How to deal with the past<\/p>\n
The following is the first of two articles based on a
\npresentation by Peter R. Baehr, emeritus professor of human
\nrights at Utrecht University and Leiden University, the
\nNetherlands. He spoke at a recent seminar here in Jakarta, held
\nby the Foundation of Human Rights and Law Supremacy.<\/p>\n
JAKARTA: What should happen to persons who are accused of
\ngross violations of human rights and international humanitarian
\nlaw? The question of accountability for such acts arises whenever
\na change of regime has occurred.<\/p>\n
Argentina, Chile, El Salvador, Guatemala, Germany after
\nreunification, Czechoslovakia after the fall of the Communist
\nregime, the former Yugoslavia, South Africa after the end of
\napartheid -- and possibly, Indonesia.<\/p>\n
In some countries such persons are tried by domestic courts,
\nin others international criminal tribunals are established, as
\nwas the case with the former Yugoslavia and Rwanda.<\/p>\n
Some perpetrators may be arrested abroad and extradited to
\nsome foreign country to be tried, as almost happened in the case
\nof the former Chilean dictator Augusto Pinochet. In at least 20
\ncountries, so-called "truth-and-reconciliation commissions" have
\nbeen established.<\/p>\n
A major problem here is that the guilty ones are often persons
\nwho are also needed for the rebuilding of society. They command
\nthe knowledge and expertise which is hard to do without.<\/p>\n
Sometimes, they are politically important persons, who still
\nhold important political positions and will not let themselves be
\ntaken easily to be judged. Or they may hold information which
\nthey could use by way of blackmail against new leaders. Moreover,
\nthere are such considerations as "we have to move on", "let
\nbygones be bygones", "forgive and forget" and "clear the decks".<\/p>\n
This explains the efforts in the direction next toward
\n"truth", toward "reconciliation". The concept of "reconciliation"
\nmust always be carefully scrutinized. Thus, in certain countries
\n"Laws of National Reconciliation" are not much more than final
\nhour self-amnesties by outgoing regimes.<\/p>\n
A precondition for any form of investigation of what has taken
\nplace in the past, is that the regime that was responsible for
\nthose acts has been replaced.<\/p>\n
After all, it is not very likely that the guilty ones, as long
\nas they are still in power, will be prepared to cooperate in such
\ninvestigations.<\/p>\n
After the change of a regime, a period of transition takes
\nplace, during which society must decide on how to deal with the
\npast. One of these ways is the establishment of a truth and
\nreconciliation commission, as is currently the subject of debate
\nin Indonesia.<\/p>\n
Truth and reconciliation commissions are a relatively new
\nphenomenon. Priscilla Hayner, who has done a major study on the
\nsubject, defines truth and reconciliation commissions as follows:
\n"... bodies set up to investigate a past history of violations of
\nhuman rights in a particular country -- which can include
\nviolations by the military or other government forces or by armed
\nopposition forces".<\/p>\n
The main objective of such commissions is to reveal the facts
\nof human rights violations under a previous regime. They
\nexplicitly do not have the objective of adjudication, but of
\nreconciliation after the facts have been revealed.<\/p>\n
The truth commissions which were set up in Chile after the
\nfall of the Pinochet regime and the more recent one in South
\nAfrica have received a great deal of international attention.
\nSimilar commissions have operated in Uganda, Argentina, Chad, El
\nSalvador and Guatemala.<\/p>\n
The composition of such a commission requires a great deal of
\ncare in order to avoid the impression that it has been
\nestablished with certain political objectives in mind or in order
\nto whitewash the past. Its members must have the confidence of
\nthe public and their independence must be guaranteed.
\nIndependence, that is, from the government.<\/p>\n
Some of these commissions have considerable powers. The one in
\nSouth Africa had the authority to subpoena witnesses and to hear
\nthem under oath. It could even offer a perpetrator indemnity
\n("amnesty") for the human rights violations he or she disclosed,
\nprovided they had been performed for political objectives. The
\ncommission must decide whether the violation in question
\nconstituted such a political act.<\/p>\n
The first and foremost task of the commission is to present
\nthe true facts, or rather, to recognize those facts. After all,
\nthe true facts are often well-known among the people involved,
\nbut they ask for official recognition.<\/p>\n
The recognition of the facts should help such events from
\noccurring again in the future. An example is the report of the
\nArgentinean National Committee on Disappeared Persons, which was
\ngiven the title Nunca Mas! (Never Again!).<\/p>\n
Establishing a truth and reconciliation commission is
\nsometimes rather controversial. On the one hand, there are those
\nwho prefer a policy of "forgiving and forgetting" and who are of
\nthe opinion that this process may be harmed by the establishment
\nof a truth and reconciliation commission.<\/p>\n
Opposite to this is the idea that true forgiveness is only
\npossible after a recognition of the facts. Also, the former
\nperpetrators are, for obvious reasons, not very enthusiastic
\nabout the idea, unless of course it is accompanied by a process
\nof amnesty, as in South Africa.<\/p>\n
There always remains the danger that a truth and
\nreconciliation commission will contribute to the whitewashing of
\nthe misdeeds of a previous regime.<\/p>\n
Another question is whether, next to members of the governing
\nregime, the military, and the police, members of the former
\nopposition should also be called to account before a truth and
\nreconciliation commission.<\/p>",
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