Trying to remember, refusing to forget

Tazreena Sajjad explains truth and reconciliation commissions

"No one has the right to forgive those responsible for human rights violations other than the victims themselves ... For any process of national reconciliation to succeed the suffering of victims must be acknowledged and impunity tackled."
-- 2007 Statement of the United Nations Assistance Mission in Afghanistan

Do you want to remember or do you want to forget?" If only this question had an easy answer. Remembering is not easy, but forgetting may be impossible, especially when it comes to surviving the atrocities of war. Unresolved questions of how to address the past and deal with the horrific acts of brutality plague a nation: Are prosecutions possible? Should they be national or international? Should indigenous methods of justice and reconciliation take precedence over standardised punitive measures? Is the choice only between a silent peace and a risky justice? Should the nation bury the past, to not risk bringing painful memories back to life and further dividing a fledgling country?

For many people, forgetting is the key to moving forward. There is, however, a fundamental distinction between a policy of forgetting without reckoning and a policy of forgetting after reckoning. The first leads to an official and unofficial policy of collective amnesia, while the second is based on a process of recognition, acknowledgement, acceptance, and desirably, forgiveness and reconciliation before moving on.

If the first is considered to be the only option, then the question is, is it possible to build a democratic culture on the crumbling foundations of a history denied? Countries have tried -- sobering examples include post-Franco Spain, post- Taliban Afghanistan, and Nepal's power-sharing arrangement with Maoists and the absence of prosecutions against armed forces guilty of war crimes.

Our own approach to war criminals and collaborators without a national discussion of accountability and pursuit of the guilty was along a similar vein Somehow, measures such as a rush to elections, the establishment of political parties, establishing a parliament -- in short, going back to business as usual -- are supposed to wipe out the horrors of a conflict.

But, as events in Chile, Cambodia, and, indeed, Spain have recently pointed out, the past can never be neatly concealed even with all possible effort to deny that it ever took place. The past, buried and removed, continues to haunt a nation and raise questions about what should be done with perpetrators, victims, survivors, of secretly buried bodies, official denial of a horrific history and the pervasive fear of unearthing the past.

To serve justice, modern history has usually relied on punitive measures. Beginning from the famous (and flawed) Nuremberg and Tokyo trials after the Second World War, the world has witnessed ad hoc tribunals such as the International Criminal Tribunal for Yugoslavia, International Criminal Tribunal for Rwanda, hybrid courts in Sierra Leone, the Khmer Rouge trials and most recently, the highly controversial Iraqi Tribunal for Saddam Hussein. Indictments have involved Chile's Pinochet, Chad's Hussein Habre and Uganda's Lord's Resistance Army. The list continues to grow. The establishment of the permanent International Criminal Court (ICC) has also meant that systematic violation of international legal norms can no longer go completely unpunished. Today, the ICC is deliberating cases against Uganda, the Central African Republic, the Democratic Republic of the Congo and Sudan for war crimes, crimes against humanity, and genocide.

Although the idea of trials is highly compelling, legal measures alone do not completely address the complexities surrounding the aftermath of a conflict. Legal procedures are arduous, expensive, often dependent on international will and funding and short-changed by the weak rule of law and fledgling judicial structures that exist in the post-conflict period. In addition, it is unfeasible to prosecute all perpetrators and impossible to ascertain the guilt of those who transversed the lines of being a perpetrator, a victim and sometimes a bystander. Rwanda found this out the hard way. Immediately after the Rwandan genocide, 115,000 people were incarcerated in anticipation of domestic trials in a country where there were less than fifty lawyers alive after the bloodbath and a legal system that did not comply with international standards. With thousands languishing in prisons and the slow grinding process of the ICTR, the indigenous mechanism of the gacaca was finally chosen to deal with the issue of accountability and reconciliation in a community torn by a genocide that left close to a million dead.

Way. Immediately after the Rwandan genocide, 115,000 people were incarcerated in anticipation of domestic trials in a country where there were less than fifty lawyers alive after the bloodbath and a legal system that did not comply with international standards. With thousands languishing in prisons and the slow grinding process of the ICTR, the indigenous mechanism of the gacaca was finally chosen to deal with the issue of accountability and reconciliation in a community torn by a genocide that left close to a million dead.

The truth hurts, but war hurts more
For many other countries, Truth and Reconciliation Commissions (TRCs) have offered an alternative or a complementary mechanism to retributive measures. TRCs are commissions of inquiry exposing and documenting torture, murders and other human rights violations that otherwise would be denied and covered up by repressive regimes. They are considered effective in promoting reconciliation, are victim-centred in that they create the space for allowing victims to speak of their pain and provide national acknowledgement of the events of the past. In the best-case scenario, TRCs, through its process of outlining reforms and systematic public documentation, expect to keep abuses from being repeated.

TRCs are often adopted by regimes that lack either the will or the means to prosecute the perpetrators of crime and where the policy of forgive and forget is not viable because of the depth of division and the level of bitterness in society. They are an attractive option when the number of those complicit in evil is such that their prosecution would destroy any possible basis for future reconciliation and the development of a shared sense of citizenship, and when a prosecutorial type of purge might result in greater factionalisation in cases where the perpetrators were part of the same identity group.

Most importantly, TRCs focus on the vindication of the victims who can reclaim their dignity by being given a voice. By contrast, in trials the victim's voice is only important to the extent that they act as a witness or a client. In a truth commission, the survivor has the right and the space to tell her/his whole story without legal obstructions.

There have been more than twenty-one official truth commissions established around the world since 1974, though they have gone by different names. There have been "commissions on the disappeared" in Argentina, Uganda, and Sri Lanka, "truth and justice commissions" in Haiti and Ecuador, "a historical clarification commission" in Guatemala, the "truth and reconciliation commissions" in South Africa and Chile. Others have been created in Germany, El Salvador, Bolivia, Chad, Sierra Leone, East Timor and work has just begun on the Liberian Truth and Reconciliation Commission, which for the first time in the history of TRCs, has begun a systematic process of taking statements of the Liberian population in the diaspora.

Regarded as the most successful and most famous commission until now, the South African Truth and Reconciliation Commission aimed at healing the relations between blacks and whites after the fall of the apartheid, had to face its share of controversies. Its power to grant amnesty to those who made a full public confession of injuries they had perpetrated has been severely criticised. The commission also made no mention of lustration (hence, perpetrators could still hold public office), repentance and reparations were not required and in the eyes of many, it attempted to "buy" peace at the expense of justice. On the other hand, the commission made it possible for perpetrators to face national opprobrium and it discredited the apartheid regime in the eyes of its supporters. Finally, it vindicated victims' dignity through allowing them the space to tell the stories of their sufferings and their losses.

The lessons learned from the South African commission have not been pushed aside. Several commissions of inquiry, such as the Liberian TRC do not have the power to grant amnesty; the latter, for example, will be making recommendations for amnesty but it is the state which will make the decision on which cases to pursue in the courts of justice.

Why do we come and open the wounds again? Why do we come and recall the past? We have to reopen the wounds because they have not healed. Superficial healing will allow the wounds to explode again. We have to revisit the events so that we can heal properly.

What do truth commissions have to teach for those of us who still hold on to the hope of seeking accountability for the events of 1971?

First, forgetting without reckon Ing is never a sustainable option.

Second, political inclusion and general amnesties without any form of culpability leaves not only unanswered questions, but delegitimises political processes that are reinstituted in the name of democracy and peace. This has been witnessed in the case of Lebanon and is currently unfolding in Afghanistan. Such processes are unstable and volatile, because of the very nature of how they are made legitimate without public consensus or through a legal process.

Third, justice not only comes in the form of punitive measures, in courts, but can be in the shape of seeking multiple accounts of truth and forms of accountability that take into consideration different levels of crimes that were perpetrated during the conflict. As Bangladesh debates how best to address the question of justice for the events of 1971, it is important to note that punitive measures which are necessary for establishing culpability, will not alone tell the full story of the genocide. Detailed accounts of the survivors, by-standers, and collaborators are vital to enrich the collective narrative of our country's birth while posing as a formidable, constant and critical challenge to revisionist histories that undermine or question the magnitude of Bangladesh's genocide.

Fourth, political inclusion cannot replace reconciliation. However, reconciliation itself is a long, painful process which involves acknowledgement of crimes committed, and repentance and apologies -- facets that may never come to pass, but can at least, create the space for acceptance and recognition of the sufferings of those who were killed and those who survived.

Last, but not the least, there is little a society can tangibly do to honour the dead. As a society, memorials, national days and literature are the only ways we can remember those who passed and the legacy they left behind. Moving forward, we have a paramount responsibility to the living, to the survivors of the horror, to give them the space to narrate their stories, to acknowledge their survival and try to live up to the expectations they have from their own country for which they suffered so much. It is their stories that should shape the nation, its collective memory and its collective vision.

Tazreena Sajjad worked on Transitional Justice and the Rule of Law in Afghanistan. Currently, she is involved with the Liberian Truth and Reconciliation Commission. Ms. Sajjad is a member of the Drishtipat Writers' Collective.