the truth of truth commissions: comparative lessons from haiti, south africa, and guatemala

The Truth of Truth Commissions: Comparative Lessons fromHaiti, South Africa, and Guatemala

Audrey R. Chapman, Patrick Ball

Human Rights Quarterly, Volume 23, Number 1, February 2001, pp.1-43 (Article)

Published by The Johns Hopkins University PressDOI: 10.1353/hrq.2001.0005

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HUMAN RIGHTS QUARTERLY

Human Rights Quarterly 23 (2001) 1–43 © 2001 by The Johns Hopkins University Press

The Truth of Truth Commissions:Comparative Lessons from Haiti,South Africa, and Guatemala

Audrey R. Chapman*Patrick Ball**

I. INTRODUCTION

As the twenty-first century opens, many deeply divided societies arestruggling to overcome a heritage of collective violence and severe humanrights violations. The twentieth-century may be most remembered for itslegacy of gross human rights violations and mass atrocities. Violentconflicts, massacres, and oppression by one group over another have tornapart the social fabric of countries in nearly every region of the world. Thekilling fields of Cambodia, South Africa’s brutal apartheid system, genocidein Rwanda and Burundi, and ethnic cleansing in the former Yugoslavia are

* Audrey R. Chapman is the director of two programs at the American Association for theAdvancement of Science, Science and Human Rights and the Dialogue on Science, Ethics,and Religion. She has published widely on a variety of topics related to economic, social,and cultural rights; bioethics; and truth commissions. Currently she is the director of aproject with several South African collaborators assessing the legacy and impact of theSouth African Truth and Reconciliation Commission, specifically its ability to balance truthfinding with promoting forgiveness and reconciliation. She is the author, coauthor, or editorof fourteen books including Human Rights and Health: The Legacy of Apartheid.

** Patrick Ball is Deputy Director of the American Assocation for the Advancement of Science(AAAS) Science and Human Rights Program. Since 1991, he has designed informationmanagement systems and conducted quantitative analysis for large-scale human rights dataprojects for truth commissions, nongovernmental organizations, and UN missions in ElSalvador, Ethiopia, Guatemala, Haiti, South Africa, and Kosovo. In his most recent reportfrom AAAS, “Policy or Panic? The Flight of Ethnic Albanians from Kosovo, March-May1999,” he reconstructs the flow of refugees by villages across time to show that only a smallfraction of Kosovar Albanians fled as a result of NATO bombing raids. Instead, themigration patterns were so regular that they must have been the result of a coordinatedpolicy.

Vol. 232 HUMAN RIGHTS QUARTERLY

but some of the terrible examples. Added to this collective brutality are thestate terrorism and repression of the Soviet and Chinese gulags, the grosshuman rights violations of many authoritarian regimes, and the disappear-ances and torture inflicted by military-dominated dictatorships on their ownpopulations.

As a step in the process of healing and reconciliation, at least fourteencountries,1 most recently South Africa and Guatemala, have establishedtruth commissions or analogous bodies, and some have had more than one.Recent peace processes and ongoing efforts for national reconciliation havealso proposed a role for truth commissions in Sierra Leone, Nigeria,Cambodia, Colombia, and Peru. Truth commissions are temporary bodies,usually with an official status, set up to investigate a past history of humanrights violations that took place within a country during a specified period oftime. In contrast with tribunals or courts, truth commissions do not haveprosecutorial powers to bring cases to trial. Nor do they act as judicialbodies to investigate individuals accused of crimes. Their role is truth-finding, or more precisely, documenting and acknowledging a legacy ofconflict and human rights violations as a step toward healing wounds.2

Truth commissions, as Archbishop Desmond Tutu, the chair of SouthAfrica’s Truth and Reconciliation Commission, observed, offer a “third way,”a compromise between the Nuremberg trials at the end of World War II orthe prospective International Criminal Court and blanket amnesty ornational amnesia.3 This “third way” is significant for several reasons.Establishing the basis for a shared future requires coming to terms with thepast, but it is often very difficult to prosecute architects and perpetratorsresponsible for political violence and human rights violations, particularlywhen large numbers of people are involved. Even in the case of Nazi warcrimes, fewer than 6,500 of the 90,000 cases brought to court resulted inconvictions.4 Given the scale of the collective violence in places likeCambodia, Ethiopia, Bosnia, and Rwanda, it is just not feasible to prosecuteall the alleged offenders, and an effort to do so is likely to have thousands ofpersons languishing in detention for very long period of time. Moreover, fewtransitional countries have the strong legal institutions and resources

1. The precise number of countries depends on how strict a definition of truth commis-sions is applied. Truth commissions, or other mechanisms approximating a truthcommission, have been set up in Uganda, Bolivia, Argentina, Zimbabwe, Germany, thePhilippines, Uruguay, Chile, El Salvador, Rwanda, Brazil, Haiti, and Guatemala, as wellas South Africa.

2. See Priscilla B. Hayner, Fifteen Truth Commissions—1974 to 1994: A ComparativeStudy, 16 HUM. RTS. Q. 597 (1994).

3. See DESMOND MPILO TUTU, NO FUTURE WITHOUT FORGIVENESS 30 (1999).4. See GEIKO MÜLLER-FAHRENHOLZ, THE ART OF FORGIVENESS: THEOLOGICAL REFLECTIONS ON HEALING AND

RECONCILIATION ix (1997).

2001 The Truth of Truth Commissions 3

required for successful domestic prosecutions. Many of the civil servants,prosecutors, and judges serving the new government may themselves havebeen complicitous in abuses perpetrated by the previous regime, or at leastsympathetic to its philosophy. Critical evidence and records are likely to bemissing or destroyed. South Africa’s unsuccessful effort to convict GeneralMagnus Malan, army chief and later defense minister, for authorizing anassassination squad responsible for numerous extrajudicial executionsshows how difficult it is to gather sufficiently detailed and reliable evidenceto successfully prosecute alleged perpetrators. Many transitional societieschoose to establish truth commissions because these bodies can potentiallyprovide a far more comprehensive record of past history than the trials ofspecific individuals and do so in a less divisive manner. In contrast withcriminal prosecutions, the purpose of a truth commission is to provide anauthoritative account of a specific period or regime, determine the majorcauses of the violence, and make recommendations about measures toundertake so as to avoid a repetition in the future. By verifying the accountsof victims, official acknowledgment of abuses can support the credibility ofvictims’ suffering and help restore their dignity. Moreover, public identifica-tion of perpetrators and their offenses constitutes one form of accountability,particularly if it leads to their exclusion or ineligibility for public office, andif not, at least imposes the punishment of shame. In addition, a truthcommission can go beyond a court of law and render a moral judgmentabout what was wrong and unjustifiable, and in that way helps “to frame theevents in a new national narrative of acknowledgment, accountability, andcivic values.”5

Given the central role assigned to truth commissions, it is relevant toask what is the nature of the “truth” that truth commissions are mandated tofind? Analysts writing on truth commissions often portray truth as a singleobjective reality waiting to be discovered or found. As an example, PriscillaHayner has commented that in many situations “the victimized populationsare often clear about what abuses took place and who has carried them out.. . . Given this knowledge, the importance of truth commissions might bedescribed more accurately as acknowledging the truth rather than findingthe truth.”6

However, the documentation and interpretation of truth is morecomplex and ambiguous than many analysts and proponents of truthcommissions assume. Social, technical, and methodological constraints, aswell as epistemological limitations of what can be known, all affect a

5. MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS

VIOLENCE 78 (1998).6. Hayner, supra note 2, at 607.


commission’s ability to produce an authoritative account. Developing anofficial authoritative account of a contested past, and especially doing so inan objective and careful manner consistent with strict standards of historicaland social science research, requires far more than accumulating anecdotalevidence to support widely held beliefs about what has happened and whois responsible. If popular assumptions have little basis in fact, or if moreserious violations have been hidden, the commission must refute popularunderstandings and conduct deep research.

This article identifies some of the complexities and factors shaping theefforts of truth commissions. It also evaluates the kinds of truths that truthcommissions can most appropriately seek to determine. While truth com-missions are often portrayed as generic bodies, they have very differentapproaches to the kind of “truth” they are seeking. Their official mandates,the perceptions and priorities of their commissioners and key staff, themethodological orientations utilized, and the level of resources available allshape the nature of their findings and the type of report they produce. Inaddition, decisions made by those working within a specific truth commis-sion, sometimes without an understanding of their implications, often haveimportant consequences for truth-finding. The analysis draws on theexperience of the American Association for the Advancement of Science’s(AAAS) Science and Human Rights Program in providing scientific andtechnical assistance to three recent truth commissions—the Haitian Na-tional Commission for Truth and Justice (CNVJ), the Truth and Reconcilia-tion Commission of South Africa (TRC), and the Commission for HistoricalClarification (CEH) in Guatemala.

II. EPISTEMOLOGICAL AND EVIDENTIARY LIMITATIONS

A recent article points out, “[truth] is so commonly used that it seems to bea transparent notion, clear to all who are involved or interested in redressingpast abuses, but ‘truth,’ like ‘justice’ and ‘reconciliation,’ is an elusiveconcept that defies rigid definitions.”7 In contrast with optimistic assump-tions that truth commissions merely need to find or confirm an alreadyexisting truth, postmodern philosophers challenge the very notion of anobjective truth and generally assert that there is no objective knowledge,only differing viewpoints and perspectives. The postmodern world viewclaims that whatever we accept as truth and even the way we envision truthare dependent on the community in which we participate and our own

7. Michelle Parlevliet, Considering the Truth, Dealing with a Legacy of Gross HumanRights Violations, 16 NETH. Q. HUM. RTS. 142 (1998).


social location and experience.8 Michel Foucault would add that everyinterpretation of reality is an assertion of power and that social institutionsinvariably engage in a form of violence when they impose their ownunderstanding or interpretation on experience.9

It does not require a postmodern perspective to acknowledge thatdetermining the truth of complex social events, let alone historical periods,is difficult under the best of circumstances. Moreover, truth commissionstypically function in an environment in which there are sharply conflictingand politically freighted versions of the past. Indeed, such situations arethose in which truth commissions are most desperately needed. Far fromfacts being self-explanatory and just waiting to be discovered, the writingand interpretation of history under such circumstances is inevitably going tobe complex and highly contested.

Moreover, truth commissions have intrinsic limitations that make themfundamentally unsuited to provide “the truth, the whole truth, and nothingbut the truth.” Most truth commissions operate under many of the sameconstraints that make the legal prosecution of individuals alleged to havecommitted political crimes so difficult—weak legal institutions, limitedresources, dependence on cooperation from officials who served theprevious regime, missing data, and political environments that limit theirmandates and options. Also, the systematic suppression or destruction ofincriminating evidence is a common problem. Records from a secretmilitary archive detailing the fate of 200 victims who were “disappeared” bythe Guatemalan military were made available to AAAS and several otherhuman rights organizations after the publication of the Guatemalan truthcommission’s report, but not to the CEH in Guatemala; these records arelikely just a small part of the relevant data that were hidden or destroyed.10

In the case of South Africa, the apartheid regime regularly purged thearchives of huge volumes of sensitive documents, particularly those dealingwith security issues. On the eve of the political transition, the securityestablishment became increasingly apprehensive about certain state recordspassing out of their control and undertook an even more systematic andvigorous effort to destroy state records.11

Most truth commissions rely on victims’ testimony as a primary sourceof data. Memory is inherently subjective and open to change over time; this

8. See STANLEY J. GRENZ, A PRIMER ON POSTMODERNISM 7–8 (1996).9. See MICHEL FOUCAULT, POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS, 1972–1977,

at 133 (Colin Gordon ed., 1980).10. See Guatemalan Death Squad Dossier (visited 15 Nov. 2000) <http://hrdata.aaas.org/

gdsd> (for an analysis of these documents and links to their full content).11. See, e.g., 1 TRUTH AND RECONCILIATION COMMISSION OF SOUTH AFRICA REPORT 227–29 (1999)

[hereinafter TRC].


is especially true for memories related to traumatic experiences and publicevents. Public memories are likely to be influenced by a variety ofinterpretative factors, including community, cultural, or traditional mythsand personal fantasies. “All social memory, be it documented through theoral, written or visual mediums, is both reconstructed and selective.”12

A. Van Dongen of the Dutch Ministry of Foreign Affairs, reflecting on hisextensive experience in human rights fact-finding missions as a member ofthe UN Working Group on Enforced or Involuntary Disappearances, stressesthe gap between perception and reality:

I do not believe in truth, I believe in perceptions. . . . People have a certainimpression of how reality is, which is their perception of reality; they call itobjective reality themselves, but essentially, it always is subjective reality. Thus,for most people there is no wedge between reality and perception: perceptionis reality.13

At the least, facts may be “loaded” with different meaning whenconsidered from divergent perspectives.14 An event leading to fundamentalabuses of human rights may be recollected and interpreted quite differentlyby various victims, even by a single person depending on stimuli andspecific questions,15 let alone by a victim and a perpetrator. A paperanalyzing the work of the TRC in the Eastern Cape, for example, identifiesthree different “truths,” that were revealed in its amnesty hearings: the“truth” of the security police, the “truth” of the African National Congress(ANC), and the “truth” of the public and those involved in Congress of SouthAfrican Students who were not part of any military actions.16

To the (mainly black) supporters of the liberation movements and massmovements, the stories were of their heroes and martyrs—people who werepresented as courageous activists, who were ruthlessly tortured and murderedby the security police. To the security police, these people were terrorist pawnsof an international revolutionary communist conspiracy.17

12. Sean Field, Memory, the TRC and the Significance of Oral History in Post-ApartheidSouth Africa 5 (11–14 June 1999) (unpublished paper presented at a conference on TheTRC: Commissioning the Past, at the University of the Witwatersrand), available at<http://www.trcresearch.org.za/papers.htm>.

13. Parlevliet, supra note 7, at 146. This statement is based on an interview given toMichelle Parlevliet in October 1996 and translated by her.

14. Id. at 147.15. For example, a considerable number of victims gave quite different testimony in public

hearings in South Africa than they provided in their individual statements.16. See Janet Cherry, No Easy Road to Truth: The TRC in the Eastern Cape (11–14 June

1999), (paper presented at a conference on The TRC: Commissioning the Past, at theUniversity of the Witwatersrand).

17. Id.


Further complicating the situation, the source of victim testimonyfrequently is not the victim himself or herself but a relative. This is becausemany of the victims of atrocities and gross human rights abuses aredeceased; the event in question may have happened more than thirty yearsbefore the commission began work, or the violation being testified about isfrequently a killing. Thus the testimony often comes from a relative, friend,or neighbor, who may not have witnessed the events in question. At theTRC, about half of all violations were reported by someone other than thevictim;18 at the CEH, only about 15 percent of victims were witnesses, andabout half of witnesses were victims.19

Moreover, there is a significant difference between the private/indi-vidual truth of those who have been victims of human rights violations orthose who have witnessed human rights violations and the public/sociallevel truth that truth commissions are mandated to present. Many victimswho offer testimony to truth commissions understand truth in terms of effortsto document the details of the events in which they participated and toidentify those responsible for the abuses and violence in which they wereinvolved. They assume that these efforts will substantiate and validate theirmemories of these events. This detail-centered truth approximates whatjudicial investigators might do, and it is truth at an intensely micro-level.

The comprehensive record of the past that truth commissions aremandated to establish is quite different in nature. It is not merely the sum ofthese private experiences of abuses made public. Mandates of truthcommissions usually assign them the tasks of assessing the magnitude of theviolence, the patterns, the trends, and the locations in which it took place.Typically, truth commissions are also expected to understand the causes ofthe violence and sometimes to identify the ideological or political justifica-tions that tried to legitimize the abuses. To be able to make thesedeterminations requires extensive research, advanced methods for datacollection and processing, and a complex information management systemleading to analysis and interpretation of the findings. This is truth at themacro-level.

Given the magnitude of their task and the limitations of time andresources, truth commissions have to be very selective in their approachand what they choose to emphasize. The sheer task of attempting todocument the past can be overwhelming. For example, the TRC’s finalreport fills five volumes, and yet it is still incomplete.20 Because truthcommissions cannot investigate all potential cases or events, they frequently

18. See 1 TRC, supra note 11, at 171.19. Internal calculations in the CEH database area, November 1998 (on file with author).20. An additional volume known internally at the TRC as the “codicil” will be published

upon completion of the Amnesty Committee’s work.


choose representative or significant ones, what the TRC refers to as“window cases.” This raises the question of the criteria used in making theselection and on what basis they are considered representative or signifi-cant. Time and writing constraints can also lead to superficiality and over-simplification. Many staff from the TRC research department conveyed theirfrustrations about the manner in which their papers and reports were cutdown to just two or three pages to fit into the five volume report21. Oneresult was that the edited version simplified and distorted the originalanalysis. The final TRC report was crafted according to particular strategiesof inclusion and exclusion, reflecting criteria that are partly epistemologicaland methodological in nature and partly moral.22

The amount of information required to document the past can bemassive. During its three years of operation, the TRC held several hundredpublic hearings at which over 1,800 victims were heard, it conducted morethan 21,000 victim interviews, and it processed approximately 7,000amnesty applications.23 Similarly, the CEH investigated more than 7,500cases derived from interviews with more than 11,000 deponents, document-ing 24,910 killings.24 In order to convert such massive data into useableinformation, commissions must decide what will constitute proper methods:not only what they will define as true, but how the commission will makethe claim that something is true.

In many ways, truth commissions “shape” or socially construct ratherthan “find” the truth. This may occur either consciously or unintentionally.The work of the Guatemalan commission contains some biases, primarilythe focus on violations to the Indian population in the highlands during the1980s and the relative exclusion of considering violations that occurredamong the Ladino population in the late 1960s. In South Africa, TRCcommissioners determined who was invited to testify in public hearings,what was presented, and how the testimony was summarized for the record.As we discuss in detail below, an analysis of the public hearing transcriptsindicates an over representation of whites, a preference for includingleaders of the struggle over less well-known victims, frequent interventions

21. See Cherry, supra note 16.22. See Deborah Posel, The TRC Report: What Kind of History? What Kind of Truth? (11–14

June 1999) (unpublished paper presented at a conference on The TRC: Commissioningthe Past, at the University of the Witwatersrand).

23. See AAAS/CSVR Transcript Analysis Project (a project of the AAAS and the Center forthe Study of Violence and Reconciliation that is undertaking a systematic analysis of thepublic hearing transcripts); see also, 1 TRC, supra note 11, at 168, 267.

24. See COMMISSION FOR HISTORICAL CLARIFICATION REPORT, TOMO I, at 28 (copy available at CEHOnline Report (visited 15 Nov. 2000) <http://hrdata.aaas.org/ceh/gmds_pdf/index.html>[hereinafter CEH, Tomo I]); see also CEH, TOMO XII, at 238; CEH database area (Nov.1998).


by commissioners, and a disparity between the victim’s testimony and themanner in which commissioners interpreted it.25 Commissions’ findings arethe product in part of deliberate decisions to focus on particular events andof the limits of their ability to process information. But perhaps morefundamentally, the findings are the product of what commissions decide“truth” means.

III. COMMISSIONS’ CONCEPTUALIZATION OF TRUTH

What truth means to a commission has sometimes been articulated, butmost often not. Like the commissions that preceded them, neither theHaitian nor Guatemalan commissions had an explicit exposition of truthbecause they assumed truth would automatically result from a rigorousapplication of their mandate, the relevant legal standards, and a consistentmethodology.26 The South African commission articulated a complex andpostmodern understanding of truth, but the definitions seem post-hoc andhave little connection to the analysis in the volumes of the report in whichhistorical narratives are presented.27

In the CNVJ report, the methodology section describes the legalframework that established the commission, the use of primary (interview)and secondary sources, and how three levels of proof were used to gradethe quality of each decision.28 Similarly, the CEH report argues that in eachof the cases investigated, there was at least one human rights violation bythe government or an act of violence by the guerrilla insurgents: “in order toachieve this first objective, the Commission has used principally juridicalcategories from International Human Rights Law and International Humani-tarian Law.”29

But inside the CNVJ and the CEH, debates about truth raged. In theHaitian commission, a conflict between legal and social science ap-proaches to investigation and classification of violations resulted in threefundamental changes to the basic data classification schemes, requiring theanalysts to recode the entire set of testimonies twice. The CNVJ’s chair wasa sociologist, but most of the other commissioners were lawyers, some ofwhom openly disdained social science methods. In Guatemala, although

25. See AAAS/CSVR Transcript Analysis Project, supra note 23.26. See REPORT OF THE CHILEAN NATIONAL COMMISSION ON TRUTH AND RECONCILIATION, VOL. I, at 21–22

(Phillip E. Berryman trans., 1993).27. See 2 & 3 TRC, supra note 11.28. See Rapport de la Commission Nationale de Vérité et de Justice, ch. 3 (visited 15 Nov.

2000) <http://www.haiti.org/truth/table.htm> [hereinafter cited as CNVJ].29. CEH, TOMO I, supra note 24, §101, at 51–52.


there were significant differences in approach and tensions between legaland social scientific concepts,30 Commission researchers incorporatedhistory, anthropology, sociology, economics, and military science into theanalysis.31

Of all truth commissions, the TRC was the most self-conscious andintentional about its conception of truth. Its report distinguishes betweenfour notions of truth: factual or forensic truth, personal or narrative truth,social or “dialogue” truth, and healing and restorative truth.32 Of these fourapproaches, only factual or forensic truth refers to the impartial andobjective evidence that most truth commissions have understood as theirmandate. The other three concepts of truth articulated in the reportsometimes competed with and sometimes complemented the objective andanalytical approach to truth-finding. The TRC’s “forms of truth” encode as“truths” ideas that other commissions may have had but have expressed asgoals to be achieved, not as alternative—and competing—forms of truth.

The TRC’s first kind of truth is impartial evidence that tells truth at twolevels: (1) truth about individual events, cases, and people, and (2) about“nature, causes, and extent of gross violations of human rights, including theantecedents, circumstances, factors, context, motives, and perspectives thatled to such violations.”33 This is the way that most truth commissions haveunderstood truth. The TRC called this “scientific and forensic” or “micro-scope” truth, both of which imply that the TRC understood this kind of truthto play a very limited role in its work. The TRC report somewhat grudginglylinks the use of a social science methodology enabling it to analyze andinterpret information contained in its database to its mandate to makefindings both at the micro-level (on particular incidents and in respect tospecific people) and at the macro-level (to identify the broader patternsunderlying gross violations of human rights).34 Yet, it is obvious that the TRCunderstood this form of truth to play a limited role. The same passage of thereport quotes Michael Ignatieff’s remark—“[a]ll that a truth commission canachieve is to reduce the number of lies that can be circulated unchallengedin public discourse.”35 The narrowness with which this kind of truth wasunderstood by the TRC is perhaps surprising since this is explicitly whatother truth commissions claimed to seek through rigorous methods, though

30. See Sonia Zambrano, The Guatemalan Commission for Historical Clarification: Data-base Representation and Data Processing, in MAKING THE CASE ch. 12 (Patrick Ball et al.eds., 2000), available at Making the Case (visited 15 Nov. 2000) <http://hrdata.aaas.org/mtc>.

31. See CEH, TOMO I, supra note 24, at 52.32. See 1 TRC, supra note 11, at 110.33. Promotion of National Unity and Reconciliation Act §1(4)(a)(ii)(1995).34. See 1 TRC, supra note 11, at 111.35. Id.


this “micro-truth” was for most commissions a starting point from whichgeneralizations could be drawn.

The second truth the TRC defines is narrative truth, explicitly evokingthe cathartic benefits of storytelling. Victims make meaning and sense out oftheir experiences through narration, and under certain circumstances,storytelling contributes to psychological healing after trauma.36 Most com-missions noted the importance of this idea, including the Chilean andGuatemalan commissions, though it was not understood as a kind of“truth.”37 Narrative truth was central to the work of the TRC, especially tothe hearings of the Human Rights Violations Committee to whom victimstold their stories in public hearings.

The emphasis on “social” or “dialogue” truth is the one in which theTRC was truly unique. By this term, they referred to the process anddialogue which surrounded their work: as the TRC report said, “[t]he publicwas engaged through open hearings and the media. The Commission itselfwas also subjected to constant public scrutiny and critique.”38 The reporttraces the idea of “social truth” to a distinction made by Albie Sachs, whoplayed an important role in the establishment of the Commission and nowserves as a Constitutional Court judge.39 He contrasted “microscope truth”with “dialogue truth,” arguing that the former is factual, verifiable, and canbe documented.40 In contrast, dialogue truth “is social truth, the truth ofexperience that is established through interaction, discussion and debate.”41

Because all other commissions functioned largely out of public scrutiny,“social truth” was less important in other national contexts.

The fourth kind of truth—restorative truth—is the truth that comes fromputting facts in their contexts: in political context of power between socialactors, in historical context of the sequence of contingent events, and in theideological context in which contending visions of the social worldcompete. As the commission acknowledges and recognizes what hap-pened, it validates the experience of people. The TRC wrote that “[a]ck-nowledgement is an affirmation that a person’s pain is real and worthy ofattention. It is thus central to the restoration of the dignity of victims.”42 This

36. See, e.g., JUDITH LEWIS HERMAN, TRAUMA AND RECOVERY ch. 9 (1997).37. See 1 REPORT OF THE CHILEAN NATIONAL COMMISSION, supra note 26, at 16–17 (for a discussion

of the presence of a social worker at each family member interview, and of the utility ofcollective support after group interviews). The CEH did not explain this goal explicitly.However, their choice of a victim’s quotation to appear on the back of each volume(discussed in article), and the internal discussions at the CEH, suggest that they werevery aware of the importance of this issue.

38. 1 TRC, supra note 11, at 114.39. Id. at 113 (quoting from ALEX BORAINE AND JANE LEVY, HEALING OF A NATION (1995)).40. Id.41. 1 TRC, supra note 11, at 113.42. Id. at 114.


elegantly restates the overarching political objective of almost all truthcommissions. The CEH, for example, has the following quotation from atestimony on the back of every published volume.

A witness showed us the remains of one of the victim’s bones. He had theseremains wrapped in plastic in a string bag: “It hurts so much to carry them . . .it’s like carrying death. . . . I’m not going to bury them yet . . . I do so want himto rest, and to rest myself, too. But I can’t, not yet . . . this is the evidence for mytestimony . . . I’m not going to bury them yet, I want a piece of paper that willsay to me ‘they killed him . . . he had committed no crime, he was innocent . . .’and then we will rest.”43

The idea that public acknowledgment of suffering—the truth about injus-tice—will begin to restore victims’ dignity is perhaps the central premise onwhich truth commissions are founded. Yet framing acknowledgment as adistinct kind of truth suggests that restorative truth (and the resultingreconciliation) might be somehow different from (or even in contradictionto) the forensic, legal truth demanded by the CEH witness in the quotationabove. This may be one of the roots of a contradiction that beset the TRC’sreport, and indeed, its entire public life: was the TRC the “truth andreconciliation commission,” or the “truth or reconciliation commission?” Inthe Methods and Report under Section D, parts 2 and 3, we will argue thatwhen the TRC faced decisions between pursuing truth or pursuing reconcili-ation, they chose reconciliation.

A. Mandate

The mandate assigned to a specific truth commission plays a decisive role inshaping its truth-finding. Its terms of reference determine its priorities andthe nature of the truth it will attempt to investigate. Many truth commissionshave restricted terms of reference that reflect the political compromises thatled to their creation. Typically, truth commissions emerge out of negotiatedsettlements in which there are not clear victors and vanquished. Often thearchitects of the violence and abuses or their supporters retain politicalinfluence and power. Those ceding their positions of power frequentlyattempt to impose conditions that will restrict the powers and findings of thebodies that will be able to investigate the past. Or the mandate may reflectthe priorities and concerns of those drafting the mechanisms under whichthey were established, many of whom believe it is in the country’s interestto have a short transition period.

43. See, e.g., CEH, TOMO I – XII, supra note 24.


Their assigned mandates circumscribe the truth finding of truth commis-sions in a variety of ways. Despite the brutality of both Duvalier dictator-ships that governed Haiti for some forty years beginning in 1957, the CNVJwas mandated to deal only with the human rights abuses of the Cedras defacto regime. General Raoul Cedras overthrew President Bertrand Aristide inSeptember 1991 and governed until Aristide returned to Port-au-Prince on14 October 1994.44

The CEH did have responsibility for a longer period, approximatelycoinciding with the internal armed confrontation beginning in 1962 throughthe signing of the 1994 peace accords. But this periodization led to theunderstanding that the guerrilla insurgents began the war; if the period hadbegun in 1954 with the CIA-organized military coup d’etat against ademocratically elected government, the implication would have been thatthe coup was the root cause of the conflict.45 The CEH was prohibited by itsmandate from naming individual perpetrators, and many critics argued thatthis terribly weakened their ability to shed light on the past.46 The apparenthandicap of “no names,” however, became a strength, in part because itwidened the CEH’s scope, encouraging it to examine the roles of institutionsand the social structure that produced the violence, instead of identifyingindividual perpetrators. That is, the prohibition forced the CEH to focus onthe macro issues which are a truth commission’s most important goal.

The mandate of the TRC focused it exclusively on “gross violations ofhuman rights.” In the South African case, there was a further qualification;to fall under its purview the gross human rights abuses had to be committedwith a political motive. The period the TRC was assigned to investigate was1 March 1960 through the elections in May 1994, but certainly not the fullsweep of apartheid history. Gross human rights abuses were defined as “thekilling, abduction, torture or severe ill-treatment of any person; or anyattempt, conspiracy, incitement, instigation, command or procurement tocommit [such an] act . . . with a political motive.”47 Because the mandate ofthe TRC was restricted to gross human rights abuses, it did not assess theimpact of the institutionalized racism of the apartheid system that arguablyhad a far more profound and abusive impact on the population. Forcedremovals alone accounted for many more deaths than direct state violence.

The TRC commissioners could have interpreted their mandate more

44. See, e.g., CNVJ, supra note 28, ch. 1.45. The CEH explicitly recognized the 1954 coup as the crucial turning point toward more

exclusive social policies, even as the mandate restricted their investigative scope to theperiod 1960–1996. See CEH, TOMO I, supra note 24, at 105.

46. During 1994, religious leaders, including Archbishop Juan Gerardi Conadera, criticizedthe accord, as did popular movement leaders, such as Factor Méndez of the humanrights group CIEPRODH.

47. Promotion of National Unity and Reconciliation Act, ch. 1, pt. 1, ix (1995).


broadly than they did. Among its assignments, the TRC was to establish “ascomplete a picture as possible of the causes, nature and extent of the grossviolations of human rights . . . including the antecedents, circumstances,factors and context of such violations.”48 As it tried to do in some of thesectoral hearings, the TRC could have used its mandate to determine thecauses, antecedents, circumstances and factors to undertake a moresystematic analysis of apartheid. Somewhat ironically, despite its limitedmandate and decades of international attention to apartheid, the CEHundertook a far more penetrating analysis of the official policy of racism andsocial exclusion than did the TRC: among the three historical causes of thearmed conflict, the second theme is “racism, the subordination andexclusion of the indigenous community.”49

The approach of the TRC resulted in the individualization of the grossabuses of the past.50 Gross violations of human rights were treated more asthe product of individuals’ decisions and actions than the outcome of thedynamics of the apartheid system. This enabled white South Africans whowere the supporters and beneficiaries of apartheid to escape from acknowl-edging their complicity in the system’s abuses. As one analyst points out,“The increasingly familiar refrain within white South African communities,that apartheid was merely a ‘mistake’ for which no-one was responsible,that somehow the system propelled itself impersonally, may be one of themore ironic, unintended consequences of the TRC’s rendition of the past.”51

Truth commissions have significant time constraints built into theirmandates, and indeed, a limited period of existence is part of whatdistinguishes a commission from a permanent governmental human rightsbody. Most begin with an explicit time limit, often just six to nine months tocomplete all investigations and write a report.52 Sometimes the initial periodis extended. The Haitian truth commission worked for nine months (April1995–January 1996), the full TRC two years and eight months (February1996 through October 1998), and the Guatemalan commission eighteenmonths plus three months pre-staff preparation (August 1997 throughFebruary 1999). While the South African and Guatemalan commissionsfunctioned for longer than prior commissions, they also had longerhistorical periods to cover. The short official duration of truth commissions,quite inconsistent with an assignment to discover the truth of a disputed

48. Id. ch. 2, pt. 3, at 1a.49. CEH, TOMO I, supra note 24, at 86.50. See, e.g., KADER ASMAL ET AL., RECONCILIATION THROUGH TRUTH: A RECKONING OF APARTHEID’S

CRIMINAL GOVERNANCE 19 (2d. ed. 1997).51. Posel, supra note 22, at 29. See also Mahmood Mamdani, The TRC and Justice, in TRUTH

AND RECONCILIATION IN SOUTH AFRICA AND THE NETHERLANDS 39 (Robert Dorsman et al. eds.,1999).

52. See Hayner, supra note 2, at 640.


period of history, necessarily limits the scope of the investigations and thedepth of their analysis.

The enabling legislation setting forth the powers of specific truthcommissions also has a significant impact on its functioning and findings.Of the recent truth commissions, only the TRC has been given extensivepowers of subpoena, search, and seizure—although the TRC utilized thisadvantage very sparingly. None of the Latin American commissions wasgranted the power to compel witnesses or perpetrators to come forwardwith evidence, and they generally had considerable difficulty in obtainingofficial written records from the government and armed forces.53 The quasi-judicial power to grant amnesty to individual perpetrators assigned to theTRC was also unprecedented although in the end it did not elicit thedetailed accounts from perpetrators and institutions that had been anticipated.

B. Balancing Truth-Finding with Other Objectives

Further, truth commissions have been vested with a wide range of responsi-bilities ostensibly related to truth-finding, some explicit and others implicit.The dilemma is that these tasks are quite different in nature and entail verydifferent approaches, some of which are likely to be in conflict with others.Typically the mandate includes several of the following responsibilities:

• establish an authoritative record of the past;

• overcome communal and official denial of the atrocities, violence,or abuses and gain official and public acknowledgment of them;

• restore dignity to victims and promote psychological healing;

• end and prevent violence and future human rights abuses;

• create a “collective memory” or common history for a new futurenot determined by the past;

• forge the basis for a democratic political order that respects andprotects human rights;

• identify the architects of the past violence and exclude, shame, anddiminish perpetrators for their offences;

• legitimate and promote the stability of the new regime;

• promote reconciliation across social divisions;

53. See 1 TRC, supra note 11, at 54.


• educate the population about the past; and

• recommend ways to deter future violations and atrocities.54

Those who write commissions’ mandates seem to assume that a singlebody vested with the responsibility to discover the truth about the past canmanage all or many of these responsibilities. However, these tasks are quitedifferent in nature, and some reflect divergent conceptions of truth andapproaches to truth-finding. Establishing an authoritative record of the past,for example, requires an exhaustive research effort using scientific methods.Documenting criminal action will depend on the relevant legal definitionsand specific juridical investigation techniques. In contrast, restoring dignityto victims and promoting psychological healing calls for attention to thesubjective rather than objective dimensions of the work of a truth commis-sion. Creating a collective memory or common history, nation building, andeducating the population emphasize the public dimensions and accessibil-ity of the findings; but if the quality, representativeness or rigor of thecontent are sacrificed, the gains of the commission’s public dimensions maybe short-lived. Forging the basis for a democratic political order, legitimat-ing and promoting the stability of a new regime, promoting reconciliationacross social divisions, or recommending ways to deter future violations allinvolve the formulation of long-term public policy. Very little attention hasbeen paid to potential incompatibilities in these assignments and how theyaffect the work of truth commissions.

C. Resources

Truth commissions typically have severe resource constraints. Nevertheless,the magnitude of this problem varies quite considerably. At one end of thespectrum, for example, the Haitian Commission probably operated on alittle more than $1 million, and the report complains that the lack ofsufficient funds greatly reduced their ability to complete their work.55 TheGuatemalan commission had a total budget of approximately $10 million,very generous by truth commission standards. While the South Africancommission also operated under strained financial conditions, its budgetwas considerably greater than any other truth commission. The TRCreceived something in the range of $28 million from the Treasury56 and

54. For lists of tasks assigned to various truth commissions, see Parlevliet, supra note 7, at149; MINOW, supra note 5, at 88.

55. See CNVJ, supra note 24, ch. 3.56. Calculated from figures in rand to dollars in the TRC report. See 1 TRC, supra note 11,

at 300.


another $5 million from foreign donors.57 Consistent with its greaterfinancial resources, the TRC also had a much larger staff, over 400 personsat its peak, several times the size of other commissions, and a separateresearch department. In comparison, the staff size of the Guatemalancommission was approximately 200 people; the Haitian commission wascomposed of seventy-five persons.

D. Role of Commissioners and Staff

Those vested with the responsibility of establishing the truth come to thetask influenced by their life experiences, particularly in relationship to theconflict, training, and current roles and status. No matter how qualified andwell-trained, commissioners and key staff members cannot be expected tobe completely neutral. At the least, their perspectives and training willinfluence their priorities and approach. To highlight just a few consider-ations, commissions have differed in whether their commissioners havebeen selected from within (e.g., Chile, South Africa) or outside of thecountry (e.g., El Salvador) or a combination thereof (e.g., Guatemala andHaiti). Some commissioners are chosen in order to represent particularethnic or political constituencies, while others are chosen as nonpartisanexperts on key subjects. Whether commissioners choose a legal or socialscience approach to truth-finding is also important.

Because human rights violations have been largely understood asviolations of law, the composition of most truth commissions favorscommissioners with legal training. Rather than providing balance, the mixof social scientists (2) and lawyers (5) among commissioners at the CNVJ ledto repeated conflicts among them and contributed to a poor outcome. Thecommissioners were equally divided between three foreigners who werewell-respected international jurists, and four Haitians who represented partsof the government and important nongovernmental organizations (NGOs).

There was also differences of approach in Guatemala between thelawyers and social scientists among the commissioners (two lawyers and asocial scientist) and the staff. The foreign commissioner had previously beena UN Special Rapporteur to Guatemala, and was clearly an expert. The twoGuatemalan commissioners were chosen to represent the country’s Ladinoand indigenous communities. Perhaps because Guatemala’s intellectual lifehas been dominated by anthropologists committed to intellectual pluralism,or because human rights NGOs in Guatemala had extensive experience

57. See id. at 317–18. Both sums are calculated at current rand to dollar rates of exchange,down from what they were during the life of the TRC.


mixing legal and social scientific approaches to investigation, or for someother reason, the clash of perspectives proved fruitful at the CEH.

The TRC was unusual in the large number of commissioners, thediversity of their professional backgrounds, and the central role of activistsand religious thinkers and clergy. Of the seventeen members, four camefrom the religious community; five from medicine, psychology, and nursing;seven from the law; three from politics; and three from NGOs. Nearly all ofthem represented an identifiable political, sectoral, or ethnic constituency.The chair, vice chair, director of research, and several other commissionersall had religious backgrounds. And given the presence of ArchbishopDesmond Tutu as the Chair, some of its public hearings had a decidedlyreligious character. Commentators pointed out that the hearings frequentlyresembled a church service more than a judicial proceeding, with a definite“liturgical character.”58 The Christian atmosphere and discourse of the TRC,and particularly Archbishop Tutu’s frequent framing of issues in terms ofrepentance and forgiveness, was applauded by many South Africans forwhom Christian ideals served as the basis for an ethical critique ofapartheid, but it was distasteful to others, including some of the commis-sioners themselves.59 The latter category included both secular academicsand some victims who complained about “the imposition of a Christianmorality of forgiveness.”60

In addition to the question of their backgrounds influencing theirapproach to truth-finding, the simple number of commissioners appointedto the commission, and whether they work full or part-time, also influencesthe kind of role that they are likely to play. In Haiti, three of the seven (latersix) commissioners lived abroad and visited only for brief meetings. TheGuatemalan commission had only three commissioners, all of whom servedon a part-time basis. The role of a small number of part-time commissionersis necessarily strategic, to set policy and make major decisions, while seniorstaff have the responsibility for implementing policy.

In contrast, the seventeen South African commissioners,61 all of whomworked on a full-time basis, had tactical roles, with each of them directlyadministering some office or aspect of the work of the Commission.62 It was

58. See John de Gruchy, Redeeming the Past in South Africa: The Power of Truth,Forgiveness, and Hope in the Pursuit of Justice and Reconciliation (June 1997) (a paperpresented at Deutscher Evangelischer Kirchentag, Leipzig, Germany) (copy on file withauthor).

59. See Lyn S. Graybill, South Africa’s Truth and Reconciliation Commission: Ethical andTheological Perspectives (1997) (unpublished paper) (copy on file with author).

60. Id.61. There were two resignations, so the TRC finished with fifteen commissioners.62. See 1 TRC, supra note 11, at 246.


virtually impossible for such a large and deliberately diverse group to reachconsensus on specific issues or collectively coordinate the TRC. Forexample, one commissioner resigned for substantive reasons, and anotherissued a minority report.63 Furthermore, each commissioner administering acommittee or regional office was accountable only to the whole group ofcommissioners; essentially, the commissioners were accountable to them-selves. Staff were directly managed by commissioners who could changedirection or refocus attention very rapidly. This put senior staff in structurallyweak positions in that it was very difficult to plan work. In the words of theTRC itself, “[t]his explains the structural overlaps and operational duplica-tion that occurred.”64

Commissions also differ regarding whether their personnel configura-tions are static or reorganized for different phases of the process. TheHaitian commission deployed eighty interviewers into the field for less thantwo months; for the other months of its existence, only a small team ofanalysts, support personnel, and the Haitian commissioners worked in theorganization. The TRC maintained the same organizational structure fromApril 1996 until May 1998, with minor adjustments in August-September1996.65 In contrast, the CEH went through continuous reorganization, withfive distinct structures from July 1997 through February 1999, although themost technical areas (i.e., the database) were kept together.66 The chaos thatresulted from the CEH’s constant reorganization prevented turf battlessimply because staff never had time to become accustomed to any givenrole.

The frequent—or constant—reorganization served the most importantbenefit to the CEH by enabling it to cope with the most difficult challengewhich faces a commission. Commissions are never able to define the mostimportant thematic concerns until very late in the life of the organization.How can a team of people investigate massacres if there is no commondefinition of a massacre until the fieldwork is long complete? How canseveral dozen analysts begin working on a report before the report has atable of contents and identified core issues? It is difficult to managecollective research without a written plan by which each subgroup knowsprecisely what parts of the final product are its responsibility. The CEHmanagement team moved people rapidly from role to role, and created newwriting assignments for each team in waves. This management process

63. Christian de Jager resigned from the Commission but retained his seat on the AmnestyCommittee. Mapule Ramashala left the Commission for personal reasons. WynandMalan issued the minority report, see id. at 435–56.

64. Id. at 254.65. See id. at 258–59.66. See CEH, TOMO I, supra note 24, at 36–40.


delayed decisions until facts had been gathered and due deliberation given,but it provided short-term work assignments even before final decisions hadbeen made.67 This process, called the insumo model for drafting the report(described in the Report section) was the central product of this manage-ment strategy.

1. Legal versus Scientific Methods

In their first moments of existence, commissions must decide what theyintend to argue, or stated differently, what their working hypotheses will be,and how data will be gathered to support the hypotheses. But whatcommissions set out to do—argue a case or test a hypothesis—reflectsdifferent epistemological and methodological perspectives. Commissionsoften experience tensions between these two perspectives, legal argumentsversus social science evaluation. Commission lawyers will establish a set oflegal definitions about what constitutes a violation of a given norm fromdomestic law, international human rights law, or international humanitarianlaw. They may then seek examples, in the form of particular cases, whichdemonstrate the violation of the norm in question. This kind of work seeksto argue that a norm was violated, making the claim in the strongest possibleterms. By contrast, social scientists, who tend to be rare in truth commis-sions, would ask “how often was the norm violated, in absolute andproportional terms? Was the norm violated more frequently in somecircumstances or during some periods than in others? Why might the normhave been respected on occasion? And most importantly, how can we findevidence to address these questions by methods which are not self-fulfilling?”

Truth commissions are charged with broad objectives that requireanswers to the social science questions posed above. By its mandate, theTRC was directed to examine the “nature . . . and extent” of gross humanrights, looking at the “context, motives, and perspectives which led to suchviolation,” and then identifying “systematic pattern[s] of abuse.”68 Similarly,the CEH interpreted their work to require an “examination of the causes andorigins of the internal armed confrontation, the strategies and mechanismsof the violence and its consequences and effects.”69 None of the broad

67. Note that the difficulty of drafting a report before the core themes were identified anddefined was one of TRC Commissioner Wynand Malan’s chief criticisms in his minorityreport. See 5 TRC, supra note 11, at 438 (he objected to drafting material beforereaching these agreements). The CEH’s insumo method solved this problem, but it didso by using an enormous amount of staff time.

68. See TRC Act § 4. See also 1 TRC, supra note 11, at 158–64 (for a more detailed analysisof the TRC’s methodological needs).

69. CEH, Recommendations and Conclusions, Introduction.


structural generalizations demanded by the mandate language of eithercommission can be satisfied by a simple aggregation of cases, no matterhow many cases the aggregation includes, because the simple aggregationof cases might exclude cases that would tend to contradict the generaliza-tion. Instead, methods must be devised that would find evidence to confirmor, if it exists, evidence that would contradict the assumptions with whichthe commission began work. However, truth commissions do not usuallyemploy methods that would allow them to frame, test, and potentially rejecta series of hypotheses.

One way to make generalizations is to seek out all the cases and otherevidence which support the claim, and if there are enough such cases, andif they are sufficiently dramatic, conclude that the generalization is valid. Asecond method is to appoint an arbitrator, permit advocates and opponentsof a claim to each make the strongest possible arguments before thearbitrator, and then allow the arbitrator to rule on the generalization. Both ofthese methods are derived from legal and political procedure, and in fact,these methods dominate decision making at truth commissions. As will bediscussed in the methods section below, the TRC’s conclusion that all ofSouth Africa’s people (not only people of color, or Africans) were victims ofapartheid is apparently based on evidence marshaled by the first technique.The CEH’s conclusion that genocide was committed against some Mayancommunities by Guatemalan state forces was made (in part) after a series ofquasi-juridical internal debates that took place in 1998. The first method isentirely vulnerable to the exclusion of information that does not support thehypothesis. The second method is better but is nonetheless vulnerable to aweak presentation of one of the two contending positions.

Scientific methods proceed quite differently. Beginning with an hypoth-esis, the scientific method seeks data with which to test the hypothesis.70 Forexample, to test the hypothesis that South Africans of all races sufferedunder apartheid, a random selection of people of all races could be takenand the proportion of each who suffered a gross human rights abusemeasured. If the proportions were roughly equal, the hypothesis would beconfirmed;71 otherwise it would be rejected. The randomness of theselection of respondents protects the conclusion against the possibility that

70. This discussion uses a deductive method; inductive methods, in which theories aregenerated from the data, are equally scientific. When used properly, deductive andinductive approaches both insure that the data gathering and analysis methods do notpreordain the conclusion. The point is to keep separate the process of creating thetheory and the process of testing the theory with data, although the two steps can be ineither order.

71. In strict terms, science does not confirm hypotheses. Rather it is said that a test may failto reject the hypothesis, or that data are consistent with the hypothesis and apparentlyinconsistent with competing hypotheses.


the evidentiary basis was constructed deliberately to support the conclu-sion. The analysis of genocide would require a comparative measure ofrates of killing among groups hypothesized to be subjected to genocide andsimilar rates among otherwise similar groups which are not thought to havesuffered genocide. If the killing rates were essentially the same among allgroups, then this would be evidence of a very violent moment, but notgenocide. However, if killing rates were much higher among the groups inwhich genocide had been hypothesized, this finding would support thegenocide hypothesis.72 Not all scientific methods are statistical, obviously;forensic methods, in particular, have been enormously useful to truthcommissions. But what scientific methods all share is the possibility offinding the unexpected and refuting underlying assumptions. Legal andother methods based on unsystematically collected evidence do not havethis characteristic.

Another difference between legal and social science generalizationmethods is the relative importance each assigns to trends and patternsversus individual cases. The TRC used the “balance of probabilities”method by which something was judged true if there was more evidence infavor than against.73 The balance of probabilities method, derived from civillitigation, served the TRC well in judgments about individual cases. But theTRC clearly lacked a method for making generalizations from the thousandsof findings made by this method. Although charged with finding “systematicpatterns,” the TRC’s report almost exclusively makes findings on cases: thereis little broader macro analysis. Commissions prior to the TRC were notmuch more successful elucidating or applying methods for systematicgeneralizations. However, in Guatemala the CEH explicitly invoked a rangeof social science disciplines, and a range of social scientists were employedthere.74 This may partly explain the CEH’s greater relative success atestablishing macro findings.

Because truth commissions cannot investigate all potential cases orevents, they frequently choose representative or significant ones, what theTRC referred to as “window cases” and the CEH called “illustrative cases.”There are hundreds of window cases in volumes two and three of the TRCreport, spanning everything from deaths in detention to cases of arson. Thepresentations range from one paragraph to four pages. The CEH chose itseighty-five illustrative cases using the following criteria: that the caseshowed an important tactical or strategic change of one or the other of the

72. See CEH, TOMO XII, ANEXO III, supra note 24, fig. 4, at 255. However, the data on whichthis analysis was based might have been biased. An evaluation of the possibility of biasin these data found no basis, see id. tbl. 13 at 257, fig. 5 at 258.

73. See, e.g., 5 TRC, supra note 11, at 208.74. See CEH, TOMO I, supra note 24, at 52.


parties;75 that by its seriousness, had a special impact on the nationalconscience; or that it illustrated a particular pattern of violence for a regionor period.76 These cases, from ten to thirty pages in length, were chosen bythe legal method described above: they were chosen to make specificpoints, not to test a generalization.

As has been mentioned, the public hearings held by the TRC were aunique feature of the South African experience. Hundreds of hearings wereconvened by different components of the TRC for different purposes. TheAmnesty Committee held hearings at which they questioned applicants andmade determinations about whether amnesty should be granted; theHuman Rights Violations (HRV) Committee heard victims chosen fromamong those who presented statements to the TRC, and to event hearings atwhich particular historical episodes were considered in depth by callingwitnesses, victims, and alleged (or confessed) perpetrators; and ad hocsectoral hearings were called at which the conduct of particular social areaswere considered, such as the legal or medical sectors.77 The hearingsattracted massive public attention, both within South Africa (where theywere the subject of nearly daily press reports and a weekly television show)and internationally. It is clear that the hearings were tremendously success-ful at generating attention and debate about the violence of the past. It is lessclear that they provided objective data so that the debates about the broadtruths of the past could be resolved in ways that would withstandsubsequent criticism.

2. Data

Data are central to the process of truth-finding. A major task of truthcommissions is to collect and analyze critical data sources on which to basetheir findings. Most truth commissions seek and create truth throughinterviews with victims, witnesses, and survivors as a major source of theirdata. An interview is an intimate interaction between a representative of thecommission and one or more deponents who tell their story. The presenta-tion of information by respondents to the commission is guided by aninterview protocol designed to elicit empirical and narrative truth.

75. In the language of the CEH report, the “parties” were the parties to the Oslo Accord,which was the CEH’s mandate, i.e., the Guatemalan National Revolutionary Unity(URNG) guerrillas and the Government of Guatemala.

76. See CEH, TOMO I, supra note 24, at 64.77. The findings of the sectoral hearings are presented in 4 TRC, supra note 11. For

evaluations of the medical sector hearings, see LAUREL BALDWIN-RAGAVEN ET AL., AN

AMBULANCE OF THE WRONG COLOUR: HEALTH PROFESSIONALS, HUMAN RIGHTS, AND ETHICS IN SOUTH

AFRICA (1999); HUMAN RIGHTS AND HEALTH: THE LEGACY OF APARTHEID (Audrey Chapman &Leonard Rubenstein eds., 1998).


The National Commission on Truth and Justice in Haiti collected some6,000 semi-structured interviews utilizing both closed and open-endedquestions. Perhaps surprisingly given its other problems, the Haitiancommission’s fieldwork was excellent and culminated in a dozen areareports, each of which was hundreds of pages long, combining statistics,secondary materials, analysis of interviews, and direct investigations.78 TheHaitian commission also sponsored a series of forensic investigations ofmass graves undertaken by a multinational team of experts assembled byAAAS. Unfortunately the deteriorating condition of many of the sites did notrender conclusive evidence. A third data source came from morgue recordsfrom the University Hospital in Port-au-Prince. Comparing trends in morgueadmissions with the trends from interviews found that the two matchedalmost identically, thereby validating the interviews as a good measure ofpolitical violence. The Haitian commission did not hold any publichearings.

The CEH conducted 7,200 interviews. In rural areas populated prima-rily by indigenous people interviews were sometimes conducted withgroups of people simultaneously; sometimes as many as fifteen people metwith the interviewer at the same time. This was the closest analogy to theSouth African hearing model, but no public or members of the press werepresent. There was also extensive secondary research by a team ofGuatemalan historians and public meetings and workshops to discusspolicy.

Because truth commissions are constrained by limited time and re-sources, the availability of completed research on which they can build canplay an important role. In Guatemala, for example, there were teams offorensic anthropologists, including an initial team founded and trained byAAAS, that had been conducting exhumations of mass graves for sevenyears prior to the commission. By specifying the cause and manner of deathof the victims, the reports of the forensic anthropologists clearly refutedmilitary claims about massacres.79 AAAS also worked with a coalition ofhuman rights groups to construct a database of violations. By the time thetruth commission began its work, this database had documented over37,000 killings.80 A project sponsored by the Archdiocese of Guatemalaprovided a third source.81 All of these data were made available to the truth

78. The area reports were discarded by the outside expert hired to write the final report. Theloss of the area reports was one of the greatest disappointments of the CNVJ.

79. See, e.g., LAS MASACRES EN RABINAL: ESTUDIO HISTÓRICO ANTROPOLÓGICO DE LAS MASACRES DE PLAN DE

SÁNCHEZ, CHICHUPAC Y RÍO NEGRO (Ronaldo Sánchez ed., 2d. ed. 1997).80. See PATRICK BALL ET AL., STATE VIOLENCE IN GUATEMALA, 1960–1996: A QUANTITATIVE REFLECTION

119 (1999).81. RECUPERACIÓN DE LA MEMORIA HISTÓRICA (REMHI), GUATEMALA: NUNCA MAS (1998).


commission. Many of the cases in one of the three databases were notreplicated in the others.82 The pool of data sources that the CEH could drawupon was far richer than it could have collected on its own, and thecombination of databases made possible a scientific estimate of the totalnumber of people killed in Guatemala.83 In South Africa there was also anNGO project to present data to the TRC; the project was undertaken by acoalition of NGOs and was known as the Human Rights Data Project.However, two factors combined to reduce the impact of the Human RightsData Project on the TRC’s analysis. First, the way the NGO data wererepresented as a database weakened their statistical value because insuffi-cient detail was recorded. Second, the TRC’s lack of interest in macro-truthmeant that the kinds of statistical and comparative uses to which NGO datawere put in other commissions were less important to the TRC than to thecommissions in El Salvador and Guatemala.

The TRC conducted the most massive data collection effort in thehistory of truth commissions, yet they collected only a fraction of what waspotentially available to it. One rationale for the amnesty provision was thatit would provide the TRC with data about the architects of apartheid and theinternal structures which implemented policy, but the results were disap-pointing. Very few of the former apartheid leaders came forward to takeadvantage of the offer of amnesty for full disclosure. The flood of applica-tions just before the deadline came primarily from middle and low-levelfunctionaries responding to the successful prosecution of Eugene de Kock.The TRC’s own assessment was that:

the spirit of generosity and reconciliation enshrined in the founding Act was notmatched by those at whom it was mainly directed. . . . With rare individualexceptions, the response of the former state, its leaders, institutions and thepredominant organs of civil society of that era, was to hedge and obfuscate.84

But the TRC itself made little use of the materials that came out of theamnesty process. Not until 1998 did the amnesty application materialsbecome part of the TRC database, and as a result, the data from the Amnestyprocess played almost no role in the substantive evaluations in the TRCreport.

From the first meetings of the TRC, with the Amnesty Committee inJanuary 1996 and then with the Database Development Group in February1996,85 the judges who composed the majority on the Amnesty Committee

82. Approximately 22 percent of all the deaths documented in the three projects were heldin two or more projects. See CEH, TOMO XII, ANEXO III, supra note 24, at tbl. 4.

83. See CEH, TOMO I, supra note 24, at 71–73; and CEH, TOMO XII, ANEXO III, supra note 24.84. 5 TRC, supra note 11, at 196.85. For a discussion of this group’s role, see 1 TRC, supra note 11, at 158–61.


made clear that they would not permit the collection of the kind of data onwhich a systematic evaluation of the structures of repression might be made.These data, including perpetrators’ career histories, unit command struc-tures across time, and other personnel information, had been precisely thekey to identifying the military units and particular officers most deeplyinvolved in human rights violations in El Salvador.86 Although the circum-stances in South Africa seemed optimal for undertaking this kind of datacollection and analysis, the Amnesty Committee’s role as construed by thejudges was narrowly defined in a legal framework that admitted onlyinformation precisely pertaining to the events for which applicants re-quested amnesty. The focus on the actual cases and acts, but not on theantecedents, causes, organizations, ideologies, and perspectives that gaverise to the acts, was one of the most significant opportunities lost due to theexcessively legalistic approach that sometimes bedevils commissions. Be-cause these data were not gathered, the analysis of the structure oforganizations that perpetrated state violence is brief and superficial.87 Thereis no assessment of how particular units came to be as violent as they did,nor how units evolved over time, nor how racist beliefs were indoctrinatedamong new recruits. The concluding section of the report on the state onlydetails that communications links between “contra-mobilization” units inthe mid-1980s were regarded as as especially destructive.88 The TRC’sanalysis section, like other parts of the report, is a listing of cases with littlediscussion of why the cases occurred, how the structures changed overtime, and how individual perpetrators were socialized differently in differ-ent parts of the state apparatus.

Even within the Human Rights Violation Committee, the quantity,format, and quality of data were subject to conflicting goals. The originalinterview protocol included narrative and structured components, similar tothe format used in Haiti and to the format that would later be used inGuatemala. This model was scrapped at the initiative of one commissionerin August 1996, five months after the original forms had been deployed, inan effort to increase the rate at which statements could be taken—that is, toreduce the time each statement giver spent with a representative of the

86. See, e.g., Todd Howland, El Rescate’s Contribution to the Salvadoran Peace Process:Creative Legal and Information Processing Applications (unpublished paper on file withAAAS describing the Indices of Individual Accountability Project). For the analogousproject undertaken by the Comisión de Derechos Humanos de El Salvador (CDHES),see PATRICK BALL, WHO DID WHAT TO WHOM 57–68 (1996), available at (visited 15 Nov.2000) <http://shr.aaas.org/www/cover.html>; Patrick Ball, The Salvadoran HumanRights Commission, in MAKING THE CASE, supra note 30, at ch. 1.

87. See 2 TRC, supra note 11, at 313–24.88. See id. at 297.


commission.89 The new protocol was dominated by closed-ended ques-tions90 and greatly reduced the space available for interviewers to recordqualitative and narrative information. In an internal analysis, it was shownthat the number of words written for each interview declined, as wasintended by the format change. Data processors reported that the quality ofthe interviews consequently declined, including increases in the rate ofmissing data.91

Although narrowing the scope of the conversation with statement giverswould seem directly to contradict the TRC’s goal to promote narrative truth,the proponents of the reduced interview format argued that it would allowmore statements to be taken.92 In order for South Africans to become eligibleto receive reparations for gross human rights violations they suffered underapartheid, the TRC had to “find” that this person was a victim under one orseveral of the definitions set out in the TRC Act.93 The need to accumulatethe data required to make this administrative judgment about the maximumpossible number of people therefore competed directly against the “truth”goals the TRC articulated in the final report. Narrowing the range ofinformation sought in the interview led to lower quality data in eachinterview, thus diminishing the quality of the TRC’s empirical data. Theshortened and tightly structured interview process may have seemed to thestatement giver more like a police interrogation than the original format(which was organized more like a social work quasi-therapeutic interview),and this change must have had negative implications for both narrative and

89. The TRC report describes the process as responding to technical difficulties analyzing“long and complex narrative statements,” and the change as “fine-tun[ing] the structureof the protocol.” 1 TRC, supra note 11, at 139. However, in a review of the interviewprocess at the time of the change, regional differences in quality were shown, but nosystematic technical difficulties were found. See Patrick Ball, Evaluation of theCommission’s Information Flow and Database, with Recommendations, Memorandumto the TRC, 9 Sept. 1996 (on file with author).

90. Staff pointed out that the new forms limited the information that could be recorded foreach victim such that each type of violation could be noted only once; this wascorrected in subsequent data processing by meticulously coding all the remainingnarrative text. This analysis was provided by Themba Kubekha, head data processor ofthe Johannesburg office, at meetings of international human rights data experts held atAAAS in May 1999. If the data representation error had not been corrected, it wouldhave introduced serious bias against counting violations that are more frequentlyrepeated, such as severe ill-treatment. For a discussion of this kind of data representa-tion error, see BALL, WHO DID WHAT TO WHOM, supra note 86, at ch. 2.

91. See Gerald O’Sullivan, The South African Truth and Reconciliation Commission:Database Representation, in MAKING THE CASE, supra note 30, at ch. 4.

92. This paragraph is based on the author’s memory and notes of meetings in the TRCduring August-September 1996.

93. The Reparations and Rehabilitation Committee of the TRC was explicitly constrained toprovide only for victims referred to it by the Human Rights Violations Committee or theAmnesty Committee. See TRC Act, art. 26.


restorative truth. It should be kept in mind that notwithstanding the truth-damaging outcomes of the interview format change, the objective of thechange was to open the doors to more South Africans becoming eligible forreparation, and so two laudable goals conflicted with each other.94 After afew months, this format was in turn discarded and a third semi-structuredinterview protocol was substituted.

3. Methods

The volume and complexity of the data sources truth commissions collectrequire the application of rigorous and systematic methods. The informationanalyzed in the report must fairly represent the narratives presented bystatement givers. Attempts to document the abuses and write officialhistories need objective and compelling means to describe patterns amongtens of thousands of victims and violations, to evaluate the relativeproportions of responsibility for violations, and to estimate the total numberof victims killed or missing. The methodologies used play an important rolein shaping the nature of the data available to the commission, theconclusions that can be drawn, and their validity and credibility. Informa-tion management systems and social science research methods can helpmake sense of data from thousands or tens of thousands of interviews—literally hundreds of thousands of pages of questionnaires and transcripts.95

Quantitative tools can help investigators understand history and thestory of human suffering in ways that would not have been possible usingtestimonies alone. For example, the TRC used statistics to show that thepolice were responsible for the overwhelming majority of killings before1990.96 As an important step in the analysis of genocide in Guatemala, thetruth commission employed quantitative analysis to show that in severalcrucial regions rates of indigenous people killed by the state were five toeight times greater than rates among nonindigenous people.97

When both commissioners and senior staff lack background in quanti-tative methods, they may not make full use of the potential analyticcapability of the commission’s data and information management system.

94. This said, the commissioner who in August-September 1996 insisted on the eliminationof almost all narrative from the protocol, Wynand Malan, later complained in hisminority position that the TRC report contained insufficient qualitative analysis. It isironic that the data Mr. Malan would require for a qualitative analysis was precisely thatwhich his restructuring of the interview protocols attempted to eliminate in 1996. See 5TRC, supra note 11, at 455.

95. For case studies of data processing, database design, and statistical analysis in truthcommissions and NGO data projects, see Patrick Ball et al. eds., Making the Case.

96. See 2 TRC, supra note 11, fig. 17, at 176.97. See CEH, TOMO III, at 314–423; and CEH, TOMO XII, ANEXO III, supra note 24, fig. 4 at 255.


There was a considerable difference between the South African andGuatemalan commissions in this regard. At the TRC, few of the commission-ers had any experience using social science methods, and since thepublication of the report, some commissioners have criticized information-intensive approaches to truth-finding as lacking utility. In a public speakingengagement, for example, one of the commissioners attributed the creationof the victim database to legal requirements and claimed that virtually nouse was made of these data.98

Although CEH commissioners and staff were not statistical experts, theyengaged the data constantly, so much so that a full-time statistical analysthad to be hired to keep up with the demand.99 CEH researchers queried thedatabase for lists of case summaries that fit elaborately precise criteria.Some CEH report chapters used precise statistical analyses, while otherscompared CEH data to NGO databases given to the commission. It isnoteworthy that the first task upon every visit of the methodological advisorto the CEH was to brief some or all of the commissioners on the statisticalpatterns emerging from the testimonies.

Much of this difference can be explained by the dominance of hearingsin the TRC process. The public hearings captured the South African publicimagination, “defin[ing] the parameters of truth-seeking,”100 for over twoyears. The hearings appeared on television, on radio, and were coverednearly every day by newspapers.101 But the hearings included only about 8.5percent of the more than 21,000 people who gave statements to the TRC. Bylaw, commissioners were required to make findings on all of the statementsgiven to the TRC, a mundane and tedious process. The intensity of thehearings was such that the findings on statements were put off until theclosing moments of the TRC’s life. Participating in the hearings simulta-neously occupied every available moment of the commissioners’ lives andprevented them from engaging with the mass of statements.102 Given thecommissioners’ quotidian participation in most aspects of the TRC’s work,this meant that almost no staff worked with the statements until the final

98. Yasmin Sooka made this claim in response to a question at the conference The TRC:Commissioning the Past, held at the University of the Witwatersrand, June 1999. TheTRC report contains over 200 graphs.

99. See Eva Scheibreithner, The Guatemalan Commission for Historical Clarification:Generating Analytical Reports, in MAKING THE CASE, supra note 30, at ch. 10.

100. Mamdani, supra note 51, at 34.101. See ANTJIE KROG, COUNTRY OF MY SKULL (1998) (on the ubiquity and moral force of the

hearings).102. Ironically, the TRC understood this dilemma the other way around, that because of the

requirement that findings be made on statements, “it became necessary to curtail thepublic hearings.” See 5 TRC, supra note 11, at 9. Malan’s minority report similarlydismisses the statement finding process as distracting from the report writing. See id. at438.


months, except for those few staff actually engaged in taking statements ordata processing. In the last three or four months before the report waspublished, with the hearings reduced to video and typed transcripts, TRCresearchers discovered the power of structured data. Only then werestatistics used on a broad scale, and even then, the statistics were used onlyby the researchers.103

In Guatemala, the CEH had no primary data except from the interviews.With no hearings to distract them, nearly the entire commission’s attentionwas focused on the interviews. The database was, by design, the easiest wayto access the interviews, and as a result, it was used intensively. This is notto say that CEH staffers were happy with the database, but that theircomplaints had a fundamentally different character than the complaints inSouth Africa. CEH staffers’ complaints tended to be very specific demandsthat the database should do a particular task that at that moment it did notdo.104 Complaints of this kind are indications that the tool is being used andthat it needs to be further refined. By contrast, at the TRC it was said(constantly if vaguely) that “the database is not working,” but few peoplehad ideas or tasks they wanted to have done that any database would havebeen capable of doing.

4. Report

The preparation and dissemination of a report play a central role in shapingthe truth communicated and disseminated by a specific truth commission.The report should elaborate the truths required to fulfill the mandate, and itshould be written with a rigor and quality to withstand sustained criticism.Yet the preparation of a report rarely receives the time and attention itdeserves. Often the level of fatigue and conflict among the staff andcommissioners is so considerable at this point that the commission begins todisintegrate. Key figures in the life of the commission may no longer beavailable or involved. Despite these limitations, and even if the report itselfis not a commission’s most important product, the report is what acommission leaves for history.

That the final reports of truth commissions vary considerably is clearfrom a cursory review, but only some of these differences reflect careful orconscious decisions. The Haitian commission provides the most extreme

103. Note that in the TRC report, graphs appear in Appendix 2 of the methodological chapter(ch. 6) in vol. I, and in vols. II and III which were written by the Research Department.There are no statistics in vols. IV or V, and the only quantitative analysis in vol. I wasused by the Information Systems Manager in his report. See 1 TRC, supra note 11, at165–73.

104. See Sonia Zambrano, The Guatemalan Commission for Historical Clarification: Data-base Representation and Data Processing, in MAKING THE CASE, supra note 30, at ch. 12.


example of terminal conflict and fatigue. Scheduled to complete thefieldwork by August 1995 and produce the report by mid-December 1995,the final report was actually transmitted to President Aristide in February1996, a few months late. But the report submitted was extremely trun-cated.105 It consisted of five pages of description of the modes of repression,seven of the structures and perpetrators, and twenty-one of recommenda-tions. Most of the report was a listing of the cases of the victims who wereidentified, with several appendices based on supplementary researchconducted by AAAS consultants. Although extensive statistical analysis ofdata from the interviews and from morgue records had been conducted,these findings were not included. Instead the report printed the headings fora few of the statistical tables without showing any of their data cells. Thisembarrassing omission reflects the condition of the commission rather thanthe intent of the drafters. In addition, there were serious problems with thetranslation and production of the appendices, particularly the forensicanalysis of the exhumations of graves.

In part, the reduced report was the result of organizational collapse. Butthe hiring of an outside expert in December 1995 to write the CNVJ reportalso reflected deep disagreements among the commissioners about what thereport should say. The regional reports with their rich analytical andcontextual material (discussed above in subsection 2 on Data) wereexcluded in favor of a superficial chronology constituting sixty-one of thereport’s 105 pages. The analysis and synthesis—a social scientific model—was eliminated in favor of a legalistic review of the facts.

The TRC report consists of five volumes. The first volume includes anintroduction by the Chair followed by philosophical and methodologicaldiscussions and administrative reports. The second and third volumespresent chronologically organized overviews of perpetrating units andgeographic areas and were written primarily by a small group of staff, withthe Research Director playing the central role. The fourth volume reviewsfindings from institutional and sectoral hearings. The final report provides apreliminary list of victims, an interim report from the Amnesty Committee,additional details on how the Commission made findings, and in chaptersix, the findings and conclusions of the TRC.

The TRC report presents substantially different conclusions in differentsections. It opens—the first paragraph on the first page—with a statement byArchbishop Tutu that South Africa “is soaked in the blood of her children ofall races.”106 His introduction turns on lists of incidents (e.g., paragraphs oneand twenty-nine) which seem carefully calibrated to include atrocities

105. See CNVJ, SI M PA RELE: 29 SEPT. 1991–14 OCT. 1994 (1995).106. 1 TRC, supra note 11, at 1.


committed by a spectrum of perpetrators against a range of victims. Yetsome 2,500 pages later, in volume five, the TRC concludes that “[t]hepredominant portion of gross violations of human rights was committed bythe former state through its security and law-enforcement agencies,” and“[b]lack . . . youth were demonized as the ‘enemy’ by the security forces inparticular.”107 The difference between these positions is stark. The first isfocused on reconciliation, whereas the second is a broad empiricalconclusion. While both could be true in a literal sense—there were somevictims of every race, although black youth were by far the majority—themoral and empirical implications of the two sections are not consistent.

In direct contrast to the rhetorical foreword of the TRC report, the CEHintroduces their work with unequivocal conclusions. On 25 February 1999,the report was published as a ninety-two page recommendations andconclusions volume, of which more than 40,000 copies were immediatelydistributed in Spanish and English.108 The first paragraph includes broadstatistical findings: that the CEH documented 42,275 victims, 83 percent ofwhom were Mayan, 29,830 of whom were killed or disappeared. Inparagraph two, the CEH estimates that more than 200,000 people werekilled, and in paragraph three, they conclude that “the violence wasfundamentally directed by the State against the excluded, the poor andabove all, the Mayan people, as well as against those who fought for justiceand greater social equality.”109

The twelve volumes of the CEH report include most of the componentsin the South African report, but with very different emphases: the adminis-trative report, legal mandate, and technical functioning get less treatmentthan in the South African report. The historical section is much moredetailed, but there are no geographic or chronological reports. The bulk ofCEH volumes two and three analyze specific kinds of violations such assexual violence against women and genocide. None of these sections isstrictly chronological. Instead, most sections begin with legal frameworksfor what the crime means, offer some statistical overview of what the CEHfound in this area (when and where it happened, against whom, andcommitted by what organizations), and proceed to theoretical argumentsabout how and why this kind of crime occurred. The expositions are basedon frequent quotations from testimonies and occasional graphs or otherstatistics, as well as references to secondary materials.

107. 5 TRC, supra note 11, at 212, 255.108. For more discussion of this point, see the Dissemination section, below.109. CEH, Conclusions and Recommendations, Introduction. Note that this was republished

as Tomo V of the complete report.


Pages allocated Pages allocatedSection in the CEH report in the TRC reportThe administrative report, legal Vol. 1, pp. 1–71 Vol. 1, pp. 48–435,mandate, and technical functioning Vol. 5, pp. 1–14

Historical context Vol. 1, pp. 77–228 Vol. 1, 24–43

Perpetrator analysis Vol. 2, pp. 18–300 Vol. 2, pp. 1–710

Geographic analysis N/a Vol. 3, pp. 1–745

Analysis of specific Vol. 2, pp. 301–518, N/aviolations & Vol. 3

The CEH and TRC reports were drafted in fundamentally different ways.As described earlier, the TRC report is a compilation of essays written byindividuals, beginning with the Archbishop’s foreword, the discussion ofkinds of truth by senior staff, reports from technical and administrative staffand consultants, researchers’ reports on perpetrators and areas, and thenreports by the commissioners who organized particular institutional hear-ings. In contrast, the CEH report was written in repeatedly restructureddrafts, in which authorship of each section rotated among several people.When the CEH office heads returned from the field in February-March1998, they were immediately required to write extensive area reports, manyof which were several hundred pages long. These reports, called buildingblocks (insumos) became the inputs for the first of several rounds of evolvingdrafts of the report. Each geographic field report was then handed to newteams formed during June-August to work on thematic areas. These reportswere then passed to new teams (in September-December) who wrote theactual material published in the report. The final stage was guided by asenior “Coherence Advisor” whose job was to assure that all the sectionsfollowed the broad outlines of the commissioners’ analysis, and that thesections did not contradict each other.

The CEH process could easily have collapsed: it required more than ayear’s time, dozens of analysts, and much, if not most, of the draftedmaterial was wasted (in the sense that it did not appear in the final report).However, given sustained effort and sufficient time, money, and staff, theCEH model proved to produce a more complete, consistent, and coherentreport than any other commission to date. The report’s greatest achievementis not the balance of evidence, the use of data, or its legal sophistication.The report’s tremendous strength comes from its simple unity of premise:that the origin of the conflict and the overwhelming majority of violent actswere the responsibility of the Guatemalan state. At the end of the day, it isfar easier to clarify history than to find truth and promote reconciliationthrough public hearings.

The analysis of whether each commission was successful must be madein its own terms. The TRC report should not be considered the TRC’s onlyproduct. Indeed, the TRC themselves describe the report as a report on their


activities, with the activities—hearings, primarily—being the central focusof their enterprise. If the impact of the TRC is to be evaluated, the hearingsshould be the focus. The success of the CEH rests much more uniquely onthe reception and impact of the report because it was the Guatemalancommission’s only product.

Nonetheless there are several problems with the TRC’s approach totruth in their report. That the TRC commissioners believed that the processby which the truth was reached and whether it affirmed the dignity of theparticipants counted, perhaps as much as the actual outcome or findings,110

had obvious implications for their truth-finding. The zero-sum balancebetween public hearings focused on reconciliation versus rigorous truth-finding was debated openly within the TRC.111 However, the value ofempirical truth—macro and micro—was debated less in terms of its long-term impact on the culture of human rights and more in terms of fulfillingparticular articles in law that protected the TRC from legal attacks, althoughSouth African victims and survivors of gross human rights abuses wereexplicit that meaningful truth finding was a precondition to reconciliation.112

In general, the TRC failed to recognize the extent to which its variousapproaches to truth conflict with one another and with reconciliation. Itscharacterization of factual or forensic truth is an inadequate and impover-ished rendition of what objective research entails and what it can contributeto the analysis and findings of a truth commission. Nevertheless, it probablyreflects the attitudes of many of the commissioners. Archbishop Tutu’spersonal commitment to forgiveness and reconciliation and the presence ofothers from a religious background likely shaped many other aspects of thework of the TRC. It may account at least in part for the moral rather thanfactual or analytic orientation of the report and its strenuous effort at fairnessthat had the unfortunate effect of seeming to balance the systematic abusesof the government with the occasional excesses of the ANC.113 The concernwith reconciliation may also be related to the reluctance of the TRC toexercise its considerable powers of subpoena, search, and seizure, which

110. See 1 TRC, supra note 11, at 114.111. Personal communication with Charles Villa-Vicencio (Nov. 1999). See also Paul Van

Zyl, Dilemmas of International Justice: The Case of South Africa’s Truth and Reconcili-ation Commission 52 J. INT’L AFF. 647 (1999).

112. See Survivors’ Perceptions of the Truth and Reconciliation Commission and Suggestionsfor the Final Report (June 1998) (submission to the TRC by Centre for the Study ofViolence and Reconciliation and The Khulumani Support Group, Johannesburg, SouthAfrica).

113. On this point we differ from Jeremy Sarkin, who finds that the TRC produced “arelatively large amount of the truth . . . but very little reconciliation.” Jeremy Sarkin, TheNecessity and Challenges of Establishing a Truth and Reconciliation Commission inRwanda, 21 HUM. RTS. Q. 767, n. 317 (1999).


were much stronger than those of most other truth commissions. It may havecontributed toward the process of reconciliation by emphasizing thevalidation of the individual subjective experiences of those who hadpreviously been silenced or voiceless. In many cases, the reconciliationachieved in the hearings is real. And whatever the criticisms of the process,it is certain that for over two years, the TRC successfully focused SouthAfrica’s attention on the evils of the apartheid period such that no SouthAfrican can now claim that he or she does not know at least some of whathappened.

The CEH offers a very different model that was in our judgment moresuccessful than the TRC at establishing macro-truth. However, the Novem-ber 1999 elections resulted in a landslide victory for the party of GeneralEfraín Ríos Montt, who was the dictator responsible for many of the mostegregious atrocities of the early 1980s. Guatemalans elected the General’sparty only a few months after the presentation of the report in which hisgovernment was indicted for acts of genocide. Given this outcome, it is notclear what positive political impact the CEH’s report may have had, nomatter how rigorous the report may have been. But the CEH’s lessons shouldbe noted, and a new book by the UN Office of Project Services forGuatemala examines the lessons in detail.114

E. Dissemination

Acknowledgment, the translation of a private into a public truth, requireswidespread dissemination of the findings of a truth commission. Here tootruth commissions differ. Again the experience of the Haitian NationalCommission for Truth and Justice testifies to its breakdown. The final reporttransmitted to President Aristide during his last hours in office in February1996 was not published until September 1996, and then only seventy-fivecopies were made. Conflicts between the supporters of Aristide and theadministration of President René Preval made the report something of anembarrassment for President Preval. A second edition of 1500 copies waspublished in March 1997, but these were circulated only in Haiti.115

Although the TRC placed a considerable emphasis on its processes andfindings being publicly accessible, its strategy for disseminating its reportfell far short of this standard. Its five-volume report was released coincidentwith its public presentation, but it was published by an outside printer rather

114. U.N. Office of Project Services for Guatemala (forthcoming).115. AAAS placed a copy of the CNVJ report in the Library of Congress. See also the CNVJ

report (visited 15 Nov. 2000) <http://www.haiti.org/truth/table.htm>.


than the government press. As a consequence, the set was priced wellbeyond the means of most South Africans. The Truth Commission alsoplaced the full text on an open web site, but only for a limited period oftime. Its agreement with its publisher, CTP Book Printers, precluded a long-term posting on the Internet because it would have decreased sales for theprint version. The original plan was to have a writer or journalist prepare aone volume summary for the general public, but eighteen months after thesubmission of the official report, this popular version has yet to surface.

In contrast, the Guatemalan Commission for Historical Clarification hada coordinated strategy for public dissemination of its findings. It printed42,000 copies of the CEH’s conclusions and recommendations (in Englishand Spanish) that were disseminated on the day of the report’s presentationto the Parties of the Peace Accord. Simultaneously with the presentation inprinted form, the full text of both the English and Spanish recommendationsand conclusions was placed on the Internet.116 Copies were distributed tothe press, libraries, universities, and other sites at the same time. The Sundayfollowing the public presentation, major newspapers in Guatemala carriedsupplements with much of the text of the summary. A week later the full textof the report was posted on a permanent dedicated web site, and notices ofits availability and how to access it placed on other Internet sites focusingon Guatemala and newspapers. The first five volumes of the completereport were published in Guatemala in July 1999, and the seven supple-mental annex volumes were published in October.

The difference in dissemination between the South African and Guate-malan commissions may be the difference between choosing a privatesector publisher and a public sector publisher. The private sector publisherin South Africa has removed the report from the Internet, priced it at levelsunreachable for most South Africans and for many internationals, andgenerally restricted the circulation of the information.117 In Guatemala, theUN Office of Project Services (UNOPS) has given away tens of thousands ofsummary volumes, donated hundreds of complete sets to schools, libraries,and NGOs, and financed the publication of an indexed and hyper linkedCD-ROM which was given away and sold for a nominal price.

IV. BIASES IN THE REPORTS

How commissions arrive at their findings is deeply if subtly influenced byhow they gather their information. The methods, focus, and availability of

116. See CEH Report (visited 15 Nov. 2000) <http://hrdata.aaas.org/ceh/report/english>.117. A CD-ROM version of the report is now available, but only with the purchase of a

complete set of the print volumes, at a cost of several hundred U.S. dollars.


data all shape the ultimate conclusions. This process is beset by complexityand countervailing pressures, and the responses of the commission to thesepressures occasionally create biases and inconsistencies. All commissionssuffer from biases of this kind, as the examples below make clear.

A. Misspecifying Historical Patterns at the CEH

One of the core concerns in an assessment of “macro-truth” is to identifywhen violence occurred. Fewer than 2 percent of the 24,910 killingsdocumented by the CEH occurred in the period 1960–1977.118 Yet in theCEH projection of the total number of dead, about 13.6 percent of theestimated killings occurred in this period; in effect, the CEH undercountedkillings before 1977 by more than a factor of six.119 “Undercounted,” in thiscontext, means more than simply not having statistics on these people. Theirstories were not heard, which means that the social conflicts in which thesepeople were killed were not documented by primary sources, and conse-quently played a less prominent role in the analysis than would have beentrue with unbiased data collection. What happened?

The killings omitted from the CEH’s testimonies and statistics occurredduring the late 1960s and early 1970s and were focused on ruralagricultural workers in the eastern departments of Zacapa and Izabal, aswell as in the flat areas of the southern coast. The primarily Ladino (i.e., notindigenous) workers were organizing trade unions, and the developingauthoritarian state practiced its first counterinsurgency tactics against them.Approximately 22,000 people were killed between 1960 and 1977.120

There are three interrelated reasons that these killings were not wellcovered by the CEH. First, the political structures in which the victims hadbeen organized were, in the Guatemalan term, “disarticulated.” That is, therepression had succeeded in killing enough people that those few whosurvived left the areas and stopped participating in political activism. TheCEH depended strongly on political groups to organize their social bases togive testimonies (by arranging transportation from remote areas, food, socialsupport). Social sectors that were no longer organized were less able to

118. See CEH, TOMO XII, ANEXO III, supra note 24.119. See CEH, TOMO I, supra note 24, at 72–73. Note that this is an analysis of all deaths, not

just arbitrary executions which are the standard category in the report. This analysisdoes not include disappearances.

120. See GABRIEL EDGARDO AGUILERA PERALTA, LA VIOLENCIA EN GUATEMALA COMO FENÓMENO POLÍTICO 61(1971). See also SUSANNE JONAS, LA BATALLA POR GUATEMALA: REBELDES, ESCUADRONES DE LA MUERTE YPODER ESTADOUNIDENSE (1994); THOMAS MELVILLE & MARJORIE MELVILLE, GUATEMALA: THE POLITICS OF

LAND OWNERSHIP (1971).


bring their people to the commission. Relative to the victims of the 1968and 1971 killings, the victims of the early 1980s were well-organized.

Second, during the killings of the late 1960s and early 1970s, therewere very few human rights NGOs in Guatemala around to monitor anddocument, nor were there many international groups that could focusinternational attention. There were a few groups documenting state vio-lence in the late 1960s,121 but ten to fifteen years later, the relatively muchgreater number of domestic and international NGOs assured that mosthuman rights violations would eventually be documented.

Partly as a result of the extensive documentation by civil society of theatrocities of the early 1980s, partly by the sheer enormity of the killings, andpartly due to the 1992 Nobel Peace Prize awarded to Rigoberta Menchúand the educational campaigns in indigenous communities about 500 yearsof European colonialization, the 1990s version of the story about humanrights violations in Guatemala is about violence in the Western highlands inthe early 1980s (i.e., violence against communities populated primarily byindigenous people). The CEH was affected by this, and with its conclusions,the CEH helped to ratify this finding. The historical analysis in the reportattempted to rectify the statistical misspecification, and the late 1960sviolence is covered in the narrative of events. But the earlier period does notstrongly influence the analysis of specific kinds of human rights violationsnor how specific perpetrating units evolved.

This bias does not fundamentally change the story told by the CEH. Thenumber of people killed in the 1968 and 1971 period was certainly manyfewer than those killed 1979 and 1982. However, the example suggestshow, even after elaborate and sophisticated investigations and carefullyinductive report drafting, a truth commission may ultimately confirm theimplicit hypotheses with which they begin. The TRC provides anotherexample of this problem.

B. Bias from Overdependence on Hearings at the TRC

The primary method by which the TRC elicited social and dialogue truth intheir effort to promote restorative truth was by means of public hearings atwhich victims or survivors gave testimony. But if more than 21,000 peoplegave statements, and only 1,818 appeared in hearings, how did the TRCchoose the people who appeared in hearings? The TRC report claims thathearings “should reflect accounts from all sides of the political conflicts of

121. See PAUL KOBRAK, ORGANIZING AND REPRESSION IN THE UNIVERSITY OF SAN CARLOS, GUATEMALA, 1944TO 1996 (1999).


the past,” and that women, men, and youth should all be heard.122 TRC staffoften commented on the commissioners’ intense interest in finding white,Asian, and colored people to appear. Since hearing time was limited,emphasizing representation from some groups necessarily meant less timeand fewer appearances for other groups.

Table 1, below, confirms the anecdotal observations and the TRC policynoted above. Column A shows the relative population proportions of eachof South Africa’s racial categories, indicating for example, that Africansconstitute 76.1 percent of all South Africans. Columns B and C show thenumber and proportion of statements given to the TRC by members of eachracial category: Africans gave 89.9 percent of all statements, while whitesgave 1.1 percent of statements. Columns D and E show the number andproportion of hearing appearances by the racial category of the personappearing. So, for example, 87.5 percent of all people who appeared inhearings were African. Column F combines columns B and D. It shows theproportion of all statement-givers who appeared in hearings. Thus while 8.3percent of African statement-givers appeared in hearings, 36.4 percent ofwhite statement-givers appeared in hearings.

The dramatic outcome in Column F, that white statement-givers wereroughly four times as likely to be selected to appear in hearings as African

122. 5 TRC, supra note 11, at 5–6.123. See 1 TRC, supra note 11, at 168. See also, AAAS/CSVR Transcript Analysis Project,

supra note 23.

TABLE 1

Relative and Absolute Numbers of Statements and Hearing Appearances at the TRC,by Racial Category

ColumnA B C D E F

Percent ofNumber of Percent of Number of Percent of statement-statements statements appearances appearances givers in

Population given by given by in hearings in hearings hearingsof group each group each group from group from group (D/B)

African 76.1% 19,144 89.9% 1,590 87.5% 8.3%Coloured 8.5% 354 1.7% 93 5.1% 26.3%White 12.8% 231 1.1% 84 4.6% 36.4%Asian 2.6% 45 0.2% 23 1.3% 51.1%Unspecified 0.0% 1,523 7.2% 28 1.5% n/a

Total 100.0% 21,297 100.0% 1,818 100.0% 8.5%

Note: data from columns A and B are from TRC, vol. 1, p. 168; data from column D come fromthe AAAS/CSVR Victim Transcript Analysis Project (see text); columns C, E, and F arecalculated.123


statement-givers, is the product of a complex process. Note that Africans areover represented among statement-givers, relative to their proportion of theSouth African population (Column A), and other groups are correspondinglyunder represented. However, as the TRC report argues:

If the conflicts of the past had affected the population groups equally, onewould expect that the numbers of deponents in each category would beproportionate to the national population. However, the table shows that thenumber of deponents [i.e., statement-givers] who described themselves asAfrican is much higher than would be expected from the population statistics.. . . [And t]he reality is that the conflicts of the past affected very few whites incomparison to the rest of the population, so very few came forward to makestatements.124

Despite this recognition in the report, the TRC commissioners empha-sized the appearance in hearings of non-Africans, selecting them preferen-tially from among statement-givers. This emphasis was likely one of theeffects of Archbishop Tutu’s belief (in effect, treated as a working hypothesis)that South Africa “is soaked in the blood of her children of all races.”125 Theeffort to show victims of all races may make sense if the objective is tobalance hearing appearances as much as possible to represent the popula-tion of South Africa, and this effort itself may be the logical outcome of astrategy to organize hearings in order to promote reconciliation.

However unintentionally, the emphasis on selecting non-Africans cre-ated an unequal opportunity for Africans to appear in hearings, exacerbat-ing the resentment many statement-givers felt at not being tapped forhearings. This resentment has been problematic for the long-term achieve-ment of restorative truth.126 More directly, the racial imbalances betweenstatement-givers and hearing appearances damaged empirical truth. Bygiving white victims space in hearings far beyond their proportion ofstatement-givers and out of proportion to their level of victimization, theTRC created the truth that the “children of all races” suffered violationsmore or less equally. Balancing victim groups also balanced perpetratorgroups, and consequently created the impression that all the political actorscommitted violations in more or less equal ways. The moral equivalenceamong perpetrating parties and among victim groups implied by the choices

124. 1 TRC, supra note 11, at 168–69.125. Id. at 1.126. The TRC recognized that people not selected for hearings resented the exclusion, but

the report does not consider the disproportionate effect the selection process may havehad on Africans and thus on social truth. See id. at 6; see also Hugo van der Merwe, TheSouth African Truth and Reconciliation Commission and Community Reconciliation: aCase Study of Duduza, Centre for the Study of Violence and Reconciliation WorkingPaper (1998).


of victims to appear in the hearings and in the Archbishop’s reconciliation-focused foreword to the report were so powerful that the detailed historiesin volumes two and three, and the unequivocal conclusions in volume fiveare insufficient to overcome them. The lack of clarity, equivocal positions,and the lack of connection between the TRC’s impressive body of evidencewith the findings in the report have made it vulnerable to politicallymotivated critiques127—which is perhaps the worst outcome for a commis-sion charged with articulating the truth.

V. CONCLUSIONS AND RECOMMENDATIONS

This article has explored the nature of the “truth” that truth commissions aremandated to find and the factors affecting the process of truth finding.Clearly, the documentation and interpretation of truth is considerably morecomplex and ambiguous than many analysts of truth commissions as-sume—proponents and critics alike. Far from being generic bodies, truthcommissions have very different approaches to the kind of “truth” they areseeking. Their official mandates, the perceptions and priorities of theircommissioners and key staff, the methodological orientations utilized, andthe level of resources available shape the nature of their findings and thetype of report they produce. Decisions made by those working within aspecific truth commission regarding how they organize their work andperform their tasks may also have important consequences for truth-finding.

What then are the implications of the analysis in this article? What kindof “truth” can and should truth commissions seek? First, it is our view thattruth commissions are far better suited to pursue what we have termed“macro-truth,” the assessment of contexts, causes, and patterns of humanrights violations, than “micro-truth” dealing with the specifics of particularevents, cases, and people. To be able to make macro-determinationsrequires utilizing more of a social science than a legal approach to truthfinding. Second, we believe that truth commissions should focus on theobjective rather than the subjective dimensions of truth. Doing otherwiseamounts to confusing process and outcome.

Patterns, trends, tendencies, and the big picture are often the piecesmost missing from the history of transitional societies. Victims and theircommunities know quite a bit about the daily micro-processes of persecu-tion and abuse: they lived it, after all. Although many victims and theirsurvivors may want acknowledgments from perpetrators or the details of

127. For an example of such a critique, see ANTHEA JEFFERY, THE TRUTH ABOUT THE TRUTH COMMISSION

(1999).


particular stories, they also want a sense that they were not alone, and thatthe perpetrators were not a few “bad apples,” but rather that an entire legal,ideological, political, and military system was responsible for years, ordecades, of human rights violations. This broad explanation should not beleft to scholarly debate, but should be the core of a commission’s work.

The micro-level truths, the forensic or microscope truth, are important:the facts must be gotten right. However, commissions are not particularlygood at determining the details of hundreds or thousands of cases. They lackthe time, staff, and resources to undertake such a massive investigatory task.Moreover, when a commission does make micro-truth findings, inevitablythere are likely to be errors, which in the aggregate have little or no effect onthe macro-truth. But these errors provide critics with a basis for claimingthat the entire process is discredited. Beyond a small number of illustrativecases and a limited number of hearings on events or institutions, micro-leveltruth should be better left to judicial tribunals which specialize in weighingevidence, on a case-by-case basis.

Three of the forms of truth identified by the TRC (narrative truth, socialtruth, and restorative truth) are each important goals of a truth commission,and they deserve substantial attention. But these are subjective, notobjective. They are process goals, not forms of truth. The distinctionbetween the subjective and objective components of truth commissionsdoes not denigrate the importance of subjective processes to validatingvictims’ experiences and ultimately contributing to reconciliation. However,the conflation of the subjective with objective truth-finding weakens thepolitical and moral importance of truth by making truth a matter of personalopinion, and not the product of verifiable scientific best practices.

A. Recommendations

Our analysis in this paper leads to the following recommendations:

1. Mandate: The mandate should specify that the function of theCommission is to make broad findings about the antecedents,causes, patterns, trends, perpetrators’ motives, and impact onvictims of the period of violence being studied. The mandate shouldexplicitly specify that the findings of the Commission must be basedon legal and scientific best practices to ensure that workingassumptions are tested and that the findings will be robust tosustained and informed criticism.

2. Commissioners: Commissioners should play a strictly advisory role.That is, they should not participate in the day-to-day operations ofthe commission, but instead should function as a governing board in


setting policy, making broad determinations, and guiding theCommission’s strategy. To promote their focus on strategic issues(and not on tactical concerns), there should be relatively fewcommissioners, and they should work part-time.

3. Staff: Staff should be professional and entrusted with the quotidianoperations and all technical questions of the commission. Theyshould be drawn from a variety of intellectual disciplines with anemphasis on qualitative and quantitative rigor.

4. Attribution of responsibility for violations: The goal of the Commis-sion should be primarily to identify institutions, parties, structures,and ideologies that permitted or committed gross human rightsviolations. Only secondarily should a Commission identify particu-lar individuals who played roles in the abuses. The attribution ofresponsibility should be centered on the broad proportions orpatterns of specific violations attributed to the various parties to theconflict, rather than excessive attention to one or a few illustrativecases.

5. Function of the findings: The findings of a commission, made viaevent or sectoral hearings or other public processes as well as in thefinal report, must be unequivocal, massive, objective, and undeni-able, and made according to scientific best practices. The findingsshould be victim-centered, telling the story from their point of viewand validating their experiences. A truth commission cannot by itselfchange the future of a democratizing nation. But at the very least, acommission must present a narrative that becomes the centralcomponent in the debates about the past which shape the future.

the truth of truth commissions: comparative lessons from haiti, south africa, and guatemala

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