The process of transition in different countries offer an array
of options ranging from truth commissions, lustration and trials.
International courts including the hybrid courts ( Cambodia and
Sierra Leone) , international criminal court and even ad hoc
tribunals (Yugoslavia and Rwanda) are more skewed towards rendering
justice in through trials. However, there are arguments as to
whether trials can effectively lead to peace and reconciliation and
consequent justice .
According to Louise Mallinder, trials do not establish the root causes of violence and as such may not translate in peace and reconciliation. Moreover, trials are perceived to ‘maintain’ some level of coexistence temporarily. Therefore, in case of more instability, the ignored result in more violence. Establishing a compromise between the rival parties is the only means to attaining peace. Delicate moments of transition do not require an outright ‘winner’ and loser as propagated by trials.(Louise,209)
Louise argues that amnesties are the means of arriving at compromise. Amnesties provide an opportunity for the rivalry parties to sit on a round table and negotiate the way forward. The negotiations include the perpetrators ,the victims and representatives of the community. The reasoning behind having representatives being that violence occurs within a societal context. The perpetrators are expected to attain a level of responsibility without disregarding their importance in the transition process.
Amnesties tailored along the interests of victims aim at
rendering justice let alone peace and reconciliation. The main form
of justice seen to be served through amnesties is restorative
justice as opposed to retributive. Restorative justice puts into
consideration the political and practical limitations of trials
.That in a situation of mass atrocities, the trials can be
overwhelming and as such impractical. That trials can at times be
very expensive to undertake.(Louise,220)
Naming of the guilty, perpetrators being led towards making financial contribution for the sake of compensation and being involved in community services are indirect punitive measures assumed under amnesties. In addition , amnesties offer a platform on which their experiences are acknowledged , an important facet in the transition process. The international courts could step in as a means to ensure leaders that wrongfully acquired wealth return such to compensate victims.(Louise,225)
Amnesty laws find expression in utilitarianism. In the concept of utilitarianism, the specific needs of the individual and contextually so justice should not override those of the community. Clearly, unlike trials that would be conducted towards establishing criminal responsibility on the individual, amnesties offer a more inclusive approach.
Amnesties effectively fill the gaps that are left as a result of vagueness in the procedures established in the international courts. The criteria for admitting crimes at the international court requires an establishment in the suffience of gravity for crimes. More often than not, most crimes across the continent fail on this merit. Nonetheless the victims of lower level crimes are bound to suffer incase alternatives are not involved. Complementing the international courts, the amnesties coupled with community reconciliation process and so on come in handy.(Louise,224)
Closely linked to the amnesty laws are truth commissions. Amnesties in some cases are established before, after or even in conjunction with the truth commissions. The international courts requires that truth commissions are beyond compromise by executive or any other powers in order to approve of them. Commissions are also focused on restorative justice .The commission in El Salvador for example by means of naming guilty officers served to ‘punish’ the named .Naming at times informs the reaction of the society towards the named.
As clearly expressed, amnesty laws should for the sake of being acceptable and sustainable receive a backing from the public. Through democratically establishing whether or not the public are in support of any transition mechanisms let alone amnesties establishes credibility. In particular, the formulators of transition mechanisms should widely consult with the victims of what kind of justice is favorable for them.(Louise,226)
However , a lot of evidence and studies stand to oppose amnesties and to some extent truth commissions in favor of prosecutions. Scholars argue against amnesty laws as means of ensuring justice to the victims.
The south African truth and reconciliation commission for example is described as having traded justice for truth. Through the established amnesty committee, conditional amnesties were granted to applicants that gave the complete truth surrounding the acts they had committed for as long as they would show a political connotation in the very acts.
Some communities for the reason of the south African case disregard the pursuant of justice through ‘truth commissions.’. According to Priscilla Hayner, initial suggestions by the United Nations to establish a truth commission while at Burundi were not readily accepted. It is only through modifying the concept to commission of inquiry that the community approved of the idea. It is clear that in most cases, the commissions do not arrive at reconciliation.(Priscilla,23)
The case of Elsavador sheds light into the possibility of amnesties being used to evade any form of justice. On releasing the official list of the guilty by the Salvadoran commission, the government then passed a bill through the parliament to offer the mentioned persons guilty. The intents of the amnesty clearly neither served justice interests nor reconciliation. In such cases, the amnesty laws passed often come out as rewarding mechanisms by governments to their unlawful supporters.(Priscilla,31)
Differently interpreted, amnesty laws should not be used to evade responsibility for the perpetrators. In as much as the perpetrators escape trials because of the amnesty laws put in place, they still should be involved in documenting the past including their involvement in reported cases. In Chile, the then president Aylwin offered an interpretation of the amnesty laws in ‘Aylwin doctrine. ‘In the doctrine, the amnesty laws were not obstacles to the directed court proceedings of establishing court proceedings.(Priscilla,98)
Trials as favored by international courts attain a level truth. Whereas the evidentiary procedures employed by courts may limit the amount of truth revealed through trials, it is clear some levels of the same come out. For instance, El Salvador court proceedings were deemed successful in that people had a chance to get information directly from the perpetrators as they made their presentations. Trials when meted through unbiased selection of perpetrators through the help of international actors reduce impunity levels and attain redistributive justice.(Priscilla,100
The argument that trials subjected are limited in terms of the number of people tried does not necessarily justified. It is the symbolism of the criminal trials and the eventual judgment that provides an opportunity for community to affirm itself through some principles towards a morally correct direction.(Martti,10)
Other means admitting crimes on an international platform should be considered. By means of international customary law, most crimes can be admitted. The international customary law allows for universal application and includes the crimes against humanity. In cases of mass atrocities, most crimes occur under crimes against humanity and as such can be admitted through their criteria.
The relationship between amnesty laws and commissions can be expanded for the sake ensuring justice. The commission reports are better used in the courts for prosecution purposes. For as long as the judiciary has the expected independence and there is political good will to prosecute even political actors, then the process is effective. As reported in some cases, court proceedings drawing from the commissions’ files are faster.
As was the case in Argentina, the commission forwarded their files to the courts leading to successful files. Moreover, the findings made by commission are not limited to aiding domestic trials but also international. In future, the international courts may need files from the commissions to prosecute some individuals.
Trials to a great extent come out as a viable option when compared to amnesties.
The victims at times feel shortchanged when they have to meet with the same perpetrators that got them in their undesired state. Also ,trials have a deterrence effect since they involve punishment. Future decisions are likely to be influenced by actions taken against the previous perpetrators. Trials are successful when selection of perpetrators is done in a unbiased manner. Prosecutions of system officials for example military heads, heads of government departments and so on can prove successful.
The goals of any transitional mechanisms should be laid earlier in advance and if possible within the mandate for which the mechanisms are established. With clear goals, a determination can therefore be made on either to go the way of trials or even international prosecutions. lot of danger exists in replicating a system that worked for another state.
Conclusively, the debates bring to a revelation that both the trials and amnesties are applied for distinct reasons. There is not any of the mechanisms that can effectively replace the other. It there25fore lies within the authorities to establish what works and what does not work for their context. It is also important that whenever possible the amnesty laws and trials are upheld in a complimentary manner.
Priscilla B. Hayner Unspeakable Truths: Confronting State Terror
and Atrocity, Second edition(2001):(22-106)
Mallinder, Louise. “Can Amnesties and International Justice be Reconciled?” International Journal of Transitional Justice 1.2 (2007): (208-230)
Martti Koskenniemi, “Between Impunity and Show Trials” Max Planck Year of united Nations Law , volume 6(2002):(1-35)