{"id":348,"date":"2013-02-18T08:02:46","date_gmt":"2013-02-18T13:02:46","guid":{"rendered":"http:\/\/kapoktreediplomacy.com\/hp_wordpress\/?p=348"},"modified":"2013-02-23T11:28:16","modified_gmt":"2013-02-23T16:28:16","slug":"strengths-and-weaknesses-of-truth-commissions-vs-amnesty-laws-as-states-recover-from-the-atrocities-of-war","status":"publish","type":"post","link":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/strengths-and-weaknesses-of-truth-commissions-vs-amnesty-laws-as-states-recover-from-the-atrocities-of-war\/","title":{"rendered":"Strengths and Weaknesses of Truth Commissions vs. Amnesty Laws as States Recover from the Atrocities of War"},"content":{"rendered":"

(C) Kapok Tree Diplomacy. 2011. All rights reserved. Jeff Dwiggins.\u00a0 FREE CONTENT<\/strong><\/em><\/span><\/p>\n

Truth Commissions (TCs)<\/b> \u2013 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, \u201cwide range of purposes\u201d that they serve, ability to \u201creconstitute the moral order and provide a measure of justice when trials are not an option,\u201d usefulness in dealing with \u201cdisappearances and killings by anonymous death squads,\u201d potential to end a culture of impunity, role in providing a new transitional government \u201croom to maneuver,\u201d and the \u201cemotional therapy\u201d they provide a \u201ctraumatized society\u201d (Bercovitch & Jackson 159). But are TCs \u2018compromise justice\u2019 that actually weaken the ability to make peace?<\/p>\n

Hayner\u2019s analysis of 15 recent TCs is useful for delineating their strengths and weaknesses. Hayner notes that in Uganda (1974) the TC had \u201clittle impact on the practices of the Amin regime\u201d (612); in Bolivia many abuses \u201cwere overlooked\u201d (614); the Uruguay TC was \u201cnot a serious undertaking of human rights\u201d (616); the Zimbabwe report \u201chas never been available to the public\u201d (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 \u201cto improve the new president\u2019s image\u201d 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 \u201csystematic policy of abuse\u201d (633).<\/p>\n

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 \u201conly one of the necessary steps necessary to move a nation towards peaceful reconciliation and respect for human rights,\u201d and recommends political, military and judicial institutional forms to be done as well (655).<\/p>\n

As far as other opinions go, Tepperman explains that the TC in South Africa made people \u201cangrier\u201d and \u201ccontributed to a worsening of race relations\u201d (135). Tepperman says that TCs do not establish the \u201ctruth,\u201d focus too much on \u201cindividual violations,\u201d do not \u201clead to reconciliation,\u201d and \u201cinterfere with \u2026 prosecution and punishment of past crimes\u201d (139). He does acknowledge, however, that \u201cno revenge killings\u201d have happened in South Africa since the start of the TRC (145).<\/p>\n

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 \u201cstates\u2019 post-atrocity strategies to reform governance rehabilitate state authority and promote reconciliation\u201d (172). They allow the victim to tell the story of their suffering, reconnect socially and perhaps receive some form of reparations or \u201chistorical justice\u201d (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, \u201cInstead of seeing excessive state violence originating in state institutions, it was made the responsibility of \u2018bad apples\u2019\u201d (179). This is an important point, since bad apples can be replaced without changing the institution that harbored them successfully.<\/p>\n

Amnesties <\/b>\u2013 Charles Trumbull IV writes in support of amnesties, saying \u201cproperly drafted amnesties may accommodate the competing interests of justice and peace\u201d (319), and explains that \u201camnesties may provide one of the only mechanisms for bringing peace to a conflict-ridden region\u201d (344). Trumbull asserts that amnesties can be democratically enacted with the support of the victims and be drafted to \u201chold the persons covered by the amnesty accountable for their actions \u2026 [ensuring they cannot] commit similar crimes in the future\u201d (321).<\/p>\n

Moreover, Trumbull asserts that amnesties allow victims to \u201cuse traditional methods of reconciliation and forgiveness to deal with crimes\u201d (312), \u201callow countries to focus prosecutorial resources on non-political crimes\u201d (313), and \u201cmay be necessary to end hostilities\u201d (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).<\/p>\n

Orlaith Minogue\u2019s review of Mark Freeman\u2019s book, Necessary Evils: Amnesties and the Search for Justice<\/i>, is illuminating in its support of amnesties. He quotes Freeman: \u201cAn 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\u2019s transitional justice obligations to the greatest extent possible in the particular context while impairing them as little as possible\u201d (306).<\/p>\n

In his review of Freeman\u2019s book, Minogue also asserts, \u201cthere may be no alternative for a state but to grant amnesty as a precondition for the cessation of hostility and a return to peace\u201d (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 \u201cFreeman regrets the inflexibility of the new hardline UN approach \u2026 which \u2026 may undermine the UN\u2019s role as a mediator in the resolution of violent conflict\u201d (311).<\/p>\n

Vinjamuri affirms that amnesties of some sort helped secure negotiated peace settlements in Mozambique, El Salvador, Chile, Argentina and South Africa, making justice the \u201chandmaiden of peace and not its usher\u201d (206). But the ICC asserts that \u201camnesties can no longer be freely handed out to perpetrators\u201d (Wierda and Tolbert 3).<\/p>\n

By exclusively embracing the \u201chard\u201d 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.<\/p>\n

Patrick Lenta argues against amnesty, saying that it does not \u201csatisfy the demands of equity,\u201d \u201cconstitute an act of mercy,\u201d or \u201camount to forgiveness for the perpetrator\u201d (44). He notes, \u201cwhere 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\u201d (59). Third parties cannot force society to forgive or forget, and amnesty does not satisfy the state\u2019s moral obligation of exacting retributive justice for the victims.<\/p>\n

While amnesty may be necessary in some cases to end hostilities, the victims\u2019 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.<\/p>\n

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.<\/strong><\/span><\/p>\n

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

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

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

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

Lenta, P. (2009). What Conditional Amnesty Is Not. Theoria<\/i> , 56<\/i> (120), 44-64. Web. Academic Search Premier. Retrieved from Norwich University Library.<\/p>\n

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

Tepperman, J. D. (2002). Truth and Consequences. Foreign Affairs<\/i> , 81<\/i> (2), 128-145. Web. Academic Search Premier. Retrieved from Norwich University Library.<\/p>\n

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

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

Wierda, M., & Tolbert, D. (2010, May). ICTJ Briefing | Stocktaking: Peace and Justice.<\/i> Retrieved August 16, 2010, from International Center for Transitional Justice: http:\/\/www.ictj.org\/static\/Publications\/ICTJ_RSRC-PeaceandJustice_bp2010.pdf<\/p>\n","protected":false},"excerpt":{"rendered":"

Truth Commissions (TCs) \u2013 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, \u201cwide range of purposes\u201d that they serve, ability to \u201creconstitute the moral order and provide a measure of justice when trials are not an option,\u201d usefulness in dealing with \u201cdisappearances and killings by anonymous death squads,\u201d potential to end a culture of impunity, role in providing a new transitional government \u201croom to maneuver,\u201d and the \u201cemotional therapy\u201d they provide a \u201ctraumatized society\u201d (Bercovitch & Jackson 159). But are TCs \u2018compromise justice\u2019 that actually weaken the ability to make peace?<\/p>\n

Hayner\u2019s analysis of 15 recent TCs is useful for delineating their strengths and weaknesses. Hayner notes that in Uganda (1974) the TC had \u201clittle impact on the practices of the Amin regime\u201d (612); in Bolivia many abuses \u201cwere overlooked\u201d (614); the Uruguay TC was \u201cnot a serious undertaking of human rights\u201d (616); the Zimbabwe report \u201chas never been available to the public\u201d (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 \u201cto improve the new president\u2019s image\u201d 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 \u201csystematic policy of abuse\u201d (633).<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"advanced_seo_description":"","jetpack_seo_html_title":"","jetpack_seo_noindex":false,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"enabled":false},"version":2}},"categories":[228,5,319],"tags":[400,588,720,716,713,271,270,714,711,721,110,241,718,717,467,722,719,715,712,572,240],"class_list":["post-348","post","type-post","status-publish","format-standard","hentry","category-free-content","category-international-relations","category-preventing-and-containing-international-conflicts","tag-amnesty","tag-bosnia","tag-forgiveness","tag-hayner","tag-hybrid-commissions","tag-icc","tag-international-criminal-court","tag-judicial-institutions","tag-law","tag-negotiated-peace-settlements","tag-ngos","tag-peace","tag-prosecution","tag-punishment","tag-reconciliation","tag-retributive-justice","tag-revenge-killings","tag-south-africa","tag-stability","tag-truth-commissions","tag-war"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p31a0x-5C","jetpack_likes_enabled":true,"_links":{"self":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts\/348","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/comments?post=348"}],"version-history":[{"count":4,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts\/348\/revisions"}],"predecessor-version":[{"id":351,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts\/348\/revisions\/351"}],"wp:attachment":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/media?parent=348"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/categories?post=348"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/tags?post=348"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}