truth and memory drafting a truth commission mandate a practical tool

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International Center for Transitional Justice

TRUTH AND MEMORY

Drating a TruthCommission Mandate

A Practical Tool

June 2013


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Cover Image: Portion o the the Keiskamma

Tapestry, South Arica. Created by over 100

women rom Hamburg and neighboring villages

in South Arica, the Keiskamma Tapestry tells

the history o the people o the Eastern Cape

Frontier, including their experience o repression

under apartheid, as despicted in this detail.

Courtesy o The Keiskamma Trust.


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TRUTH AND MEMORY

Drating a TruthCommission Mandate

A Practical Tool

Eduardo Gonzlez

June 2013


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or Transitional Justi

Drating a Truth Commission Mandate : A Practical Tool

iii

CONTENTS

1. Introduction...............................................................................................................................................................................................................................................................................................................................................................1

2. Considerations or Establishing a Truth Commission..........................................................................................................................................................................

3

3. Norms and Policy Orientations...........................................................................................................................................................................................................................................................................5

Preamble ......................................................................................................................................... 5

Objectives ....................................................................................................................................... 5

Functions ....................................................................................................................................... 7

4. Defning the Object o Inquiry ............................................................................................................................................................................................................................................................................9

What Happened? Material Scope o the Inquiry ........... ............ ............ ............ ............ ............ ...... 9

Who Is Responsible? Personal Scope o the Inquiry ............ ............ ............ ............ ............ .......... 10

What ime Periods Will Be Relevant? emporal Scope o the Inquiry ............ ............ ............ ...... 10

What erritories Are Relevant? erritorial Scope o the Inquiry .................. ............ ............ .......... 11

5. Operational Aspects.......................................................................................................................................................................................................................................................................................................................13

Appointing Commissioners, Teir Role, and Removal ............ ............ ............ ............ ............ ...... 13

Investigative Powers ............ ............ ............ ............ ............ ............ ............ ............ ............ .......... 15

Protections and Guarantees ............ ............ ............ ............ ............ ............ ............ ............ .......... 16

Duration o the Work o the Commission ............ ............ ............ ............ ............ ............ ............ 17

Organization ................................................................................................................................ 18

Confdentiality ............................................................................................................................. 19

Funding ........................................................................................................................................ 19

Dissolution o the Commission and Other Final Provisions ............ ............ ............ ............ .......... 20

Bibliography...................................................................................................................................................................................................................................................................................................................................................................................21


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1. Introduction

Over orty truth commissions have been created since the establishment o the Argentinian National

Commission on the Disappearance o Persons, in 1983.1 Te variety o the commissions is enormousas

are the legal instruments that created them. Tey set dierent goals, outline dierent parameters or theinquiry in question, and defne dierent powers or members o the commission, among other critical as-

pects. Teir diversity reects the dierent and unique historical conditions that gave rise to each commis-

sion. Yet among them, a certain convergence can be appreciated: eective mandates have a clear architec-

ture, answering the need o the commission to have guidance in its inquiry and su ciently empowering it

to carry out its task.

Drating the mandate o a truth commission, thereore, is a critically important step in the truth-seeking

process that should be undertaken in a serious, well-thought-out manner. While no two mandates will

be identical, they all need to respond to similar challenges and comply with international human rights

norms.

Well-crated mandates enable a commission to undertake its task with eectiveness: they set the stageor productive cooperation among institutions and allow civil society to ully understand the nature and

potential o the truth-seeking exercise. A mandate that is incomplete, obscure, or contradictory to unda-

mental human rights standards can cripple a truth commission in many ways, orcing it to waste valuable

time and resources in defning the parameters o its task, causing critical contradictions within the com-

mission, and diminishing the capacity o key stakeholders to cooperate eectively with the commission.

Tis document is intended to acilitate the process o drating a mandate or a truth commission charged with

the nonjudicial investigation o serious human rights violations. It is designed to be used by government o-

fcials, civil society activists, victims organizations, and other stakeholders in a transitional justice process.

As a practical tool, it covers aspects o a legal mandate that are necessary or an eective truth-seeking body,

such as the normative and policy orientations entrusted to the commission, the actual defnition o the ob-ject o inquiry, guidance on the process governing each phase o the commissions tenure, and the capacities

and prerogatives necessary to ensure a comprehensive investigation. An adequate legal mandate gives clarity

on each o these areas to stakeholders and members o the uture commission.

Te document also provides examples o how laws or decrees establishing a commission in various

countries have addressed the elements o a mandate. Tese are included only as illustrations: they are not

1 National Commission on the Disappearance o Persons o Argentina (Comisin Nacional sobre la Desaparicin de Personas),

created by Decree No. 187/83, December 15, 1983.


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exhaustive, nor are they necessarily models to be ollowed. Because every context is dierent, each com-

mission must respond to its specifc context, national needs and realities, and the legislative rules o the

governing country or territory.

Tis tool, thereore, does not aspire to be prescriptive on each o the choices that mandate draters willneed to make, but it indicates areas where it will be necessary or them to make clear decisions. Also, it

assumes that the act o establishing a truth commission responds to normative orientations. A truth com-

missions needs to be eective in order to guarantee the rights o victims o the most serious human rights

violations. Any choice made by the draters o a mandate must meet the genuine goal o complying with

governmental duties. Among those duties, clearly, the truth commission must ensure its ull allegiance to

the rights o victims, guarantees o nondiscrimination against any participants, and principles o airness

during the entire investigative process.


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2. Considerations or Establishing a Truth

Commission

A truth commission is established by an o cial mandate, or legal ramework, that authorizes the actionso the commission within certain parameters. Tese include:

Normative and policy orientationsthe principles, objectives, and unctions that will guide the work

o the truth commission

Te object o inquiry or the description o the acts and crimes that the commission will establish

Operational aspectsthe powers, prerogatives, and procedures a commission will need to comply

with in order to achieve its mission

National governments, through the executive or the legislative branch, are the source o most truth com-

mission mandates. However, in some cases, truth commissions have been established by other means,

such as by an international authority in the absence o a national government,2 direct negotiation in a

peace process,3 or other orms o agreement between parties.4

Te origin and orm o the mandatewhether a decree by the executive branch or an act o parliament

or a treaty, or some other instrumentresult rom each countrys specifc context and decision-making

institutions. Yet in each case, the mandate needs to include certain elements in order to ensure that the

commission is air, eective, and objective.

2 The Commission or Reception, Truth and Reconciliation in East Timor was established in 2001 by the UN Transitional

Administration in East Timor (UNTAET) Regulation No. 2001/10, July 13, 2001, www.un.org/en/peacekeeping/missions/past/etimor/

untaetR/Reg10e.pd [hereinater East Timor Mandate].

3 The Historical Clarifcation Commission o Guatemala (Comisin para el Esclarecimiento Histrico) was established in 1994 as part

o the Oslo Peace Agreements.

4 The Truth and Reconciliation Commission o Canada was established in 2009 as the result o a judicial settlement between the

Government o Canada, fve Christian churches, and the Assembly o First Nations. See Schedule N o the Indian Residential Schools

Settlement Agreement, January 7, 1998, www.residentialschoolsettlement.ca/SCHEDULE_N.pd.


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3. Norms and Policy Orientations

Preamble

Te preamble presents the reasons or establishing the truth commission, laying out a broad vision or thecommission as well as the legal standards, ethical principles, and policy priorities that will guide its work.

In essence, it expresses the intention o the draters and the spirit o the instrument, while providing guid-

ance on the interpretation o specifc provisions o the mandate. In some legal traditions, when an instru-

ment does not include a preamble, the mandate is issued in conjunction with other documents, such as a

declaration o purpose or an explanatory description o the mandates provisions.

Te original preamble to the Liberian law that established the ruth and Reconciliation Commission o Liberia,

or example, is quite long,5 covering issues such as the recent history o Liberia and the countrys aspiration to

build a peaceul and democratic society. Te excerpt below provided guidance to the commission on how to

interpret and implement its mandate under the standards o international human rights law.

Excerpt: Truth and Reconciliation Commission o Liberia Mandate (2004)6

Preamble

Rea rming the commitment o the Liberian people to peace and justice, unity, national

healing and reconciliation and the general principles o human and peoples rights as

enshrined in the Constitution o the Republic o Liberia, the Arican Charter on Human

and Peoples Rights, the Charter o the United Nations and the Universal Declaration o

Human Rights and other international conventions and protocols relating to the rights and

protections o women and children . . . .

Objectives

Te objectives are the commissions raison dtre and enunciate the contributions and outcomes expectedo the commission. Every mandate enunciates its objectives dierently, expressing priorities that derive

rom local circumstances. However, objectives usually all into three main areas:

1. Establishing the truth about crimes and events, what persons and groups are responsible for

crimes, the causes of abuses, and historical explanation

5 Truth And Reconciliation Commission o Liberia Mandate, National Transitional Legislative Assembly, May 12, 2005, http://

trcoiberia.org/about/trc-mandate [hereinater Liberia Mandate].

6 Ibid. at Preamble.


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Some commissions are mandated to conduct descriptive act-fnding, which includes an exhaustive recon-

struction o events and their circumstances, with the participation o dierent agents. Other commissions

are mandated to add an explanatory account, taking into consideration the historical, institutional, and

cultural contexts o past abuse.

For example, the law that created Brazils National ruth Commission poses an ambitious goal:7 the com-

mission must reveal the acts and provide an account o the surrounding circumstances and apparatus

that led to serious human rights violations. In the case o our specifc crimestorture, summary execu-

tion, enorced disappearance, and hiding o victim remainsthe mandate specifcally orders the commis-

sion to determine the perpetrators.

Excerpt: National Truth Commission Law, Brazil (2011)8

Art. 2

Te objectives o the National ruth Commission are the ollowing:

1. Clariy the acts and circumstances surrounding the serious violations o human rights

mentioned in Art. 1 above;

2. Promote the clarifcation o authorship or tortures, summary executions, orced

disappearances, and hiding o victims remains;

3. Identiy and reveal the structures, locations, institutions and circumstances leading to

serious human rights violations . . . .

2. Protecting, recognizing, and restoring the rights of victims

Several mandates include objectives such as the restoration o victims dignity and rights, attention to the

well-being and psychological healing o victims, and the drawing up o policy proposals aimed at improv-

ing the situation o victims.

Te Peruvian decree that created the ruth and Reconciliation Commission,9 or example, specifcally

mentions proposals or reparation and dignifcation as an intrinsic objective o the truth commission.

Te restoration o personal dignity was included as an objective, responding to the local context, because

in Peru, victims have been stigmatized by the public or local communities who assume that they were as-

sociated with rebel groups and, thereore, somehow deserving o victimization.

Excerpt: Truth and Reconciliation Commission Supreme Decree, Peru (2001)10

Art. 2

Te Commission will have the ollowing objectives:

[ . . . ]

(c) to draw up proposals or reparation and dignifcation o the victims and their amily

members.

7 National Truth Commission o Brazil (Comisso Nacional da Verdade) created by Law No. 12.528, November 18, 2011, www.

planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12528.htm [hereinater Brazil Mandate].

8 Ibid. at Art. 3.

9 Truth and Reconciliation Commission o Peru (Comisin de la Verdad y Reconciliacin) created by Supreme Decree N 065-2001-

PCM, June 4, 2001, www.cverdad.org.pe/lacomision/cnormas/normas01.php [hereinater Peru Mandate].

10 Ibid. at Art. 10.


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3. Positive social and political transformations

Several mandates include societal goals that a country should strive or in the wake o atrocity. In some

cases, mandates include the goal o contributing to post-conict reconciliation, advancing social justice,

or proposing institutional reorms that should ensure nonrecurrence o abuses.

Te Sierra Leonean law that created the ruth and Reconciliation Commission includes in a single idea three

important aspirational goals: healing, reconciliation, and nonrecurrence o violations and abuses.11 Tus, the

mandate aims to restore a broken national community and put in place measures to consolidate peace.

Excerpt: Truth and Reconciliation Commission Act, Sierra Leone (2000)12

Art. 6

Te object or which the Commission is established is [ . . . ] to promote healing and

reconciliation and to prevent a repetition o the violations and abuses suered.

Functions

Functions are the activities that the commission is authorized to undertake in order to comply with its ob-

jectives. As objectives may vary, or have dierent ormulations or emphases, unctions may also vary widely.

Te ollowing unctions are oten included in truth commission mandates, in part or in ull:

o prepare and submit a report o its fndings and recommendations to national authorities and the public

o receive and compile inormation provided by direct statements, as well as rom archives and other

documentary sources

o conduct investigations and research

o protect the integrity and wellbeing o victims and witnesses

o conduct public communication activities, such as public hearings, educational events, etc.

o support other transitional justice policies, such as trials, reparations, and vetting

o carry out events promoting reconciliation, at the national or local level

Te National Reconciliation Commission in Ghana was authorized by its mandate to conduct a wide array o

activities to achieve its objectives.13 In some cases, its unctions were very specifc: the commission was tasked

with investigating events, but also determining whether they were the result o a plan by a public institution.

Excerpt: National Reconciliation Commission Act, Ghana (2002)14

Art. 4

For the purposes o attaining its object, the Commission shall:

11 Sierra Leone Truth and Reconciliation Commission Act, February 2000, www.sierra-leone.org/Laws/2000-4.pd [hereinaterSierra

Leone Mandate].

12 Ibid. at Art. 6.

13 Ghana National Reconciliation Commission created by Act 611 o the Parliament o the Republic o Ghana, January 9, 2002, www.

ghanareview.com/reconact.html [hereinater Ghana Mandate].

14 Ibid. at Art. 4.


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(a) investigate violations abuses and o human rights relating to killings, abductions,

disappearances, detentions, torture, ill-treatment and seizure o properties suered by any

person within the specifed periods;

(b) investigate the context in which and the causes and circumstances under which the

violations and abuses occurred and identiy the individuals, public institutions, bodies,

organisations, public o ce holders or persons purporting to have acted on behal o any

public body responsible or or involved in the violations and abuses;

(c) identiy and speciy the victims o the violations and abuses and make appropriate

recommendations or redress;

(d) investigate and determine whether or not the violations and abuses were deliberately

planned and executed by the state or any person reerred to in paragraph (b);

(e) conduct investigations relevant to its work and or seek the assistance o the police and any

public or private institution, body or person or the purpose o an investigation;

( ) investigate any other matters which it considers requires investigation in order to promote

and achieve national reconciliation; and(g) educate the public and give su cient publicity to its work so as to encourage the public to

contribute positively to the achievement o the object o the Commission.


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4. Defning the Object o Inquiry

Te mandate must clearly determine the ocus o the commissions investigationwhat happened and

how, who is responsible, who was aected, when did it happen, where did it take place?

What Happened? Material Scope o the Inquiry

Te mandate must indicate the acts and crimes that the commission will investigate, responding to the

unique characteristics o the given conict or historical experience. ypically, mandates identiy a number

o serious human rights violations or scrutiny, such as those aecting the lie or integrity o individuals.

Many include war crimes. Some recent mandates identiy other violations, like violations o economic

rights. Most recent mandates explicitly mention violations committed against women, children, and other

vulnerable groups in order to prevent them rom being ignored.

Te material scope o the inquiry can be wide or narrow, depending on the number o crimes included

in the mandate. Some mandates opt to include a closed list o acts that must be examined by the com-

mission, while others leave the possibility open to the commission itsel o adding other acts that are o

similar gravity to those explicitly mentioned.

Te Peru mandate comprised an open list o acts, allowing the commission to include additional crimes

as it saw ft.15 Clause (c) o the decree indicates other serious injuries, without speciying which ones, al-

lowing the commission to include all orms o sexual violence. Also, clause (e) allowed the commission to

include specifc studies on violence against children, orced displacement, orced recruitment, the imposi-

tion o servitude, and other violations.


Art. 3. Te ruth Commission shall ocus its work on the ollowing acts:

(a) Murders and kidnappings;(b) Forced disappearances;

(c) orture and other serious injuries;

(d) Violations o the collective rights o the countrys Andean and native communities;

(e) Other crimes and serious violations o the rights o individuals.

15 Peru Mandate,supra note 9.

16 Ibid. at Art. 3.


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Who Is Responsible? Personal Scope o the Inquiry

Each commission is mandated to identiy serious transgressions carried out by somebody; but each com-

mission has defned these agents in a dierent way. Some commissions have limited their investigations

to acts committed by public servants, while others have included the role o other groups, such as armed

oppositions, militias, international actors, etc.

Some mandates are silent on this issue, allowing the commission to decide whether it will investigate acts

committed by all types o agents or only by some specifc type o perpetrator. In East imor (now imor-

Leste), or instance, the mandate that created its Commission or Reception, ruth and Reconciliation

authorized the commission to look into violations committed by all sides o the conict.17 Further, it

required the commission to identiy each perpetrator personally or institutionally, as well as the extent o

their responsibility as deliberate planners.

Excerpt: Commission for Reception, Truth and Reconciliation Regulation, East Timor (2001) 18

Art. 13.1

13.1. In carrying out its objective to seek to establish the truth regarding the commission o human

rights violations in East imor, the Commission shall have the ollowing unctions: [ . . . ]

(iii) which persons, authorities, institutions and organisations were involved in human rights

violations;

(iv) whether human rights violations were the result o deliberate planning, policy or

authorisation on the part o a state or any o its organs, or o any political organisation,

militia group, liberation movement, or other group or individual; [ . . . . ]

What Time Periods Will Be Relevant? Temporal Scope o the Inquiry

Each country will defne dierently the time period that the commission must investigate. Te length o time

under investigation will determine how comprehensive the historical narrative oered by the commission will

be. However, examining very extended periods o time may pose signifcant methodological challenges.

For instance, the East Timor mandate gave very concrete temporal limits to the commissions investiga-

tion, from the 1974 Carnation Revolution in Portugal (the colonial power responsible for East Timor)

to the 1999 creation of the United Nations Transitional Administration in East Timor (UNTAET), the

UN mission established to administer the country after the evacuation of occupying Indonesian forces.19

Moreover, the mandate authorized the commission to give special attention to two events, at the begin-

ning and the end of the investigations temporal limits.

Excerpt: Commission for Reception, Truth and Reconciliation Regulation, East Timor (2001)20

Art. 13.2

13.2. In carrying out its unctions under Part III, the Commission may consider human rights

violations which took place between 25 April 1974 and 25 October 1999 and shall take

into particular consideration:

17 East Timor Mandate,supra note 2, at Art. 13.1

18 Ibid.

19 Ibid. at Art. 13.2.

20 Ibid.


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(a) the events beore, during and ater the popular consultation o 30 August 1999 which

resulted in a loss o lie, injury, destruction o property, the commission o sexual oences

and the orcible deportations o persons; and

(b) the events and experiences o all parties immediately preceding, during and ater the entry

o Indonesia into East imor on 7 December 1975, and the eect o the policies and

practices o Indonesia and its orces present in East imor between 7 December 1975 and

25 October 1999.

What Areas Are Relevant? Territorial Scope o the Inquiry

Most mandates are silent on the issue o whether the commission is authorized to investigate violations

committed outside o the governing bodys legal territory. However, in many cases, relevant violent acts

have taken place in more than one country, or spilled across borders, or aected oreign nationals living as

reugees or exiles in a country. A clear decision on this issue is recommended.


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5. Operational Aspects

Appointing Commissioners, Their Role, and Removal

Appointing members o a truth commission is one o the most undamental elements that determine thesuccess or ailure o a commission. In act, some establishing decrees and laws emphasize its importance

by placing provisions reerring to commissioners at the beginning o the mandate.

Each mandate specifes the number o commissioners that will lead the inquiry. However, there is no rule

or this, as some commissions have been led by only three members, while others, being quite large, have

had seventeen. Also, mandates speciy whether all commissioners will be nationals o the country.

All mandates emphasize the high qualifcations required o an individual to be appointed as a commis-

sioner. Mandates usually demand a record o integrity, experience, and political independence. Sometimes

mandates indicate elements that would disqualiy a person rom becoming a member o the commission,

such as active political a liation or personal involvement in abuses. In some mandates, commissioners are

directly appointed by the head o state. Other mandates establish a selection mechanism, including the

nomination o candidates, vetting, and fnal appointment.

o achieve parity and airness, some mandates include details on the number o commissioners that should rep-

resent various regions o the country, ethnic groups, social minorities, women, and other demographic groups.

Mandates oten include conditions o service, indicating the relative status o the position o a commissioner, usu-

ally with the purpose o fxing compensation levels and time demands. Such mandates also provide details on the

conditions under which a commissioner will be removed, or example, due to illness, incapacity, or misconduct.

A detailed process o nomination should include a clear time line, as the ull process o nominating, vet-

ting, and decision-making can become time consuming, particularly in contexts where several constitu-

encies are expected to participate. Te East imor mandate anticipated this. It speaks o air gender

representation, instead o speciying parity.


Art. 4

4.3. A Selection Procedure, involving broad consultation in the selection o the Commissioners,

shall consist o the ollowing:

21 East Timor Mandate,supra note 2.


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(a) within one month o the promulgation o the present Regulation, a Selection Panel (the

Panel) shall be ormed, composed o the ransitional Administrator or his or her appointee,

serving as Chair, and one member appointed by each o:

(i) Partido rabalhista;

(ii) Partido Kota;

(iii) Fretilin;

(iv) UD;

(v) the ransitional Administrator ater consultation with proautonomy supporters;

(vi) the NGO Forum;

(vii) Rede;

(viii) Presidium Juventude;

(ix) the Association o Ex-Political Prisoners;

(x) the Association o Families o Disappeared Persons;

(xi) a joint nomination, by the Diocese o Baucau and the Diocese o Dili; and

(xii) the O ce o Human Rights Aairs o UNAE.

[ . . . ]

(c) the Panel shall call or nominations rom the people o East imor o persons who wish

to serve as National Commissioners, indicating a simple procedure or nominations and a

reasonable deadline by which nominations should be submitted;

(d) the Panel may itsel nominate persons or consideration as National Commissioners, but only

where the Panel have specifcally consulted with community groups concerning such persons.

(e) ater consultation with a broad sector o society, including representatives o minority

groups, the Panel shall select persons to recommend to the ransitional Administrator orappointment as National Commissioners. Te Panel shall also make a recommendation

concerning the Chair o the Commission;

() the Panel shall take decisions by consensus, when possible, and in the absence o consensus,

by a majority vote o the Panel;

(g) in making its recommendation, the Panel should give special consideration to the

representation o a diversity o experiences and views, including attitudes towards the past

political conicts in East imor, and regional and air gender representation;

(h) i a member o the Panel is nominated as a National Commissioner, and wishes to be

considered or appointment to the Commission, he or she must resign rom the Panel.

Te organization which appointed such person to the Panel shall be entitled to appoint a

substitute.

4.4. Te Selection Panel may include one or two international persons in their recommendations.

4.5. Ater appointment, the ransitional Administrator shall publish the names o those

appointed as National Commissioners in the O cial Gazette o East imor.

[ . . . ]


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Te Brazil mandate is an example o direct appointment o commissioners.

Excerpt: National Truth Commission Law, Brazil (2011)22

Art. 2

Te National ruth Commission will be ormed democratically and comprise seven Brazilian

members appointed by the President o the Republic who have distinguished themselves by

their good standing and ethical conduct, contributions to democracy, constitutionalism and

human rights.

Investigative Powers

In order to carry out the unctions entrusted to it, a truth commission needs to enjoy certain powers,

some o which may be similar to those o a parliamentary enquiry or a law-enorcement institution.

Te ollowing investigative powers fgure prominently in mandates:

Te power to summon persons, including government o cials, to appear beore the commission and

to produce articles or documents

Te authorization to conduct inspections in places o interest, such as prison acilities and military bar-

racks, and initiate exhumations in accordance with the law and in coordination with law enorcement

Te authorization to obtain o cial cooperation to ensure the security o proceedings, o ces, and

persons related to the commission

Te Peruvian commission, or instance, could only request inormation, instead o summoning it.23

However, due to a avorable political context, the provision was ultimately su cient to obtain necessary

inormation.


Art. 6

Te ruth Commission shall enjoy the ollowing authority or ulflling its unctions:

(a) o interview and compile rom any person, authority, unctionary or public servant all the

inormation it considers pertinent.

(b) o request the cooperation o unctionaries and public servants in order to access

documentation or any other State inormation.

(c) o carry out visits, inspections or any other investigate step it considers pertinent. o that

end, the Commission shall be able to count on the support o experts to urther its work.

(d) o carry out public hearings and, as it considers appropriate, carry out investigative steps in

a confdential manner, with the capacity to maintain the confdentiality o identity o those

who provide important inormation to it or participate in the investigations.

(e) o take steps to attain security measures or persons who, in the judgment o the

commission, are in a situation that threatens their lie or personal integrity.

22 Brazil Mandate,supra note 7, at Art. 2.

23 Peru Mandate,supra note 9, at Art. 6.

24 Ibid.


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() Te ruth Commission shall establish channels o communication and mechanisms or the

participation o the population, especially that which was aected by the violence.

(g) o approve its internal organizat ional and operating regulations or ulflling its objectives

and authority.

Protections and Guarantees

Members o the commission, sta, and persons cooperating with the inquiry must be protected against

physical threats or any kind o reprisal resulting rom their work or participation. Mandates usually

include such language, ensuring that the commission will have the cooperation o law enorcement bodies

to guarantee its security. Some mandates have included provisions to ensure that no legal action will be

used to harass members or staers.

Furthermore, truth commissions must include guarantees o due process and guarantees o nondiscrimination.

Due-process guarantees seek to ensure that the rights o persons who are alleged to have committed human

rights violations are respected during the process o investigation, particularly i there are adverse fndings.

Nondiscrimination guarantees seek to ensure that the mandate is applied in a nondiscriminatory manner,

including to sectors o the population who could be overlooked i not identifed in explicit provisions.

In some cases, members o a commission and its sta have been sued or libel due to the fndings in

their reports. Te provision contained in the Ghana mandate reduced the possibility o rivolous legal

harassment;25 however, every legal system has idiosyncrasies that need to be considered in ensuring a bal-

anced and eective approach.


Art. 21

A member o the Commission, a member o sta o the Commission, or a person who per-orms a task on behal o the Commission, shall not be liable in respect o anything contained

in any report, fnding, point o view or recommendation made or expressed in good aith

under this Act.

Te East imor mandate provides airness guarantees, though they are not exhaustive. Other guarantees

may include the right to legal representation or deendants or the right to respond to allegations or

adverse fndings.


Arts. 17 and 25

17.1. No witness may be compelled to incriminate himsel or hersel. Every person who is

invited or required to come beore the Commission shall be inormed o such right. I at

any time it appears to the Commission that a question asked o a witness is likely to elicit a

response that might incriminate the witness, the Commission shall readvise the witness o

his or her right not to answer the question.

25 Ghana Mandate,supra note 13, at Art. 21.

26 Ibid.

27 East Timor Mandate,supra note 17, at Art. 17.


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17.2. No witness may be compelled to incriminate the witness spouse or partner, parents,

children, or relatives within the second degree.

A provision in the Liberia mandate addressed the scope o the inquiry, making explicit mention o the

violations suered by women, children, and other vulnerable groups, and complementing other language

in the mandate.28 It also included a clear declaration o principles regarding the treatment o victims,

reiterating principles o nondiscrimination and inclusion.

Excerpt: Truth and Reconciliation Commission o Liberia Mandate (2004)29

Art. 4. Section (e)

Adopting specifc mechanisms and procedures to address the experiences o women, children

and vulnerable groups, paying particular attention to gender based violations, as well as to the

issue o child soldiers, providing opportunities or them to relate their experiences, addressing

concerns and recommending measures to be taken or the rehabilitation o victims o human

rights violations in the spirit o national reconciliation and healing.

[ . . . ]

Art. 25. Section (q)

When dealing with victims, the Commission shall be guided by the ollowing principles:

(i) victims shall be treated with compassion and respect or their dignity; they shall be treated

equally, without regard to race, ethnicity, religion, language, sex, or nationality; and,

procedures dealing with victims should be expeditious and air;

(ii) appropriate measures shall be taken to minimize inconvenience to victims and, when

necessary, to protect their privacy, to ensure their saety and that o their amilies or

witnesses testiying on their behal; and(iii) the RC shall take su cient measures to allow victims to communicate in the language o

their choice.

Duration o the Work o the Commission

Te mandate must clearly speciy the time allotted or the commission to complete its work and the pro-

visions to be made by the government in acilitating its work with e ciency and independence. As truth

commissions have become more complex, dealing with larger scopes o research, the time allotted or their

work has increased.

Very ew commissions are given ewer than two years to comply with their mandate. Also, most mandates

include the possibility o extension, under a certain procedure.

For instance, a clause in the Ghana mandate indicates that the commission will work or 12 months, with

a possible extension contingent on presidential approval.30 In a separate provision, the mandate calls every

meeting o the commission a hearing, so that the time starts to run ater commissioners meet. However,

reerring to dierent clauses may be a source o conusion.

28 Liberia Mandate,supra note 5, at Art. 4(e).

29 Ibid.

30 Ghana Mandate,supra note 13, at Art. 5.


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Art. 5. Inauguration and duration, preparation and publicity:

(1) Te Commission shall be inaugurated within two weeks o the appointment o its members

and shall operate or a period not exceeding 12 months rom the date o its frst hearing

except that, or good cause shown by the Commission, the President may by executive

instrument extend the term o the Commission or a urther period o six months.

Organization

Each commission is organized dierently, depending on the scope o its investigations and unctions. In

some cases, the mandate has been silent on the issue o organization, and the commission has been ree

to choose its own internal structure. In other cases, the mandate specifes the commissions organization,

creating special subcommittees. Tis model may respond to contextual needs. Te commission may be

entrusted with special unctions, in addition to truth-seeking, that require specifc teams (or example,

units or allocating reparations). Also, the commission may be required to cover certain geographic areas

with the mandate speciying where o ces should be opened.

Te Sierra Leone mandate provides an example o a mandate leaving discretionary powers to the commis-

sion to determine its structure, sta, and location, as it deems ft.32 It includes a clear injunction that units

within the commission must respect air gender and regional representation.


Art. 10

(1) o assist it in the perormance o its unctions, the Commission may appoint such

committees as it may consider necessary.

(2) A committee under this section shall include persons who are not members o theCommission but who are appointed, taking into account gender representation and

regional participation in the work o the Commission.

(3) A member o a committee who is not a member o the Commission shall be paid such

allowances as the Commission may determine.

Art. 11

(1) Te Commission shall have such o ces and may employ such sta, including citizens o

Sierra Leone, as it may consider necessary or the e cient perormance o it s unctions.

(2) Public o cers may be seconded or otherwise render assistance to the Commission.

(3) Te sta o the Commission shall be employed on such terms as the Commission shall,

ater consultation with the Selection Coordinator, determine.

Te South Arican ruth and Reconciliation Commission is the only commission to date that has admin-

istered an amnesty mechanism.34 Also, it is one o a small number o commissions with an explicit man-

31 Ibid.

32 Sierra Leone Mandate,supra note 11, at Art. 10.

33 Ibid.

34 Truth and Reconciliation Commission o South Arica. Government o South Arica, Promotion o National Unity and

Reconciliation Act 34 o 1995, July 19, 1995, www.justice.gov.za/legislation/acts/1995-034.pd.


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date to recommend reparations.35 Te mandate fxed these unctions, establishing specifc units within

the structure o the commission. However, separate provisions authorized the commission to establish

additional units or other unctions.

Excerpt: Promotion o National Unity and Reconciliation Act 34, South Arica (1995)

36

Art. 3.3

In order to achieve the objectives o the Commission:

(a) the Committee on Human Rights Violations, as contemplated in Chapter 3, shall deal,

among other things, with matters pertaining to investigations o gross violations o human

rights;

(b) the Committee on Amnesty, as contemplated in Chapter 4, shall deal with matters relating

to amnesty;

(c) the Committee on Reparation and Rehabilitation, as contemplated in Chapter 5, shall deal

with matters reerred to it relating to reparations; [ . . . . ]

Confdentiality

Mandates must include provisions governing the conduct o commissioners and sta with regard to the

use and circulation o inormation examined or produced by the commission. estimonies, archives, and

other orms o evidence contain inormation that is in the interest o justice and aect the integrity and

possibly the saety o persons.


Art. 14

(3) No member o the Commission or member o sta o the Commission shall make private

use o or proft rom any confdential inormation gained as a result o his work in the

Commission or divulge such inormation to any other person except in the course o his

unctions as a member or sta o the Commission and any contravention o this provision

may result in dismissal rom the Commission.

Funding

Mandates should include specifc inormation on the sources o unding available to the commission. It

is critical to determine whether the commission will be ully supported by the national treasury, or i it

will have the authority to undraise by itsel. Each country has dierent orms o allocation and control

o public unds, so mandates present enormous variation on this point. However, determining unding

sources is important or ensuring an e cient, transparent, and su cient means o providing resources tothe commission.

Ater a crippling internal armed conict, Sierra Leone aced enormous economic challenges. It was

improbable that its treasury would entirely und the commission. However, the Sierra Leone mandate al-

lowed the government to provide not only unds, but also other resources, like acilities, to the commis-

35 Ibid.

36 Ibid. at Art. 3.3

37 Sierra Leone Mandate,supra note 11, at Art. 14(3).


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sion.38 Eventually, the commission was supported mainly by external unding, administered with the help

o UN agencies.


Art. 12

(1) Te operations o the Commission shall be fnanced by a und consisting o moneys and

other resources:

(a) paid or made available to the Commission by the Government; and

(b) obtained by the Commission as git or donation rom oreign governments,

intergovernmental organisations, oundations and non-governmental organisations.

Dissolution o the Commission and Other Final Provisions

A truth commission is usually dissolved ater presenting its fnal report. However, a growing number o

mandates now include provisions that grant commissions additional time to ensure that certain criticalactivities are handled properly. For instance, a commission needs to hand over it s extensive archive to the

national archival authority or another institution. It also needs time to disseminate its fnal report and give

clear accounts o the use o its unding, including how any remaining unding or resources will be used.

Depending on the commissions unctions and institutional practice, mandates may also cover additional

issues, like ensuring that the government will ormally answer and address the reports fndings and

recommendations. Other concerns may be the creation o ollow-up and dissemination institutions. Te

extent o these additional activities will depend on the specifc priorities enumerated in the clauses o the

mandate and their level o detail.

38 Ibid. at Art. 12.

39 Ibid.


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Bibliography

Act to Establish the Truth and Reconciliation Commission (TRC) o Liberia [Liberia], May 12, 2005,

http://trcoiberia.org/about/trc-mandate

Agreement on the establishment o the Commission to clariy past human rights violations and acts o

violence that have caused the Guatemalan population to suer (establishing the Historical Clarifca-

tion Commission, or Comisin para el Esclarecimiento Histrico) [Guatemala], June 23, 1994, www.

usip.org/fles/fle/resources/collections/peace_agreements/guat_940623.pd.

Decree No. 187/83 (establishing the National Commission on the Disappearance o Persons, or Comis-

in Nacional sobre la Desaparicin de Personas) [Argentina], December 15, 1983.

Indian Residential Schools Settlement Agreement, Schedule N (establishing the Truth and Rec-

onciliation Commission o Canada) [Canada], January 7, 1998, www.residentialschoolsettlement.ca/

SCHEDULE_N.pd.

Law No. 12.528 (establishing the National Truth Commission, or Comisso Nacional da Verdade) [Bra-

zil], November 18, 2011, www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/lei/l12528.htm

National Reconciliation Commission Act (Act 611) (establishing the National Reconciliation Commis-

sion) [Ghana], January 9, 2002, www.ghanareview.com/reconact.html

Promotion o National Unity and Reconciliation Act 34 o 1995 (establishing the Truth and Reconcilia-

tion Commission) [South Arica], July 19, 1995, www.justice.gov.za/legislation/acts/1995-034.pd.

Supreme Decree N 065-2001-PCM (establishing the Truth and Reconciliation Commission o Peru, or

Comisin de la Verdad y Reconciliacin) [Peru], June 4, 2001, http://www.cverdad.org.pe/lacomision/

cnormas/normas01.php

UN Transitional Administration in East Timor (UNTAET) Regulation No. 2001/10 (establishing the Com-

mission or Reception, Truth and Reconciliation in East Timor) [East Timor], July 13, 2001, www.un.org/

en/peacekeeping/missions/past/etimor/untaetR/Reg10e.pd.


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