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.