FAUSTO POCAR

REMARKS ON THE RELATIONSHIP BETWEEN INTERNATIONAL CRIMINAL COURTS AND RECONCILIATION COMMISSIONS

FAUSTO POCAR
Professor of International Law,
University of Milan, Italy
Judge, International Criminal Tribunal for the Former Yugoslavia

During the last decades a growing number of emerging democracies have faced the problem of promoting and restoring a climate of reconciliation in the country that might overcome past divisions and conflicts that had characterised the country’s preceding history. Such conflicts and divisions had frequently been marked by serious and widespread violations of fundamental human rights or humanitarian law, depending on whether the violations were attributable to authoritarian governments in peacetime or to governmental agents and individuals in the course of internal armed conflicts.

Recent history shows quite a variety of situations of this kind in most regions of the world although it is not the purpose of this paper to analyse them in detail. It has been frequently pointed out that a satisfactory degree of confidence is required for strengthening the new democratic institutions. Such confidence could not effectively be achieved, in such situations, without establishing one credible and definitive truth about the magnitude of the atrocities and abuses committed during the authoritarian rule or in the course of an internal conflict. Different measures may be adopted in this context. Several States – individually but more frequently on the initiative of and in co-operation with international organisations – have established special bodies and entrusted them with the investigation of the violations that occurred over a specific period of time and of the reasons thereof,  the identification of  the perpetrators, as well as the determination of the relief to be given to victims. In light of their mandate, such bodies have been referred to as Truth Commissions (e.g. in Argentina, Chile, El Salvador, Haiti, Uganda and Chad), Truth and Reconciliation Commissions (e.g. in South Africa and in the draft law of Bosnia and Herzegovina), or another equivalent denomination (like the Commission for Historical Clarification in Guatemala)^([1]).

Truth and Reconciliation Commissions have been regarded as appropriate tools in light of the fact that criminal prosecutions of individuals responsible for having committed violations of fundamental human rights are frequently difficult in the political situation of States coming out of internal conflicts or a dictatorial government. A Truth Commission, especially if accompanied by amnesty laws, may more easily prompt the perpetrators to confess their guilt. More significantly, Truth Commissions have been sometimes regarded as more appropriate for allowing an overall consideration of the violations that occurred. Such a consideration, being officially sanctioned, may also serve the purpose of preserving the memory of past events and of recognising the sufferings of the victims, thus contributing to answer the demands for justice by the people.

However, it has also been pointed out that Truth and Reconciliation Commissions may not fully serve their purposes if they are not followed by criminal judicial proceedings, at least as far as the perpetration of major violations of human rights is concerned. A climate of confidence between the people may be difficult to establish if violators of fundamental human rights are not brought to justice. Furthermore, it has also been considered that the conscience of the entire international community would be offended, should crimes of such gravity remain without a trial and the persons responsible for them continue to enjoy impunity.

The desirability of prosecuting violators for the crimes committed as a follow up of the activities of these commissions has been, and continues to be, at the centre of legal and political discussions within the countries in which they have been established. But it has to be noted that in recent times the option of criminal prosecution has been followed, both as an alternative to the establishment of a Truth Commission and in conjunction therewith.

On the initiative of international organisations, in particular the United Nations, a growing number of criminal tribunals have been set up or envisaged during the last decade, and entrusted with the prosecution of persons responsible for serious violations of human rights and humanitarian law. It is interesting to note that such a course of action has been followed both at the international and at the national level. Besides the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, national ad hoc tribunals have been or are being set up for Sierra Leone, Cambodia, Kosovo and possibly East Timor, with the understanding that an international participation would contribute to their composition and management.  While some of these tribunals were designed to be the only option to re-establish a climate of confidence in the population of the country concerned, others are intended to co-exist with Truth and Reconciliation Commissions. The former is in particular the case for the international tribunals set up so far, although the establishment of a Truth and Reconciliation Commission is under consideration in Bosnia and Herzegovina, the latter is the case for the national tribunals concerning the four countries mentioned above^([2]).

The trend towards a coexistence of Truth Commissions and judicial criminal bodies (whether international or national with international participation) may or may not appear predominant. But it has to be stressed, in any event, that the option which consists in establishing a Truth Commission that will not be accompanied by the possibility of prosecuting major crimes before judicial bodies will become the more and more difficult, not to say impossible, in the next future. The recent entry into force of the statute of the International Criminal Court on the 1st July 2002 included the pledge, at least for State parties, to prosecute and try persons responsible for genocide, war crimes and crimes against humanity, even when the latter are committed in peacetime. In the absence of the availability of prosecution at the domestic level, the exercise of criminal jurisdiction over such crimes may be taken up by the ICC. The latter’s jurisdiction will therefore concur with actions that may be taken by Truth Commissions established in the State concerned.

The choice made by the international community to ensure the prosecution and punishment of persons responsible for major violations of human rights and humanitarian law, whether at the domestic or international level, raises a number of issues so far as the practice of establishing Truth and Reconciliation Commissions is concerned. How far is the coexistence between such commissions and judicial bodies justified? And how can their role and functions be reconciled and harmonised?

A positive answer to these questions will require that their respective goals and competence are correctly and clearly defined. In the absence of such a definition, not only may their activities overlap to some extent; they may even represent an obstacle for a full and effective exercise of their competence.

As to the goals, the exercise of criminal jurisdiction by international (or quasi-international) tribunals is obviously intended to establish the truth about events that occurred during a civil or ethnic conflict or an authoritarian rule. The establishment of the truth in concrete cases is obviously preliminary to any conviction. In this regard, the functions of an international tribunal overlap with those of a Truth Commission. However, the legal instruments establishing such tribunals – be they resolutions of the United Nations or the treaty on the Statute of the International Criminal Court - also mention that the crimes falling within their competence have to be regarded as a threat to international peace and security. Therefore, measures adopted to bring to justice persons who are responsible for such crimes are also seen as a contribution to the restoration and maintenance of peace. It is undeniable that such an aim may also be present in the establishment of a Truth and Reconciliation Commission. However, the latter’s contribution to peace and wellbeing of a country or a region may be, and has sometimes been, based on the opposite view, that persons responsible for serious crimes should not necessarily be brought to justice. Just to make an example, a decision to grant amnesty to perpetrators with a view to favouring national reconciliation would certainly claim to contribute to peace. But the same would also clearly obstruct an international tribunal in achieving its goal, which is to contribute to peace by means of submitting those perpetrators to justice. How should the balance be set? Should one of the two bodies take priority over the other? And if so which one? Or should the respective areas of competence be co-ordinated in a different way? 

As a first step, it is submitted that areas should be identified, which would be clearly specific to the functions that can better be performed by each body. There are activities that an international criminal tribunal or court (or even a domestic court) would no be able to carry out in its capacity as a judicial body.  Other activities, in turn, would not be performed properly by a Truth and Reconciliation Commission, and would have to be handed over to judicial institutions in any event. Such a preliminary identification of areas specific to each institution would clarify their fundamental respective functions and form the basis for a co-ordinated approach ^([3]).

One first area in which an international tribunal would appear to have a limited role to play concerns an analysis of all the causes of the conflict or of the authoritarian rule during which the criminal violations occurred. There is no doubt that the judicial activity of an international court may occasionally apply a consideration of relevant aspects related to the origins of the environment, which may have led to the commission of the crimes submitted to it for trial. However, it is not for a judicial body to analyse all the historical, economic and social causes having determined the existence of such an environment. On one hand, a tribunal has the duty to review the events only from the specific angle of the criminal responsibility of the perpetrators. On the other hand, it is self-evident that a court cannot undertake a systematic review of all events, but is bound to limit its consideration to events that are brought to its attention in the indictments. A systematic review will nonetheless be essential for the purposes of an effective and long-standing reconciliation between the people in the region concerned. Only in the light of such a review, accompanied by a wide and efficient programme of information, will current and future generations avoid falling into confrontations of a similar nature as those that already occurred. A review of this kind can be effectively performed by a truth commission and would justify by itself its establishment.

A second area of specific competence of a truth commission, related to the one just mentioned, is to build up a collective memory of the events, based upon a  discussion open to all, so that it may be shared by all individuals in the region concerned. The exercise of criminal jurisdiction by a court will certainly play a role also in this respect, but, due to the nature of the procedural requirements for performing a judicial activity, it cannot be the appropriate forum for an open discussion about the past. Its contribution will always be incomplete and limited to the perspective of a consideration of the events that resulted in major violations of fundamental human rights or humanitarian law. There is no doubt that a Truth Commission will provide a more general forum to this effect. In this context, the role to provide a forum for dialogue is stressed by the statutes of the Truth Commissions established so far. Thus, the statute of the Truth and Reconciliation Commission for Sierra Leone declares that the Commission is intended to provide a forum for both victims and perpetrators to tell their stories and facilitate genuine healing and reconciliation. Similarly, the draft law of Bosnia and Herzegovina on the same subject indicates the objective of providing a forum where victims and persons with information about massive human rights violations in the past war can be heard.

A third area in which a Truth and Reconciliation Commission may act more efficiently than a tribunal in situations of massive violations of human rights may be in providing reparation for the victims. Actually, providing reparation to victims of crime falls in general terms within the judicial function of a court and is frequently done by national courts in accordance with the provisions of their respective criminal procedural laws. However, while a court may provide reparation to identified victims of a specific crime, it is hardly possible for a court to achieve the same result when massive violations are at issue. This is especially the case with victims of armed conflicts or of activities of paramilitary groups, where a nexus between identified victims and criminal acts cannot be established. The difficulty of finding a solution to the problem of providing reparation to victims of widespread crime has been underlined on several occasions, and it is not necessary to go back here to the resolutions adopted by international organisations, including the United Nations, on this matter. It is sufficient to appreciate that a satisfactory solution cannot easily be found merely by relying on the judicial function and improving its efficiency.

It is not surprising therefore that the question of reparation to victims has not been dealt with in the statutes of the existing International Tribunals, even if it has been later discussed both within the tribunals themselves and within the political bodies that established them. While the reasons for starting a debate on this issue may also go beyond the general issue of providing reparation to victims, the outcome of such a debate is far from being predictable.  In any event, it is unlikely that it may lead to increasing the functions of the International Tribunals with a view to including therein the provision of reparation to victims other than the moral reparation resulting from the conviction and sentence of the persons responsible for the crimes. A Truth Commission – on the basis of an assessment of the magnitude of the violations suffered by the people affected by the events – would be in a better position to propose appropriate reparations that could be given by the authorities. Besides forms of symbolic or moral reparation designed to take into account the collective nature of the harm suffered by victims, they may include other measures for the rehabilitation of victims of human rights violations, as is envisaged by the Truth and Reconciliation Commission for Sierra Leone. For example, compensation to be provided to victims from a fund available to the commission, whose decisions would not necessarily require the identification of a specific perpetrator. It has to be pointed out, in this connection, that the statute of the International Criminal Court envisages that a trust fund be established for the benefit of victims of crimes within the jurisdiction of the Court, and the families of such victims. However, although the statute gives the Court a role in providing the fund by ordering that money and other property collected through fines or forfeiture is transferred to it, the management of and the distribution from the fund will depend on criteria to be determined by the Assembly of States parties. And it is likely that the trust fund will not managed by the Court in the framework of its judicial functions.

The above mentioned issues may easily permit to identify appropriate criteria for a distribution of competence between international tribunals and Reconciliation Commissions, and to co-ordinate their respective functions and activities. The critical question in this context is whether the persons responsible for offences, which amount to crimes under international law should be prosecuted. In this area the approaches of the two institutions may clearly differ and make it difficult to determine how their role should be co-ordinated.

It should be noted, at the outset, that an issue of this nature could arise only as far as a crime will fall within the competence of an international tribunal. The same would apply with respect to a national tribunal with international participation, or also a domestic tribunal to which the prosecution of a crime may have been delegated by an international tribunal. Absent such a situation, the way in which a Reconciliation Commission may deal with crimes committed during a conflict or an authoritarian rule will not interfere with an international tribunal’s activity. The problem would in such a case consist of choosing between the attribution of competence to truth commissions to deal with crimes, and the exercise of criminal jurisdiction through ordinary domestic courts. 

When a crime falls within the jurisdiction of an international tribunal, it would appear obvious that the concurrent competence of a truth commission to deal with the same crime requires a co-ordination in order to avoid conflicts. A clear rule establishing whose competence takes priority would certainly be welcome in such a situation. Any unclear approach would create misunderstandings and possibly lead to contradictory decisions that may affect the credibility of both institutions. In light of the consideration that both of them pursue the goal of establishing peace and reconciliation through means of action that largely differ, the credibility of both should be preserved, by permitting both of them to perform effectively their basic functions. It has to be noted, however, that the choice of establishing an international criminal tribunal for the prosecution of persons responsible for the violation of serious violations of human rights law as well as of humanitarian law has already been made by the international community. Thus, the only reasonable conclusion appears to be that international tribunals should enjoy priority over truth commissions.

The issue may however be raised, and has indeed been raised, whether a co-ordination between the activity of an international tribunal or court and that of a truth commission should be made in light of the gravity of the crimes falling within the competence of the tribunal. In particular, it is suggested that the position of the perpetrator should be taken into account, with a view to submitting to the jurisdiction of an international tribunal only high ranking persons and leaders. Truth commissions’ competence will consequently be limited to dealing with crimes committed by low ranking executioners. Such an approach may be valuable, provided that clear     criteria are applied in order to decide which body will be competent in a concrete case. A borderline between high and low ranking perpetrators may indeed not be always easy to determine in a given situation and may have to take into account individual qualifications and factual circumstances. Should such a solution be adopted, it would probably be convenient to leave to the international tribunal to decide whether to exercise jurisdiction on the basis of an assessment of the concrete situation and its implications. It cannot be ignored, however, that other factors should be taken into account in the co-ordination between truth commissions and international tribunals as regards the prosecution of perpetrators. National jurisdiction will necessarily play a significant role in this matter. It is submitted that a correct co-ordination can not be merely between international tribunals and Truth Commissions but should include the attribution of cases to domestic courts. There will certainly be cases that, although their submission to an international tribunal may be regarded as not justified, will still require to be tried by a court of law rather than considered by a Truth Commission.

Whatever approach is followed and whatever co-ordination is put in place, it cannot be denied that Truth Commissions should not be excluded altogether from dealing with situations revealing the commission of serious crimes against humanity or war crimes. Confessions of perpetrators before a Truth Commission may be extremely valuable in order to promote national reconciliation. It has been stressed that they constitute recognition not only of the commission of mass crimes but also of the suffering inflicted on the victims. It must be pointed out however that perpetrators would be encouraged to admit their crimes before a commission only if they may derive some benefit from doing so. The problem is therefore to identify what kind of benefit may be made available to them and which body should make it available.

At the national level the problem has sometimes been approached by granting amnesties to perpetrators who voluntarily participate in the work of a truth and reconciliation commission. That has been the case, for example, of the Truth and Reconciliation Commission for South Africa^([4]).However, as has already been mentioned, such an approach would clearly constitute an intrusion in the work of an international tribunal and obstruct the performance of its functions. It would risk nullifying its activity and the reasons for its existence. Moreover, since an amnesty would result in the recognition of the impunity of the perpetrator, it is doubtful whether and how far it would really contribute to the foundation of a solid democracy based on national reconciliation, in particular when crimes against humanity and war crimes are at issue. International bodies, such as the Human Rights Committee under the International Covenant on Civil and political Rights, have always regarded amnesty laws with great suspicion ^([5]), though especially outside the context of a truth and reconciliation commission. They have pointed out that amnesty laws may sanction the spreading of a climate of impunity that would favour further violations of human rights. On the other hand, it has to be noted that not all perpetrators may be brought to justice and that certain benefits may also be given to perpetrators before international or national courts, when they co-operate with the establishment of the truth.

A suggested solution of this dilemma would consist in excluding the possibility for truth commissions to grant amnesties, but allowing or even encouraging them to make their assessment of the behaviour of the perpetrators known to the prosecutors of international tribunals. Their recommendation would allow the voluntary participation in the reconciliation process carried out by the commission to be taken into account as a mitigating circumstance in sentencing, provided that a perpetrator confirms his co-operative attitude before an international tribunal by pleading guilty. Whether such an approach would be sufficient to encourage perpetrators to appear before a Truth Commission to admit their crimes is questionable. But the shortcomings inherent in allowing a Truth Commission to grant amnesty are admittedly greater, unless the granting of amnesty is followed on by measures of publicity such as to be equivalent to a criminal sanction in the eyes of the civil society. It is clear, however, that a satisfactory solution has not been found so far in international and national practice.

In conclusion, although different forms of co-operation between truth and reconciliation commissions and international tribunals may be envisaged, they should be compatible with a framework that would ensure the priority of the activity of the international tribunals when serious violation of human rights and humanitarian law are at issue. Thus, only when an international tribunal would decide not to prosecute a crime, either directly or through domestic criminal courts, could a truth commission be entrusted with the competence to deal with it and to set aside, as the case may be, criminal prosecution. It must be stressed, however, that the role that the latter can perform cannot be underestimated in the delicate area of bringing about a reconciliation process within the context of emerging democracies.