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Strategic Choices in the Design of Truth Commissions

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Design Factors >

Mandate
 
The mandate of a truth commission delineates its purpose, powers, and limitations. Priscilla Hayner enumerates the shapes that the mandate gives to a truth commission: "The terms of reference [...] can define a commission's investigatory powers, limit or strengthen its investigative reach, define the exact abuses and the perpetrators of abuses that a commission is allowed to investigate, and set the timeline and geographic scope of the commission's investigation. The terms of reference also generally state when and to whom the final report must be submitted, and sometimes state whether certain kinds of recommendations should be included in the report, or whether names should be named." (Priscilla Hayner: Fifteen Truth Commissions - 1974 to 1994: A Comparative Study, in: Human Rights Quarterly 16 (1994), pp. 597-655, here p. 636)

All mandates are realized in a dynamic tension between the original mandating text and the interpretations this text is given during the work in progress of a truth commission. The categorizations put forward below are based on the written text of the mandate rather than on its actual realization in every single case.

Important components of a truth commission design related to its mandate include:

Scope of Investigation with respect to types of human rights violations

In order for a truth commission to be effective, in providing truth, healing or justice, it is important that the most prevalent types of human rights violations are opened up for investigation. An obvious trade-off associated with a comprehensive mandate is the workload that comprehensive investigation imposes on commissions that are often hard pressed for time, money and staff.

The designer of a commission's mandate faces two basic choices with respect to the scope of the investigation. It can be either

  • Comprehensive, covering all relevant types of abuse, or

  • Selective, covering only some types of abuse.



Time Horizon for Investigation

The mandate of truth commissions also clarifies which conflict phases are subject to scrutiny. It is of consequence for the legitimacy of a commission whether or not all relevant periods during which gross violations of human rights occurred are open to investigation.

The designer of a commission's mandate faces two basic choices with respect to the time horizon of the investigation. It can be either

  • Comprehensive, covering all relevant phases of abuse, or

  • Selective, covering only some phases of abuse.



Geographic horizon for Investigation

A commission should not explicitly exclude certain geographic areas from the scrutiny of investigations. It should also strive for presence and accessibility in all areas, which in practice has proven to be the more difficult task. None of the commissions in our case studies explicitly limited the geographical area in which investigations should be carried out. Some of the commissions, though, have experienced problems accessing remote rural areas and thus failed to elicit testimony in all relevant areas. Generally, in countries that emerge from protracted civil war pervasive fear and lack of safety may put limits on comprehensive geographic coverage.

The designer of a commission's mandate faces two basic choices with respect to the time horizon of the investigation. It can be either

  • Comprehensive, covering all relevant regions where abuses occurred, or

  • Selective, covering only some regions where abuses occurred.



Legal Powers of Investigation

The legal powers granted to truth commissions affect the perception of how much their proceedings will contribute to achieving justice in the face of gross human rights violations. One potential concern is their limited capacity to guarantee due process. Equipping a commission with wide and strong judicial powers will need to be accompanied by strong procedural safeguards, if the commission is to be legitimate in the eyes of both victims and perpetrators.

Important choices with respect to the legal powers of a commission are:

  • to grant subpoena powers or not

  • to grant other judicial powers or not

  • to formally establish a connection with traditional court system or not



Naming names

The individual naming of perpetrators is a particularly powerful instrument at truth commissions' disposal. It addresses the need for full disclosure, justice and even revengeful desire to strip the perpetrator of his normal fa├žade and prosperous future in the aftermath of gross human rights violations. On the other hand, the naming of names and the individualization of responsibility may threaten a new regime with a violent backlash. Negotiated transitions in particular force a delicate balance on designers of truth commissions.

The drafter of a mandate can decide to explicitly call for the naming of names, or to explicitly ban the commission from revealing individual perpetrators' identities.


Access to state/military files and other sources of information

As commissions are striving to make known the truth about human rights abuses they can be assisted through cooperation by the former perpetrator institutions, domestic or international human rights organizations and even foreign governments. An uncooperative or obstructionist stance on behalf of either of these can greatly hinder the commission in achieving its goal of truth telling.

In drafting a mandate, there are three basic choices with respect to access to information. A commission can be granted

  • full access

  • limited access, or

  • no access

The information of this category is based on the text of the mandate of each of the five commissions. But rarely is a commission explicitly denied access to information. Instead, perpetrators have often destroyed crucial evidence.


Purpose/Envisioned scope of recommendations

Truth commissions can be established to serve several distinct purposes. They are most commonly envisioned to clarify what has happened, i.e. to establish a common truth and history about past human rights abuses. They can bring partial justice in ascribing individual guilt and responsibility. They can serve to bring a divided and war torn country together, compensate victims, or heal the rifts than run through a given society and further reconciliation. Lastly, they can hope to ensure that past human rights abuses will 'never again' happen in a country. The recommendations truth commissions are mandated to make reflect each of these purposes.

A mandate can therefore call for recommendations that are

  • descriptive and analytical, i.e. tell the truth and establish an account of past human rights violations,

  • punitive, i.e. establish guilt,

  • restorative, i.e. attempt healing, compensation and reconciliation, or

  • prescriptive/ reformative, i.e. suggest systematic institutional change.



Operational clarity of mandate

As commissions start their work, they may feel well informed about what their tasks and the means at their disposal. They may also be faced with an overly complex, or an overly broad and general mandate, leaving it up to them to gain clarity about the operations they are about to set up. The greater the operational clarity of the mandate the less time a commission has to spend in internal clarification or political struggles.

The operational clarity of a commission's mandate can be

  • Low

  • Medium, or

  • High



Degree of Flexibility/Freedom allowed by mandate

Commissions differ with respect to the degree of flexibility that they have in going about their tasks. The more specifically circumscribed and enforced the scope of their investigation, the time allotted to its completion, and the recommendations it is expected to present, the lower is the degree of flexibility and freedom of a commission. On the other hand, the more general the scope of investigation, the more realistic the time allotted to its completion and the recommendations it is expected to present, the larger is its degree of flexibility and freedom. Commissions can fall all along the spectrum between these two extremes. The better the 'fit' between mandate and pattern of past human rights abuses, the less severe are the consequences a low degree of flexibility may have for the legitimacy and effectiveness of a truth commission. On the other hand, the more 'off target' a commission's mandate is perceived to be, the more harmful a low degree of freedom may be for its perceived legitimacy and effectiveness.

A commission can enjoy

  • Low flexibility/ freedom, i.e. actions of commission are narrowly and/ or explicitly prescribed

  • Medium flexibility/ freedom, or

  • High flexibility/ freedom, i.e. commission is self-authoring



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