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Martha Minow, Making History or Making Peace: When Prosecutions Should Give Way to Truth Commissions and Peace Negotiations, 7 J. Hum. Rts. 174 (2008).

Abstract: This essay identifies a set of choices for national leaders and human rights advocates following mass atrocities, including whether to pursue a truth commission, how to coordinate its relationship with potential criminal prosecutions, whether to “name names,” as well as trade-offs between pursuit of human rights vindication and pursuit of peace. The strengths and limitations of criminal and civil trials for legal enforcement of human rights, no less than the promise and constraints of truth commissions, require careful assessment of particular political contexts and prospects for success. Public and scholarly debates over whether and when to pursue a truth commission, as well as the work of such commissions, can advance the development of and commitment to human rights ideals in communities emerging from periods of mass atrocity. The choice between trials and truth commissions resembles but also differs from the choice between accountability and peace; both choices expose potential contrasts between vindicating and enacting human rights. Even as many nations use both trials and truth commissions—simultaneously or in a series—the distinctive contribution of each to advancing human rights remains more contingent than inherent. Each institutional response warrants close consideration.