IMPUNITY

Truth Commissions: Peddling impunity?

RICHARD MOSIER

ON 7 April 2003, participants at a workshop on universal jurisdiction at the CHR asserted that universal jurisdiction should apply-and prosecutions commence-in all instances of torture and gross violations of human rights. A few participants, however, added the proviso echoed in the past by many in the human rights field: "prosecutions should commence unless the individual has been provided amnesty by a truth commission." 

Basing universal jurisdiction and prosecution on whether an individual has been granted amnesty via transitional government or truth commission (an official body set up to investigate past human rights abuses) is a proposition that must be seriously questioned. Grants of amnesty and concomitant impunity (exemption or protection from penalty or punishment) will generally result in the violation of the victims' rights and may well be in violation of international law.

While the issue of truth commissions and particularised grants of amnesty is complex and properly reviewed only in a given context, it bears re-emphasizing what many in the human rights field have recently come to emphasize: amnesty for those who commit gross violations of human rights should rarely, if ever, be granted. 

The reasons for questioning amnesty grants, whether issued by a truth commission or by the fiat of a ruling regime, are manifold. First, granting amnesty (read "impunity") to a human rights perpetrator is the victim's ultimate injury. As Dr. Jens Modvig pointed out at the CHR workshop, prosecution of those responsible for a victim's suffering is, for many victims, of central importance, and thus dispensing with prosecution is an irreparable injury.

Second, a grant of amnesty is likely to reinforce a culture of impunity because those with power realize that they need not incur punishment for the crimes they commit.

Third, granting amnesty via truth commission has led to a trend of sham "truth" commissions springing up wherever the powerful fear that the truth may lead to their reconciliation with a prison cell.

Fourth, even where truth commissions have been undertaken in earnest and have promised amnesty in only narrow circumstances, as in the case of South Africa, many perpetrators were never brought to justice and of those that were, some are now being granted amnesty, along with others who never deigned to testify.

This is not to say that all truth commissions are without benefit; some may be useful tools for salving national wounds and compiling evidence for future prosecutions.  It is the trend that a truth commission will result in a grant of amnesty and impunity which is objectionable, as well as the myopic view of truth commissions that focus on past abuses while ignoring on-going crimes. Finally, the granting of amnesty to a perpetrator of human rights violations may well be a violation of international law.

Amnesty as Assault on Victims' Rights

While not necessarily taking away the preferred form of reparation (though often prosecution is the preferred reparation), the inability to criminally prosecute a perpetrator may result in the ultimate injury to the victim.

As Dr. Modvig of the International Rehabilitation Centre for Torture Victims explained, a "truism that is often forgotten, not only by governments, but also sometimes by human rights workers, is that all victims are individuals."

Theo van Boven, UN Special Rapporteur against Torture, advocates that reparation should respond to the needs and wishes of the victims. The UN Human Rights Committee, the authoritative interpreter of the International Covenant on Civil and Political Rights (ICCPR), stated that blanket amnesty laws and pardons are inconsistent with the ICCPR because they create a climate of impunity and deny the victims their right to a remedy. In addition, impunity that is granted by or extends into a period of transitional democracy may be perceived as a profound blow by the victims because the decision to grant it is no longer in the hands of a dictatorial regime but is taken by a democratic government.

Amnesty Fosters a Culture of Impunity...

The granting of amnesty via truth commission or transitional government risks sending the wrong message: for those who are dangerous and powerful enough, impunity awaits.  When the powerful see that impunity may be acquired via state amnesty particularly a kind of impunity that has the semblance of legitimacy via truth commission they may be more likely to insist on such arrangements before ceding power. 

… Which Fosters Sham Truth Commissions

To illustrate the above point in light of the much-touted success of the truth commission in South Africa, a commission that merits respect as the most earnestly designed arrangement short of justice spelled out as prosecution a spate of amnesty-for-truth commissions has sprung up to grant a good deal of amnesty while finding relatively little truth. 

Some argue that where a fledgling democracy is shaky and prosecution threatens to provoke additional conflict, the best that can be done is to gather up the truth and release the perpetrators.  But where the perpetrators are powerful enough to evade justice, can it seriously be considered that the truth, the whole truth, and nothing but the truth will emerge?  In such cases, the official report of a truth commission may merely be 'truth omission'. The result is a history of partial truths, half-lies, and wholesale revisionism.

Furthermore, with the advent of the International Criminal Court (ICC), prosecutions are more likely than ever before. ICTY history serves as an indication of the future. Thus there were some who wanted to offer Mr. Milosevic a grant of amnesty in exchange for his resignation and peaceful departure into the night. Yet the hand-out of impunity was resisted, and Mr. Milosevic is now behind bars.

Where an amnesty grant may be a substitute to justice rather than a constitutive part of it, justice may well be better served by foregoing the "amnesty-for" clause of the "amnesty-for-truth" or "amnesty-for-departure" process and simply demand the truth and/or departure.

Of course, given that prosecutions are now a likelier option than ever, some argue that a country should feel freer to grant amnesty since prosecution will take place (sooner or later) regardless of an amnesty grant.

Not only is this a disingenuous position that is morally adrift - though perhaps anchored to realpolitik. It is also not yet clear how the International Criminal Court or other courts will weigh a grant of immunity-determinately, persuasively, or not at all.

South Africa Doesn't Look So Good in the Morning

As Amnesty International has recently illustrated, there have been several problems with the South African experience, such as the delay in publishing the truth commission's report and political grants of amnesty. While the commission achieved some success in the form of investigation and revelation, early decisions to look the other way on abuses committed by those in power (in both the ANC and National Party) and by those who maintained their code of silence (the army, in contrast to the security forces) have led to impunity for many and injustice for the victims. And, of course, questions remain with regard to truth-and-amnesty commissions that do not leave the choice of prosecuting or forgiving to the victim.

Grants of Amnesty Are Violations of International law

Grants of amnesty, except perhaps in the most narrow circumstances and with the victim's consent, are violations of the spirit, if not the letter, of international law.  As Jose Zalaquett cogently argued, the state's "obligation to hold the perpetrators of gross abuses accountable for their deeds cannot be ignored even if the majority wishes to do so.... It is not the prerogative of the many to forgive the commission of crimes against the few."  Customary law and international covenants direct that crimes must be punished.  

Customary Law

The Restatement of the Foreign Relations Law of the United States suggests that a state is obligated to respect the human rights it has accepted under treaty or "that states generally are bound to respect as a matter of customary international law." As many jurists and scholars have argued, certain actions such as torture and gross violations of human rights are punishable regardless of state consent.   

International Law and Principles

According to the Nuremberg Tribunal, crimes against international law and humanity are committed by men and women, not by abstract entities. And therefore only by punishing individuals who commit such crimes can the provisions of international law be enforced.

The UN Human Rights Committee requires that a state which has engaged in human rights violations investigate the facts, take appropriate action, and bring those found responsible to justice, as well as treat and financially compensate the victim.

The UN General Assembly Declaration on Enforced Disappearances provides that persons who have or are alleged to have made people forcibly disappear "shall not benefit from any special amnesty law or similar measures that might exempt them from any criminal proceedings or sanction."

The Inter-American Court has declared that the state has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.

Article 26 of the Vienna Convention states that a states party "may not invoke the provisions of its internal law as justification for its failure to perform a treaty."

The Genocide Convention and the Convention against Torture contain explicit obligations to punish violators. The later also contains explicit obligations to punish violators and provides that "each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined by its competent authorities."

The ICCPR provides that the right to an effective remedy for a human rights violation shall be "determined by competent judicial, administrative, or legislative authorities, or by any other competent authority provided for by the legal system of the State."  

The American Convention guarantees a right to judicial recourse to a competent Court or tribunal for protection against acts that violate human rights and specifies that the right to judicial recourse exists, "even though such violation may have been committed by persons acting in the course of their official duties," and that any person claiming a remedy "shall have his rights provided for by the competent authority in the legal system of the State." The rights protected by the American Convention, however, may be restricted "in accordance with laws enacted for reasons of general interest...."

Amnesty via truth commission or state fiat should be resisted in all instances. Truth in exchange for amnesty may be the ultimate injury to a victim who has suffered unspeakable crimes.  Further, resort to truth commissions may not be sufficient to discharge a state's duties under various instruments of international law. Only accountability via prosecution truly exemplifies respect for and adherence to customary and international law.

As the chairman of the Inter-American Commission stated in 1989: "A compact by which a whole nation is called upon to suspend its memories of torture, murder, forcible 'disappearances' of loved ones, a compact which would have citizens pretend that the tragic losses and suffering which they have undergone never occurred, that ... is no bargain. This is not amnesty; it is forcible amnesia."  Theo van Boven railed against forgetting and impunity, concluding "it is hard to perceive that a system of justice that cares for the rights of victims can remain at the same time indifferent and inert towards gross misconduct of perpetrators."

An apathetic and indifferent civil society inclined toward forgetting and expediency will condone by its inaction impunity for gross human rights violations and will wake from its stupor to find little support for its pleas that individual human rights offences should be appropriately sanctioned.

If we do not remain vigilant and determined in our rejection of truth-for-amnesty regimes in almost all circumstances, the human rights community will lose its suasive voice, and human rights law will lose its moral superiority, as states are likely to stand strong against impunity only when it is convenient for them to do so.