A/HRC/24/42
49.
Furthermore, the Special Rapporteur emphasizes that reconciliation at the social
level cannot be reduced to one-to-one encounters. Gross human rights violations do not
constitute only a violation of an individual, but additionally a violation of the very principle
of the rule of law. Thinking that one-on-one pardons undo all the damage that such
violations bring about fails to consider their systemic and structural dimension. Social
reconciliation requires, inter alia, establishing institutions that are trustworthy and that
genuinely embody the idea that each individual is a rights holder. This process cannot
happen via victim-perpetrator encounters alone.60
50.
A novel function of the truth commissions under consideration in at least one
country is an arbitration function for the settlement of individual cases of corruption. Given
the quasi-judicial procedures required to guarantee minimal fairness in decision-making, a
huge additional workload is to be expected. Furthermore, arbitration of corruption cases
involves a significant likelihood of defeating the expectations of the public, which is likely
to have maximalist aspirations of recovery and punishment. In short, the very same truth
commission mandated to be proactive concerning prosecutions or vetting is also expected
to act as a neutral arbitration and settlement body. The Special Rapporteur would like to
highlight the enormous challenges and internal tensions that this combination of functions
is likely to generate.61
51.
On the basis of the above analysis, it can be concluded that most elements of the
mandate have suffered significant expansion: truth commissions today are expected to
address a broader array of violations, occurring over longer periods of time, where the
objective has shifted from clarification of cases to comprehensive analysis of whole
contexts and underlying causes, motivating, in turn, the call for comprehensive reform
proposals. The Special Rapporteur, pulling together the tendencies reviewed in this chapter,
points to the following: institutions that have usually been underfunded, insufficiently
staffed in terms of numbers or expertise, that by their very nature remain infrastructurally
and politically weak, that have a relatively short operation period, and whose authority
depends to a great extent on commissioners to vow to the seriousness of the investigations
(rather than on their technical capacities concerning institutional design matters) are now
expected to fulfil enormously more complex functions, as reflected in the expansive list of
objectives assigned to them in their mandates. From this perspective, it should come as no
surprise that commissions are finding it increasingly difficult to satisfy growing
expectations.
52.
The Special Rapporteur urges prudence in the drafting of the mandate of truth
commissions, heeding basic considerations of functional adequacy. Commissions that are
laden with objectives which they have no means to satisfy will predictably disappoint
expectations. Truth commissions were important human rights instruments because they
proved functionally adequate in satisfying their core functions, which was an important step
60
61
See A/HRC/24/21, communication to Burundi (22 March 2013).
Tunisia country visit report, A/HRC/24/42/Add.1, paras. 38-39. A possible way of addressing both
systemic issues and individual cases of corruption would be the establishment of dedicated
independent bodies with the professional capacities and specialisation for investigating financial files
and settling individual corruption cases by arbitration. These bodies may conduct joint investigations
and/or establish meaningful information sharing methods. In Tunisia, a specific investigation body
was established, the National Commission of Investigation on Corruption and Embezzlement, that
was composed of generalists on the systemic issue of corruption and technicians with specific
expertise on investigating financial files. This Commission ran in parallel to a fact-finding
commission on the gross human rights violations committed during the uprising. The Commission of
Investigation on Corruption and Embezzlement then recommended the establishment of a permanent
anti-corruption body at the constitutional level, see A/HRC/24/42/Add.1, para. 53.
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