How to deal with the past

How to deal with the past

The following is the first of two articles based on a
presentation by Peter R. Baehr, emeritus professor of human
rights at Utrecht University and Leiden University, the
Netherlands. He spoke at a recent seminar here in Jakarta, held
by the Foundation of Human Rights and Law Supremacy.

JAKARTA: What should happen to persons who are accused of
gross violations of human rights and international humanitarian
law? The question of accountability for such acts arises whenever
a change of regime has occurred.

Argentina, Chile, El Salvador, Guatemala, Germany after
reunification, Czechoslovakia after the fall of the Communist
regime, the former Yugoslavia, South Africa after the end of
apartheid -- and possibly, Indonesia.

In some countries such persons are tried by domestic courts,
in others international criminal tribunals are established, as
was the case with the former Yugoslavia and Rwanda.

Some perpetrators may be arrested abroad and extradited to
some foreign country to be tried, as almost happened in the case
of the former Chilean dictator Augusto Pinochet. In at least 20
countries, so-called "truth-and-reconciliation commissions" have
been established.

A major problem here is that the guilty ones are often persons
who are also needed for the rebuilding of society. They command
the knowledge and expertise which is hard to do without.

Sometimes, they are politically important persons, who still
hold important political positions and will not let themselves be
taken easily to be judged. Or they may hold information which
they could use by way of blackmail against new leaders. Moreover,
there are such considerations as "we have to move on", "let
bygones be bygones", "forgive and forget" and "clear the decks".

This explains the efforts in the direction next toward
"truth", toward "reconciliation". The concept of "reconciliation"
must always be carefully scrutinized. Thus, in certain countries
"Laws of National Reconciliation" are not much more than final
hour self-amnesties by outgoing regimes.

A precondition for any form of investigation of what has taken
place in the past, is that the regime that was responsible for
those acts has been replaced.

After all, it is not very likely that the guilty ones, as long
as they are still in power, will be prepared to cooperate in such
investigations.

After the change of a regime, a period of transition takes
place, during which society must decide on how to deal with the
past. One of these ways is the establishment of a truth and
reconciliation commission, as is currently the subject of debate
in Indonesia.

Truth and reconciliation commissions are a relatively new
phenomenon. Priscilla Hayner, who has done a major study on the
subject, defines truth and reconciliation commissions as follows:
"... bodies set up to investigate a past history of violations of
human rights in a particular country -- which can include
violations by the military or other government forces or by armed
opposition forces".

The main objective of such commissions is to reveal the facts
of human rights violations under a previous regime. They
explicitly do not have the objective of adjudication, but of
reconciliation after the facts have been revealed.

The truth commissions which were set up in Chile after the
fall of the Pinochet regime and the more recent one in South
Africa have received a great deal of international attention.
Similar commissions have operated in Uganda, Argentina, Chad, El
Salvador and Guatemala.

The composition of such a commission requires a great deal of
care in order to avoid the impression that it has been
established with certain political objectives in mind or in order
to whitewash the past. Its members must have the confidence of
the public and their independence must be guaranteed.
Independence, that is, from the government.

Some of these commissions have considerable powers. The one in
South Africa had the authority to subpoena witnesses and to hear
them under oath. It could even offer a perpetrator indemnity
("amnesty") for the human rights violations he or she disclosed,
provided they had been performed for political objectives. The
commission must decide whether the violation in question
constituted such a political act.

The first and foremost task of the commission is to present
the true facts, or rather, to recognize those facts. After all,
the true facts are often well-known among the people involved,
but they ask for official recognition.

The recognition of the facts should help such events from
occurring again in the future. An example is the report of the
Argentinean National Committee on Disappeared Persons, which was
given the title Nunca Mas! (Never Again!).

Establishing a truth and reconciliation commission is
sometimes rather controversial. On the one hand, there are those
who prefer a policy of "forgiving and forgetting" and who are of
the opinion that this process may be harmed by the establishment
of a truth and reconciliation commission.

Opposite to this is the idea that true forgiveness is only
possible after a recognition of the facts. Also, the former
perpetrators are, for obvious reasons, not very enthusiastic
about the idea, unless of course it is accompanied by a process
of amnesty, as in South Africa.

There always remains the danger that a truth and
reconciliation commission will contribute to the whitewashing of
the misdeeds of a previous regime.

Another question is whether, next to members of the governing
regime, the military, and the police, members of the former
opposition should also be called to account before a truth and
reconciliation commission.