What to do in dealing with the horrors of the past?

What to do in dealing with the horrors of the past?

The following is the second 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: In the case of South Africa, the deeds of the African
National Congress (ANC) were explicitly included in the
investigation. In neighboring Namibia, the government of
President Sam Nujoma has remained adamantly opposed to the whole
idea of a truth and reconciliation commission.

As the former leader of the South-West African People's
Organization (SWAPO), which itself was responsible for torture
and disappearances during its fight for independence, he does not
want such practices to be officially acknowledged.

In contrast in South Africa, there was a powerful political
consensus, created by former president Nelson Mandela, for
setting up such a commission; this was obviously lacking in
Namibia.

If one wants to establish such a commission, a number of
questions must be answered regarding the scope of its mandate,
the time period to be covered, the question of whether its
activities should be published and the question of whether the
names of the culprits should be made public.

The South African commission made considerable efforts to
achieve the greatest possible transparency in its proceedings.
Bishop Tutu often appeared in public to discuss the work of the
commission.

There were frequent public announcements and press
conferences. Everybody who wanted to know what was going on in
the truth commission was given the opportunity to find out.

The question must also be answered whether a truth commission
should begin its activities as soon as possible after a change of
regime or whether it is wiser to have some time elapse. In favor
of starting quickly is that public attention may have waned after
too much time has gone by.

On the other hand, this may also be an argument to wait a
little, so that emotions have cooled down and the commission can
do its work in an atmosphere suitable for quiet and dispassionate
analysis.

Human beings are able to commit all kinds of "inhuman" acts.
This observation is true for all times and all places. What we
like to call "humanitarian" is a thin layer of civilization,
which is ruptured time and again.

The atrocities committed by the German Nazis and their
accomplices and the "ethnic cleansing" operations in former
Yugoslavia serve to demonstrate that it applies as much to the
western world as to the non-West.

These are violations of human rights and humanitarian law.
Fortunately enough, after a longer or shorter period, the
violations always come to an end.

Then the question must be faced: what next? How does one find
a proper balance between the call for justice and political
prudence?

One thing is clear: Most of the victims, their relatives and
survivors, consider revelation of what has really happened of the
utmost importance. This fact contains an assignment to society:
to chart the past as well as possible and give it official
recognition.

The objective of revealing the past can be served both by
adjudication, either national or international, or by the
establishment of a truth and reconciliation commission. It is
difficult to say which of these should be preferred.

If adjudication according to the rules of fair trial is
possible and the guilty ones can be caught and convicted, this
should be preferred.

But political circumstances do not always allow this
procedure. Adjudication is not necessarily always the best
solution.

In countries where massive abuses have occurred and mistrust
of fellow-citizens and the justice system is widespread, legal
prosecution may well be counterproductive. Whatever is chosen,
legal prosecution or the establishment of a truth and
reconciliation commission, it must have the confidence of the
public.

In the absence of the proper preconditions for fair trial and
in the absence of a permanent international tribunal, the
establishment of truth and reconciliation commission may be
helpful. It should be added, however, that it remains for the
time being an open question whether finding the "truth" will
always contribute to reconciliation.

Truth finding may also reveal feelings of resentment and open
old wounds. In such cases "truth" and "reconciliation" do not
necessarily go together. However, in the end, one has to start
finding the truth first and then see whether or not it leads to
reconciliation.

Leaving war crimes unpunished it worse: it leaves the cycle of
impunity unbroken. The process of truth finding and truth telling
may be as important as its actual outcome. It helps to vindicate
the victims, provide official acknowledgement of the truth and,
in some cases, helps to identify the perpetrators.

Truth commissions tend to emphasize the role of the victims,
while criminal trials focus on the accused.

The former is a quasi-judicial process, whereas the latter is
a real judicial process. It may be wise to set one's sights not
too high and be satisfied with as little as one can achieve.

There is reason to be somewhat skeptical about the extent to
which societies are able to learn from past experience. Nunca Mas
(Never Again) is a noble objective, but it remains open to
question whether it can be realized and if so, for how long.

The collective memory of society is short. Nevertheless, to
try to reveal the truth is better than to do nothing at all.