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.
Work Cited
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)
