Going back to the class discussion about whether or not a truth commission should name names, I think that while naming names is an essential part of the process for satisfying the victims' right to the truth, in certain circumstances naming names could be an irresponsible, dangerous, and even perhaps detrimental decision to the goal of restorative justice if the right civil institutions are not yet in place.
For example, I think that without at least a functioning judicial system, and a basic respect for the rule of law that the judiciary is supposed to represent, that naming names would be a dangerous idea both for the victims and the perpetrators. Even if the courts are obviously and horribly biased, so much so that the population has no trust for the rule of law they represent, it is important that through the Commission a country's judicial system is able to regain respect and authority so that their own verdicts and administration of the law are not disregarded. Without this basic respect for rule of law, the prospects of violence erupting after naming names seems great. For example, in Mozambique there was so little countrywide respect for rule of law that if someone testified against another in their village they could expect their house to be killed or for their property to be destroyed. Similarly, the Burundi Commission of Inquiry had trouble even getting people to provide testimony at all since the courts and the Army were filled with people who were responsible for the mass killings that took place in 1993. Naming names, then, would have been suicidal for the victims of the conflict who wished to tell their stories.
On the other hand, naming names in a country lacking respect for the judiciary or without a program to protect the perpetrators of the crimes runs the danger of promoting vigilantism. In South Africa, the truth commission was able to support a witness protection program that protected those who testified against powerful political figures as well as those who admitted to carrying out crimes under the previous regimes. It seems unlikely that anyone would have come forward if testifying only left them open to be killed by an upset witness.
If neither witness protection or respect for rule of law exist then, it seems like naming names would be a very irresponsible way to treat both the victims and the perpetrators of the crimes in question. While it may be impossible to predict the consequences of a decision, the risk of choosing to name names for the sake of truth without first considering the potentially deadly outcomes is reckless. While the truth would be upheld, the cost of the truth in terms of the danger that naming names would put on witness and perpetrators alike in a insecure, lawless, situation, and the cost that the resulting violence would have on the prospects for a society's move towards a peaceful future, would not be worth the risk.
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I take issue with one of the things you've said in this post:
ReplyDeleteEven if the courts are obviously and horribly biased, so much so that the population has no trust for the rule of law they represent, it is important that through the Commission a country's judicial system is able to regain respect and authority so that their own verdicts and administration of the law are not disregarded.
I think you're right to say that it is important even for corrupt judiciaries to regain some semblance of respect and authority. The authority half doesn't seem to be the real problem for corrupt judges, while I think that true respect is difficult to give to people we know are corrupt. Those who are corrupt are normally dishonest; and humans don't normally respect or trust those who are dishonest.
Thus, in order to achieve that semblance of honesty in order to gain respect, judiciaries must strive unadulterated truth. Transparency is the way to respect, and naming names seems to be the transparent thing to do.
Another way for the judiciary to regain respect in the eyes of the population is to actually implement the recommendations and reforms that truth commissions suggest. For example, a truth commission could suggest that corrupt judges and officials be removed from the judiciary, as the South African TRC did.
ReplyDeleteI still think that without this respect for the judiciary to uphold the law, as well as some sort of protection program for those who choose to testify, that naming names is dangerous. In one of our readings there was a passage on how in Argentina (?) known torturers lived in shame because people on the street knew their crimes and treated them accordingly. I think it is important though, that even when the population knew what these people had done they used shame instead of violence as punishment for what they had done. I think part of this restraint from enacting revenge upon known perpetrators is partly due to respect for the rule of law and that it is the responsibility of the judiciary to provide a law of the land in order to prevent people from simply meting out a type of justice that meets their own wants and desires.
I agree with you that naming names is the transparent thing to do in order to provide the unadulterated truth to the people who most desire to hear it. At the same time I think that to have a fully transparent commission without considering the responsibility that doing so places on the commission to protect the witnesses and the perpetrators who testify is dangerous. I think a reformed and respected judiciary that can encourage adherence to the rule of law is important to lessening this danger. As not all commissions exist in the same context, I think that not all commissions have the resources to responsibly and beneficially operate with full and total transparency without endangering the people or transition process that they are created to assist.
It may be true that naming names is dangerous in certain circumstances. Despite these potential dangers, however, it is necessary to publicize the perpetrators and the crimes committed by the political regime. Without names, the system is simply a catalog of crimes. It does not allow the harmed parties to piece together the events that claimed the lives of their loved ones. I am sure we can all agree on that…
ReplyDeleteIts an interesting point you raise. Amnesty is generally the “benefit” guaranteed to those who come forward. Perhaps there needs to be more. Legal safeguards may be necessary to protect the integrity of the system (as well as the lives of the perpetrators).
I agree with you that revealing names could be irresponsible in a place where there is not a capable protective body in place, or a place where rule of law is not respected. I think that if the goal of truth commissions is to restore these relationships between victim, perpetrator, and society, they must be committed to protecting the perpetrators that give the truth that is being sought. As you mentioned, in a place like South Africa, such protection was available, and so the names came out. However, in places where that protection could not be guaranteed (your examples of Mozambique and Burundi), the names are kept sealed. This is certainly fair to the perpetrators, who testify to the truth commission, and then receive their amnesty, and their names are kept out of public record. While I don't have a solution for this, other than hoping for the emergence of similar witness protection programs in future truth commissions, I do not think that "nameless" truth commissions end in a comparable sort of justice that naming names would provide for the victims.
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