The Artemis Project - A Truth Commission Archive at Yale University

CHAPTER ONE
The Mandate of the
Truth and Reconciliation Commission

The Legislative Framework

1. Truthand Reconciliation Commissions had been established in many countriesfollowing periods of protracted internal conflict, and were widelybelieved to provide an important mechanism for transitional justice.Generally, they have been presented as an alternative to judicialprosecution for atrocities, especially in cases where politicalexigencies made this unlikely or impossible. In the case of SierraLeone, this was quite explicit. The creation of the Commission wasprovided for in the Lomé Peace Agreement of 7 July 1999. Article IX ofthe Lomé Peace Agreement provided a pardon and amnesty for participantsin the conflict. The Commission was therefore viewed as the principalmeans of providing a degree of accountability for human rights abusescommitted during the conflict.

2. Itis worthy of note that the Abidjan Peace Agreement of 30 November 1996,which initially offered the hope of an end to the conflict but whichdid not succeed, for reasons detailed elsewhere in this Report, made noprovision for a Truth and Reconciliation Commission or for any similarprocess. Yet article 14 of the Abidjan Agreement granted an amnesty tomembers of the Revolutionary United Front, allegedly so as '[t]oconsolidate the peace and promote the cause of national reconciliation'.

Legal Framework for Mandate

3.Article VI(2) of the Lomé Peace Agreement described the Truth andReconciliation Commission as one of several 'structures for nationalreconciliation and the consolidation of peace'. Article XXVI of theLomé Peace Agreement reads as follows:

ARTICLE XXVI

HUMAN RIGHTS VIOLATIONS

1.A Truth and Reconciliation Commission shall be established to addressimpunity, break the cycle of violence, provide a forum for both thevictims and perpetrators of human rights violations to tell theirstory, get a clear picture of the past in order to facilitate genuinehealing and reconciliation.

2.In the spirit of national reconciliation, the Commission shall dealwith the question of human rights violations since the beginning of theSierra Leonean conflict in 1991. This Commission shall, among otherthings, recommend measures to be taken for the rehabilitation ofvictims of human rights violations.

3.Membership of the Commission shall be drawn from a cross-section ofSierra Leonean society with the participation and some technicalsupport of the International Community. This Commission shall beestablished within 90 days after the signing of the present Agreementand shall, not later than 12 months after the commencement of its work,submit its report to the Government for immediate implementation of itsrecommendations.

4.The Truth and Reconciliation, 2000 ('the Act') was adopted on 22February 2000. However, it was, strictly speaking, only 'established'on 5 July 2002, when the seven Commissioners appointed by the Presidentwere formally sworn in during a public ceremony. The word 'mandate' isused three times in the Act, in the context of references to'fulfilment of the Commission's mandate' (sections 8(1)(b) and c),9(1)), but nowhere is there any attempt to explain or define what themandate actually consists of. Section 6(1) refers to the 'object forwhich the Commission is established' and section 6(2)c) speaks of'fulfilment of the object of the Commission', suggesting that theexpression 'object' may be synonymous with 'mandate'. The Act isassociated with an explanatory 'Memorandum of Object and Reasons',which was attached to the Bill presented to Parliament. Section 15(2)refers to the need 'to achieve the object of the Commission'. The Actalso contains references to the 'functions of the Commission'. Part IIIof the Act, which includes the sections within which the 'mandate' and'object' of the Commission are referred to, is entitled 'Functions ofthe Commission'.

5.For the purposes of this discussion, there does not seem to be anyuseful or meaningful distinction between 'mandate', 'object' and'functions' of the Commission. It is not possible to glean anysignificant nuance in Parliamentary intent from the use of these threeterms. They are all components of the 'mandate' of the Commission.

6. Section 6 of the Truth and Reconciliation Commission Act 2000 sets out the 'object' of the Commission:

6.(1) The object for which the Commission is established is to create animpartial historical record of violations and abuses of human rightsand international humanitarian law related to the armed conflict inSierra Leone, from the beginning of the Conflict in 1991 to the signingof the Lome Peace Agreement; to address impunity, to respond to theneeds of the victims, to promote healing and reconciliation and toprevent a repetition of the violations and abuses suffered.

(2) Without prejudice to the generality of subsection (1), it shall be the function of the Commission -

(a)to investigate and report on the causes, nature and extent of theviolations and abuses referred to in subsection (1) to the fullestdegree possible, including their antecedents, the context in which theviolations and abuses occurred, the question of, whether thoseviolations and abuses were the result of deliberate planning, policy orauthorisation by any government, group or individual, and the role ofboth internal and external factors in the conflict;

(b)to work to help restore the human dignity of victims and promotereconciliation by providing an opportunity for victims to give anaccount of the violations and abuses suffered and for perpetrators torelate their experiences, and by creating a climate which fostersconstructive interchange between victims and perpetrators, givingspecial attention to the subject of sexual abuses and to theexperiences of children within the armed conflict; and

(c) to do all such things as may contribute to the fulfilment of the object of the Commission.

7.Section 7(1) of the Truth and Reconciliation Commission Act 2000discusses the 'functions' of the Commission, which it says 'shallinclude the following three components':

undertaking investigation and research into key events, causes, patterns of abuse or violation and the parties responsible;

holdingsessions, some of which may be public, to hear from the victims andperpetrators of any abuses or violations of from other interestedparties; and

takingindividual statements and gathering additional information with regardto the matters referred to in paragraphs (a) or (b).

8. Section 7(2) of the Act lists several features of the Commission's operations:

seekingassistance from traditional and religious leaders to facilitate itspublic sessions and in resolving local conflicts arising from pastviolations or abuses or in support of healing and reconciliation;

provision of information to the Commission on a confidential basis;

takinginto account the interests of victims and witnesses when inviting themto give statements, including the security and other concerns of thosewho may wish to recount their stories in public;

implementationof special procedures to address the needs of such particular victimsas children or those who have suffered sexual abuses as well as inworking with child perpetrators of abuses or violations;

decision-making by consensus, to the extent possible;

provisionof information or recommendations to or regarding the Special Fund forWar Victims provided for in Article XXIV of the Lome Peace Agreement,or other assistance.

9. Section 8 of the Act sets out the powers of the Commission.

10.Indications as to the 'mandate' of the Commission are also provided forin Part V of the Act, which deals with the 'Report andRecommendations'. The Report is to summarise the findings of theCommission and to 'make recommendations concerning the reforms andother measures, whether legal, political, administrative or otherwise,needed to achieve the object of the Commission, namely the object ofproviding impartial historical record, preventing the repetition of theviolations or abuses suffered, addressing impunity, responding to theneeds of victims and promoting healing and reconciliation'.

11.The Memorandum of Objects and Reasons is not, strictly speaking, partof the enacted legislation creating the Commission. Nevertheless, as anattachment to the Bill presented to Parliament, it is of considerablesignificance for the interpretation of provisions of the Act that waseventually adopted. It provides useful guidance as to Parliamentaryintent at the time the legislation was enacted. Several phrases in theMemorandum of Objects and Reasons are of particular relevance, notablythe reference to the proceedings of the Commission 'as a catharsis forconstructive interchange between the victims and perpetrators of humanrights violations and abuses', and the intent that the Commission'compile 'a clear picture of the past''. Also of interest is thesuggestion that clause 6 of the Act refers to 'the principal functionof the Commission' as being 'to create an impartial historical recordof events in question as the basis for the task of preventing theirrecurrence'. In fact, section 6 of the Act lists five distinct'objects' of the Commission, and suggests no hierarchy between them.The Memorandum of Objects and Reasons provides a helpful perspectivefor the interpretation of the various components of section 6 of theAct. Here is the text in full:

Ghana, ruled periodically by authoritarian and military dictatorships since independence in 1957, witnessed its first legitimate general election in January 2001 - ripe time, then, to reflect on the political ills of the past. Current President Kufuor, who has actively endorsed a policy of national reconciliation, organized the NRC as a public forum on the abuses of the past decades, convening over 2000 public hearings. The final report, released in 2005, addresses the respective roles of the armed forces, universities, political parties, and the media in the protracted disintegration of Ghanaian democracy. The report proposes modest government reparations and reforms in the security services and the judiciary.

In December 2000 the Peruvian Truth and Reconciliation Commission (CVR) was established to investigate human rights abuses--in particular murders and kidnappings, forced disappearances, torture, and abuses to indigenous communities, mostly Quechua-speaking Indians-- by the Shining Path and the Tupac Amaru rebel groups, as well as abuses by the military under Presidents Fernando Belaunde(1980-1985), Alan Garcia (1985-1990) and Alberto Fujimori (1990-2000). The CVR estimated that the total number of victims of such abuses over the past two decades was 69, 280, and attributed them both to the government and rebel groups. The CVR held public hearings and broadcast them nationally. They also recommended reforms, prosecutions, and reparations; currently a reparations program is underway and some prosecutions, notably of former President Alberto Fujimori, are in process.

The presidential decree establishing the CVR maintained that the archive--databases, videotapes, audiotapes, photographs, and paper files-- should be given to the Ombudsman's Office after the commission completed its work. The Ombudsman's Office created a Center of Information for the Collective Memory of Human Rights and housed the archive of the CVR there, as well as creating a documentation center based on the CVR's material. Most of the material is available for public use.

The Commission for Historical Clarification (CEH) was established on June 23, 1994 as part of the Oslo Agreement of 1994 and the peace settlement in 1996 that ended the 36 year long civil war in Guatemala, between the government and the National Guatemalan Revolutionary Unit (URNG). The mandate of the commission was to "clarify, with full objectiveness, equity, and impartiality, human rights violations and incidents of violence related to the armed confrontation that have caused suffering to the Guatemalan population." The commission estimated that 200,000 people were killed or disappeared, an overwhelming majority of which were indigenous Mayans. The commission concluded that acts of genocide and crimes against humanity had occurred against the Mayan population. The Guatemalan government contested this charge, and many of the report's recommendations were never implemented due to a lack of political will.

Status of Archives:
All documents and records from the CEH are housed in the United Nations Archives and Records Management Section in New York, with a stipulation that no documents may be open to the public until January 1, 2050, or unless the Secretary-General authorizes it. The CEH archive consists of individual and collective testimonies, electronic and paper files, tapes of 150 key witnesses, and photos. According to Final Acts: A Guide to Preserving the Records of Truth Commissions, the archive needs to be preserved and some documents should be made accessible: "All records transferred to the archives are sealed, and no use--including no preservation activity--has been made of them...Not all records require protection for fifty years...the UN Archives needs to be able to review the records and make recommendation to the Secretary-General on records that can be made available now."

In 1975, East Timor, a former Portuguese colony, was annexed by Indonesia and for the next twenty-five years, East Timorese suffered under a harsh regime in which an approximate 200,000 people were killed and even more were displaced. With the fall of General Soeharto in 1999, the East Timorese were given the right to hold elections. Although they suffered active intimidation, the East Timorese voted overwhelmingly for independence; militias responded by killing over 1,000 people, displacing thousands more, and destroying property and infrastructure in several towns and cities. In the ensuing transitional period, the United Nations governed East Timor and in 2002, East Timor became an independent state, Timor-Leste. In 2002, The United Nations Transitional Administration for East Timor (UNTAET) helped establish a Commission for Reception, Truth and Reconciliation (CAVR) to investigate human rights violations and atrocities committed between 1974 and 1999. The commission was given a two-year mandate and during that time it held a series of public hearings, collecting testimony from more than 7000 witnesses and victims. In addition to investigating facts about the conflict, the commission was charged with helping perpetrators and their victims reintegrate into their communities and with making recommendations for the prevention of future abuses. The commission delivered its final report to President Gusmao in October 2005 and it was made available to the public in 2006.

The archives of CAVR (20,000 pages and 800 hours of audio and visual recording) are in immediate danger of physical destruction, or of being lost or concealed.