Transitional Justice in the Asia-Pacific (32 page)

• fifty closed hearings and seven public hearings, five held in the regions and two in Honiara, one of which was a thematic hearing addressing issues faced by women and youth;
  
• attempting to take 5,000 statements about ‘Who did what to whom, when and where’ of which 50 percent must be provided by women;
  
• conducting and supervising ‘the exhumation of bodies…in agreement with the Director of Public Prosecutions’;
  
• carrying out ‘a mapping exercise of reconciliation activities that have already being [sic] implemented’;
  
• facilitating additional activities designed to ‘complement existing reconciliation activities’ including ‘apologies from all actors; the
  inclusion of traditional and religious ceremonies in the process; and the organization of social and recreational ceremonies’; and,
  
• holding twenty-eight regional and six national discussions on reconciliation between victims and perpetrators.
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However, the TRC not only represents the Solomon Islands’ most concerted effort to confront its violent past to date but an attempt to reconcile the seemingly incompatible approaches to transitional justice that had previously been pursued in the post-conflict context. It has attempted to do this in two inter-related ways: first, by overcoming the problem of silence associated with the criminal justice system, and; second, by pursuing truth and reconciliation but not at the expense of attributing accountability or responsibility to the perpetrators of serious crimes.

Amongst the key intentions of the TRC was to facilitate the recovery of truth, a key element of justice allegedly hampered by the pursuit of the rule of law approach in the criminal justice system. To achieve this, the TRC was given the power to issue summonses and subpoenas, and to refer those who failed to respond to a summons or subpoena to the High Court as being in contempt of court. To compel witnesses to tell the truth, the TRC was also granted the power to refer those who failed to truthfully or faithfully answer its questions or who intentionally provided misleading information to the High Court for prosecution.
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As the Chairman of the TRC, the Reverend
Samuel Ata, noted at the end of the first day of public hearings in Honiara on March 9, 2010, ‘The aim of this public hearing is to put an end to the silence.’
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In
doing so he highlighted a theme common to truth commissions the world over that was to be reiterated throughout the Solomon Islands truth and reconciliation process. Indeed, some months later, in the Western Province town of Gizo, Ata explained to those assembled at one of the seven TRC public hearings that the purpose of the hearings was to ‘put an end to the silence so that entire society will begin to listen and accept’ its recent history. He continued to explain that the TRC

offers a space and solemn moment to the victims, give them opportunity to share the harsh history which they suffered and for the country to offer them the long denied recognition. It is also a moment for which the people of this nation are given the opportunity to listen with respect and compassion and above all retrieve the memories of those who were killed, to hear the pain of those who were humiliated and abused in countless ways and to restore the dignity of victims.
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However, Ata also made it clear that the purpose of the TRC was not simply to meet the rights and needs of the victims of human rights violations but to offer ‘the Perpetrators the chance to recognize and gain their humanity’ and contribute to uncovering the truth about the past. ‘Giving testimony to our pain, and paying respectful attention to one another’ Ata argued, ‘will…begin to close old wounds and finally set the foundation for reconcile peaceful and eternal life together as a nation
.’
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At the same time however, what makes the TRC especially significant is its explicit attempt to incorporate elements of the rule of law within its reconciliation approach. In particular, the TRC is mandated to ‘look
at issues of
accountability and responsibility
for human rights violations and other abuses that occurred during the Tensions. This includes the question of whether human rights violations were the result of deliberate planning, policy, or authorization by any government, group or individual.’
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Unlike the South African TRC on which it was modelled, the Solomon Islands TRC does not have the power to grant amnesties in exchange for truth. The TRC Act 2008 thus declares, ‘For the avoidance of doubt [that] any facts or information disclosed or statements made pursuant to this Act or the findings or recommendations of the Commission shall not in any manner be construed as.…qualifying or entitling any person to any amnesty or further amnesty except amnesty or immunity granted in terms of the Amnesty Acts 2000 or 2001.’
¹⁰⁴
Of course, as mentioned above, the application of these existing amnesties was extremely restrictive and in the end only a couple of people were actually granted immunity.

What is more, although witness statements are ‘inadmissible against the person in any action, suit, or proceeding’, witnesses are granted the usual right not to incriminate themselves or members of their immediate family, and ‘facts or information disclosed or statements made’ cannot be considered ‘admissible evidence in any proceeding before a court of law’, the TRC is authorized to recommend criminal proceedings.
¹⁰⁵
This leaves open the possibility that on the basis of the evidence heard at the TRC it will, in its final report, refer a new set of matters to the High Court for prosecution.

Although the TRC Act was passed unanimously, the provisions allowing for the TRC to recommend further prosecutions is not universally supported in the Solomon Islands. In particular, in July 2009, before the TRC had begun its hearings, the Solomon Islands Minister for National Unity, Reconciliation and Peace,
Sam Iduri, proposed the introduction of
a
‘Forgiveness Bill’ to provide amnesty
for perpetrators giving evidence before the TRC.
¹⁰⁶
Although many proponents of forgiveness are at pains to stress that forgiveness and amnesty are distinct practices, the connection forged here is not unusual. Not only is amnesty defined in
Black's Law Dictionary
as ‘A sovereign act of forgiveness for past acts, granted by a government to all persons (or to certain classes of persons) who have been guilty of crime or delict, generally political offences – treason, sedition, rebellion, draft evasion – and often conditioned upon their return to obedience and duty within a prescribed time’, but numerous other states have conceived amnesties explicitly in terms of forgiveness.
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However, like many that have gone before it in other countries and contexts, the proposed Bill has faced criticism from a number of quarters. In particular, the Chairman of Transparency International, Australia,
Bob Pollard, has argued that ‘forgiveness is something that can only be given by the victim to the offender’ and, as such, there is no way ‘to legislate for forgiveness.’ In addition, he has suggested that offering amnesties to the perpetrators of serious crimes ‘could actually offend those who suffered during the civil war’ and, in doing so, suggested that the Forgiveness Bill may even ‘set the country's healing process back.’
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In contrast to Pollard however, the Solomon Islands Western Province Premier,
George Solingo Lilo, has argued that ‘there will be no nation building and reconciliation and our people will forever remain blemished
if we fail to forgive each other and forget the past.’ Although he does not explicitly mention the proposed Forgiveness Bill, he alludes to the question of granting amnesties to the perpetrators of serious crimes when he acknowledges the difficulty of the task faced by the TRC in attempting to ‘reconcile discordant elements and make them cling together in one society’. Lilo argues that the members of the TRC ‘may have to put themselves in the position of those perpetrators of these gross human rights violations, who genuinely demonstrates remorse and regret and were willing to ask for forgiveness and help our society move forward.’
¹⁰⁹
Despite continued opposition from some quarters, the Solomon Islands Government still plans to put forward the Forgiveness Bill although that has not, as yet, taken place
.
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Nonetheless, in the absence of legislation formally connecting forgiveness to amnesty, throughout the TRC's five regional public hearings in 2010 talk of forgiveness was abundant. Indeed, most people who testified before the Commission either offered forgiveness to those who had perpetrated crimes against them or appealed to the perpetrators to come forward so they could discuss what had happened and be forgiven.
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While some offers of forgiveness pertained to loss of livelihoods, threats, intimidation, and arson, others involved far more serious offences, including violent assaults, torture, and murder. For example, in his testimony Mathew
Amali Toma told of how, when fleeing from GRA militants with his children, including a baby in his arms, he was stopped by a GRA commando who ordered one of the militants to shoot him. When the gun failed to go off, the militants began attacking him with a hook knife used for harvesting palm oil. Still holding the baby, he managed to run to safety with his children who had witnessed the attack. Toma finished
his testimony by stating, ‘I would like to call on the militants who had attempted to take my life that time with their guns and knives, I call on them anywhere they are now or if they are listening I want you to know that I have forgiven you all
.’
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While in some instances victims offered unconditional, unilateral forgiveness that was not premised on an acknowledgement of wrong, many of those who gave testimony before the TRC expressed a desire to see justice done before forgiveness was granted. Justice in this context may amount to accountability in the form of truth telling or the offering of reparations or compensation but has, at its heart, the perpetrators’ acceptance of responsibility for the injustice they committed. One of the most prominent supporters of forgiveness
, Lionel Longarata – the priest tied to the canoe during the Marasa beach atrocity – explains, forgiveness itself is not a problem for the people of the Solomon Islands. It is, he says, ‘just a matter of following our custom procedures towards forgiveness.’
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As Peter Hosking remarked, however, for Longarata, ‘reconciliation is only possible where there is appropriate justice and truth.’
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Indeed, as Longarata explained:

The people of Marasa are just waiting for the relatives of those who burnt down our homes and kill our two young men, come over and pay some kind of reparations…a little compensation to mark they are sorry for what they are done. When they have done that, then people will forgive them. It's just a normal way for Melanesians, and of course the people of the Weathercoast of Guadalcanal.
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With the TRC's final report and recommendations still pending and the Forgiveness Bill before the Solomon Islands Parliament in limbo, what remains to be seen is whether further prosecutions are, in fact, pursued
or whether the TRC represents the Solomon Islands’ last bite of the transitional justice cherry
.

In the case of the Solomon Islands, transitional justice has been pursued on an ad hoc basis with little integration of the various mechanisms employed and minimal coordination between the parties responsible for delivering them. Inadvertently, however, this has resulted in the implementation of what Olsen, Payne, and Reiter have recently argued is the optimal combination of transitional justice mechanisms: trials, amnesties, and truth commissions.
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Amnesties were successfully employed to achieve a peace-settlement even though, in the end, very few indi-viduals actually benefitted from them. Criminal trials not only brought accountability for human rights violations to the Solomon Islands but drew a firm line in the sand, making it clear to all that criminal behaviour would be tolerated no longer. And the Solomon Islands TRC has sought the pursuit of truth for the victims of the Tensions. Together, these mechanisms have brought undeniable improvements in human rights to the Solomon Islands. Widespread human rights violations have ceased, and the perpetrators of crimes are held accountable in a functioning criminal justice system.

Despite these successes, however, several notes of caution must be sounded. First, although the Solomon Islands has successfully implemented an amnesty, trial, and truth commission process, these elements have not always sat well together. In this case, the combination of amnesties and trials has brought with it the impression and, arguably, the reality that RAMSI and the Solomon Islands’ criminal justice system reneged on the amnesty deals brokered to facilitate a ceasefire. While they have largely gotten away with doing so in this case, it is difficult to
advocate this course of action more broadly. What is more, the potential for trials to result from the TRC has proved a divisive issue. Thus, although its final recommendations remain outstanding, at this stage it seems that the TRC has not bridged the justice divide but rather helped to reify the two positions.

Second, although the Tensions have ostensibly come to an end, peace is very uneasy in the Solomon Islands. Improvements achieved thus far for human rights, justice, and peace will all be in vain if the underlying causes of the conflict, particularly disputes over the land tenure system, chronic deprivation, and underdevelopment, are not adequately addressed. Thus, while justice must remain a key priority of post-conflict peace building in the Solomon Islands, its ultimate ability to affect real change over the longer term to some extent rests on the broader success of the peace-building operation underway.