ICIP WORKING PAPERS:2015/04

Accountability, a new framework to assess the impact of truth commissions

Carlos Fernández Torné

Accountability, a new framework to assess the impact of truth commissions

Carlos Fernández Torné

Institut Català Internacional per la PauBarcelona, June, 2015

Gran Via de les Corts Catalanes 658, baixos · 08010 Barcelona

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http://www.icip.cat

Editores

Javier Alcalde y Rafael Grasa

Consejo Editorial

Pablo Aguiar, Laia Balcells, Alfons Barceló, Gema Collantes-Celador,

Caterina Garcia, Abel Escribà, Tica Font, Antoni Pigrau, Xavier Pons,

Alejandro Pozo, Mònica Sabata, Jaume Saura, Josep Maria Terricabras

y Léonie Van Tongeren

Corrector

XXX

Maquetación

Víctor Igual / Ātona

ISSN

XXX

DL

B. 24597-2013

Institut Català Internacional per la Pau

WP 2013-05 credit.pdf 1 15/10/13 09:35

Institut Català Internacional per la Pau

c/ Tapineria 10, 08002 Barcelona

T. +34 93 554 42 70 | F. +34 93 554 42 80

Editors

Xavier Alcalde and Rafael Grasa

Editorial Board

Pablo Aguiar, Laia Balcells, Alfons Barceló, Gema Collantes-Celador,

Caterina Garcia, Abel Escribà, Tica Font, Antoni Pigrau, Xavier Pons,

Mònica Sabata, Jaume Saura, Josep Maria Terricabras

and Léonie Van Tongeren

Typesseting

Atona Víctor Igual, S. L.

ISSN

2014-5793 (online edition)

DL

B. 10.188-2015

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T H E A U T H O R

Carlos is currently a PhD Candidate in Universitat Autònoma de Bar-celona. He researches how truth commissions contribute to promote accountability. A lawyer by profession with seven years of experience practicing law, he also holds a a master’s degree from the the Barce-lona Institute of International Relations (IBEI). His dissertation ex-amined the influence of the International Criminal Tribunal for the Former Yugoslavia in transitional justice.

Carlos worked in post conflict Nepal from 2008 to 2012, first with the INGO Peace Brigades International and later on with the Office of the High Commissioner for Human Rights. In 2012, Carlos finished a master of advanced studies in peace and international security. His dissertation, published by the International Catalan Institute for Peace, examines the relationship between truth seeking mechanisms and the State’s duty to prosecute.

Carlos has lived in Thailand, from 2012 to 2015, with regular travels to Nepal and Sri Lanka, the two case studies in his PhD research. Since August 2015, Carlos is living with his family in Seoul, South Korea.

This working paper is an earlier draft that builds on part of his PhD thesis ‘Truth Commissions in Nepal and Sri Lanka: assessing their im-pact on accountability’. Thesis directed by Dr. Rafael Grasa Hernández.

Email: carlosftorne@gmail.com

A B S T R A C T

This article argues that accountability provides a framework to assess the impact of truth commissions. To that end, it suggests that TCs generate horizontal accountability relations within the state, and ver-tical accountability relations between the state and civil society. These accountability relations produce accountability in its answerability and enforcement dimensions. Building on this rationality, the article operationalizes accountability relations TCs generate at three differ-ent stages.

Before their establishment, TCs generate indirectly vertical ac-countability relations between civil society and the state. The prospect of setting up a TC renders the governing regime answerable to civil society.

During the period between establishment and release of the report, TCs hold state agencies horizontally accountable generating answer-ability. Moreover, because TCs are authorized by the State, the truth they disclose becomes state answerability in front of testimonies of violations.

In their final reports, TCs put forward recommendations suscepti-ble of generating two more accountability relations. First, horizontally between the governing regime and the state agencies towards which the recommendations are directed. Second, vertically, as civil society pushes the governing regime to implement the recommendations put forward in the TC’s final report. These accountability relations, as a result of the recommendations, generate accountability in its enforce-ment dimension.

Keywords: accountability; vertical and horizontal relations; truth

commissions; civil society; impact assessment.

R E S U M

L’article argumenta que la rendició de comptes proporciona un marc per avaluar l’impacte de les comissions de la veritat. Amb aquesta fina-litat, suggereix que les CV generen relacions de rendició de comptes horitzontal dins de l’estat i relacions de rendició de comptes vertical entre l’estat i la societat civil. Aquestes relacions de rendició de comptes produeixen compromís de respondre (answerability) i compliment. So-bre aquesta base, l’article operacionalitza les relacions de rendició de compte que les comissions de la veritat generen en tres etapes diferents.

Abans del seu establiment, les CV generen indirectament relacions de rendició de comptes vertical entre la societat civil i l’estat. L’expec-tativa d’establir una CV deixa el regim governant amb el compromís de respondre a la societat civil.

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Durant el període entre el seu establiment i l’emissió de l’informe final, les CV fan rendir comptes horitzontalment a les agencies esta-tals, generant compromís de respondre. A mes, perquè les CV estan autoritzades per l’estat, la veritat que revelen es converteix en com-promís de respondre estatal davant de testimonis de violacions.

En els seus informes finals, les CV proposen recomanacions sus-ceptibles de generar dues relacions mes de rendició de comptes. Pri-mer, horitzontalment entre el regim governant i les agencies estatals cap a les que les recomanacions es dirigeixen. Segon, verticalment, en tant que la societat civil pressiona el regim governamental per a que implementi les recomanacions que la CV ha proposat en l’informe fi-nal. Aquestes relacions de rendició de comptes, com a resultat de les recomanacions, generen rendició de comptes en la seva dimensió de compliment.

Paraules clau: rendició de comptes; rendició de comptes vertical i horitzontal;

comissions de la veritat; societat civil; avaluació d’impacte.

R E S U M E N

El articulo argumenta que la rendición de cuentas proporciona un marco para evaluar el impacto de las comisiones de la verdad. Con esta finalidad, sugiere que las CV generan relaciones de rendición de cuentas horizontal dentro del estado y relaciones de rendición de cuentas vertical entre el estado i la sociedad civil. Estas relaciones de rendición de cuentas producen un compromiso de responder (answe-rability) así como cumplimiento. Sobre esta base el articulo operacio-naliza las relaciones de rendición de cuentas que las comisiones de la verdad generan en tres etapas distintas.

Antes de su establecimiento, las CV generan indirectamente rela-ciones de rendición de cuentas verticales entre la sociedad civil y el estado. La expectativa de establecer una CV deja al régimen guberna-mental con el compromiso de responder a la sociedad civil.

Durante el periodo entre su establecimiento y la emisión del informe final, las CV hacen rendir cuentas horizontalmente a las agencias estata-

les, generando compromiso de responder. Además, debido a que las CV están autorizadas por el estado, la verdad que revelan se convierte en compromiso de responder estatal frente a testimonios de violaciones.

En sus informes finales, las CV proponen recomendaciones sus-ceptibles de generar dos relaciones de rendición de cuentas mas. Pri-mero, horizontalmente entre el régimen gubernamental i las agencies estatales hacia las que las recomendaciones se dirigen. Segundo, ver-ticalmente, en tanto que la sociedad civil presiona al régimen guber-namental para que implemente las recomendaciones que la CV ha propuesto en el informe final. Estas relaciones de rendición de cuen-tas, como resultado de las recomendaciones, generan rendición de cuentas en su dimensión de cumplimiento.

Palabras clave: rendición de cuentas; rendición de cuentas vertical y

horizontal; comisiones de la verdad; sociedad civil; evaluación de impacto.

C O N T E N T S

1. INTRODUCTION  9

2. THE MEANING OF ACCOUNTABILITY  112.1 ANSWERABILITY DIMENSION OF ACCOUNTABILITY 112.2 ENFORCEMENT DIMENSION OF ACCOUNTABILITY 132.3 DO BOTH ANSWERABILITY AND ENFORCEMENT DIMENSIONS NEED TO BE PRESENT TO QUALIFY AS AN ACCOUNTABILITY RELATION? 14

3. MAKING ACCOUNTABILITY WORK: VERTICAL AND HORIZONTAL ACCOUNTABILITY  16

4. HOW DO ACCOUNTABILITY AND TRUTH COMMISSIONS RELATE TO EACH OTHER 18 5. OPERATIONALIZING ACCOUNTABILITY RELATIONS AND THE PRODUCTION OF ANSWERABILITY AND ENFORCEMENT  21 

5.1 VERTICAL ACCOUNTABILITY BEFORE THE ESTABLISHMENT OF THE COMMISSION  215.2 HORIZONTAL ACCOUNTABILITY DURING THE ‘LIFE’ OF THE COMMISSION – PROCESS  255.3 HORIZONTAL AND VERTICAL ACCOUNTABILITY AS A RESULT OF

THE TC’S RECOMMENDATIONS IN THE FINAL REPORT – OUTCOME  31 5.3.1 HORIZONTAL ACCOUNTABILITY BETWEEN THE GOVERNING

REGIME AND THE STATE INSTITUTIONS TOWARDS WHICH THE RECOMMENDATIONS ARE DIRECTED 31 5.3.2 INDIRECT VERTICAL ACCOUNTABILITY BETWEEN CIVIL SOCIETY AND THE GOVERNING REGIME 34

6. CONCLUSIONS  38

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1 . I N T R O D U C T I O N

Truth commissions (TCs) have become a recurrent mechanism for states to deal with and address past human rights violations in the aftermath of conflict or state repression under authoritarian rule. Transitional justice experts and the UN estimate that more than forty TCs have been established in different countries and regions in the past forty years. Often these commissions are established with high expectations. They are expected to help post-conflict societies estab-lish the facts about past human rights violations, foster accountabili-ty, preserve evidence, identify perpetrators and recommend repara-tions and institutional reforms.1

Despite these expectations, literature of the past decade has raised doubts regarding the impact of TCs, pointing at the need for more empirical research.2 Existent research has examined the positive or negative impact of transitional justice mechanisms on, among others variables, post-conflict peace duration,3 repression,4 or human rights and democracy.5 When it comes to assessing the impact of TCs one of the real challenges is to isolate their effects from other ongoing factors in a transition. The fact that TCs are themselves a product of the tran-sition further complicates this exercise.6

1. United Nations Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, S/2004/616, 2004, para. 502. David Mendeloff, «Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?,» International Studies Review 6(2004): 355-80; Eric Brahm, «Uncover-ing the Truth: Examining Truth Commission Success and Impact,» International Studies Perspectives 8(2007): 16-35; Oskar N.T. Thoms, James Ron, and Roland Paris, «State-Lev-el Effects of Transitional Justice: What Do We Know?,» The International Journal of Tran-sitional Justice 4(2010): 329–54.3. Tove Grete Lie, Helga Malmin Binningsbø, and Scott Gates, «Post-Conflict Justice and Sustainable Peace,» World Bank Post-Conflict Transitions Working Paper Series(2007).4. Hunjoon Kim and Kathryn Sikkink, «Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries,» International Studies Quarterly 54(2010): 939–63.5. Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter, «The Justice Balance: When Transitional Justice Improves Human Rights and Democracy,» Human Rights Quarterly 32(2010).6. Brahm, supra n 2 at 28.

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In this paper, I propose to assess the impact of truth commissions on accountability. To that end, section one delves into the concept of accountability in its two dimensions of answerability and enforce-ment. Section two examines the horizontal and vertical levels of inter-action in which accountability takes place. Building on this twofold distinction, section three puts forward the argument that TCs gener-ate horizontal and vertical accountability relations and it is within this relations that accountability, in its answerability and enforcement di-mensions, is produced. Section four operationalizes accountability relations before the establishment of a TC; from the establishment to the release of the final report; and as a result of its recommendations in the final report. It proposes indicators to assess when these ac-countability relations generate answerability and enforcement.

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2 . T H E M E A N I N G O F A C C O U N T A B I L I T Y

Accountability is a broad concept. The concept goes back to account-ing in the literal sense of bookkeeping. Dubnick traces its origins to the reign of William the Conqueror, the first Norman King of England. In 1085 the King ordered the compilation of a survey of the landhold-ings. All the property holders were required to ‘render a count of what they possessed.’7 In the last decades the word has spread to other fields, beyond finance and bookkeeping, such as democratic gover-nance or human rights. In democratic governance, those who govern are required to be accountable to those who elect them. In the human rights arena, calls for accountability express the need to punish perpe-trators of human rights violations. As Bovens notes, the accounting relationship has reversed: it is not anymore the sovereign holding ac-countable the subjects but the other way around.8

In a broad sense, accountability refers to the processes of holding public officials answerable for their actions. The idea is to restrain those who hold power. In this sense, Schedler defines accountability as having two dimensions, answerability and enforcement.

2 . 1 A N S W E R A B I L I T Y D I M E N S I O N O F A C C O U N T A B I L I T Y

There is general agreement in the literature about the meaning of an-swerability in accountability. Answerability is understood as encom-passing the obligation of officials to inform about a decision and to explain the reasons behind taking that decision. Schedler defines the informational dimension as comprising the right of accounting agen-

7. Quoted in Mark Bovens, «Analysing and Assessing Accountability: A Conceptual Frame-work,» European Law Journal 13, no. 4 (2007): 448.8. Ibid.

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cies to receive information and the corresponding obligation of ac-countable actors to release all necessary details. In this informational dimension, the exercise of accountability involves elements of moni-toring and oversight, finding facts and generating evidence. The ex-planatory dimension of accountability implies the right of accounting agencies to receive an explanation and the corresponding duty of ac-countable actors to justify one’s conduct. Here the norm of account-ability subjects power to the logic of public reasoning.9

Fox refers to answerability understood as ‘the fundamental right to call those in authority to justify their decisions.’10 For Fox answerabil-ity is the soft face of accountability.

For Bovens accountability has a close semantic connection to an-swerability because in an accountability relation a forum can interro-gate an actor; the actor has the obligation to explain and justify his conduct; and the forum can question the information provided or the legitimacy of the conduct.11

After a review of the existing literature, Lindberg finds a general agreement in what constitutes the core of accountability. He argues that it includes an agent or institution who is to give an account; an area, responsibilities, or domain subject to accountability; a principal to whom the agent is to give account; and the right of the principal to require the agent to inform and explain decisions with regard to the area or domain.12 Although he does not refer explicitly to answerabili-ty, Lindberg’s definition includes the agent’s obligation to inform and to explain decisions.

The literature reviewed shows a general agreement in the content of what Schedler calls the answerability dimension of accountability. This agreement is lacking in what he refers to as the enforcement dimension.

9. Andreas Schedler, «Conceptualizing Accountability,» in The Self-Restraining State: Power and Accountability in New Democracies, ed. Andreas Schedler, Larry Diamond, and Marc F. Plattner(Lynne Rienner, 1999), 15.10. Jonathan Fox, «The Uncertain Relationship between Transparency and Accountabili-ty,» Development in practice 17, no. 4-5 (2007): 668.11. Bovens, supra n 7 at 451.12. Staffan I. Lindberg, «Accountability: The Core Concept and Its Subtypes,» Africa Pow-er and Politics Programme, no. Working paper n.1 (2009): 9.

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2 . 2 E N F O R C E M E N T D I M E N S I O N O F A C C O U N T A B I L I T Y

There is no agreement in the literature on whether the enforcement di-mension of accountability entails punishment exclusively or it encom-passes other measures. For Schedler enforcement implies the idea that accounting agencies punish improper behavior and that those held to account suffer the consequences.13 He contends that the destruction of reputation through public exposure is one of the main tools of account-ability. But when it comes to illegal behavior, such as corruption or hu-man rights violations, he advocates for appropriate legal sanctions.14 Similarly, Fox talks about the hard face of accountability which includes answerability plus the possibility of sanctions.15 As Schedler, Fox sus-tains that the argument of the public exposure falls apart ‘when the gap between the transgression and the ‘answerability’ process is very large.’16 But Fox definition of hard accountability includes, besides sanctions, also compensation and/or remediation.17 Similarly, Bovens considers the term sanction as excluding redress or reparation and, instead, re-fers to the possibility that the one being held accountable ‘may face con-sequences.’18 It is precisely these consequences what differentiates ac-countability from non-committal provision of information.19 These consequences may be formal, such as ‘fines, disciplinary measures, civ-il remedies or even penal sanctions, (…) or informal, such as the very fact of having to render account in front of television cameras.’20 And Bovens sustains the accounting agency doesn’t need to be the one en-forcing those consequences but it could be left to another agency.21

13. Schedler, supra n 9 at 15.14. Schedler, supra n 9 at 16-17.15. Fox, supra n 10 at 668.16. Jonathan Fox, Jonathan Fox, «Civil Society and Accountability Politics,» in Account-ability Politics: Power and Voice in Rural Mexico(Oxford University Press, 2007), 5.17. Fox, supra n 10 at 669.18. Bovens, supra n 7 at 452.19. Ibid., 451.20. Ibid., 452.21. Ibid.

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Bringing in another perspective, Lindberg sustains accountability only needs the right to sanction for failure to provide information or to justify a decision and not for the content of the decision and its con-sequences.22 The sanction is here because the accounting agency fails to fulfill the answerability dimension, the obligation to inform and ex-plain a decision, rather than to punish the conduct carried out. In oth-er words, here the enforcement dimension would cease to exist as a response to improper behavior, or to redress or repair a harm done. This argument raises the question of whether both dimensions need to exist to describe a relation as one of accountability.

2 . 3 D O B O T H A N S W E R A B I L I T Y A N D E N F O R C E M E N T D I M E N S I O N S N E E D T O B E P R E S E N T T O Q U A L I F Y A S A N A C C O U N T A B I L I T Y R E L A T I O N ?

Schedler’s understanding of accountability as a radial concept accepts that acts of accountability can exist without one or two of its dimensions, be it information, justification or punishment. As a radial concept, the three dimensions of information, justification and punishment.

Do not form a core of binary ‘defining characteristics’ that are ei-ther present or absent and that must be present in all instances we describe as exercises of accountability. They are continuous variables that show up to different degrees, with varying mixes and emphases.23

Schedler concludes that accountability ‘must be regarded as a «ra-dial» concept whose «subtypes» or «secondary» expressions do not share a common core but lack one or more elements that characterize the prototypical «primary» category.’24 If we consider accountability as a radial concept only one of its dimensions, be it answerability, ei-ther as information or justification, or enforcement would be enough.

22. Lindberg, supra n 12 at 9.23. Schedler, supra n 9 at 17.24. Ibid.

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Another issue, which is left unaddressed in the literature, is how much information, justification or enforcement would be required to con-ceive someone is being rendered accountable.25

Schedler refers to the Chilean and South African truth commis-sions as agencies of accountability that have considered accountabili-ty mainly as answerability and that have relied on a soft form of pun-ishment, the public exposure of criminal action.26 Conversely, Schedler points at elections where accountability is exclusively a matter of sanctions. Through the ballot voters hold politicians accountable pun-ishing past behavior ‘even if between elections incumbents may con-tinually disclose their actions and justify them.’27

Beyond this conceptual understanding as answerability and en-forcement, accountability takes place within a relation in which, at least one side, represents the state. The next section operationalizes this concept through the distinction between vertical and horizontal accountability. Only then we will have all the elements to delve into the relation between accountability and TCs.

25. Quoting Fox «how much answerability, or what kinds of sancions, are ‘enough’ in any given case to ‘count’». Fox, supra n 16 at 3. 26. Schedler, supra n 9 at 17.27. Ibid., 18.

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3 . M A K I N G A C C O U N T A B I L I T Y W O R K : V E R T I C A L A N D H O R I Z O N T A L A C C O U N T A B I L I T Y

This section will look at the two levels of interaction in which account-ability takes place: horizontally between state agencies and vertically between non-state and state actors.

Following O’Donnell, horizontal accountability is,

The existence of state agencies that are legally enabled and empowered, and factually willing and able, to take actions that span from routine oversight to criminal sanctions or impeachment in relation to actions or omissions by other agents or agencies of the state that may be qualified as unlawful.28

On the other hand, vertical accountability refers to the state being held to account by non-state agents, mainly by citizens and their asso-ciations.29 Elections would be the example of citizens holding account-able those in office.

For some, electoral accountability would be the only instance of vertical accountability. The reason being that it is the only relationship that gives citizens formal authority of oversight and/or sanction over public officials. But as Fox points out the problem with this narrow definition is that it excludes many of the processes which are not based on formal authority but generate political accountability in practice.30

Thus vertical accountability would also include ‘processes through which citizens organize themselves into associations capable of lob-bying governments, demanding explanations and threatening less formal sanctions like negative publicity.’31 These processes can take

28. Guillermo O’Donnell, «Horizontal Accountability in New Democracies,» ibid., ed. An-dreas Schedler, Larry Diamond, and Marc F. Plattner, 38.29. Anne Marie Goetz and Rob Jenkins, Voice, Accountability and Human Development: The Emergence of a New Agenda, 2002, 7.30. Fox, supra n 16 at 7.31. Goetz and Jenkins, supra n 29 at 7.

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place against those who occupy positions in state institutions either if they have been elected or not. O’Donnell includes social demands to denounce wrongful acts of public authorities, helped by a reasonably free media, as dimensions of vertical accountability.32 Other authors refer to these processes as societal accountability, a third way of hold-ing governments accountable.33 These processes bring new issues into the public agenda and/or activate the operation of horizontal agencies. What differentiates these demands in a relation of vertical or societal accountability is that the state is compelled to respond. If there is no state answerability, the actions of citizens’ associations, movements and media are voice understood to describe ‘how citizens express their interests, react to governmental decision-making or the positions staked out by parties and civil society actors, and respond to problems in the provision of public goods.’34

While horizontal accountability relations are built on the basis of state agencies legally enabled to scrutinize actions by other state agen-cies, vertical accountability relations between non-state and state ac-tors are more ambiguous. To qualify a relation as vertical accountabil-ity the state needs to be rendered accountable to the civil society. The next section will examine the relation between TCs and accountability in light of its answerability and enforcement dimensions as well as the horizontal and vertical relations.

32. O’Donnell, supra n 28 at 29-30.33. John Ackerman, «Co-Governance for Accountability: Beyond «Exit» and «Voice»,» World Development 32, no. 3 (2003): 449.34. Goetz and Jenkins, supra n 29 at 9.

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4 . H O W D O A C C O U N T A B I L I T Y A N D T R U T H C O M M I S S I O N S R E L A T E T O E A C H O T H E R

Truth commissions are by nature agencies of horizontal accountabili-ty set up by the State to independently verify on excesses carried out by it-self. Freeman defines a TC as:

An ad-hoc autonomous victims centered commission of inquiry set up in and authorized by a state for the primary purposes of (1) investigating and reporting on the principal causes and consequences of broad and relatively recent patterns of severe violence or repression that occurred in the state during determinate periods of abusive rule or conflict, and (2) making rec-ommendations for their redress and future prevention.35

As agencies set up by the state, TCs are vested with formal author-ity. They are legally enabled and empowered by the executive branch or by the legislative.36 In other cases they are authorized by a peace agreement37 or domestic legislation expanding the terms of reference under a peace agreement.38

TCs inquire about excesses perpetrated by the state either in the aftermath of conflict or state repression under authoritarian rule. In post-conflict scenarios TCs can also inquire about excesses perpetrated by non-state actors, usually members of a politically motivated, non-state armed group responsible for conflict-related international crimes.

In carrying out their investigation, TCs generate horizontal ac-countability relations with other state agencies, such as security forces

35. Mark Freeman, Truth Commissions and Procedural Fairness(New York: Cambridge University Press, 2006), 18.36. In Latin America usually through presidential decree such the TCs in Bolivia (1982), Argentina (1983), Chile (1990), Uruguay (2000), Panama (2001), and Peru (2001). In South Africa (1995), Ghana (2002) and Kenya (2009) through the legislative branch.37. Truth commissions in El Salvador (1992) and Guatemala (1997).38. Like in Sierra Leone (2002), Democratic Republic of Congo (2004), and Liberia (2006).

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or the judiciary, among others. Specifically, TCs produce answerabili-ty through holding state agencies horizontally accountable. Here, the commission’s strength and reach will depend on its mandate and powers. These powers will also shape the extent of the obligation of state officials to inform about a decision and to explain the reasons behind taking that decision. At the same time, independently from their interaction with other state agencies, the exercise of accountabil-ity also involves an active fact-finding and evidence generating by the commission, usually referred as truth seeking. Because TCs are autho-rized by the state, the truth it discloses becomes state answerability in front of testimonies of violations.

As a result of the investigation done, TCs come up with recom-mendations intended to redress the harm done to victims and to avoid reoccurrence. These recommendations usually include the de-sign of reparation programs, the reform of institutions and recom-mendations to prosecute perpetrators. These recommendations com-piled in the final report correspond to the enforcement dimension of accountability, as defined by Fox and Bovens. For Fox, it is the con-cept of hard accountability, which includes besides sanctions also compensation or remediation. For Bovens, it is the reference to the possibility that those held to account may face consequences, which includes, beyond sanctions, redress or reparation. But as Bovens sus-tains the accounting agency doesn’t need to be the one enforcing those consequences. This is the case for TCs insofar they only put forward recommendations in their final report which are left to be enforced by other state agencies. These recommendations can poten-tially generate a second horizontal accountability relation. In this case, the governing regime that receives the report has the authority to compel the state agencies, towards which the recommendations are directed, to implement them. The state agencies become account-able to the governing regime. This horizontal accountability relation generates accountability in its enforcement dimension.

Beyond these horizontal accountability relations, TCs also generate vertical accountability relations between civil society and the state. This vertical accountability is generated indirectly insofar it is not gen-

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erated by the TC but because of it. This happens in two different phases: before the establishment of the TC and as a result of the TC’s recommendations in the final report. Before its establishment, it is the prospect of setting up a TC that renders the governing regime answer-able to the civil society. Here the accountability relation generates an-swerability. After the release of the report, vertical accountability is generated when civil society presses the governing regime to imple-ment the commission’s recommendations. This vertical accountability relation generates accountability in its enforcement dimension.

The next section develops the argument that TCs generate horizon-tal and vertical accountability relations and that it is within these rela-tions that accountability is produced in its answerability or enforce-ment dimensions.

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5 . O P E R A T I O N A L I Z I N G A C C O U N T A B I L I T Y R E L A T I O N S A N D T H E P R O D U C T I O N O F A N S W E R A B I L I T Y A N D E N F O R C E M E N T

To operationalize the accountability relations that TCs generate, this sec-tion looks into three different stages. Before their establishment, TCs generate indirectly vertical accountability relations between civil society and the state. During the period between establishment and release of the report, TCs hold state agencies horizontally accountable. As a result of their final reports, TC’s generate, first, a relation of horizontal account-ability between the governing regime and the state agencies towards which the recommendations are directed; second, a relation of vertical accountability between the civil society and the governing regime.

At the same time, to delve into the accountability produced in its answerability and enforcement dimension, the section brings in the distinction between actual and potential functions. Actual functions refer to those TCs carry out on their own while potentialities refer to those the commission can only make recommendations. While actual functions generate accountability in its answerability dimension, po-tentialities generate accountability in its enforcement dimension. In-dicators are put forward to suggest the production of answerability and enforcement.

5 . 1 . V E R T I C A L A C C O U N T A B I L I T Y B E F O R E T H E E S T A B L I S H M E N T O F T H E C O M M I S S I O N

The decision to establish a TC is usually a compromise between two sides. In post-conflict contexts between two former warring parties. In post-authoritarian States between usually a previous oppressive re-gime and a newborn democracy. The TC compromise is part of a broader agreement to transition from the old to the new.

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Calls to address previous violations might come from inside the country, from victims and civil society, or from the international com-munity. Confronted with mounting pressure, the State response might be to establish a TC. As Hayner writes,

In the peace talks of Sierra Leone in 1999, the Democratic Republic of the Congo in 2002, Liberia in 2003, and in many other contexts, there has been either an explicit or an implicit link between an agreement for a truth com-mission and an agreement, understanding, or hope that there would be no trials.39

Thus TCs might be envisaged as a way to avoid resorting to other retributive mechanisms, such as trials.

Regardless of the reasons, the prospect of setting up a TC will gen-erate an interaction between the civil society and the governing re-gime. If the pressure from civil society is decisive for the state to set up a TC, it means the state is being rendered answerable. A second indi-cator of state answerability is whether the pressure from civil society brings about changes in the mandate, powers, and appointment of commissioners or any other relevant aspect of the commission. For instance, the need for new legislation to set up a TC opens the possi-bility for victims and broader civil society to participate and engage in the process through putting forward amendments or new demands. State answerability to these demands suggests the prospect of estab-lishing a TC is generating accountability.

Figure 1 shows this relation of vertical accountability between the civil society and the state.

39. Priscilla Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions(New York and London: Routledge, 2011), 91.

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Figure 1: Accountability relations.

Source: Author

As we can see, civil society demands to set up a TC are being direct-ed to the governing regime. Due to the pressure from civil society, the governing regime is compelled to be answerable. The setting up of a TC, as a mechanism of horizontal accountability to verify on excesses carried out by the state, suggests the governing regime is being ac-countable vertically to the civil society. But the specific dynamics should be gauged in every case. While setting up a TC might be a con-cession by the state faced with mounting pressure, it could also be a way of avoiding imminent prosecutions.

In Nepal, the reasons behind the establishment of a commission of inquiry into disappearances (COID) and a truth and reconciliation commission (TRC), to deal with violations committed during the armed conflict that ended in 2006 were completely different. The idea to establish a COID conformed to the local practices in which Nepal

24

had dealt with episodes of state-sponsored violations. Faced with mounting pressure from civil society, the State resorted to its domes-tic legislation in the setting up of these commissions. In doing so, the government was diverting investigations from the traditional criminal system into ad hoc mechanisms controlled by the government itself.40 In 2007 the Supreme Court of Nepal ruled that a commission estab-lished under this legislation would not comply with international hu-man rights norms and compelled the State to enact new legislation. On the other hand, the idea to establish a TRC was more of an inter-national suggestion, with little domestic debate and with a view to the South African model of truth in exchange for amnesty.41

Figure 1 also shows the governing regime being vertically account-able to the civil society calls to amend legislation establishing a TC. In Nepal, besides the agreement on the need for new legislation, there were calls for the Government to carry out consultations. These con-sultations opened a space for victims and civil society organizations to put forward their demands in the form of amendments to the draft legislation. Strong opposition by victims and civil society frustrated attempts by various governments to incorporate amnesty provisions to the bills. Finally, on 25 April 2014, the Legislature-Parliament of Nepal passed the Truth and Reconciliation Commission and the Commission on Enforced Disappearances Act. The Act has been crit-icized for breaching both international human rights law and the Ne-pal Supreme Court decision of 2 January 2014. Among other con-cerns, the Act grants amnesty to perpetrators of serious violations of human rights. Some victim and civil society organizations have strongly opposed the Act calling for its amendment as a prior condi-tion to engage with the commission.

40. International Commission of Jurists, Commissions of Inquiry in Nepal: Denying Rem-edies, Entrenching Impunity, 2012, Executive Summary.41. International Crisis Group, Nepal: Peace and Justice, 184, 2010, 20.

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5 . 2 H O R I Z O N T A L A C C O U N T A B I L I T Y D U R I N G T H E ‘ L I F E ’ O F T H E C O M M I S S I O N – P R O C E S S

In his definition, Freeman differentiates between two primary pur-poses of TCs: (1) investigate and report and (2) make recom-mendations. This distinction is between what TCs can effectively do and what they cannot do but can only recommend doing. In his report from August 2013, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence refers to actual functions and potentialities to differentiate between those the com-missions can carry out on its own and those for which they can merely make recommendations.42

Actual functions include fact-finding and victim tracing aimed at clarifying the facts surrounding violations, the identity of perpetrators and the fate of individual victims when their whereabouts are un-known. With regards to victim tracing, in some cases TC take respon-sibilities for identifying burial sites and even for carrying out exhuma-tions. But in case of large numbers of victims, TCs will need support from other institutions.43

In carrying out fact-finding and victim tracing TCs are vested with investigative powers. Through these powers TCs interact with a range of state agencies, such as security forces or the judiciary. It is during these interactions that TCs hold state officials accountable through requesting the release of all necessary details (informational dimen-sion) as well as to provide an explanation to their acts (argumentative dimension). It is through holding state officials horizontally account-able that TCs generate answerability.

But investigative powers have differed considerably and in some cases TCs have not been legally empowered to interrogate state offi-cials or to order the submission of documents and evidence. Beyond generating horizontal accountability through interactions with the

42. Special Rapporteur on the promotion of truth justice reparation and guarantees of non-recurrence, Report to the Human Rights Council, A/HRC/24/42, 2013, para.3843. Ibid. para.42.

26

state officials, TCs have relied on their own investigation and informa-tion from victims, human rights organizations and broader civil soci-ety to establish facts, find out the whereabouts of victims or to hold accountable perpetrators or institutions responsible for such viola-tions.

Figure 2 shows this interaction.

Figure 2: Accountability relations.

Source: Author

As we can see, TCs carry out fact-finding and victim tracing func-tions while interacting with state agencies and with civil society. But the figure shows the different nature of these relations. On the one hand, their interaction with the state agencies, such as the state security forc-es, is a result of the powers the commission wields. The commission uses these powers to hold officials accountable through requesting them to release necessary details and the reasons behind their actions (the red color of the arrow shows the horizontal accountability rela-

27

tion). As for the relation with civil society, it is not based on accountabil-ity (the arrow representing the interaction is now black). Victims, wit-nesses, and broader civil society are a source of information to establish facts and to collect evidence. However, because of the nature of TCs as agencies of horizontal accountability authorized by the state, the truth disclosed becomes state answerability in front of thousands of testimo-nies of violations collected from victims, witnesses and NGO records (the black arrow changes into red color as input from civil society feeds into the answerability dimension of horizontal accountability).

In Argentina or Chile for instance, truth commissions lacked any power to subpoena military officers or to order the submission of doc-uments from military institutions. In both cases the commissions re-ceived little cooperation from the armed forces.44 These limitations were balanced through information collected from victims and human rights organizations. The Argentinian National Commission on the Disappeared (CONADEP following the commission’s name in Span-ish) took over 7.000 statements documenting 8.960 persons who had disappeared and most human rights organizations assisted the inqui-ry providing information on the disappeared.45 In Chile, the National Commissions on Truth and Reconciliation took testimony from fami-lies of those disappeared or killed on the basis of extensive records of non-governmental organizations.

Nor did the Commission on the Truth for El Salvador have subpoe-na or search and seizure power. The commission ‘took testimony from some two thousand victims and witnesses, reporting on over seven thousand cases of killings, disappearances, torture, rape and massa-cres.’46 But as opposed to Argentina or Chile, in El Salvador the com-mission named those responsible as a result of its investigation. Among them, members of the armed forces implicated in the commis-sion of crimes; the civil and judicial servants who failed to investigate such crimes; and members of the insurgent armed group implicated

44. Hayner, supra 39 at 45-48.45. Ibid.46. Ibid., 50.

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in perpetrating acts of violence.47 Naming perpetrators is a step for-ward in the answerability a commission generates.

As opposed to the early Latin American commissions, vested with few powers, in Commonwealth countries, commissions have tradi-tionally had a wide range of important investigative powers, like sub-poena, search and seizure and witness protection.48 For instance the South African Truth and Reconciliation Commission (SATC) had all these powers. However, according to Hayner ‘it employed its subpoe-na and search and seizure powers only a handful of times.’49 The com-mission collected information through public hearings. Those who had committed politically motivated crimes, including gross viola-tions of human rights, could be granted amnesty in exchange for full disclosure of the whole truth in relation to those crimes. Perpetrators were answerable not only to the commission but also to the victims. According to Hayner, ‘despite the difficulties and frustration, it seems clear that significant and detailed information emerged from the am-nesty process that contributed to the broader goal of revealing the truth.’50

As a result of the fact-finding and victim tracing carried out, TCs generate new truth, disclosed mainly through the publication of the final report but also in public hearings. This new truth is, on the sur-face, the result of the fact-finding and victim tracing functions. But because of the nature of TCs as agencies of horizontal accountability authorized and empowered by the state, what is being disclosed are outputs of accountability in its answerability dimension.

Box 1 compiles indicators showing when a TC is generating an-swerability as a result of the fact-finding and victims tracing functions.

Indicators, formulated as questions, of answerability as a result of fact-finding and victim tracing (actual functions).

47. The commission on the truth for El Salvador, «From Madness to Hope: The 12 Year War in El Salvador: Report on the Commission on the Truth for El Salvador,» (1993).48. Freeman, supra 35 at 34.49. Hayner, supra 39 at 28.50. Ibid., 30.

29

Box 1: Indicators of answerability as a result of actual functions.

• Have the main actors involved been answerable to the commis-sion?

• Has the TC acknowledged that state agencies committed viola-tions of human rights/ international humanitarian law?

• Has the TC disclosed new information surrounding violations or evidence of violations committed?

• Has the TC disclosed the fate of victims?• Has the TC identified burial and exhumations have started be-

ing carried out?• Has the TC attributed responsibility, such as naming perpetra-

tors and institutions involved in committing violations?

Source: Author.

So far we have examined the fact-finding and victim tracing func-tions. On the other hand potential functions refer to those the com-mission does not carry out on its own but rather puts forward recom-mendations that will need to be implemented by other state agencies. They are a consequence of the actual functions, a proposal to redress the harm done and avoid repetition. Potentialities include victim re-dress through the design of comprehensive reparation programs, pre-vention of further violations through the reform of institutions, and contributing to prosecution.51

51. Here I deviate from the classification made by the Special Rapporteur (SR). In its re-port, the SR refers to «victim redress» and «preventive» functions as potentialities while «contributing to prosecutorial efforts» and «reconciliation» as additional functions. In my case, I consider «contributing to prosecutions» as a potentiality and I don’t include «recon-ciliation» as a function of TCs. I deviate from the SR because he examines mandates of TCs and functions they have in-creasingly been given over time. Thus he doesn’t discuss whether «contributing to prosecu-torial efforts» is a potential function or not but rather explains it is an additional function TCs have been given overtime. I have decided to include it as a potentiality because «con-tributing to prosecutorial efforts» is also a recommendation TCs can include or not in their final report. As in the case of victim redress and prevention of further violations, contribut-ing to prosecution is a recommendation to be implemented by another state agency. Con-versely, I don’t consider «reconciliation» as a potential function. Although some TCs reports

30

These potentialities usually consist of recommendations to other state institutions to implement. Some of them are outlined in the fol-lowing box.

TC’s recommendations (potentialities).

Box 2: List of recommendations TCs could eventually put forward.

• Recommendation to carry out exhumations- Victim redress• Recommendations concerning the design of reparation pro-

grams-Victims redress

Individual responsibility:• Recommendation to prosecute are put forward and evidence

gathered is handed over to prosecutorial agencies – Prosecu-torial

• Recommending vetting of perpetrators for new positions, pro-motions – Preventive

• Recommending dismissal of perpetrators form security forces, civil service – Preventive

• Recommending disqualification from holding public office to those who committed violations – Preventive

also put forward recommendations for «reconciliation» they consist of recommendations to fulfill other functions. For instance, the El Salvador TC recommendations for reconciliation are essentially measures to provide material and moral compensation. In its recommenda-tions, the TC of Guatemala considers that truth, justice, reparations and forgiveness are the foundations for the consolidation of peace and for national reconciliation. In the same spir-it, the SR reiterates, «meaningful reconciliation requires, in addition to truth, the imple-mentation of the remaining three elements: justice, reparation and guarantees of non-re-currence. Thus truth commissions on their own cannot achieve reconciliation, and the inclusion of the term in their titles likely generates expectations that cannot be satisfied» (Special Rapporteur, supra n 43 at para. 47).

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Institutional responsibility• Recommending the reform of security forces, and other state

institutions (administration of justice) to prevent repetition – Preventive

• Changes in legislation in adherence with protection of human rights – Preventive

Source: Author.

The box compiles a list of possible recommendations in the final re-port of a TC. These are potentialities insofar they are a list of measures the commission only puts forward. In fact, it is usually with the sub-mission of the final report that TCs finish their work. But the impact of the recommendations is merely beginning.

5 . 3 H O R I Z O N T A L A N D V E R T I C A L A C C O U N T A B I L I T Y A S A R E S U L T O F T H E T C ’ S R E C O M M E N D A T I O N S I N T H E F I N A L R E P O R T – O U T C O M E

I will look here into both horizontal and vertical accountability rela-tions generated as a result of the TC’s recommendations compiled in the final report.

5 . 3 . 1 . H O R I Z O N T A L A C C O U N T A B I L I T Y B E T W E E N T H E G O V E R N I N G R E G I M E A N D T H E S T A T E I N S T I T U T I O N S T O W A R D S W H I C H T H E R E C O M M E N D A T I O N S A R E D I R E C T E D

Once a TC submits the final report it finishes its work. So, at the point when the implementation of recommendations has yet to begin, the TC ceases to exist. Thus, when CONADEP, the TC in Argentina, rec-ommends in its final report that, ‘the courts process with the utmost urgency the investigation and verification of the depositions re-

32

ceived,’52 it begs the question of who is responsible for implementing the recommendations. Is it for the courts or the President to whom the final report has been submitted? If all the actors were to follow the script, the governing regime would follow through with the imple-mentation; for one thing it was the state who set up the commission in the first place. Through the release of the report, the TC is handing over to the governing regime a potential to-do list of measures intend-ed mainly to redress victims and prevent repetition. The governing regime takes over as the accounting agency and the various state insti-tutions towards which the recommendations are directed become the accountable actors.

However, this course of action doesn’t take fully into account the complexity of transitions and the fact that it was the same state insti-tutions the ones responsible for committing violations or for not do-ing enough to investigate and punish perpetrators. Those same insti-tutions may still be under the officers and civil servants from the previous regime, some of them responsible for violations and even named in the commission’s final report. This complicates the imple-mentation of the TC’s recommendations by the governing regime. Recommendations for prosecution, vetting, dismissal and other mea-sures of individual or institutional responsibility might derail an al-ready frail transition. For some, this raises concerns about the desta-bilizing nature of TCs in dealing with a recent past of violations. For others, it shows the inefficiency of TCs as agencies of accountability when the time to deliver arrives.

In any case, the recommendations are, formally, still potentialities. However, as opposed to the TC, the governing regime that now owns them has the ability to implement them. Substantively, the recom-mendations are the enforcement dimension of accountability, what Fox refers as hard accountability, which includes sanctions, compen-sation and/or remediation, or Bovens refers as the consequences

52. Recommendations, Nunca Más (Never Again), Report of Conadep, 1984, available http://www.desaparecidos.org/nuncamas/web/english/library/nevagain/nevagain_001.htm [accessed 21 May 2014]

33

those held to account might face, which includes sanctions, redress or reparation. If the answerability dimension of accountability was ful-filled through fact-finding and generating evidence, the enforcement dimension is fulfilled by sanctioning responsible individuals and in-stitutions and by compensating and providing remedies to victims. This horizontal accountability relation, between the governing regime and the state agencies, towards which the recommendations are di-rected, generates accountability in its enforcement dimension.Figure 3 : Accountability relations

Source: Author.

Figure 3 shows the horizontal accountability relation between the gov-erning regime and the state agencies. In the first place the governing re-gime receives the final report with the recommendations to redress vic-tims, to prevent reoccurrence and to contribute to prosecutions. These recommendations are directed to the governing regime (as indicates the black arrow). As the TC ceases to exist, the governing regime takes over as the accounting agency and the state agencies, towards which the rec-ommendations are directed, become the accountable actors. The change in the color of the arrows symbolizes the mutation of the recommenda-

34

tions: the governing regime has now the power to compel the state agen-cies to implement them. The implementation of the recommendations are outputs of accountability in its enforcement dimension.

At this point it is possible that the governing regime decides not to actively pursue the implementation of recommendations or just car-ries on with those non controversial. The way the governing regime deals with the situation at this key juncture will depend on the re-sponse from civil society.

5 . 3 . 2 I N D I R E C T V E R T I C A L A C C O U N T A B I L I T Y B E T W E E N C I V I L S O C I E T Y A N D T H E G O V E R N I N G R E G I M E

The recommendations put forward by the TC’s final report generate indirectly a relation of vertical accountability between civil society and the governing regime. Indirectly insofar it is generated not by the commission but because of it. This accountability is a conse-quence of the recommendations put forward by the TC; but the TC cannot generate it because it has ceased to be the accounting agency legally enabled and empowered by the state. Now the civil society is the new accounting agency that generates vertical accountability while the accountable actors are not anymore the state agencies that committed violations or failed to prevent them. The accountable ac-tor, answerable to the civil society, is the governing regime as it has the power to act upon the recommendations put forward by the com-mission.

35

Figure 4: Accountability relations

Source: Author.

Figure 4 shows this new accountability relation. In the first place, the recommendations put forward by the TC are not only for the govern-ment consumption. They are also directed to the victims and broader civil society, who in front of the governing regime inactivity to hold accountable the state agencies (as shown in Figure 3) become the new accounting agency. At this point, civil society needs the capacity to press the governing regime to implement the recommendations. In doing so, the governing regime becomes vertically accountable to civil society.

In this regard, Fox points out that agencies of horizontal account-ability, such as TCs, ‘rarely have sufficient institutional clout to be able to act on their findings, whether by proposing mandatory sanctions, policy changes, protection from violations, or compensation for past abuses.’53 For him, in order to address these issues of hard account-ability it is necessary to ‘deal with both the nature of the governing

53. Fox, supra n 10 at 666.

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regime and civil society’s capacity to encourage the institutions of public accountability to do their job.’54 Because of the inherent cir-cumstances in post conflict or post-authoritarian settings, in all likeli-hood civil society will be weak as freedom of expression and other political rights might be curtailed. But as the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-re-currence points out, ‘In the end, the fate of recommendations depends to a large extent on the leadership, advocacy and persistence of civil society organizations.’55

Even in those cases where the TC final report recommends the es-tablishment of a monitoring body to oversee the implementation of recommendations, this mechanism will still be accountable to the civil society. In fact civil society are usually part of this mechanism. In Gua-temala, the TC final report recommended the establishment of the Fundación por la Paz y la Concordia, with representation from the state and the civil society, to support, promote and keep an eye on the observance of the recommendations.56 However this mechanism was rejected and never established.

The civil society will still be key in cases where the recommenda-tions are mandatory, as their obligatory nature does not presuppose their implementation. The implementation of the Commission on the Truth’s recommendations in El Salvador was mandatory with the United Nations Mission in El Salvador pushing ‘for the implementa-tion of those outstanding.’57 However, many of these compulsory rec-ommendations were never implemented.

Building on the previous two accountability relations, horizontal, between the governing regime and the state institutions, and vertical, between the civil society and the governing regime, it is possible to isolate the accountability generated in its enforcement dimension. The box below compiles indicators of enforcement as a result of the

54. Ibid., 669.55. Special Rapporteur, supra 43 at para. 73.56. La Comisión para el Esclarecimiento Histórico, «Guatemala: Memoria Del Silencio,» (1997-1999).57. Hayner, supra 39 at 191.

37

TC’s recommendations. These indicators can assess the production of enforcement in the short (1 year), medium (5 years) and long term (10 years).

Box 3: Indicators of enforcement as a result of potentialities.

• Have exhumations been carried out? Victim redress

• Have reparations programs been implemented? Victims redress

Individual responsibility:

• Have prosecutions taken place? Prosecutorial

• Have perpetrators been vetted to new positions, promotions? Pre-

ventive

• Have perpetrators been separated from State institutions, such as secu-

rity forces, civil service, and administration of justice? - Preventive

• Have those who committed violations been disqualified from holding

public office? – Preventive

Institutional responsibility

• Have institutions responsible for violations been reformed? Brought

under civilian control? Preventive

• Have other measures to prevent future violations been adopted? Such as

establishing agencies to provide checks and balances; changes in legisla-

tion in adherence with protection of human rights – Preventive

Source: Author.

Box 3 suggests the implementation of the TC’s recommendations to redress victims, to prevent reoccurrence and to prosecute indicate outputs of accountability in its enforcement dimension.

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6 . C O N C L U S I O N S

Accountability provides a conceptual framework to analyze the im-pact of truth commissions. In the first place, TCs are by their very nature agents of horizontal accountability set up by the state to inde-pendently verify on excesses carried out by itself. This paper has ex-amined how TCs generate both horizontal and vertical accountability relations and how these relations produce accountability in its an-swerability and enforcement dimension.

Even before its establishment, TCs generate indirectly vertical ac-countability relations. Indirectly insofar these relations are generated not by the commission but because of it. It is the prospect of setting up a TC that generates vertical accountability relations between the civil society and the governing regime. Specifically, civil society demands to establish a TC, or to bring about changes in the mandate, powers, and appoint-ment of commissioners or any other relevant aspect of the commission, produces answerability when the state is compelled to follow through.

From the establishment of the commission and until the report is released, TCs carry out fact-finding and victim tracing, the two actual functions TCs are able to do on their own. In conducting fact-finding and victim tracing TCs interact with state agencies and with victims, NGOs and broader civil society. The nature of these interactions is, however, completely different.

The interaction with other state agencies, such as the state security forces, is framed within a relation of horizontal accountability and is based on the powers the commission wields. TCs use these powers to summon officials, request them to release information, to submit documentation and other evidence. This relation of horizontal accountability generates answerability. However, traditionally TCs have not produced so much an-swerability through interacting with other state agencies, such as security forces. In most cases they haven’t had subpoena powers, search and sei-zure or witness protection. In cases where they had these powers, such as the South African TRC, they only used them a handful of times.

As for the interaction with civil society, it is not based on a relation

39

of horizontal accountability. Victims, witnesses, and broader civil so-ciety are a source of information to establish facts and to collect evi-dence. However, because of the nature of TCs, as agencies of horizon-tal accountability authorized and empowered by the State, the truth disclosed becomes state answerability in front of thousands of testi-monies of violations collected from victims, witnesses and NGO re-cords. This answerability materializes during public disclosures, such as the publication of the final report or through public hearings where facts and evidence are unveiled or responsibility attributed. The paper sets out indicators showing when a TC generates answerability as a result of the fact finding and victim tracing functions.

In their final report TCs put forward recommendations that will need to be implemented by other state agencies. These recommenda-tions usually include a set of measures to provide redress to victims, to prevent further violations, and to contribute to prosecutions. With the submission of their final report, TCs cease to exist although the imple-mentation of recommendations has yet to begin. The paper examines two more accountability relations as a result of the recommendations put forward by the TC in the final report.

First, a relation of horizontal accountability between the governing regime that takes over as the accounting agency, and the state institu-tions towards which the recommendations are directed, the account-able actors. The governing regime has now the power to compel the state agencies to implement these recommendations. Second, the TC’s recommendations generate indirectly a relation of vertical account-ability between the civil society and the governing regime. In this re-lation the civil society is the new accounting agency pushing for the implementation of the recommendations and the accountable actor, answerable to the civil society, is the governing regime as it is the one with the power to act upon them. The paper sets out indicators show-ing the implementation of the TC’s recommendations are outputs of accountability in its enforcement dimension.

It is through assessing the accountability TCs generate in its an-swerability and enforcement dimensions that we are able to hold truth commissions accountable.

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