Bessie Dutton Murray Distinguished Professor of Law & Associate Dean for Faculty Development, University of Iowa College of Law. A.B. Princeton 1978, M.A. UCLA 1979, J.D. Stanford 1982. An earlier draft of this paper was presented at a conference entitled "The War Crimes Symposium" on a panel entitled "Alternatives to Prosecutions," held at the University of Iowa College of Law on February 9, 2007. The conference was sponsored by TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS, a journal of the University of Iowa College of Law, as well as several other groups. I would like to thank the participants in that conference for their feedback. Also, I would like to thank Professors John Strawson and Michael Karayanni for their insights. Finally, I would also like to thank my research assistants, Saba Baig, Kevin Dawson, Meredith Friedman, Elizabeth He, Cynthia Lockett, Hisham Kassim, Shaun Naidu, and Andrea Suzuki, as well as students in my Spring 2007 Human Rights class who addressed a simulation question regarding the feasibility of a commission.
At some point, peace may come to the Holy Land and the independent state of Palestine may sit side by side with Israel. At that time, the Palestinians may wish to come to terms with the spirit injuries1 that have affected their people since 1948 when the state of Israel was created, or since 1967 when the now forty-year old Israeli Occupation of the West Bank, Gaza, and East Jerusalem began.2 Spirit injuries represent a combination of "physical, emotional, and spiritual harms."3 Spirit injuries can lead to the "slow death of the psyche, the soul and persona" on a personal level.4 On a group level, spirit injuries can result in the "devaluation and destruction of a way of life or of an entire culture."5 When spirit injuries accumulate, the result can be spirit murder.6 Some spirit-murdered souls may be likely to commit literal or figurative homicide or suicide.
The massive population displacement and loss of land by nearly one million Palestinians that began in 1948 and resulted in a diaspora of millions around the world is known as the "nakba," or catastrophe, by the Palestinian people.7 Even though the population that personally remembers the nakba is dying out and nearly half of the Palestinians are now under fifteen years old,8the contours of this disaster have been passed down and spread as spirit injuries throughout the Palestinian community.
In addition to the nakba, the 1967 Occupation further dislocated many Palestinians and put millions under day-to-day Israeli control that has been well documented as violating international law.9 Former President Jimmy Page 141 Carter has joined others in calling the situation a form of apartheid, controversially analogizing the Occupation to the former brutal de jure segregation that afflicted South Africa for decades.10 Further individual and group spirit injuries have resulted.
The Palestinians may want to consider the possibility of using a device that has been used by many other countries for societal healing-a Truth and Reconciliation Commission (TRC)-to deal with the spirit injuries that have affected them over the decades.11 At this stage, the political situation is so fraught with difficulties and unknowns that it is too speculative and would be inappropriate to urge the Palestinians to definitively commit to a process that would lead to a TRC.
Instead, this Article will assume that conditions have coalesced in such a way that a commission is a potentiality. The Article will lay out the various parameters for a TRC based on two scenarios. The first scenario assumes that the Palestinians would use a truth commission internally to resolve intra- Palestinian issues. The second scenario, which is certainly less likely, assumes that the TRC could be used on a binational basis by both Palestine and Israel to heal internal injuries as well as injuries between the two peoples. The Article will mainly emphasize option one and explore the possibilities from the Palestinian perspective. Perhaps other scholars will address the potentiality of a TRC from the Israeli perspective.
After first describing TRCs generally in Part II, the Article next will address the two scenarios mentioned above in Part III. In Part IV, the Article will discuss a number of issues under both scenarios: when would the commission be created?; what legal sources would legitimate the TRC?; what would be the purpose of the TRC?; what time period would it cover?; how would the TRC be funded?; how would it be staffed?; what standards of evidence would be required?; where would it be held?; would some hearings be closed?; how would the TRC deal with those opposed to the process?; how long should the process take?; and how would the TRC implement the Commission's final report? The Article will conclude that despite the negatives associated with TRCs in other societies, there are sufficient potential benefits in the Palestinian/Israeli context. Therefore, the option should seriously be Page 142 discussed within Palestinian society and perhaps between the Palestinian and Israeli nations.
This Part of the Article provides a brief overview of TRCs. They have been used as part of a transitional justice healing process in many societies trying to come to grips with legacies of conflict.12 Transformative or transitional justice "aim[s] . . . to establish the principles that should govern the transition from a morally deficient (barbaric) society or situation to a morally superior (minimally decent) one."13 "Its primary concern is building a society that will respect human rights in the future. Thus, transitional justice favors recognition, restitution and reconciliation over retribution."14 Reconciliation is critical as it is the process of "overcom[ing] alienation, division, and enmity and restor[ing] peaceful, cooperative relationships based on a shared commitment to communal solidarity."15
According to Priscilla Hayner, truth commissions investigate a past history of violations of human rights in a particular country.16 They usually have four characteristics: 1) they focus on past events rather than ongoing Page 143 issues; 2) they investigate patterns of abuse within certain parameters over a fixed period rather than one event; 3) they are temporary, usually operating for six months to two years and then submitting a report; and 4) they are usually authorized by the state.17 They generally do not have the power to prosecute, but may sometimes have the ability to recommend prosecution to a criminal court.18 Truth commissions can be created by nongovernmental, national, and multinational organizations and can be less than national in scope.19
Margaret Popkin and Naomi Roht-Arriaza have identified four main goals of commissions: 1) contributing to transitional peace by creating an authoritative record; 2) providing a platform for victims;20 3) recommending changes to avoid a repetition; and 4) establishing who was responsible and should be held accountable for violations of human rights.21
The commissions can be highly controversial. As the South African Truth and Reconciliation process demonstrated, while some victims feel profoundly empowered by telling their stories, others feel angrier and face post-traumatic stress.22 According to South African TRC Chair Archbishop Desmond Tutu, "it was enormously therapeutic and cleansing for victims to tell their stories [and] the perpetrators had to confess in order to get amnesty. . . . This combination of storytelling and confession put[s] it all out in the open. With full disclosure, people feel they can move on."23 On the other hand, a survey in South Africa found that the process had made race relations worse and made Page 144 people angrier.24 In El Salvador, a survey showed widespread acceptance of that commission's findings.25
The first commission in modern times investigated atrocities against civilians in the Balkan wars of 1912-13 and was instituted by the Carnegie Endowment for International Peace.26 After World War I, the Allies created a commission to investigate Turkish and German atrocities.27 After World War II, the Allies set up commissions to investigate German and Japanese war crimes.28 The recent era has included commissions in: Uganda (1974, 1986- 95),29 Bolivia (1982-84),30 Argentina (1983-84),31 Uruguay (1985, 2000-01),32Zimbabwe (1985),33 Philippines (1986),34 Nepal (1990-91),35 Chile (1990-91),36Chad (1991-92),37 Germany (1992-94),38 El Salvador (1992-93),39 Rwanda Page 145 (1992-93),40 Somalia (1993),41 Sri Lanka (1994-97),42 Haiti (1995-96),43Burundi (1995-96),44 South Africa (1995-2000),45 Ecuador (1996-97),46Guatemala (1997-99),47 Nigeria (1999-2001),48 South Korea (2000),49 Peru (2000-02),50 Panama (2001-02),51 Yugoslavia (2002),52 East Timor (2002),53 Page 146 Sierra Leone (2002),54 Ghana (2002),55 Morocco (2004),56 Fiji (2005),57 and Liberia (2006).58
Societies may start such commissions when trials would be too divisive or overwhelming for either the entire society or the criminal justice system, which may be corrupt, dysfunctional, or lack legitimacy. International pressure might lead to the formation of a commission as well.59
There are some...