Report by Shirley Moulder to the ​Helsinki Conference on Reconciliation as a part of a National Dialogue Process.

Background Material

In conflict resolution and peacebuilding circles, reconciliation is a notion commonly associated with transitional justice; with mechanisms like Truth and Reconciliation Commissions that are implemented after a civil war has ended, or after mass atrocities have been committed, and a nation is attempting to mend social relations within a new, post-conflict political framework. While it is something of a truism to say that parties are building relationships as they negotiate, most of us working in the conflict resolution and peacebuilding fields likely imagine something deeper when we talk of reconciliation, and we generally assume reconciliation in this deeper sense is something parties cannot be expected to achieve as a new political framework is being developed.

A sustainable peace process demands embracing both truth and justice in search of reconciliation

by Hannes Siebert’s Presentation at FELM annual conference, May 30, 2013

Following the sad and horrific destruction of human life during violent conflicts and wars each family, community, and nation face the existential challenge to restore human dignity, self and mutual respect. The question that confronts us is how to re-build our broken societies in such ways where in-humane acts of gross human rights violations and crimes against humanity are no longer tolerated. How does a society that was devastated by war, embrace life-giving values -- replacing the values of “death” that condoned the destruction of human life and property? 

On the surface, it may appear to some that we have resolved most of the violent conflict and that the peace process is coming to its logical conclusion once we sign peace agreements, elect new leadership and write new constitutions. No, the conflict will manifest itself in new – even more dramatic – ways if we turn our backs on the “wounds of the past” and not address the root causes of our past conflict. We must not forget those who were victims in the war, or the families of the victims from both sides. Their wounds will not heal if we just forget about them. Their humiliation, unresolved past, daily pain and suffering will prevent any process of healing or reconciliation. That is why it is very important to set the record straight, to recognize the victims and honor them, to restore their dignity, and to help reduce their pain and suffering. 

A transitional justice process requires that we address and punish those that committed political crimes and acted in an in-humane manner. This is a period where we have to hold up a mirror to ourselves and say to one-another: these crimes are unacceptable and must NEVER happen again – no matter how strong we differ from each other. Where possible and desired by the victims, we should create a space and legal provision for reconciliation. But, we must protect both the victims and our nations from those that are likely to commit these crimes again or threaten the healing process of our victims and communities. 

I was recently moved by a story from one of the victims workshops held in Nepal where a victim shared a story how one of those that were hitting him was weeping. The victim did not want that person to be punished, but wanted to reconcile with the person who hit him. His immediate request was that he wanted to know who gave them the orders to hit him and his family. We need to recognize that many of the perpetrators are also victims and it is therefore also our challenge to deal with the rights and needs of the perpetrators that suppressed their own humanity to commit such horrible in-humane acts.

There are serious risks in such processes: Many examples from my own country South Africa left me ambivalent about TRC’s. I produced films on these processes, assisted in several and attended many TRC hearings.  

The intent of creating transitional justice instruments is to restore justice and provide healing for the victims. It needs to be victim centered. Through these instruments we create spaces and opportunities for reconciliation. In designing these processes, we need to ensure that truth, reconciliation and justice is not compromised. There must be no choice between truth and justice; or between justice and reconciliation. We must embrace and find a way forward where we define common values and means where we embrace all – without sacrificing any. It is essential that the legal framework for such instruments is agreed-to by all the parties in the conflict – including those that committed these horrible acts. However, the intent and spirit of this instrument must not be a political compromise between former “enemies” to hide political crimes. This instrument must draw on the strengths and “peace assets” of our society (like the religious or faith-based institutions, human rights and civil society organisations), the willingness of our people to reconcile, embracing common religious and spiritual values and ensure and protect the need for justice.

Religious institutions too often find themselves trapped on the different sides of conflicts.  Instead of embracing common spiritual values that rise above the political differences and embraces all human life, these religious institutions fail in their essential tasks to uphold the values of love, forgiveness, justice, grace, truth, hope and faith. The church, mosque, temple and city squares have critical roles to play in these incredibly courageous and difficult processes where people and nations agree to face their collective pain and dark past together.

Collectively the leadership, Government, armies, religious bodies, combatants, and all parties need to commit themselves:

- “To bring the actual facts to the public by investigating the truth on persons involved in gross violation of human rights and crimes against humanity during the course of armed conflict;

- To bring impunity to an end by bringing the persons involved in gross violation of human rights and crimes against humanity by bringing them within the confinements of law and also to make all aware that such acts would be punishable in future too;

- To make arrangements for compensations in the form of reparations to the victims of armed conflicts; 

- To create an environment of conciliation in the society by enhancing mutual good wishes, tolerance and fraternity among the victims, perpetrators and their families.” (from TRC Draft Law, Nepal)

It is important to acknowledge that every country has its own political and cultural context. Each Truth and Reconciliation Commission (TRC) has its own unique features while it at the same time try to adhere to the universal principles of the transitional justice. The establishment of a TRC takes place against the background of agreements that enabled the parties to resolve past conflicts. A TRC Act by its nature stands on the shoulders of the past agreements. If you remove those agreements, there will be no transitional period or possibility to restore justice. 

Many criticize the provision for amnesty in TRC processes. We can create these instruments in such a way that we don’t violate the international treaties signed or the international legal standards of dealing with gross human rights violations and crimes against humanity. BUT, every process also needs to honor existing agreements that brought us this far. Every process requires that we expand our narrow definitions of justice and make space for elements of restorative justice that will enable us to embrace truth, reconciliation, reparation and justice. It is advisable that TRC’s have equal emphasis on “truth” AND “reconciliation”. It requires that we create an environment for healing and reconciliation. Such a challenge requires that we don’t equate “punishment” with “justice”.

When is a good time for such processes? Most countries that established Truth and Reconciliation processes delayed these formal processes until after a political settlement has been reached and more fair and representative systems of government established. The principle factors to measure are: whether or not a country and people are ready for such a process; if we have credible judicial instruments to manage such a process; if we have sufficiently strong social and psychological support mechanisms in place to care for the victims and families that will be re-opening past wounds; and if conditions are stable enough for such a challenging process – without plummeting a country back into conflict or war. There is a trend right now to start transitional justice processes while conflicts are still ongoing. This is very dangerous. Yes, we cannot start early enough capturing abuses and human rights violations as these monitoring processes could act as both preventative measures and also as a record for a future formal process. 

From the four countries where I lived through parts or complete processes, my sense is that these instruments are still in experimental phase. In most cases we succeeded in creating a collective public memory of the past, we acknowledged the victims, we pointed to what behavior is unacceptable, and we have hopefully started a process of embracing new life-giving values. But in many cases we failed in reconciliation, compensating victims and families, and in effective restorative justice processes. Today, many of the justice and restorative instruments have become blunt and seldom recognize the brokenness of our humanity.  We are trying to create perfect human rights frames where everybody claim their rights, but few give these rights, or regard it primary as the “state’s” responsibility.

In summary, the TRC therefore is not only a symbolic process introduced in peace processes to satisfy the conditions of political settlement following a conflict; it is more than that. It is crucial for connecting individual truth and reconciliation to collective peace by offering a space where concerns of the past meet those of the future. It is also a process that consolidates acceptance, and tolerance in a socially and politically torn nation with long standing distrust, and hatred, guaranteeing greater respect for human rights and thus paving the way to instituting reforms necessary for sustainable peace and the prevention of similar abuses and violence in the future.

END: May 30, 2013

(For FELM Conference)

International Standards Regarding Accountability for 
​Violations of Human Rights and Humanitarian Law

Jeffrey R. Seul
Kathmandu, Nepal
June 16, 2008

Development of Enabling Legislation for Nepal's Truth and Reconciliation Commission – Analysis and Discussion of Amnesty Related Issues