Truth vs. Reconciliation?

In June 2010, at The Forks in Winnipeg, about 400 people, both Natives and non-Natives, gathered to launch Canada’s first Truth and Reconciliation Commission. It is charged with examining the history of residential schools. The TRC is an outgrowth of the Indian Residential Schools Settlement Agreement, arrived at in 2007 as the result of a class action lawsuit launched by the victims. The litigation had been directed against the federal government and the Christian religious institutions that were involved in operating the schools. The settlement agreement allotted $60 million over five years for the work of the commission, as well as creating a compensation system providing survivors of the schools with $10,000 plus $3,000 for each year of attendance. The TRC stumbled at first when its first three appointed commissioners quarrelled, but on those sunny days last June, under the new leadership of Justice Murray Sinclair, the process of remembering and recording began.

Residential schools, as most Canadians are now aware, were a feature of Canada’s treatment of aboriginal children since the mid 1800s. The initial legislation was called the Gradual Civilization Act and the ideological underpinning was assimilationist. The schools’ proponents pledged they would end the “Indian problem” within a few generations. More than 150,000 young Native people were placed in such institutions. They were often forbidden to speak their language and practise their culture, and were subjected to various forms of ill-treatment and brutality. Australia did something similar with its aboriginal population.

The last such school closed in 1996. The first apologies from representatives of the religious organizations that had been involved in running the institutions had already begun. But only in 2008 did the prime minister apologize to former students and their families, and to aboriginal communities, for the government’s role in the schools. Following a 2009 meeting with Chief Phil Fontaine, Pope Benedict XVI “expressed his sorrow at the anguish caused by the deplorable conduct of some members of the Church and he offered his sympathy and prayerful solidarity,” according to a communiqué issued by the Holy See.

The Canadian commission is perhaps the 50th institution of its kind to be established in recent decades, and observers will be watching to see if a process that has worked elsewhere in the world can function in Canada. Probably the most celebrated TRC to date is the South African one, whose president was Archbishop Desmond Tutu. During the 1990s it helped promote a pluralist, democratic South Africa. Other commissions have been part of post-conflict or transitional processes in Chile, Peru, El Salvador, Guatemala, Sierra Leone, Liberia and East Timor. A commission is currently operating in Kenya, assigned to examine the ethnic violence that followed the 2008 elections. The first truth commission, apparently, was set up in Uganda at the behest of Idi Amin in the 1970s. It did such a good job in finding the truth that, as their work came to a conclusion, the four commissioners had to flee the country.

Until the establishment of Canada’s commission, I may have been the only Canadian to have served on such an institution. From 2002 to 2004 I was one of three international members of the Sierra Leone Truth and Reconciliation Commission. We—two African women, one of them formerly with the South African commission, and myself, a Canadian law professor living in Ireland—were appointed on the recommendation of Mary Robinson, in her capacity as United Nations High Commissioner for Human Rights. Our colleagues were four prominent Sierra Leoneans who had been chosen by the country’s president. The chair was a Methodist bishop. Our report, issued in October 2004, provided Sierra Leoneans with an explanation of the causes of their civil war, proposals on reparation for victims and a menu of reforms to guide governments in the future.

Truth and reconciliation commissions have many critics. To some, they constitute a feeble substitute for criminal prosecution of those responsible for serious violations of human rights. In South Africa, Nelson Mandela judged that it was better to forego criminal accountability of the tyrants who ran the apartheid regime in exchange for a peaceful (relatively) transition. This was a wise move, by my reading of the events, and it seems to have worked in South Africa. Nevertheless, the model is increasingly rejected as the international pendulum swings in the direction of uncompromising prosecution before criminal courts. Where national tribunals fail at the task, international institutions such as the Yugoslavia or Rwanda tribunals or the International Criminal Court are assigned to step in.

In some situations truth and reconciliation commissions have been rejected outright. About a year after the Rwandan genocide of 1994, I attended a large conference in Kigali where various options to deal with the caseload of perpetrators were considered. Representatives of the newly minted South African TRC came to sell the Rwandans on the merits of their approach. But the Rwandan leaders were not interested. They insisted upon uncompromising criminal prosecution. Eventually, perhaps a million individuals were put on trial, although Rwanda created its own innovation in the form of grassroots tribunals with lay judges known as gacaca courts. They have delivered some degree of justice for victims, although the jury is still out as to whether there has been a meaningful contribution to reconciliation. The Rwandan approach has been decried internationally because it fails to respect fair trial standards, such as the right to legal counsel.

The rigid views of international consultants based in New York and Brussels often take precedence over the wisdom of political, cultural and religious leaders in the countries that are directly concerned. When the latter say that under some circumstances, the quest for peace may trump that of justice, or require that compromises be made, they are quickly dismissed for views deemed to be incompatible with international standards.

Nevertheless the non-judicial approach has much to commend it. Where the violations took place long ago, the perpetrators may be no longer alive. Consequently, criminal prosecution is not an option. Or the core of the complaint may be essentially civil in nature, as is the case in Canada, where the residential schools TRC was set up in response to a class action lawsuit. The criminal trial itself is a blunt instrument in many respects, focusing on limited charges, with restrictive and frustrating rules of evidence. A commission permits a much broader inquiry. To be sure, we are always talking about a “measure of justice,” the words used by Vincentio in Measure for Measure to express the need to balance law with equally important values such as fairness, equity, justice and truth.

Truth and reconciliation commissions draw greatly upon concepts of what is sometimes called restorative justice. Within the criminal justice system, a restorative approach sets aside general and objective notions about fit punishment. It favours the establishment of a degree of satisfaction between victim and perpetrator so that both walk away from the exercise feeling some progress has been made. Although theories of restorative justice have been developed by western criminologists, many point to similarities with forms of traditional justice mechanisms developed by aboriginal peoples, such as healing circles.

There are some unique features of the Canadian commission. Usually, truth commissions are presented as an alternative or at least a complement to criminal prosecution. There is no suggestion in Canada that perpetrators of abuse amounting to criminal activity will be spared prosecution before the ordinary courts. To the extent that there are viable dossiers, the prosecutions have already taken place or may be underway. There will be concerns that as long as prosecution remains an option, a truth and reconciliation commission will be unable to convince perpetrators to participate. The narrative will be one-sided, told by victims alone. But I would not be so concerned about this. It is true that the South African TRC offered perpetrators the incentive of amnesty if they made a full and frank account of their acts. But in Sierra Leone, we had no such possibility, and that is in fact the case with most TRCs. This did not stop perpetrators from testifying, and I doubt that it will in Canada either.

Michael Ignatieff once wrote that “all that a truth commission can achieve is to reduce the number of lies that can be circulated unchallenged in public discourse.” The South African TRC distinguished between different sorts of truth. It identified a “micro truth,” which focuses on individual victims, sometimes providing them with an apology from the perpetrator, or information about where the remains of a loved one can be found, and a report on how he or she spent the final hours. A “macro truth” looks at the causes of conflict and at events of historical importance. Occasionally, commissions have made explicit reference to history in their designation. The Guatemalan institution was called the Commission for Historical Verification.

Although important criminal prosecutions also may contribute to the historical narrative, the more flexible truth commission is probably a better vehicle for such an objective. The Nuremberg trials, or the trial of Eichmann, and some of the more recent proceedings before the tribunals for Rwanda come to mind for their contributions to an accepted historical narrative. But criminal trials rarely provide anything more than a very partial picture of the past. It is a two-dimensional snapshot, lacking subtlety and nuance. In her legendary book Eichmann in Jerusalem, Hannah Arendt wrote: “The purpose of the trial is to render justice, and nothing else; even the noblest of ulterior purposes—‘the making of a record of the Hitler regime which would withstand the test of history,’ as Robert G. Storey, executive trial counsel at Nuremberg, formulated the supposed higher aims of the Nuremberg Trials—can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.”

In Sierra Leone, we emphasized the macro truth, developing a sweeping analysis of the decade-long civil war that destroyed the country in the 1990s. Sometimes the Sierra Leone Truth and Reconciliation Commission was able to identify individual perpetrators and link them up with victims. Occasionally this led to very poignant public external actors including the armies of Nigeria and the United Kingdom.

The Sierra Leone commission worked alongside an international criminal tribunal, the Special Court for Sierra Leone. Recently, the court made headlines around the world thanks to a serendipitous encounter at the home of Nelson Mandela between movie star Mia Farrow, supermodel Naomi Campbell and Liberian despot Charles Taylor. Apparently, diamonds were exchanged. The Special Court for Sierra Leone was established at the initiative of the United Nations Security Council around the same time as the truth commission. There was a lot of fretting about how the two organizations would interact. A modus vivendi was quickly established and there were few significant difficulties in the relationship.

Unexpectedly, the truth commission and the special court did not adopt the same perspective on the nature of the civil war. The commission emphasized internal factors, principally the decades of rule by a corrupt oligarchy that had left the country’s youth in a state of despair and hopelessness. It discounted the significance of the diamond trade and foreign rulers like Charles Taylor, which were central to the narrative advanced within the court. This is a risk that accompanies the search for truth. It is possible that conflicting understandings may emerge. And there may be surprises. Like criminal trials, of which they are close cousins, the results can be neither predicted nor controlled by those who have set them up.

To be sure, there are some situations where the overall vision of the past is fairly uncontroversial. The outcome is predictable. In South Africa, for example, it was to be expected that a condemnation of apartheid would underpin the work of the commission and nobody was surprised when this was indeed the conclusion. In Sierra Leone, on the other hand, there was great uncertainty and even a degree of mystery about much of the past. I suspect that Canada’s residential schools commission is closer to the South African paradigm, in that there is already a consensus about many of the basic elements of the abuses as well as of the identity of those who bear the primary responsibility for them.

Where the Canadian situation differs substantially from other uses of the truth and reconciliation approach is in the fact that the injustices were perpetrated against a tiny minority of the population, one that continues to be small, marginal and disenfranchised. In most cases around the world, it is when aggrieved victims gain a certain amount of control in national affairs that these commissions are set up. There is a serious question in Canada whether the whole process will take place under the radar, so to speak, so that even well-educated and well-meaning people from the majority culture may have no idea how the process is proceeding or any deeply felt sense that it is important. Clearly the role of the national media in covering the Canadian proceedings will be crucial in terms of focusing citizens’ attention on the stories being told and the process being enacted.

In Northern Ireland, there has been talk of a truth commission for many years. It seems unlikely that one will be created in the foreseeable future. The North is still a sharply divided society, with very different views, explanations and visions about the past, the present and the future. The different sides in the conflict believe that each knows the truth already. But it is not the same truth, and neither is willing to leave the matter to be determined by a commission or similar body, with the notable exception of a defining event such as the Bloody Sunday killings. For a truth commission to succeed, there must be either a common vision at the outset or a willingness to live with the uncomfortable and unexpected truths that may emerge from the process.

In French, the Canadian institution is called the Commission de témoignage et réconciliation. The word “témoignage” is defined, by the Petit Robert, as “fait de témoigner; déclaration de ce qu’on a vu, entendu, perçu, servant à l’établissement de la vérité.” We would probably translate témoignage as “testimony” rather than “truth.” The French version seems to suggest that the commission is a vessel designed to receive various accounts rather than an arbiter of truth. But the mandate says that it is to “create as complete an historical record as possible of the IRS [Indian residential school] system and legacy.”

As a Canadian of European descent, I did not have any difficulty with the truth-seeking task of the Sierra Leone commission. In any event, this was close enough to what my career as a legal professional has usually involved. The idea of reconciliation seemed more delicate and elusive. Foreigners could participate in factual assessments. They might even provide a necessary level of credibility to the process because of their presumed objectivity. But how could a non-African engage genuinely in reconciling communities, groups and individuals? I was more of a witness than a participant in the reconciliation part of the commission’s work.

Sierra Leone had been through a decade of civil war. In many towns and villages, perpetrators and victims were living alongside one another. Many believed the TRC could help the healing process. During the public hearings, there were several dramatic confrontations between victims and perpetrators. These generally took place when the parties lived in close proximity, often in the same communities. Most of those who suffered from the civil war had no idea of the identity of those who were directly responsible. I witnessed public meetings of several hundred villagers where an offender would first try to downplay responsibility, then adjust his position in response to reaction from the crowd or the victim herself, and then finally admit responsibility and ask to be forgiven. The hope was that these intense encounters would not only mediate the relationship of the specific individuals concerned but that they would also serve as an example. In reality, there were thousands, perhaps tens of thousands, of cases that deserved attention. There was no possibility that a commission of modest means could address even a small fraction of these. We had to make do with a handful of examples.

Just as the non–Sierra Leoneans felt more comfortable with the truth part of the mandate, the Sierra Leonean commissioners seemed more interested in reconciliation. Indeed, they did not seem to be all that interested in getting to the truth. There was an evident tension between the two parts of the task, a concern that too much truth, especially uncomfortable and unexpected truths, might actually impede reconciliation. The idea that truth promotes reconciliation is a bit of a mantra, or rather, a cliché. It may be accurate in some situations, but not in all. When the Canadian commissioners say that the truth will “help set our spirits free and pave the way to reconciliation,” I certainly hope they are right. But just as we know, from experience in our daily lives, that getting to the bottom of something can help us to move on, there are perhaps just as many situations where we prefer not to learn everything, and where a degree of opacity and ignorance may actually help reconciliation rather than hinder it.

Truth and reconciliation commissions are addressed to victims and perpetrators alike. These are both complex concepts. In Sierra Leone, child soldiers were also perpetrators of atrocities, but we generally viewed them as victims too. I do not think that this idea of victims as perpetrators has much relevance to the Canadian aboriginal schools context, however. As for victims, there is an unfortunate tendency to generalize. Despite the great sympathy that they receive, they are often treated simplistically, as people with stereotypical attitudes and responses born from common experiences. This is far from reality. There is an enormous variation in how “victims” view their suffering and the appropriate response they may seek. Some want nothing short of harsh and retributive justice, while others would prefer to forgive and forget. Most of those who attended the residential schools seem still to be seething with anger. But perhaps there are some who did not reject the experience, and who may have welcomed what most perceive as the dark, nefarious purpose of the exercise: the destruction of aboriginal culture. If the commission is to fulfil its mission, account must be taken of the huge diversity in victim attitudes; those who do not fit the mould also deserve respect and support.

The word “victim” is used in the mandate of the commission (it is to be “victim-centered”), but there is no corresponding sense of perpetrator. The closest the document comes is when it charges the commission with “rebuilding and renewing Aboriginal relationships and the relationship between Aboriginal and non-Aboriginal Canadians.” Most Canadians who are not of aboriginal origin surely had no direct involvement in residential schools. Until the scandals of recent decades, they probably knew little or nothing of their existence. But in some sense they cannot avoid a moral burden for the great stain upon Canada that is its historical treatment of aboriginal peoples. The enormous challenge of rebuilding and renewing the relationship between aboriginal and non-aboriginal Canadians has a daunting collective dimension that may take it outside the strict frame of residential schools. Although perhaps not the intent of many of those who defined the terms of the commission, would this not be a positive outcome?

Criminal justice is often held up as desirable because of its ability to individualize responsibility and guilt. By putting the real villains on trial, many believe we succeed in dissociating them from the bulk of the population, ordinary citizens who may have been reluctant minor participants in atrocities or mere bystanders. In so doing, reconciliation is said to be fostered. Yet there must also be some collective guilt. Societies as well as individuals have to assume responsibility when they have lived and prospered alongside the misery and oppression of entire peoples or minority groups. A TRC offers a forum to express this in a way that no criminal trial can. The schools may be little more than a metaphor for this larger reality. Even if non-aboriginal Canadians bear no guilt, they—we—should feel profound shame that perfunctory apologies from elected officials and religious leaders are inadequate to address. If the Truth and Reconciliation Commission of Canada provides a forum to express this, perhaps some of its ambitious goals will come close to being achieved.