only to some parts of the causal chain that links the initial conditions to
the outcomes of interest I draw upon the literature on truth commissions from
enthusiasts as well as skeptics to outline these mechanisms in full here but if
the existing explanations have missing causal links I identify those missing parts
This section combines theories of truth commission impact (possible causal
mechanisms along with their observable implications) with empirical evidence
(see Table 2) I also provide evidence for cases where policy change may be
wrongly attributed to a commissionrsquos direct or indirect impact in order to
avoid conflating truth commission impact with similar causal processes
35 The notion of transition itself is questionable as authoritarian enclaves andor violent conflictoften continue during the transitional period My criterion for defining a transition is the presenceof significant political-institutional change rather than whether that change precludes futureauthoritarian and violent backlashes For a more detailed discussion of this definitional problemsee Onur Bakiner lsquoComing to Terms with the Past Power Memory and Legitimacy in TruthCommissionsrsquo (PhD diss Yale University 2011)
36 The list of finished transitional commissions by country name and starting year Argentina (1983)Uganda (1986) Nepal (1990) Chile (1990) Chad (1991) El Salvador (1992) Sri Lanka (1994)Haiti (1995) South Africa (1995) Guatemala (1997) Nigeria (1999) Peru (2001) East Timor(2002) Sierra Leone (2002) and Liberia (2006) The commissions in Kenya and Togo are excludedfrom this list since they had not completed their work as of late 2012
37 I do not include unfinished truth commissions because the dissolution of a commission beforepublishing a final report violates its essential task of providing public information on human rightsviolations
38 The country-specific information is subject to change as this article captures information availableat the time of writing Furthermore as long-term trends may reproduce but also contradictshort-term findings some of the outcomes may change over time
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 17
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
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nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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Dow
nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
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Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
E
mp
iric
alE
vid
ence
for
Imp
act
in1
5T
ran
siti
on
alC
om
mis
sio
ns
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
Arg
enti
na
(19
83
)Y
esn
oY
esY
esN
oN
o(r
epar
atio
ns
20
04
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
cou
rts
imm
edia
tean
d
del
ayed
No
Uga
nd
a(1
98
6)
No
no
No
No
Uga
nd
an
Hu
man
Rig
hts
Co
mm
issi
on
No
rep
arat
ion
sN
op
ub
lica
tio
nN
on
oN
on
eN
o
Nep
al(1
99
0)
No
no
No
No
No
ne
No
rep
arat
ion
sY
es(1
99
4)
No
no
No
ne
Yes
(19
91
de
fact
o)
Ch
ile
(19
90
)Y
esy
es
(19
92
)
Yes
Yes
Nat
ion
al
Co
rpo
rati
on
for
Rep
arat
ion
and
Rec
on
cili
atio
n
Imm
edia
te
po
licy
(19
92
)
Imm
edia
te
po
licy
No
no
Do
mes
tic
and
fore
ign
cou
rts
del
ayed
No
Ch
ad(1
99
1)
No
no
Yes
No
No
ne
No
rep
arat
ion
sIm
med
iate
po
licy
Yes
no
Fo
reig
nco
urt
s
del
ayed
No
El
Sal
vad
or
(19
92
)Y
esn
oY
esN
oN
on
eN
ore
par
atio
ns
Imm
edia
te
po
licy
Yes
yes
(19
93
p
arti
al)
Fo
reig
nco
urt
s
del
ayed
Yes
(19
93
bla
nk
et)
Sri
Lan
ka
(19
94
)Y
esy
esN
oN
oP
resi
den
tial
Co
mm
issi
on
on
Eth
nic
Vio
len
ce
Yes
(rep
arat
ion
s
19
98
)
Yes
(20
01
)N
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Hai
ti(1
99
5)
Yes
no
No
No
Offi
ceo
fth
e
Pu
bli
cP
rose
cuto
r
No
rep
arat
ion
sY
es(1
99
8)
No
no
No
ne
No
(co
nti
nu
ed)
International Journal of Transitional Justice Vol 8 2014 6ndash30
18 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
at Princeton University on A
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Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
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Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
Tab
le2
C
on
tin
ued
Dir
ect
po
liti
cal
imp
act
Ind
irec
tp
oli
tica
lim
pac
t
thro
ugh
civi
lso
ciet
y
mo
bil
izat
ion
Vet
tin
gP
osi
tive
jud
icia
l
imp
act
acco
un
tab
ilit
y
Neg
ativ
e
jud
icia
l
imp
act
imp
un
ity
Ind
icat
ors
of
imp
act
Rep
arat
ion
s
reco
mm
end
ed
imm
edia
tely
imp
lem
ente
d
(yes
yes
yes
no
no
no
)
Imm
edia
te
pu
bli
cati
on
of
fin
al
rep
ort
(yes
n
o)
Offi
cial
end
ors
emen
t
(yes
n
o)
Imm
edia
te
crea
tio
no
f
foll
ow
-up
inst
itu
tio
ns
Rec
om
men
ded
rep
arat
ion
s
imp
lem
ente
das
are
sult
of
civi
lso
ciet
y
mo
bil
izat
ion
Pu
bli
cati
on
of
fin
al
rep
ort
asa
resu
lto
f
civi
lso
ciet
y
mo
bil
izat
ion
So
uth
Afr
ica
(19
95
)Y
esn
oY
esY
es
(go
vern
men
t
div
ided
)
No
ne
Yes
(rep
arat
ion
s
20
03
)
Imm
edia
tep
oli
cyN
on
oN
on
eY
es(b
uil
t-in
par
tial
)
Gu
atem
ala
(19
97
)Y
esn
oY
esY
esN
on
eY
es(r
epar
atio
ns
20
05
)
Imm
edia
tep
oli
cyN
on
oD
om
esti
can
d
fore
ign
cou
rts
del
ayed
No
Nig
eria
(19
99
)Y
esn
oN
oY
esN
on
eN
ore
par
atio
ns
Yes
(20
05
un
offi
cial
)
No
yes
(19
99
)
Do
mes
tic
cou
rts
imm
edia
te
No
Per
u(2
00
1)
Yes
no
Yes
Yes
No
ne
Yes
(rep
arat
ion
s
fort
hco
min
g)
Imm
edia
tep
oli
cyN
on
oD
om
esti
cco
urt
s
imm
edia
te
and
del
ayed
No
Eas
tT
imo
r(2
00
2)
Yes
no
Yes
No
Tec
hn
ical
Sec
reta
riat
Yes
(rep
arat
ion
s
bil
l2
01
2)
Imm
edia
tep
oli
cyY
esn
oN
on
eN
o
Sie
rra
Leo
ne
(20
02
)Y
esn
oY
esN
o(d
elay
ed
end
ors
emen
t)
Nat
ion
alC
om
mis
sio
n
for
So
cial
Act
ion
Yes
(rep
arat
ion
s
20
08
)
Imm
edia
tep
oli
cyN
on
oN
on
eN
o
Lib
eria
(20
06
)Y
esn
oY
esN
oIn
dep
end
ent
Nat
ion
al
Co
mm
issi
on
on
Hu
man
Rig
hts
On
goin
gci
vil
soci
ety
cam
pai
gn
Imm
edia
tep
oli
cyY
esn
oN
on
eY
es(b
uil
t-in
par
tial
)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 19
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ugust 19 2015httpijtjoxfordjournalsorg
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nloaded from
Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
20 O Bakiner
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nloaded from
Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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Dow
nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
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Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
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28 O Bakiner
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
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How Truth Commissions Influence Politics and Society 29
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lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
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30 O Bakiner
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Direct Political Impact
The most straightforward causal impact is when the findings and recommenda-
tions of a truth commissionrsquos final report are incorporated into policy If a gov-
ernment acknowledges the commissionrsquos final report legislates reparations for
victims and establishes watchdog institutions for human rights protection then
these reforms are likely to lead to progress in democratic governance and human
rights conduct Direct political impact crucially depends on political decision
makersrsquo ability and willingness to implement commissionsrsquo recommendations
Only in El Salvador and Sierra Leone did the commission mandate stipulate that
the recommendations would be binding on all parties and even then politicians
enjoyed a high degree of discretion on which reform proposals to adopt
Given that truth commissions make context-specific recommendations and
given that the quality of policy implementation can be quite varied39 comparative
measures are bound to be imperfect Nevertheless one observes near-universal
demand for certain policies and political gestures which I employ as indicators of
direct political impact (1) public endorsement of the commissionrsquos work by
government leadership (2) government publication of the commissionrsquos final
report (3) implementation of a reparations program (this measure is applicable
in 12 cases where the truth commission recommended reparations) and (4) the
creation of follow-up institutions to carry out the recommended reforms and
monitor progress40
It is important to note that a government might implement human rights
policies whether or not it abides by a truth commissionrsquos recommendations
Direct political impact captures only truth commission-induced political
change It is often confounded with the countryrsquos overall human rights improve-
ment leading to the under- or overstatement of truth commission impact The
measures described above refer to political change relative to the commissionrsquos
recommendations for reform In conducting cross-national comparisons I take
into account variations in discursive and policy change relative to the expect-
ations of each countryrsquos truth commission rather than variation in overall pol-
itical reform Thus I isolate the independent effect of truth commissions from
broader reform processes during democratic transition by distinguishing the
cases in which reform results from the commissionrsquos findings and recommenda-
tions from those cases in which this does not happen Direct political impact is the
chief mechanism through which commissions influence policy but the imple-
mentation is always selective
39 For example the payment of reparations is an important step for the progress of transitionaljustice but the meager amounts allocated to individual victims put into question the actualsuccess See Lisa Schlein lsquoWar Reparations Program in Sierra Leone Needs Moneyrsquo Voice ofAmerica 24 April 2010
40 It is important to note that these four categories can be considered indicators of impact as theydemonstrate a governmentrsquos capacity and willingness to implement policies in line with a truthcommissionrsquos recommendations as well as measures of impact as they indeed capture the publiceffect of a commission
International Journal of Transitional Justice Vol 8 2014 6ndash30
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Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
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How Truth Commissions Influence Politics and Society 21
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nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
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nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
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30 O Bakiner
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Evidence for Direct Political Impact
Table 2 shows that every transitional truth commission except the one in Nepal
has produced some direct political impact Of the 15 transitional truth commis-
sions 10 published their final reports within one year of their termination State
presidents backed by the governments they represented endorsed the commis-
sionrsquos work upon receiving the final report in Argentina41 Chile42 South Africa43
Guatemala44 and Nigeria45 Acknowledgment did not take place in eight coun-
tries and in Sierra Leone it happened only after a new president assumed office
Uganda46 Chile47 Sri Lanka48 Haiti49 East Timor50 Sierra Leone51 and Liberia52
immediately established follow-up institutions to monitor the postcommission
reform process whereas eight did not The least favored policy by the govern-
ments was reparations 12 truth commissions demanded compensation for vic-
tims and only the Chilean government initiated a reparations program without
delay Governments in El Salvador53 Haiti Nigeria54 and Liberia55 ignored the
recommendation for reparations completely
41 US Institute of Peace lsquoTruth Commission Argentinarsquo httpwwwusiporgpublicationstruth-commission-argentina (accessed 21 October 2013)
42 US Institute of Peace lsquoTruth Commission Chile 90rsquo httpwwwusiporgpublicationstruth-commission-chile-90 (accessed 21 October 2013) Jose Zalaquett lsquoBalancing Ethical Imperativesand Political Constraints The Dilemma of New Democracies Confronting Past Human RightsViolationsrsquo Hastings Law Journal 43 (1992) 1425ndash1438
43 In the case of South Africa the issue of endorsement heightened the tension within the executive asPresident Nelson Mandela endorsed the final report despite opposition from the governingAfrican National Congress his own party Dorothy C Shea The South African TruthCommission The Politics of Reconciliation (Washington DC US Institute of Peace Press 2000)
44 US Institute of Peace lsquoTruth Commission Guatemalarsquo httpwwwusiporgpublicationstruth-commission-guatemala (accessed 21 October 2013)
45 Elizabeth Knight lsquoFacing the Past Retrospective Justice as a Means to Promote Democracy inNigeriarsquo Connecticut Law Review 35 (2002) 867ndash914
46 Joanna R Quinn lsquoConstraints The Un-Doing of the Ugandan Truth Commissionrsquo Human RightsQuarterly 26 (2004) 401ndash427
47 Teivo Teivainen lsquoTruth Justice and Legal Impunity Dealing with Past Human Rights Violationsin Chilersquo Nordic Journal of Latin American and Caribbean Studies 30(2) (2000) 55ndash82
48 Anna Neistat Recurring Nightmare State Responsibility for Disappearances and Abductions in SriLanka (New York Human Rights Watch 2008)
49 Joanna R Quinn lsquoHaitirsquos Failed Truth Commission Lessons in Transitional Justicersquo Journal ofHuman Rights 8(3) (2009) 265ndash281
50 US Institute of Peace lsquoTruth Commission Timor-Leste [East Timor]rsquo httpwwwusiporgpublicationstruth-commission-timor-leste-east-timor (accessed 21 October 2013)
51 US Institute of Peace lsquoTruth Commission Sierra Leonersquo httpwwwusiporgpublicationstruth-commission-sierra-leone (accessed 21 October 2013)
52 Paul James-Allen Aaron Weah and Lizzie Goodfriend Beyond the Truth and ReconciliationCommission Transitional Justice Options in Liberia (New York International Center forTransitional Justice 2010)
53 Cath Collins lsquoState Terror and the Law The (Re)Judicialization of Human Rights Accountabilityin Chile and El Salvadorrsquo Latin American Perspectives 35(5) (2008) 20ndash37
54 Hakeem O Yusuf Transitional Justice Judicial Accountability and the Rule of Law (New YorkRoutledge 2007)
55 There are ongoing efforts in Liberia that have not yet changed policy See lsquoLiberiarsquos First VictimsrsquoGroup Holds Workshop in Monroviarsquo New Liberian 27 May 2009
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 21
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nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
at Princeton University on A
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Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
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How Truth Commissions Influence Politics and Society 23
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nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
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nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
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nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
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nloaded from
Indirect Political Impact through Civil Society Mobilization
Several accounts argue that a truth commission might improve a countryrsquos
human rights record by drawing attention to past violations56 Domestic and
international actors most notably human rights organizations and victimsrsquo asso-
ciations build sufficient pressure on politicians and state functionaries to reform
human rights policy and behave in conformity with a truth commissionrsquos rec-
ommendations57 What distinguishes indirect from direct political impact is that
decision makers adopt truth commission recommendations and related human
rights initiatives only as a result of civil society pressure Thus implementation is
typically delayed although such delay does not prove the existence of civil society
mobilization in and of itself Therefore I look for evidence of civil society pressure
to confirm the specific impact mechanism outlined here
Indirect political impact results from what I label lsquocivil society mobilizationrsquo or
a truth commissionrsquos ability to motivate human rights activism especially in the
postcommission period I use two measures to account for civil society mobil-
ization (1) nongovernmental initiatives to publish andor disseminate the com-
missionrsquos final report if the government fails to do so and (2) activism on the part
of local national and international NGOs to monitor progress on the implemen-
tation of recommendations especially concerning a reparations program
Civil society mobilization a key causal step in policy change only measures the
capacity of a truth commission to motivate civil society actors Human rights
activism may exist independently of and conceivably in opposition to a truth
commission Civil society mobilization around a commission does not capture
the overall quality of civic relations (ie social capital) it instead focuses on those
civic groups most likely to pursue the truth commissionrsquos agenda and maximize
its impact since the primary concern is to explain the precise mechanisms
through which truth commissions produce impact Finally the model of civil
society advocacy presented here does not make a priori assumptions about state-
civil society relations ndash it does not claim right away that they are antagonistic or
mutually reinforcing It is plausible to expect that impact driven by political will
and impact driven by civil society mobilization are both high both low or in an
56 Wiebelhaus-Brahm supra n 12 Amnesty International supra n 857 Generally domestic human rights groups make alliances with international organizations and
transnational networks to hold governments accountable to human rights norms See CharlesBeitz lsquoWhat Human Rights Meanrsquo Daedalus 132(1) (2003) 36ndash46 Whether domestic humanrights activism originates from or merely follows transnational actors is a matter of controversySome see transitional justice advocacy networksrsquo capacity to pressure governments by naming andshaming them in the international arena as crucial whereas others point to the predominantlydomestic nature of legitimacy and norm change In the case of truth commission recommenda-tions what I observe is that even when international actors initiate the commission process thesuccess of the reform process ultimately depends on pressure built by domestic human rightsgroups See Margaret E Keck and Kathryn Sikkink Activists Beyond Borders Advocacy Networks inInternational Politics (Ithaca NY Cornell University Press 1998) Andrew Moravcsik lsquoTheOrigins of Human Rights Regimes Democratic Delegation in Postwar Europersquo InternationalOrganization 54(2) (1997) 217ndash252 Alejandro Anaya lsquoTransnational and Domestic Processesin the Definition of Human Rights Policies in Mexicorsquo Human Rights Quarterly 31(1) (2009)35ndash58
International Journal of Transitional Justice Vol 8 2014 6ndash30
22 O Bakiner
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nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
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nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
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nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
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Dow
nloaded from
inverse relationship in any given country although in practice politicians and civil
society actors have more often than not had contrasting views on a truth
commission
Evidence for Indirect Political Impact through Civil SocietyMobilization
Several but not all truth commissions have provided a platform for domestic and
international human rights groups to make demands on the government and
evaluate policy progress There is evidence of civil society mobilization around
truth commissions in 10 countries although to varying degrees In countries
where governments initially chose not to publish the final report or adopt a
reparations program human rights activism led to delayed policy change In
South Africa58 Guatemala59 Peru60 and Sierra Leone61 reluctant governments
found themselves pressured into legislating reparations programs although the
speed and efficiency with which reparations were actually disbursed generated
discontent in most cases In East Timor domestic and international groups suc-
cessfully lobbied for the 2012 National Reparations Programme Bill62
In Nepal63 Sri Lanka64 and Haiti65 it took domestic andor international
human rights organizations several years of pressuring to get the govern-
ment to publish the truth commissionrsquos final report and in Nigeria a private
initiative undertook the publication66 Civil society groups were also crucial in
58 Hayner supra n 24 David Backer lsquoWatching a Bargain Unravel A Panel Study of VictimsrsquoAttitudes about Transitional Justice in Cape Town South Africarsquo International Journal ofTransitional Justice 4(3) (2010) 443ndash456 Christopher J Colvin lsquoOverview of the ReparationsProgram in South Africarsquo in de Greiff supra n 3
59 Anika Oettler lsquoEncounters with History Dealing with the ldquoPresent Pastrdquo in Guatemalarsquo EuropeanReview of Latin American and Caribbean Studies 81 (2006) 3ndash19
60 The Peruvian reparations law was passed in 2005 but actual payments to individuals did not beginuntil 2011 For the role of civil society groups in advocating for the legislation and implementationof the reparations program in Peru see Lisa J Laplante and Kimberly S Theidon lsquoTruth withConsequences Justice and Reparations in Post-Truth Commission Perursquo Human Rights Quarterly29(1) (2007) 228ndash250
61 Justice in Perspective lsquoSierra Leone Reparations Programmersquo httpwwwjusticeinperspectiveorgzaafricasierra-leonereparations-programmehtml (accessed 21 October 2013)
62 Amnesty International Remembering the Past Recommendations to Effectively Establish thelsquoNational Reparations Programmersquo and lsquoPublic Memory Institutersquo (2012)
63 lsquoOver the next few years Amnesty International and local human rights groups repeatedly urgedthe government to publish the commissionrsquos report and ensure that any persons implicated inhuman rights violations be brought to justicersquo Hayner supra n 24 at 244ndash245 Also see USInstitute of Peace lsquoCommission of Inquiry Nepal 90rsquo httpwwwusiporgpublicationscommis-sion-of-inquiry-nepal-90 (accessed 21 October 2013)
64 For Sri Lanka see Hayner supra n 2465 The final report lsquowas not made public until a year later [1997] after considerable pressure from
rights groupsrsquo Ibid 54 The report received limited publicity as a result of being in French ratherthan Creole and few copies were made available to the public
66 lsquoFinally in January 2005 after pushing for the release of the report for over two and a half yearsseveral civil society organizations independently released the report by placing it on the internetrsquoIbid 250
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 23
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
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Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
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ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
publishing abridged versions of the final report in Peru East Timor and Sierra
Leone67
Not every policy in the area of human rights can be attributed to a truth com-
missionrsquos recommendations or its capacity to mobilize civil society In Chad
human rights groups successfully campaigned for reparations even though the
truth commission did not recommend the policy In Argentina reparations laws
were enacted more than a decade after the commissionrsquos work without any clear
indication that the commissionrsquos recommendations prompted their legislation68
Likewise there is no evidence suggesting that Sri Lankarsquos compensatory policies
followed from the truth commission
Vetting
Truth commissions might recommend the removal of alleged perpetrators and
their political supporters from public office Also known as lustration this tran-
sitional justice tool has often been used in the absence of a truth commission
especially in the Central and Eastern European transitions of the early 1990s
Here I seek to identify not all vetting initiatives but only those recommended
by truth commissions This causal mechanism is relatively easy to measure a
commission may or may not make an explicit recommendation for vetting
and if it does the government may or may not implement it It is also plausible
that a government removes individuals from public office in the absence of a
commissionrsquos recommendation Therefore the research strategy defended here
distinguishes the cases where a truth commissionrsquos recommendation for vetting
was implemented as policy from those where vetting had no direct relation to the
commissionrsquos work
Evidence for Vetting
Despite truth commissionsrsquo best efforts recommending vetting does not appear
to be a significant impact mechanism69 Although four of the 15 transitional truth
commissions demanded the removal of presumed perpetrators from office only
one government has met this demand partially (El Salvador)70 In Chad East
Timor and Liberia the call for vetting was disregarded In one of the countries
where vetting was used Nigeria the truth commission did not recommend the
67 Furthermore new civil society organizations were formed in South Africa Peru Sierra Leone andLiberia to monitor the progress of reforms in the wake of the truth commissions
68 The commission was nonetheless helpful in drawing up the list of beneficiaries lsquoTo receive pay-ment victims had to be listed in the final report of the National Commission on the Disappearanceof Persons (Conadep) or have been reported to the statersquos Human Rights Office and confirmed asdisappeared or killed The total tally of potential beneficiaries includes family members of about15000 disappeared personsrsquo Ernesto Verdeja lsquoReparations in Democratic Transitionsrsquo ResPublica 12(2) (2006) 129
69 For the data on vetting see Hayner supra n 24 Olsen et al supra n 1270 Many violators who were dismissed from one position found other public jobs in El Salvador See
Mike Kaye lsquoThe Role of Truth Commissions in the Search for Justice Reconciliation andDemocratisation The Salvadorean and Honduran Casesrsquo Journal of Latin American Studies 29(1997) 693ndash716
International Journal of Transitional Justice Vol 8 2014 6ndash30
24 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
measure In other words evidence does not support the claim that removal of
violators follows from the recommendations of a truth commission
Judicial Impact Accountability and Impunity
Do truth commissions contribute to human rights accountability Commissions
are not allowed to deliver sentences but their findings may be used during crim-
inal proceedings either as evidence or as contextual information71 Judicial
impact depends as much on the powers granted by the truth commission man-
date as on judgesrsquo and prosecutorsrsquo willingness to incorporate commission find-
ings the existence of laws and conditional amnesty procedures that precede or
operate simultaneously with the commission and civil society mobilization
around the commission72 Truth commissions differ with respect to their
search and subpoena powers and the power to name perpetrators Setting man-
date limits on commissionsrsquo judicial attributes is justified on the grounds of fair
trial guarantees73
Yet human agency during and after the truth commission may challenge the
structural limits imposed by the commissionrsquos mandate Commissioners may or
may not choose to refer cases to courts ndash a decision that depends critically on civil
society agendas Prosecutors may be willing or more likely unwilling to use
findings to initiate trials against alleged perpetrators claiming in the latter case
that commission procedures fail to satisfy the evidentiary standards of the
courtroom
Skeptics have long noted the possibility that truth commissions far from con-
tributing to justice in fact serve to perpetuate impunity as they provide an im-
perfect substitute for human rights trials It is generally assumed that the truth
commission is a moderate transitional justice tool used to meet victimsrsquo demands
in the context of a negotiated political transition74 Jon Elster for example notes
that a new democratic regime may have to lsquochoose between justice and truthrsquo75
Mark Osiel takes the tension between truth commissions and prosecutions to an
extreme when he claims that most commissionsrsquo inability to take testimonies
from perpetrators not only undermines justice but also defeats the justification
for the presence of the truth commission to establish the historical truth which
71 Jason S Abrams and Priscilla B Hayner lsquoDocumenting Acknowledging and Publicizing theTruthrsquo in Post-Conflict Justice ed M Cherif Bassiouni (Ardsley NY Transnational Publishers2002) Amnesty International supra n 8
72 I do not separate positive judicial impact with and without civil society mobilization because in allobserved cases of impact significant civil society activism on the part of domestic and interna-tional actors has been a major intervening factor
73 Mark Freeman Truth Commissions and Procedural Fairness (Cambridge Cambridge UniversityPress 2006)
74 Peter Harris and Ben Reilly eds Democracy and Deep-Rooted Conflict Options for Negotiators(Stockholm International IDEA 1998) Priscilla Hayner lsquoTruth Commissionsrsquo NACLA Report onthe Americas 32(2) (1998) 30ndash32
75 Jon Elster Closing the Books Transitional Justice in Historical Perspective (Cambridge CambridgeUniversity Press 2004) 116ndash117
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 25
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
involves the full disclosure of violations and names of perpetrators76 Some claim
that truth commissions promote impunity through amnesty laws built into their
mandates or legislated as a result of the commissionrsquos work The South African
Truth and Reconciliation Commission (TRC) in particular has raised serious
concerns about the extent to which truth commissions serve to sidestep account-
ability as a specialized Amnesty Committee granted amnesty to those perpetra-
tors who fully confessed their crimes and the TRC itself constantly invoked the
language of forgiveness and reconciliation77
Finally other skeptics argue that the spectacle of a truth commission creates a
distraction from prosecution More specifically the recognition of victims and
the provision of material and symbolic reparations through truth commissions
may assuage public demand for truth and some kind of justice78 Furthermore
the decision to establish a truth commission itself is a sad admission of the
countryrsquos inability to prosecute which undermines the rule of law at the outset
of a democratic transition79 The observable implication of this hypothesis is that
public calls for prosecutions would decrease andor civil society groups advocat-
ing retributive justice would get demobilized during and after the truth commis-
sion process
Evidence for Positive Judicial Impact
Several truth commissions have generated judicial impact but the magnitude of
the impact is small80 The commissions in Argentina Chile Chad El Salvador Sri
Lanka Guatemala81 Nigeria and Peru saw their findings incorporated into a
76 Mark J Osiel lsquoWhy Prosecute Critics of Punishment for Mass Atrocityrsquo Human Rights Quarterly22(1) (2000) 118ndash147
77 lsquoIn transitional justice circles the indistinction between forgiveness and amnesty has been ren-dered murkier by the fact that the one instance where binding amnesty decisions were made by atruth commission South Africa was also an instance where the idiom of forgiveness played acentral rolersquo Rebecca Saunders lsquoQuestionable Associations The Role of Forgiveness inTransitional Justicersquo International Journal of Transitional Justice 5(1) (2011) 125
78 The temptation to establish truth commissions as a means to avoid justice has provoked normativedebates over the nature of the relationship among truth justice and reconciliation Juan Mendezargues against the counterpoising of truth and justice as well as reconciliation and justice asbinary opposites Instead he claims lsquoTruth commissions are important in their own right butthey work best when conceived as a key component in a holistic process of truth-telling justicereparations and eventual reconciliationrsquo Juan E Mendez lsquoNational Reconciliation TransnationalJustice and the International Criminal Courtrsquo Ethics and International Affairs 15(1) (2001) 29Likewise Ernesto Verdeja resists the appropriation of reconciliation as a pretext for impunity andamnesia He argues for a notion of reconciliation understood as lsquomutual respect among formerenemiesrsquo that implies truth telling accountability victim recognition and the rule of law as fun-damental tenets Ernesto Verdeja Unchopping a Tree Reconciliation in the Aftermath of PoliticalViolence (Philadelphia PA Temple University Press 2009)
79 International Criminal Tribunal for the former Yugoslavia Prosecutor Carla del Ponte for in-stance helped stop the formation of a truth commission for Bosnia because she feared such acommission would undermine her judicial cases Charles T Call lsquoIs Transitional Justice ReallyJustrsquo Brown Journal of World Affairs 11(1) (2004) 101ndash114
80 For data on judicial impact see Hayner supra n 2481 For the specific case of Guatemala see Elizabeth Oglesby lsquoHistory and the Politics of
Reconciliation in Guatemalarsquo in Teaching the Violent Past Reconciliation and HistoryEducation ed Elizabeth A Cole (New York Rowman and Littlefield 2007)
International Journal of Transitional Justice Vol 8 2014 6ndash30
26 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
small number of domestic or foreign legal cases as contextual information For
example the Argentinian commission transferred files to prosecutors which re-
sulted in the lsquoconviction and imprisonment of five generalsrsquo82 A truth commis-
sionrsquos judicial impact is typically delayed Even the preliminary investigation for
prosecutions takes place several years after the publication of the final report
Often one observes surprising turns in which a commission acquires renewed
significance thanks to changing domestic and international circumstances
Chadrsquos commission
unexpectedly took on new importance as rights advocates turned to it as a primary
source of information in an effort to prosecute [former dictator Hissene] Habre at the
international level It was still the only detailed record of rights crimes under Habre
and was thus critical in providing leads to witnesses for a trial83
In none of the cases did judicial impact extend beyond one or two high-profile
cases such as the arrest of Augusto Pinochet (Chile) the indictment of Hissene
Habre (Chad) and the conviction of Alberto Fujimori (Peru) which brings up
normative and practical questions about prioritizing accountability for the lsquobig
fishrsquo rather than the rank and file Arguably the design of truth commissions
which curtails their judicial powers accounts for their relative insignificance in
judicial processes However evidence suggests that even when commissions have
made full use of their capacity to facilitate prosecutions courts have neglected
their findings The Special Court for Sierra Leone for example had the power to
force the Sierra Leonean Truth and Reconciliation Commission to share the
information at its disposal but the prosecutor rejected the possibility84 In the
end truth commissions produce limited judicial impact but not necessarily due
to their own fault
Evidence for Negative Judicial Impact
Do truth commissions promote impunity then There is a tendency to exaggerate
the prevalence of amnesty laws accompanying truth commissions as a result of the
attention given to the South African TRCrsquos amnesty procedures85 South Africa
and Liberia are the only countries where an amnesty-for-truth option was built
into the commission86 but it would be unfair to fault the amnesty procedure for
82 Hayner supra n 24 at 28083 Ibid 247 Also see Justice in Perspective lsquoChad Minister of Justicersquos Commission of Inquiry on
the Crimes Committed by the Hissene Habre Regimersquo httpwwwjusticeinperspectiveorgzaafricachadminister-of-justices-commission-of-inquiry-on-the-crimes-committed-by-the-his-sene-habre-regimehtml (accessed 21 October 2013)
84 Elizabeth M Evenson lsquoTruth and Justice in Sierra Leone Coordination between Commission andCourtrsquo Columbia Law Review 104(3) (2004) 730ndash767
85 Max Pensky lsquoAmnesty on Trial Impunity Accountability and the Norms of International LawrsquoEthics and Global Politics 1(1ndash2) (2008) 1ndash40
86 In the case of Liberia the commission was mandated to recommend not grant amnesty to allegedperpetrators The commissionrsquos mandate is available at Truth and Reconciliation Commission ofLiberia lsquoMandatersquo httptrcofliberiaorgabouttrc-mandate (accessed 21 October 2013)
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 27
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
the obstruction of justice The South African TRC dismissed or rejected about 88
percent of the 7112 amnesty applications it received and many perpetrators did
not testify at all87 Thus the majority of perpetrators are available for prosecu-
tion88 The results in Liberia where the truth commission could only recommend
but not grant amnesty are yet to be seen The peace accords in Guatemala and
Sierra Leone89 initially had amnesty provisions but pressure from the interna-
tional community and domestic NGOs forced the exclusion of serious charges
such as genocide and crimes against humanity from the amnesty laws90 In other
words the failure to prosecute results less from amnesty laws accompanying truth
commissions than other factors such as the unwillingness of the judiciary or
political pressures
In Chile and Sri Lanka amnesty laws preceded the truth commission by over a
decade Chilersquos amnesty law dates back to 1978 and Sri Lankarsquos to 1982 ndash long
before the respective truth commissions were established in 1990 and 1994 El
Salvador and Nepal are the only countries where a truth commission resulted in
amnesty but precisely as counterevidence for the lsquoimpunity through amnestyrsquo
hypothesis An amnesty law was passed hastily in each country as the release of the
final report generated fear of prosecution among the political and military elite91
The postcommission amnesties in Argentina served to stop criminal accountabil-
ity but they were not recommended by or established as a process of the com-
mission The 1986 Full Stop Law halted the prosecution of most perpetrators and
Carlos Menemrsquos 1989 presidential pardon of military officers accused of viola-
tions further undermined retributive justice
There is no empirical evidence to show that actors who actively seek prosecu-
tion are lsquodistractedrsquo by the nonretributive promises of truth commissions like
healing reconciliation or monetary compensation What one observes is that
truth commissions have restructured their investigation methods to respond to
persistent advocacy for trials (eg Peru) or have found themselves severely cri-
ticized for failing to respond to this demand (eg Chile) While it is true that
many politicians military leaders and armed groups have accepted the creation of
87 Data available at Truth and Reconciliation Commission lsquoAmnesty Hearings amp Decisionsrsquo httpwwwjusticegovzatrcamntransindexhtm (accessed 21 October 2013)
88 In fact the South African TRC exposed many presumed perpetrators whose applications foramnesty were rejected However lsquonone recommended by the TRC were prosecutedrsquo Haynersupra n 24 at 281
89 lsquoThe [TRC]rsquos work was confidential and both the SCSL [Special Court for Sierra Leone] and theTRC made clear that there would be no sharing of information Thus nothing from the TRC wasutilized by the SCSL Also the Lome Accord amnesty precluded domestic prosecutionsrsquo Emailcommunication Beth Dougherty professor at Beloit College 11 October 2011
90 The UN Representative at the Sierra Leonean peace process introduced a last-minute disclaimerlsquoThe United Nations holds the understanding that the amnesty and pardon in Article IX of theagreement shall not apply to international crimes of genocide crimes against humanity warcrimes and other serious violations of international humanitarian lawrsquo Quoted in Priscilla BHayner Negotiating Peace in Sierra Leone Confronting the Justice Challenge (Geneva Center forHumanitarian Dialogue and International Center for Transitional Justice 2007) 5
91 Margaret Popkin and Naomi Roht-Arriaza lsquoTruth as Justice Investigatory Commissions in LatinAmericarsquo Law and Social Inquiry 20(1) (1995) 79ndash116
International Journal of Transitional Justice Vol 8 2014 6ndash30
28 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
truth commissions under the impression that they would replace or distract from
prosecutions commissions have neither advocated impunity nor dampened the
energies of activists who seek trials The failure to prosecute has resulted from
many other factors but not from the existence of truth commissions
ConclusionThis article conceptualizes truth commission impact as a set of political institu-
tional societal and judicial transformations resulting from the truth commission
process in the course of a political transition The processes that generate the
largest effects are direct political impact and delayed political impact through civil
society mobilization The former points to the quasi-official character of truth
commissions while the latter is a reminder of the need for continued civil society
activism to keep politicians accountable to otherwise nonbinding recommenda-
tions Civil society mobilization is a crucial factor in generating long-term judicial
and normative impact as well Truth commissions are neither state institutions
nor NGOs their liminal position vis-a-vis public authorities necessitates a
broader discussion of their agency and vulnerability stated goals and unantici-
pated consequences It is through the relations of mutual cooperation and com-
petition autonomy and dependence legitimation and delegitimation among
politicians domestic and international human rights activists and commissioners
that truth commissions generate impact
The discussion above discards commission-induced vetting (effective only in El
Salvador) as a significant impact mechanism Truth commissionsrsquo positive judicial
impact (ie human rights accountability) tends to appear several years after the end
of the process in great part as a result of broader changes in politiciansrsquo and judgesrsquo
attitudes on human rights trials Negative judicial impact (ie impunity) favors
only a small subsection of perpetrators while the overall climate of impunity is
likely caused by factors other than truth commissionsrsquo amnesty procedures
This article is a modest attempt to capture the specific mechanisms through
which a truth commission influences political judicial and societal processes
Needless to say commissions do much more Many commissions have devised
ways to increase public awareness of their findings and recommendations such as
publishing the final report as a marketable book or in a newspaper producing an
accessible version of the final report for adults andor children (Peru and Sierra
Leone) organizing outreach activities and so forth They have sought to delegit-
imize presumed perpetrators in the eyes of citizens Eight of the 15 transitional
truth commissions I identified have published the names of individual perpetra-
tors and in at least one other case (Argentina) the list of perpetrators was lsquoleakedrsquo
to the press Beyond individuals truth commissions have also criticized institu-
tional actors such as the military police armed opposition political parties and
judicial institutions for committing or condoning human rights violations and
for contributing to a political context in which violations would happen They
have promoted consensus mutual understanding and some notion of
International Journal of Transitional Justice Vol 8 2014 6ndash30
How Truth Commissions Influence Politics and Society 29
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
Dow
nloaded from
lsquoreconciliationrsquo (arguably the most contentious term in transitional justice schol-
arship) between victims and perpetrators between former enemies or across
various social groups and political actors As the normative impact of truth com-
missions on politics and society is undeniable future research should devise in-
novative and precise data collection and analysis tools to assess the magnitude
direction and specific causal mechanism of cross-national variation in normative
change
In conclusion truth commissions do produce significant changes and in favor
of human rights accountability more often than not but the magnitude of the
change should not be exaggerated Their ad hoc and nonbinding character limits
their potential for impact Nevertheless sustained postcommission pressure
on the part of human rights organizations and victimsrsquo groups where it happens
has to some extent compensated for the intrinsic weakness of truth commissions
to date
International Journal of Transitional Justice Vol 8 2014 6ndash30
30 O Bakiner
at Princeton University on A
ugust 19 2015httpijtjoxfordjournalsorg
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