SIRLEAF.35.6 (Do Not Delete) 8/1/2014 8:01 PM THE TRUTH ABOUT TRUTH COMMISSIONS: WHY THEY DO NOT FUNCTION OPTIMALLY IN POST- CONFLICT SOCIETIES Matiangai V.S. Sirleaf† Almost forty years after the first truth commission convened and more than sixty-seven others have been employed, there is little clarity on how they contribute to their stated objectives and in which transitional contexts they succeed or fail. This Article uses data gathered from my field research in Ghana, Sierra Leone, and Liberia to develop a theoretical framework for understanding in which contexts truth commissions may be the most effective. Using insights from the legal transplant literature and applying it to the diffusion of truth commissions, this Article finds that truth commissions face greater challenges carrying out their mandates in post- conflict as opposed to post-authoritarian societies. In post-conflict societies, weak institutions to support a truth-telling process combined with large numbers of victims and perpetrators will tend to overwhelm truth commissions. These factors, along with the lack of moral consensus surrounding mass violence, interact to make truth commissions function less optimally in post-conflict contexts. This Article finds that despite their widespread use in post-conflict and fragile states, truth commissions may have more utility in post-authoritarian or even non-transitional states. In sum, this Article argues that the kind of transition should determine the kind of transitional-justice interventions employed. † Assistant Professor of Law, University of Baltimore Law School. B.A., New York University; M.A. University of Ghana-Legon; J.D., Yale Law School. I would like to thank Gregory Ablavsky, Regina Austin, Stephanos Bibas, Lea Brilmayer, Guy-Uriel Charles, Drew Days, Margaret M. deGuzman, Amy Gadsden, Jean Galbraith, David Gartner, Laurence Helfer, Harold Koh, Serena Mayeri, Jon Michaels, Jaya Ramji-Nogales, Candace Palmer, Sarah Paoletti, W. Michael Reisman, Shana Tabak, Elizabeth A. Wilson, Tobias Wolff, and the participants in the Moot Camp at Yale Law School for their helpful comments on earlier drafts. I would also like to thank Gabriela Femenia for her research assistance. I take full responsibility for any errors. I am grateful for the support of the Bernstein Fellowship at Yale Law School and the International Center for Transitional Justice without which my field research for this Article would not have been possible. The opinions expressed are mine and do not reflect the views of anyone else. I served as a legal intern during the summer of 2006 with the Liberian Truth and Reconciliation Commission. I have not disclosed any confidential information in contravention of the Commission’s confidentiality clause. 2263 SIRLEAF.35.6 (Do Not Delete) 8/1/2014 8:01 PM 2264 CARDOZO LAW REVIEW [Vol. 35:2263 TABLE OF CONTENTS INTRODUCTION .............................................................................................................. 2265 I. THE IMPORTANCE OF CONTEXT ............................................................................ 2272 A. Ghana’s Transition from Authoritarian Rule and Establishment of a Truth Commission .................................................................................. 2274 B. Liberia’s and Sierra Leone’s Civil Wars and Transitional Justice Institutions .................................................................................................. 2276 1. Civil War and Establishment of the Truth Commission in Liberia .............................................................................................. 2277 2. Civil War and Establishment of the Truth Commission and Court in Sierra Leone .................................................................... 2279 C. The Limits of Transplants ......................................................................... 2285 II. INSTITUTIONAL WEAKNESS AND THE LIMITED IMPACT OF TRUTH COMMISSIONS ......................................................................................................... 2292 A. Weak Security Institutions ........................................................................ 2295 B. Weak Political Institutions ....................................................................... 2298 III. LACK OF MORAL CONSENSUS SURROUNDING VIOLENCE LIMITS THE IMPACT OF TRUTH COMMISSIONS ......................................................................... 2303 A. Lack of Moral Consensus as an Impediment to Truth-Telling ............. 2305 B. Lower Moral Consensus as an Impediment to Establishing an Accurate Historical Record ....................................................................... 2311 IV. SIZE MATTERS ......................................................................................................... 2315 A. Numerous Victims and Perpetrators Create Challenges for Acknowledgment ........................................................................................ 2317 B. Large Victim and Perpetrator Classes Create Obstacles for Promoting Healing ..................................................................................... 2321 C. Size of Victim and Perpetrator Classes Complicates Efforts to Provide Redress........................................................................................... 2325 V. IMPLICATIONS ......................................................................................................... 2331 A. Theoretical and Policy Implications for Transitional Justice ................ 2332 B. Theoretical and Policy Implications for Legal Transplants ................... 2335 C. International and Foreign Policy Implications ....................................... 2338 METHODOLOGICAL APPENDIX ...................................................................................... 2340 SIRLEAF.35.6 (Do Not Delete) 8/1/2014 8:01 PM 2014] THE TRUTH ABOUT TRUTH COMMISSIONS 2265 INTRODUCTION From the trials at Nuremberg to the South African Truth and Reconciliation Commission,1 societies have reckoned with issues of truth and punishment following a period of massive human rights violations. Resort to the regular judicial system is often impossible due to the complete breakdown of the rule of law, the existence of a weakened judiciary, as well as procedural and operational limitations. Transitions are characterized by widespread criminality and norm breaking, which complicates efforts to resort to the criminal justice system. Transitional justice2 mechanisms are usually set up to address a period of mass violence, increasingly through truth commissions. A truth commission is an officially sanctioned non-judicial body organized for a limited time. They are usually set up at a time of transition for the specific purpose of examining serious human rights violations.3 They aim to achieve restorative-justice goals by combining elements of public truth seeking, victim-offender confrontation, public apology, and historical accounting.4 Some have even advocated that there is an emerging legal justification for pursuing truth commissions following mass atrocity based on the “right to truth.”5 The many 1 See generally Promotion of National Unity and Reconciliation Act 34 of 1995 (S. Afr.) (the SATRC Act). 2 I employ Naomi Roht-Arriaza’s definition of transitional justice: “that set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law.” Naomi Roht-Arriaza, The New Landscape of Transitional Justice, in TRANSITIONAL JUSTICE IN THE TWENTY-FIRST CENTURY 1, 2 (Naomi Roht-Arriaza & Javier Mariezcurrena eds., 2006). Although a number of scholars take issue with the concept of “transitional justice,” this Article utilizes this term because other terms used to describe the pursuit of justice during transition are also contested. See, e.g., Pablo de Greiff, Theorizing Transitional Justice, in TRANSITIONAL JUSTICE 31 (Melissa S. Williams, et al. eds., 2012) (discussing the concept of justice in times of transition). 3 See PRISCILLA B. HAYNER, UNSPEAKABLE TRUTHS: CONFRONTING STATE TERROR AND ATROCITY 14 (2002). 4 See Elizabeth Haumann, Striking a Balance Between Justice and Peace: Restorative Justice in States of Transition, in RESTORATIVE JUSTICE AND CRIMINAL JUSTICE: EXPLORING THE RELATIONSHIP 142, 150 (Linda Gröning & Jørn Jacobsen eds., 2012). For further discussion, see generally John Braithwaite, Narrative and “Compulsory Compassion”, 31 LAW & SOC. INQUIRY 425 (2006) and Elizabeth Kiss, Moral Ambition Within and Beyond Political Constraints: Reflections on Restorative Justice, in TRUTH V. JUSTICE: THE MORALITY OF TRUTH COMMISSIONS 68, 79–83 (Robert I. Rotberg & Dennis Thompson eds., 2000). 5 See HAYNER, supra note 3, at 31; see also Universal Declaration of Human Rights, art. 19, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948); Organization of African Unity, African (Banjul) Charter on Human and Peoples’ Rights, art. 9, adopted June 27, 1981, OAU Doc. CAB/LEG/6713 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986, available at https://www.umn.edu/humanrts/instree/z1afchar.htm; Organization of American States, American Convention on Human Rights, art. 13, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, available at http://www.oas.org/dil/treaties_B-32_American_Convention_on_ Human_Rights.htm; Juan E. Méndez, Accountability for Past Abuses, 19 HUM. RTS. Q. 255, 261