Strengths and Weaknesses of Truth Commissions vs. Amnesty Laws as States Recover from the Atrocities of War

(C) Kapok Tree Diplomacy. 2011. All rights reserved. Jeff Dwiggins.  FREE CONTENT

Truth Commissions (TCs) – TCs may be appointed or sponsored by national, international, NGO, or hybrid commissions (Bercovitch & Jackson 156). The strengths of truth commissions may include their low cost, flexibility, “wide range of purposes” that they serve, ability to “reconstitute the moral order and provide a measure of justice when trials are not an option,” usefulness in dealing with “disappearances and killings by anonymous death squads,” potential to end a culture of impunity, role in providing a new transitional government “room to maneuver,” and the “emotional therapy” they provide a “traumatized society” (Bercovitch & Jackson 159). But are TCs ‘compromise justice’ that actually weaken the ability to make peace?

Hayner’s analysis of 15 recent TCs is useful for delineating their strengths and weaknesses. Hayner notes that in Uganda (1974) the TC had “little impact on the practices of the Amin regime” (612); in Bolivia many abuses “were overlooked” (614); the Uruguay TC was “not a serious undertaking of human rights” (616); the Zimbabwe report “has never been available to the public” (617); the Chilean report resulted in a formal apology by the President and many recommendations being implemented (622). Furthermore, the Chad TC may have been established “to improve the new president’s image” and suffered from lack of funds (624-625); the El Salvador TC resulted in general amnesty only five days after publication of its report (629); and the South African ANC II report denied any “systematic policy of abuse” (633).

Thus, Hayner concludes that TC are limited by their terms of reference, investigatory powers, time constraints, staff and budget, political pressure by national and/or international actors, access to information, and restrictions on what cases can be investigated (637). She concludes that TC are “only one of the necessary steps necessary to move a nation towards peaceful reconciliation and respect for human rights,” and recommends political, military and judicial institutional forms to be done as well (655).

As far as other opinions go, Tepperman explains that the TC in South Africa made people “angrier” and “contributed to a worsening of race relations” (135). Tepperman says that TCs do not establish the “truth,” focus too much on “individual violations,” do not “lead to reconciliation,” and “interfere with … prosecution and punishment of past crimes” (139). He does acknowledge, however, that “no revenge killings” have happened in South Africa since the start of the TRC (145).

Dickinson suggests that TCs may help resolve capacity issues with the incredible number of cases that would have to be prosecuted in a trial or tribunal scenario (295). Humphrey indicates that TCs serve a valuable role in “states’ post-atrocity strategies to reform governance rehabilitate state authority and promote reconciliation” (172). They allow the victim to tell the story of their suffering, reconnect socially and perhaps receive some form of reparations or “historical justice” (176). Humphrey notes that a weakness of TCs is that they often do not identify offenders and the recommendations of their reports are often not implemented (178). He notes, “Instead of seeing excessive state violence originating in state institutions, it was made the responsibility of ‘bad apples’” (179). This is an important point, since bad apples can be replaced without changing the institution that harbored them successfully.

Amnesties – Charles Trumbull IV writes in support of amnesties, saying “properly drafted amnesties may accommodate the competing interests of justice and peace” (319), and explains that “amnesties may provide one of the only mechanisms for bringing peace to a conflict-ridden region” (344). Trumbull asserts that amnesties can be democratically enacted with the support of the victims and be drafted to “hold the persons covered by the amnesty accountable for their actions … [ensuring they cannot] commit similar crimes in the future” (321).

Moreover, Trumbull asserts that amnesties allow victims to “use traditional methods of reconciliation and forgiveness to deal with crimes” (312), “allow countries to focus prosecutorial resources on non-political crimes” (313), and “may be necessary to end hostilities” (314), citing the examples of South Africa and Haiti as positive examples of the use of amnesties to avoid civil war and end human rights abuses respectively (314).

Orlaith Minogue’s review of Mark Freeman’s book, Necessary Evils: Amnesties and the Search for Justice, is illuminating in its support of amnesties. He quotes Freeman: “An amnesty generally deserves to be respected or supported if it is crafted in good faith and in a manner that promises to fulfill a state’s transitional justice obligations to the greatest extent possible in the particular context while impairing them as little as possible” (306).

In his review of Freeman’s book, Minogue also asserts, “there may be no alternative for a state but to grant amnesty as a precondition for the cessation of hostility and a return to peace” (307). In reviewing the Intl. Criminal Court (ICC) position of no amnesty for genocide, crimes against humanity, war crimes or gross violations of human rights, Minogue says “Freeman regrets the inflexibility of the new hardline UN approach … which … may undermine the UN’s role as a mediator in the resolution of violent conflict” (311).

Vinjamuri affirms that amnesties of some sort helped secure negotiated peace settlements in Mozambique, El Salvador, Chile, Argentina and South Africa, making justice the “handmaiden of peace and not its usher” (206). But the ICC asserts that “amnesties can no longer be freely handed out to perpetrators” (Wierda and Tolbert 3).

By exclusively embracing the “hard” options, the ICC positions itself antagonistically against legitimate options for peace and reconciliation. By inserting itself into conflicts prematurely, the ICC may provoke a backlash against victims and civilian populations.

Patrick Lenta argues against amnesty, saying that it does not “satisfy the demands of equity,” “constitute an act of mercy,” or “amount to forgiveness for the perpetrator” (44). He notes, “where blame [of perpetrators is established, the overwhelming majority of those interviewed preferred not forgiveness or amnesty, but punishment and the right to sue through the courts” (59). Third parties cannot force society to forgive or forget, and amnesty does not satisfy the state’s moral obligation of exacting retributive justice for the victims.

While amnesty may be necessary in some cases to end hostilities, the victims’ lose their right to full justice. Amnesties may be conditioned somehow by specific requirements that emphasize accountability rather than punishment and stipulate conditions for retaining amnesty after it is granted (Minogue 312). This could be one way of ensuring that victims are not left completely high and dry.

The posts, views and opinions expressed on this site are completely my own and do not represent the views or opinions of the Department of Defense (DoD), the Department of the Navy (DON) or any of the Armed Forces.

Bercovitch, J., & Jackson, R. (2009). Conflict Resolution in the Twenty-first Century | Principles, Methods, and Approaches. Ann Arbor, MI, USA: The University of Michigan Press.

Dickinson, L. A. (2003). The Promise of Hybrid Courts. American Society of International Law , 97 (2), 295-310. Web. JSTOR. Retrieved from Norwich University Library.

Hayner, P. (1994). Fifteen Truth Commissions – 1974 to 1994: A Comparative Study. Human Rights Quarterly , 16 (4), 597-655. Web. INFOTRAC. Retrieved from Norwich University Library.

Humphrey, M. (2003). From Victim to Victimhood: Truth Commissions and Trials as Rituals of Political Transition and Individual Healing. Australian Journal of Anthropology , 14 (2), 171-187. Web. Academic Search Premier. Retrieved from Norwich University Library.

Lenta, P. (2009). What Conditional Amnesty Is Not. Theoria , 56 (120), 44-64. Web. Academic Search Premier. Retrieved from Norwich University Library.

Minogue, O. (2010). Peace vs. Justice: The Utility of Amnesties | Review Essay. Criminal Justice Ethics , 29 (3), 306-314. Web. Academic Search Premier. Retrieved from Norwich University Library.

Tepperman, J. D. (2002). Truth and Consequences. Foreign Affairs , 81 (2), 128-145. Web. Academic Search Premier. Retrieved from Norwich University Library.

Trumbull IV, C. P. (2008). Giving Amnesties a Second Chance. Berkeley Journal of International Law , 25 (2), 283-345. Web. Academic Search Premier. Retrieved from Norwich University Library.

Vinjamuri, L. (2010). Deterrance, Democracy, and the Pursuit of Justice. Ethics & International Affairs , 24 (2), 191-211. Web. 24 Jul 2010. Academic Search Premier. Retrieved at Norwich University Library.

Wierda, M., & Tolbert, D. (2010, May). ICTJ Briefing | Stocktaking: Peace and Justice. Retrieved August 16, 2010, from International Center for Transitional Justice:

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