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.