Amnesties, Accountability, and Human Rights 081224589X, 9780812245899

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Amnesties, Accountability, and Human Rights

PENNSYLVANIA STUDIES IN HUMAN RIGHTS Bert B. Lockwood, Jr., Series Editor A complete list of books in the series is available from the publisher.

Amnesties, Accountability, and Human Rights RENÉE JEFFERY

U N I V E R S I T Y O F P E N N S Y LVA N I A P R E S S PHIL ADELPHIA

Copyright © 2014 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 www.upenn.edu/pennpress Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 A Cataloging-in-Publication record is available from the Library of Congress ISBN 978-0-8122-4589-9

. Hodgson

CONTENTS

Introduction

1

Chapter 1. The Politics of Amnesties

21

Chapter 2. Transitions to Democracy

50

Chapter 3. The Pursuit of Truth

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Chapter 4. Ending Violence

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Chapter 5. The End of Impunity?

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Chapter 6. The Persistence of Amnesties

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Conclusion

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Notes

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Bibliography

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Index

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Acknowledgments

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Introduction We have all agreed to no longer discuss the old wounds, and the parties have resolved to build a new Aceh in an atmosphere of peace and security, and in the context of the Unitary State of the Republic of Indonesia.1

On 15 August 2005, representatives of the Free Aceh Movement (Gerakan Aceh Merdeka, GAM) and the government of Indonesia signed the Helsinki Memorandum of Understanding (MoU). Brokered by the former president of Finland, Martti Ahtisaari, the comprehensive peace settlement signaled the formal end to almost three decades of violent civil conflict in the Indonesian province of Aceh. In the years that have since elapsed, the Aceh peace process has been widely heralded as a great success story.2 The negotiated peace continues to hold, democratic elections have taken place without serious incident, and human rights abuses have abated. As Hamid Awaluddin, the Indonesian government’s chief negotiator during the Helsinki process, proudly proclaimed, “Aceh today is place of peace. Guns are silent. Women no longer become widows because of political violence. Children freely develop their dreams to have a brighter future because they can attend schools. The economy is running well. Social interactions are uninterrupted. The people of Aceh have already elected their own leaders through free, democratic and fair local elections.”3 Yet beneath the jubilation and rounds of welldeserved congratulations, deeper concerns remain about the continuing lack of accountability for human rights violations perpetrated during the course of the conflict. As the Aceh Reintegration Board (BRA) estimates, the Acehnese civil war claimed as many as thirty-three thousand combatant and civilian lives through lethal combat operations, arbitrary killings, public extrajudicial executions, and forced disappearances.4 Many others were subjected to arbitrary arrest, torture, rape, and other forms of violence. As Faisal Hadi, the executive director of the Human Rights Coalition (Koalisi

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HAM) operating in Aceh, notes, “For the people of Aceh, telling the story of their daily lives during the conflict means talking about human rights violations.”5 At the heart of dissatisfaction among the victims of abuse and human rights organizations operating in Aceh stands the very instrument employed to procure peace in this conflict—amnesty. As one of the central pillars of the Helsinki MoU, the provision of an amnesty granting immunity from prosecution for all individuals associated with the Free Aceh Movement who either were under investigation for crimes committed during the course of the civil conflict or were already in detention, as well as for those who fought under the auspices of GAM, has been widely cited as one of the key reasons behind the success of the Aceh peace process.6 It has, however, been something of a double-edged sword. By bringing about the cessation of hostilities in this case, the granting of an amnesty has, without question, facilitated a significant reduction in human rights violations. At the same time, however, it has also served to exacerbate the sense that a “culture of impunity” continues to operate in Aceh. Coupled with the fact that neither the Human Rights Court for Aceh nor the Truth and Reconciliation Commission for Aceh provided for in the Helsinki MoU has been established, “few political actors in Aceh seriously believe that prosecutions for past abuses will take place” or that the truth about their nature and extent will be revealed, leaving thoughts of accountability for past atrocities a mere pipe dream.7

Persistence and Change In the past thirty years an unprecedented rise in demands for accountability for past human rights violations has taken place. Variously described as a “revolution in accountability,”8 an “age of accountability,”9 or, more commonly, the “justice cascade,”10 this trend has been marked by “a shift in the legitimacy of the norm of individual criminal accountability for human rights violations and an increase in criminal prosecutions on behalf of that norm.”11 On an international level, this period has seen the establishment of international courts to try human rights violations, most notably the International Tribunal for the Former Yugoslavia, the International Tribunal for Rwanda, and the International Criminal Court (ICC), the emergence of hybrid domestic-international courts in the cases of the Special Court for Sierra

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Leone, the Kosovo “Panels 64,” East Timor’s Serious Crimes Special Panels, and the Extraordinary Chambers in the Courts of Cambodia (ECCC), and several cases in which national courts have prosecuted foreigners who committed human rights abuses outside their temporal jurisdictions.12 On a domestic level, the period has also seen criminal trials emerge as the most popular means of pursuing individual accountability for human rights violations. With four main avenues of prosecution—domestic courts, international tribunals, hybrid tribunals, and foreign courts—now open to states and other actors, the number of trials conducted for human rights violations has more than doubled since the early 1990s.13 Unsurprisingly, this trend toward greater accountability for human rights violations has posed a significant challenge to the use of amnesties, which, by their very nature, foreclose future criminal (and sometimes civil) prosecutions.14 By the end of the 1990s, the Inter-American Court of Human Rights had condemned amnesties granted in Uruguay, El Salvador, and Chile, later ruling that “all amnesty provisions . . . are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations.”15 In an extraordinary turn of events at the signing of the 1999 Lomé Peace Agreement, negotiated to bring an end to Sierra Leone’s bloody conflict, the United Nations laid down a significant marker when it excluded “the international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law” from an already-signed agreement that included a blanket amnesty for all crimes committed during the conflict.16 This act, along with an associated set of guidelines for UN negotiators, strongly indicated that amnesties could no longer be justified, even as instruments designed to facilitate a peace agreement, thus bringing UN policy into line with the long-standing legal argument that states have an absolute obligation to prosecute certain types of serious crimes.17 Further key developments in international and domestic jurisprudence in subsequent years have seen amnesties circumvented,18 overturned,19 and resisted by lawyers, states, and judiciaries committed to ending impunity for human rights violations.20 Yet despite these developments, amnesties remain incredibly popular. Since the 1970s, amnesties have steadily increased in number and cemented their place as the most popu lar transitional justice mechanism ahead of trials, truth commissions, reparations, and lustration policies.21 To be sure, amnesties are no longer being instituted in numbers comparable to their heyday in the early 1990s, but their institution has generally tracked upward

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over the past forty years. Thus, contrary to reasonable predictions, general increases in the numbers of human rights trials conducted, particularly in the twenty-first century, have not resulted in the decline of amnesties.22 That is, “[a]mnesties persist,” despite the existence of the “justice cascade.”23 This book examines how and why amnesties have persisted in the face of mounting pressure to prosecute those responsible for human rights violations. It tells the story of amnesties in thought and practice from the 1970s to the present. On one hand, it is the story of the persistence of amnesties as a mechanism to facilitate transitions to democracy, reconcile divided societies, and sweeten negotiated peace agreements. On the other, however, it is also the story of how “changing popular and political expectations” concerning precisely how past human rights violations ought to be addressed have brought the legitimacy and even efficacy of amnesties into question.24 Amnesties are instruments of politics designed to achieve particular sets of policy outcomes. As we will see in this book, their durability over the past four decades can be attributed to two main factors. First, the perceived utility of amnesties as an effective means of ending violence, whether perpetrated as part of a civil or international conflict, or by rebel or militia groups operating within the state, has persisted over the past forty years. What is more, despite increasing pressure to prosecute perpetrators of human rights violations and mounting evidence suggesting that amnesties may help to end conflict but not to secure lasting peace,25 states have increasingly offered immunity from prosecution in their (sometimes last-ditch) attempts to procure peace. Second, the endurance of amnesties since the 1970s can also be attributed to their malleable nature. As an instrument of politics, the nature of amnesty is not fi xed but capable of being molded to achieve changing sets of political ends. That is, fundamental shifts in the very idea of what constitutes an amnesty have allowed amnesties to persist as political tools designed to facilitate peaceful transitions to democracy, to foster peace and reconciliation in postconflict societies, and to serve as bargaining chips to entice hostile parties to broker negotiated peace settlements. In particular, in the past four decades conventional notions of amnesties as instruments of “amnesia,” “oblivion,” and “forgetfulness”26 have given way to far broader understandings that conceive amnesty as a mechanism designed to render truth, prompt memory, and even achieve accountability. Th is book thus also follows the themes of persistence and change in tracing the relationship between amnesties and accountability from the

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1970s to the present. Accountability in this context denotes being held responsible or blameworthy for an action or set of actions. The Latin word “respondeo,” from which “responsibility” is derived, means “I answer,” indicating that to be responsible for an action is to be “answerable . . . or accountable for it.”27 Put differently, the practice of accountability requires “some actors [to] hold other actors to a set of standards and impose sanctions if these standards are not met.”28 Where human rights violations are concerned, it requires “actors to accept,” whether forcibly or through their own volition, “responsibility for the impact of their action or inaction on human rights.”29 Precisely how states and other actors pursue and ought to pursue accountability is the core concern of the subfield of study known latterly as “transitional justice.”

Amnesties and Transitional Justice

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Transitional justice can be defined in general terms as “a conception of justice associated with periods of political change,” be they transitions from authoritarian rule to democracy or from confl ict to peace.30 At fi rst sight it is thus not at all obvious that the discussion of amnesties belongs in the context of transitional justice. After all, amnesties routinely signify the decision to forgo justice in the aftermath of a transition to democracy or from confl ict to peace. Derived from the Greek “amnēstia,” meaning “forgetfulness” or “oblivion,” the term “amnesty” has traditionally denoted an “act of sovereign power” foreclosing future criminal prosecutions.31 In this sense, amnesty might be readily viewed as an affront to transitional justice, a means of achieving a transition without justice. However, this assessment rests on two assumptions, about the nature of amnesties and the nature of justice. First, conventional understandings have long assumed that amnesty necessarily entails some form of prescribed amnesia regarding wrongs committed in the past. Second, they have also assumed that justice is predominantly retributive in nature, operationalized through the practices of prosecutions and punishment. Yet, as the following, fairly conventional retelling of the genealogy of transitional justice in the twentieth century reveals, neither justice nor amnesty is a static concept. Rather, in the latter part of the twentieth century, narrow versions of both amnesty and justice gave way to far broader conceptualizations. Thus, while amnesty is no longer exclusively conceived as an instrument of amnesia but instead as a means of

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recovering the truth, understandings of justice have increasingly acknowledged the role that restorative measures play in putting right the wrongs of the past.

Amnesty Versus Accountability

According to Ruti Teitel’s now standard genealogy of the field, the development of transitional justice in thought and practice occurred in three distinct phases, each marked by a par ticu lar set of historical circumstances and their associated debates.32 Embedded within each of these debates have been corresponding patterns of implementation and debates about amnesties. The first phase of transitional justice emerged in the aftermath of World War II and was primarily defined by the question of how best to hold Germany accountable for its aggression and the atrocities it committed during the war. Prior to World War II international and state practice had been dominated by the “impunity model,” which dictated that “the state itself and officials of the state should remain indefinitely immune from prosecutions in domestic courts and particularly in foreign courts.”33 Thus, although the “impunity model” did not specify the granting of amnesties for perpetrators of atrocities, the idea that state officials ought not to be tried for past actions effectively amounted to the promotion of de facto amnesties for these individuals. With the full horrors of the Holocaust coming to light, however, revealing the “deep moral and political flaws of the reigning orthodoxy,” the immunity model “began to erode.”34 Scholars and practitioners keen to ensure accountability for atrocities committed during the war and to draw a line, demarcating past practice from a new order in which impunity for mass human rights crimes was no longer an option, thus heavily promoted the application of international law, however extraordinary and irregular it may have been at the time. With this, debate about how best to address past atrocities became explicitly “framed in terms of justice versus amnesty,” with amnesty representing the formalization of impunity.35 With general support falling on the “justice” side of the ledger, amnesties came to be viewed as being “exceptional to general adherence to the rule of law.”36 They were, in short, an intolerable aff ront to accountability.

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In the place of amnesties, the “Nuremberg Model” viewed international law as providing the best vehicle for addressing war crimes and removing the protection afforded by state sovereignty to individuals accused of committing acts of “gross misconduct” including crimes against humanity.37 International tribunals staged in Nuremberg and Tokyo thus held individuals accused of crimes against peace,38 war crimes,39 and crimes against humanity individually criminally responsible for their actions.40 As Article 7 of the charter annexed to the London Agreement of 8 August 1945, which determined to establish “an International Military Tribunal for the trial of war crimes,” stated, “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.”41 The courts established at Nuremberg and Tokyo thus represented a “watershed for recognizing that individuals, and not merely states, are responsible for violations of human dignity, and that officials who order or commit such abuses must be held accountable.”42 As far as the Nuremberg Model went in preventing state officials hiding behind their positions, it did not, however, bring a complete end to impunity for human rights violations. First, by choosing to try only those most responsible for planning and committing atrocities committed during World War II, the Nuremberg Model effectively granted large numbers of other perpetrators de facto amnesties. Second, it remained possible for state officials to stay immune from prosecution for human rights violations on account of the persistent notion that the state itself was responsible for perpetrating atrocities. Thus, although later practice eventually saw states held minimally accountable for human rights abuses, through “name and shame” strategies, economic and military aid sanctions, and other forms of pressure, “the actual individuals who carried out violations” remained “beyond reach.”43 Despite these limitations, however, the Nuremberg Model solidified the idea that individual accountability for human rights violations ought to be achieved through criminal trials and cast amnesties as the fundamental opponent of justice.

From Impunity to Truth and Justice

In the second phase of transitional justice, beginning in the 1970s, the relationship between amnesties and accountability was inverted as “broad

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amnesty policies” became increasingly popular.44 Here the relationship between amnesty and accountability developed in two main stages. The first coincided with and was directly related to the “third wave” of democratization that began in Portugal in 1974 and spread to Greece and Spain before taking hold in Latin America, Eastern Eu rope, Asia, and Africa. As Samuel Huntington described it, the third wave was marked by “major debates” over whether to “prosecute and punish . . . [or] forgive and forget” crimes committed by members and supporters of past authoritarian regimes.45 These debates were marked not simply by the impunity versus justice demarcations of old but by the emergence of a disciplinary fault line that saw lawyers and political scientists pitted against one another. In the main, lawyers tended to endorse the criminal prosecution of perpetrators of human rights violations as being necessary moral and legal responses to criminal offenses or as providing useful means of endorsing the criminal justice system, upholding the rule of law, and deterring future abuses.46 These scholars explicitly opposed amnesties and questioned their ability to serve the instrumental function of bringing peace and stability to the transitional states with which they had been readily associated, most notably Chile, Argentina, and Uruguay.47 By contrast, scholars of democratization from within the social sciences and, in particular, political science were convinced that the growing demand for accountability that followed in the wake of the Latin American transitions would dissipate before long. In accordance with his view that transitional justice is “shaped exclusively by politics,” Huntington observed that no effective criminal prosecution and punishment occurred in most transitional countries, before concluding that “[i]n new democratic regimes, justice comes quickly or it does not come at all.” 48 As Kathryn Sikkink has since comprehensively demonstrated, and as the cases of Cambodia, Uruguay, and South Korea reveal, Huntington was wrong: justice often takes a considerable amount of time to be realized (in the case of Cambodia the ECCC became operational almost thirty years after the end of the Khmer Rouge regime).49 Nonetheless, at the height of the third wave of transitions in 1991 Huntington’s guidelines for democratizers thus advised that only when it is both “morally and politically desirable” should the leaders of past authoritarian regimes be prosecuted.50 Similarly, Guillermo O’Donnell and Philippe Schmitter predicted that such prosecutions would become less likely as “the bitterness of memories attenuated with the passage of time” in transitional societies.51 These scholars openly supported the positive function of amnes-

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ties in bringing democratization and raised concerns that pushing new democracies to prosecute still-powerful members of former regimes might derail transitions and precipitate renewed violence. In practical terms, the second phase of transitional justice thus saw a  shift away from individual criminal accountability to a growing, if at times reluctant acceptance of amnesties as the necessary price to be paid for both a peaceful transition to democracy and its successful consolidation. This was coupled, in intellectual terms, with a new emphasis on the political contexts and contingencies of transitions to democracy and the formulation of a series of dichotomies designed to explain the tensions at play in contending views on how best to address the human rights violations of past regimes. To some extent these dichotomies were artificial constructions, built to suit the purposes of pedagogy and achieve the sort of intellectual cleanliness that classification appears to facilitate. They brought together sets of thinkers and ideas that bore family resemblances to produce what, particularly in the case of the “peace versus justice” debate, became reified positions.52 Conceived as occupying one side of the so-called “peace versus justice” debate were those who argued that in the aftermath of violent conflict, those responsible for committing atrocities must be held accountable for their actions by facing formal justice processes, namely prosecutions and punishment. On the other were those who sought to promote peace even, in some instances, at the expense of justice through the granting of amnesties to the perpetrators of serious crimes. As such, the “peace versus justice” debate was, in large part, simply a new iteration of the earlier “prosecute and punish versus forgive and forget” debate extended to apply to transitions not only to democracy but also from conflict to peace. With the rise of the truth commission as an alternative means of addressing past human rights abuses in the 1980s and 1990s, however, justice came to be conceived not simply in opposition to peace but as the dichotomous opponent of truth as well. This reflected the fact that “the primary aim of truth commissions was not justice but peace” and the sense that adversarial judicial processes did not constitute a satisfactory means of uncovering the truth about past violations.53 With growing recognition of the importance of uncovering and acknowledging the truth about human rights violations committed in the past, amnesties were thus viewed as one way of facilitating the recovery of truth and fostering reconciliation in postconflict societies.

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However, new demands for truth precipitated a further distinction, this time between retributive and restorative forms of justice. As proponents of restorative justice argued, contrary to the “justice versus truth” dichotomy, the pursuit of truth and reconciliation over prosecutions and punishment did not amount to the abrogation of justice or accountability but to the triumph of restorative over retributive justice. Restorative justice conceives crime as “a violation or harm to people and relationships” and thus aims to “create peace in communities by reconciling the parties and repairing the injuries caused by the dispute.”54 For proponents of restorative justice, both the “truth versus justice” and “peace versus justice” dichotomies are in error. Justice is not opposed to truth, nor does it stand in opposition to peace: rather, truth is an instrument of peace and reconciliation, the ultimate ends to which justice aims. Similarly, restorative justice is not opposed to accountability but, through its practices of truth telling, apologies, compensation, repentance, and forgiveness, calls the perpetrators of wrongs to account for their actions.55 Retributive justice, by contrast, conceives crime as a “violation of the law” of which the state or the international community is the victim. According to this view, the aim of justice is “to establish blame” and administer punishment.56 Accordingly, accountability is achieved by making perpetrators “pay” for their actions through punishment. The central driving force of retributive forms of justice is thus the simple belief that “wrongdoing must be punished.”57 For this reason, strong proponents of retributive justice are often characterized, caricatured even, as being willing to promote the demands of justice even if doing so may jeopardize peace. Thus, even when amnesties are proposed as “a necessary condition for peace,” instituted to facilitate the cessation of hostilities and to prevent belligerents from resorting to violence once again, supporters of retributive justice are thought to favor trials and punishment over the granting of amnesties.58 Within these dichotomies, amnesties have been readily aligned with peace, truth, and restorative justice, and conceived as being in opposition to the sort of retributive justice associated with prosecutions and punishment. This, as mentioned above, gave rise to two sets of relationships between amnesties and accountability in the second phase of transitional justice. First, and in accordance with the early transitions to democracy that furnished the “peace versus justice” debate, amnesties have been conceived as an unfortunate aff ront to accountability that must be accepted as

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the means of achieving a peaceful transition to democracy. That is, amnesties were conceived in absolute opposition to accountability but justified nonetheless. However, with the truth versus justice and restorative versus retributive justice debates came a second relationship between amnesty and accountability. Here amnesties were not thought to be directly opposed to justice or an absolute affront to accountability. Rather, amnesties were conceived in terms of restorative justice and as being legitimate only when coupled with limited accountability measures such as those constituted by participation in truth and reconciliation processes. With this, the absolute impunity afforded by the granting of blanket amnesties was replaced by a more bounded understanding of the acceptable limits of amnesties.

Amnesty and Accountability

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The third phase of transitional justice is characterized by Teitel as “steadystate transitional justice.” It is marked by the “expansion and normalization of transitional justice.”59 Transitional justice is now truly global in its reach. In par ticu lar, the third phase has seen a new emphasis on transitional justice in Asia and the Pacific, with mechanisms and processes being implemented in cases as diverse as Cambodia, East Timor, South Korea, the Solomon Islands, and Aceh. As made evident by recent world events, this has now been extended to the last frontier of transitional justice, the Middle East. Beginning in the late 1990s and extending into the present, the third phase has also seen a return to the pursuit of individual criminal accountability with the establishment of ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, the institution of hybrid domesticinternational courts in Sierra Leone, East Timor, Lebanon, Kosovo, and Cambodia, and the institution of the ICC that came into operation in 2002. These advances mark the “entrenchment of the Nuremberg Model” after several decades of being out of favor.60 However, this move does not signify a turning of the tables in which justice now triumphs over peace. On the contrary, the third phase of transitional justice is marked, in scholarly terms, by the disintegration of the dichotomies that marked the second phase. In particular, growing acknowledgment of the “justice” entailed by restorative measures,61 and an increasing

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rapprochement reached between the practices of transitional justice and peacebuilding have seen both retributive and restorative justice measures embedded in peacebuilding processes.62 This has been coupled with widespread recognition that in transitional and postconflict contexts, “the choice is seldom simply ‘justice’ or ‘peace’ but rather a complex mixture of both.”63 Thus, while amnesties have come to be conceived as instruments included in broadly holistic transitional and postconflict justice processes, they no longer explicitly prevent the pursuit of accountability for human rights violations. Rather, amnesties are now coupled with accountability measures, based on both retributive and restorative forms of justice, at the time of their implementation and sometimes some years down the track. That is, amnesties are no longer the final word on impunity. The puzzle in all of this is why, in the face of the justice cascade and, with it, increasing recognition that amnesty no longer provides an impenetrable shield against prosecutions, states continue to offer amnesties. Th is book begins from the assumption that the key to understanding the persistence of amnesties lies in determining why states implement them in the fi rst place. That is, it rests on ascertaining the political purposes for which amnesties are instituted. With this in mind, this book considers the political purposes, aims, and beneficiaries of given amnesties and, in doing so, provides insights into why states grant amnesties in par ticu lar contexts.64

An Interpretive Approach As a recent survey of research on the impact of various postconflict and transitional justice practices reveals, scholarship concerned with the relative merits of implementing par ticu lar transitional justice mechanisms has been dominated by “faith-based” claims, driven by abstract or theoretical principles, rather than “fact-based” arguments derived from the gathering and analysis of data and empirical evidence.65 As a result “existing empirical knowledge about the impacts” and, indeed, implementation of transitional justice mechanisms in general, and amnesties in particular, is extremely limited.66 Among scholars committed to facilitating a move from “faith-based” to “fact-based” analysis of transitional and postconflict justice mechanisms, a fault line has opened up between those who advocate large-N quantitative

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comparisons and those who favor crucial case studies and small-N qualitative comparisons. Underpinning these positions are two key assumptions that have marked similar tensions in the fields of political science and international relations as well as in the social sciences more generally. The first assumes that quantitative analysis provides us with a “scientific” explanation of trends and phenomena of postconflict justice and facilitates the generation and testing of general theories. It is underpinned by the positivist claim that “causal explanations are valid only if they fit observations.”67 To this end, a small number of large-N studies of transitional justice mechanisms have appeared in recent years, the most notable of which have respectively assessed the deterrence effect of human rights prosecutions and the outcomes produced by implementing various transitional justice mechanisms, in isolation and in combination with one another.68 The second assumes that by engaging in fine-grained contextual analysis conducted using techniques such as process tracing, “crucial case studies” and small-N comparisons can help to generate policy-relevant conclusions to be applied to particular cases. Utilizing both quantitative and qualitative methods, these studies have dominated scholarship concerned with the impact of postconflict mechanisms.69 Of course, critics of each of these approaches are quick to highlight their distinct disadvantages. While crucial case studies and small-N comparisons cannot help us to identify general trends or patterns of causation, large-N studies suffer from the problem of standardization, whereby a “one-size-fitsall” template is imposed on unique cases in specific contexts. Indeed, the “contextual nature of transitions and legal obligations” indicates that where amnesties are concerned, we should “resist the tendency . . . to extrapolate a ‘formula’ that can be applied, with a few changes, to any and all situations.”70 The central challenge for research in the field is thus to design empirical studies that benefit from the main advantages provided by each of these approaches while mitigating their limitations.71 For Thoms, Ron, and Paris this is best achieved by employing mixed-methods research involving large-scale comparative analysis to identify general trends and patterns, and the controlled comparison of individual cases using process tracing techniques, extensive interviews, and surveys.72 As the increasingly regularity with which works that explicitly seek to bridge the large-N/case study fault line through the use of mixed methods have appeared suggests, many scholars seem to agree, at least implicitly, with Thoms, Ron, and Paris’s assessment. Indeed, it is perhaps significant to note that the majority of large-N

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studies of transitional justice practices and processes that have appeared in recent years have been undertaken not by scholars traditionally known as quantitative political scientists, but by area specialists who have extended their interdisciplinary analytical techniques to this mode of data analysis.73 In this sense, large-N studies may be viewed less as a stand-alone approach to transitional justice and more as a supplementary mode of data collection designed to complement smaller, more contextual studies. Following this new trend, this book also combines large-N quantitative analysis with focused qualitative analysis. To do so, it adopts an interpretive approach that allows data generated through large-N studies and small, indepth historical and contextual analyses to contribute to a holistic understanding of amnesties and their purposes.

Meaning Holism

The interpretive approach to social science is underpinned by the claim the human beings are different from the other physical objects that constitute the natural world. Unlike other phenomena in the natural world, human interactions cannot be studied in purely material (scientific) terms.74 Rather, human beings are different because their actions are “meaningful and historically contingent.”75 Understanding and explaining human interactions thus requires us to interpret their meaning in the contexts, historical or otherwise, in which they are situated. The concept of meaning holism that stands at the center of the interpretive approach thus holds that “our concepts are not simply given to us by the world as it is” but are constituted by and form webs of belief.76 Understanding meaning thus requires us to understand those webs of belief, to “evaluate whole bundles of facts, theories, and assumptions,” rather than consider individual facts and phenomena in isolation. The meaning holism of the interpretive approach therefore conceives methods simply as forms of data generation and collection and treats all forms of data as being valid. What the interpretive approach requires is that the social scientist adopts “contextualizing and historical forms of explanation.”77 It recognizes that “data is not only saturated with . . . prior theories” that informed its generation, but that it is “data about holistic and constructed webs of meaning to be explained by interpretation.”78 Thus, contrary to their conventional dichotomization in much political science

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and social science scholarship, it is not actually the case that positivist methods are incompatible with an interpretivist approach. In particular, the use of case studies to shed light on a particular phenomenon of the social world is entirely compatible with the interpretivist approach. Where interpretivists diverge from positivists, however, is in their use of case study materials. The interpretive approach does not draw on evidence from case studies to support or generate formal theories. That is, in contrast to the positivist approach to social science, it does not conceive cases “as systematic evidence for such theories.”79 Rather, as distinct from a strictly comparative case study approach, the interpretive approach employs case studies “to illustrate an aspect of the world rather than as systematic evidence of its extent or inner logic.” 80 It does not seek to formulate universal laws or reach conclusions capable of being generalized. For these reasons, “[t]here is nothing intrinsically troubling” about cherry-picking cases to illustrate particular aspects of the subject at hand.81 What is more, large-N studies provide insights into general trends and help us to determine where to start looking for the contexts and webs of belief that the interpretive approach requires us to analyze. In the context of the interpretive approach, however, they too do not form the bases of generalized conclusions or theories. Th is book uses both case studies and a large-N study of amnesties instituted between 1974 and 2007 to explain why amnesties have persisted despite growing pressure to prosecute the perpetrators of human rights violations. It draws on data gathered through the analysis of primary documents, including amnesty laws, legal documents such as court judgments and rulings, and policy papers, secondary sources such as scholarly writings, and impressions gathered during periods of fieldwork. Although it draws on a wide range of cases, it focuses on several key cases that illustrate how and why amnesties were conceived and implemented in particular ways in specific historical, social, and political contexts. In some instances, these cases have been selected as the most prominent examples of a particular application of amnesty: thus the case of Chile provides an archetypal example of a self-granted amnesty, El Salvador typifies the legislation of amnesia via amnesty, and Mozambique illustrates the conventional use of amnesties to end ongoing violence. In others, particular cases have been included as they marked significant turning points in the conceptualization and implementation of amnesty. In particular, the case of South Africa illustrates a move from conventional conceptualizations of amnesty and justice in terms of

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amnesia and retribution, to new understandings in terms of truth and reconciliation. In yet other instances, however, case selection has been based on more pragmatic considerations such as the availability of reliable information: for example, the cases of Chad, Côte d’Ivoire, and Columbia were the only examples of disguised amnesties for which sufficient source material could be gathered, while Aceh remains the only case in which an amnesty was used to achieve self-determination for which detailed and reliable data are available. In accordance with the central tenets of the interpretive approach, this book uses data generated by this range of methods to construct a narrative account of the relationship between amnesty and accountability from the 1970s to the present. Thus, although it makes no claim to be formulating an overarching theory, it employs narrative as a means of explaining why amnesties persist. As Mark Bevir explains, “[n]arrative explanations relate actions to the beliefs and attitudes that produce them.”82 That is, they explain the meaning of actions by reference to the sets of beliefs and attitudes that led to them. However, doing so requires us to understand both the meaning of those beliefs and their connections to actions, and how those beliefs and attitudes actually produce actions. Narrative explanations therefore “postulate two types of connections.” The first, Bevir explains, “relates actions, beliefs, and pro-attitudes in a way which makes them intelligible in light of one another.”83 That is, it explains conditional connections between actions, beliefs, and attitudes. For example, it might explain a connection between the ways in which par ticu lar actors understand the concept of justice and the purpose of amnesty, and the types of amnesties they choose to enact. In the case of South Africa, we might thus posit a connection between a restorative notion of justice based on traditional African notions of ubuntu, an understanding of the purpose of amnesty being to achieve that form of justice, and the reconceptualization of amnesty in terms of truth. The second, volitional type of connection “relates pro-attitudes to the actions they motivate.” 84 That is, postulating volitional connections requires us to consider what the actors actually did, and how their beliefs and attitudes led to an intention to act in a particular way, and the enacting of the action itself. In short, it requires us to consider how the actors themselves interpreted the meaning of their own actions. Narrative explanations thus entail “interpretations of interpretations.”85 This book thus explains the persistence of amnesties by interpreting how various key actors have interpreted the meaning and purpose of amnesties.

tion

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17

To do so, it thus examines both evidence of their ideas about amnesties and their actions with regard to their implementation.

The Structure of the Narrative

PB

Chapter 1 introduces the political nature of amnesties and the key sources of tension that have been precipitated by their implementation. It considers, in theoretical terms, the sets of outcomes amnesties are commonly designed to produce before drawing on a database of 709 amnesties granted between 1974 and 2007 to map significant trends in the implementation of amnesties for particular sets of political purposes. By identifying the particular purposes for which amnesties are instituted and, moreover, their patterns of implementation, the findings of Chapter 1 provide a platform for the interpretive approach to be pursued in the remainder of the book. Rather than simply providing a purely chronological account of events, debates, and the development of ideas, however, the narrative in Chapters 2, 3, and 4 is orga nized around three central themes: political transitions, truth and reconciliation, and ending violence. These central themes represent the three dominant aims of amnesties as well as the areas in which the most significant trends of persistence and decline in the implementation of amnesties can be identified. Chapter 2 takes us to the beginning of discussions about amnesties in response to those implemented as part of the wave of democratizations that took place in Latin America in the 1970s and 1980s. It centers on debates about whether an obligation to prosecute really existed, how much latitude new democracies had to protect themselves by choosing not to pursue prosecutions, whether truth was a right to be upheld in the aftermath of atrocities, and how best to address human rights violations of the past. It notes that despite widespread recognition that many Latin American states had used blanket amnesties to great effect to bring about successful transitions from authoritarian rule to democracy, a growing consensus was emerging that the crimes of past regimes could not simply be swept under the rug. Here we find the foundations for later attempts to circumvent, overturn, and resist amnesties, particularly, although not exclusively, those granted by the authoritarian rulers of Latin America. While Chapter 2 focuses on the uneasy relationship between amnesty and democracy, Chapter 3 is concerned with the connections forged between

18

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amnesties, truth, and reconciliation. In contrast to Chapter 2 where we see growing resistance to amnesties, here we see amnesties changing and adapting in response to demands for truth and accountability. In particular, Chapter 3 outlines two significant shifts that took place in the relationship between amnesty and truth and, with it, the very notion of amnesty itself, from an instrument of enforced amnesia to a means of recovering the truth, encouraging remembrance and facilitating accountability. The first shift saw a move from truth being conceived as a response to the suppression of facts entailed by the granting of self-amnesties, as in the case of Argentina, to amnesties granted as a form of enforced public amnesia after the truth had been revealed in the case of El Salvador. The second and more significant move, however, saw amnesties no longer equated with amnesia or oblivion but with the rendering of truth in the case of South Africa. What is more, by embedding amnesties in a broad process of restorative justice, the case of South Africa also signaled a significant shift in the relationship between amnesties and accountability, putting an end to the idea that amnesties are necessarily opposed to justice. As such, amnesties pursued in the interests of truth and reconciliation have persisted in the face of the justice cascade by changing their very nature and, in doing so, co-opting justice (albeit a different understanding of the concept) to their side of the debate. Chapter 4 then turns to the use of amnesties to end violence. It is here that the most significant growth in the use of amnesties has taken place over the past thirty years. The chapter examines changing attitudes toward the role of amnesties in procuring peace settlements in the late 1990s and early 2000s. Here, of course, is where the most direct transactions between amnesties and peace take place and, as such, is where debate about the legitimacy of amnesties occurs in its most stark terms. Focusing on the case of Sierra Leone as a key turning point, this chapter notes that where once blanket amnesties were regarded as the acceptable price to pay for the successful conclusion of a peace agreement, they are now considered unacceptable where gross violations of human rights have taken place. In much contemporary thought and practice amnesties are thus conceived as being an acceptable price to pay for peace only in cases where they do not allow the perpetrators of genocide, crimes against humanity, war crimes, and other gross violations of human rights to be granted immunity from prosecution. That is, complete immunity is now considered too great a price to pay for peace. And yet the chapter also notes that in practice, the persistence of amnesties can in large part be attributed to the continued popularity of amnes-

tion

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19

ties granted to end violence, whether it is perpetrated by rebel groups within the state or as part of a civil or international conflict. That is, here we see the perceived utility of amnesties as an instrument of peace resisting pressure to prosecute. Tension between the simultaneous rise of the justice cascade and the use of amnesties is brought to a fi nal head in Chapters 5 and 6. On one hand, Chapter 5 outlines attempts made to overturn, resist, circumvent, and balance past amnesties. Focusing on the cases of Argentina and Chile, the ICC’s efforts to resist an amnesty granted by the Ugandan government to indicted members of the Lord’s Resistance Army, and the ECCC’s dismissal of an amnesty granted to the deputy prime minister of the Khmer Rouge regime, Ieng Sary, it demonstrates that significant progress has been made in efforts to end the impunity afforded by amnesties of old. In doing so, however, it notes that with few exceptions, amnesties that have been overturned, resisted, or circumvented have shared one or more of two common features. First, most of the amnesties in question were originally granted by outgoing authoritarian rulers to protect themselves and their supporters from future prosecutions or by transitional regimes hoping to ensure the security of their fledgling democratic regimes, in states that now enjoy consolidated democracy. Second, ending impunity has required significant involvement by the international community, in the form of the active engagement of the international human rights movement, the referral of the case to a regional human rights court, such as the Inter-American Court of Human Rights, or the involvement of an international or hybrid criminal tribunal. On the other hand, Chapter 6 outlines the ways in which various amnesties have themselves circumvented the obligation to prosecute. It notes that the pressure to prosecute can be exerted on the process of designing, implementing, and enacting an amnesty law at two main points: prior to the establishment of the amnesty law, pressure may be brought to bear on the parties involved not to allow the inclusion of human rights violations within its provisions; and after the amnesty law has been enacted, pressure may be applied to states to overturn or annul it. Where existing laws are concerned, the vast majority of amnesties remain untouched, with little prospect of being overturned, resisted, or circumvented in the near future. Some states, such as Brazil, have even gone so far as to actively resist pressure to annul old amnesty laws. Where proposed amnesty laws are concerned, states and other parties wishing to include human rights violations have tended to ignore the pressure to prosecute or disguise their amnesties, thereby appearing

20

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to placate demands for justice while actually providing impunity. Alternatively, where self-determination is at stake, states and other negotiating parties have returned, once more, to the original arguments used to justify amnesties in terms of the establishment of democracy and the pursuit of peace. With this they have almost brought debate about amnesties full circle, reinstating the once-defunct peace versus justice and democracy versus justice dichotomies, and actively pursuing a peace (and democracy) first, justice later approach. The chapter and substantive part of the book thus concludes by bringing four decades of thought and practice to bear on the self-determination case of Aceh, Indonesia.

CHAPTER 1

The Politics of Amnesties The quest for justice for yesterday’s victims of atrocities should not be pursued in such a manner that it makes today’s living the dead of tomorrow.1

Amnesties are instruments of politics. As Louis Joinet, the United Nations Special Rapporteur on Prevention of Discrimination and Protection of Minorities, wrote in his landmark report on the role that amnesties play in protecting human rights, amnesties constitute “the judicial expression of a political act.”2 Where transitional justice is concerned, amnesties thus serve two main functions.3 On an explicit level, amnesties are mechanisms of policy designed to achieve par ticu lar sets of political ends. More implicitly, amnesties also serve to “reassert [sovereign] control over the system of domestic criminal law” and, where applicable, international law regarding states’ obligations to prosecute the perpetrators of human rights violations.4 That is, as the act of a sovereign power, an amnesty is not simply marked by “alterations in the normal application and range of the domestic criminal law” but in the fact that these alterations are effected “in order to bring about a politically desirable effect.”5 These political effects typically include protecting powerful members of outgoing regimes from future prosecutions, securing smooth transitions from authoritarian rule to democracy, facilitating societal reconciliation, ensuring the stability of the current regime, and procuring peace. This has been the case for as long as amnesties are known to have been employed. Th is chapter examines the political nature of amnesties, from their origins in ancient Greece to their implementation in contemporary world politics. It demonstrates that questions of politics are always at the heart of decisions to grant amnesties and affirms Max Pensky’s view that even legal debates about the status and legitimacy of amnesties “are always tangled with the larger policy context in which the amnesty” is instituted.6 It argues

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that the key to ascertaining why and how amnesties have persisted despite increasing pressure to prosecute individuals accused of human rights crimes is found by examining the particular political purposes for which they are instituted. With this in mind, the final part of the chapter maps significant trends in the purposes for which amnesties have been implemented over a thirty-four-year period from 1974 to 2007. Drawing on a database of 709 amnesties, it demonstrates that the endurance of amnesties in the face of the justice cascade can be attributed to three main factors: first, the increased popularity of amnesties designed to protect transitions to democracy from would-be spoilers from 1974 to 1991; second, the rise of amnesties intended to facilitate the rendering of truth and contribute to reconciliation in the early 1990s and 2000s; and, third, the continued popularity of amnesties designed to bring an end to violence, whether perpetrated by rebel groups within the state or in the context of civil conflicts, throughout the thirty years in question. In doing so, it provides an empirical basis for the in-depth historical analysis of amnesties and political transitions, truth and reconciliation, and the pursuit of peace in the following three chapters.

Amnesties and Politics Although some evidence suggests that amnesties were first enacted by the ancient Babylonians, the concept of amnesty is, in accordance with its etymological foundations, ordinarily attributed to the ancient Greeks. In particular, the amnesty granted by the Athenian general Thrasybulus in 403 b.c.e. is traditionally heralded as the first of its type.7 As with most contemporary amnesties, it provided immunity from prosecution and punishment for the perpetrators of crimes committed during the course of a war, in this case fought over control of Athens, sought to bring a protracted period of confl ict to an end, and facilitated the further establishment of Athenian democracy. Like many of the contexts in which amnesties have been implemented more recently, in the latter part of the fifth century b.c.e. Greece was marked by “violent confl ict among citizens within the civic space of the polis,” termed stasis in the writings of the time.8 As Thucydides suggests in his own account of the civil war in Corcyra, stasis, once initiated, “developed a terrible momentum of its own: killing and atrocity led to retribution-killing and counter-atrocities in a widening downward gyre.”9 The conflict in Corcyra

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was thus marked by “revenge,” “wicked resolutions,” and the “savage and pitiless actions” of men “swept away into an internecine struggle with their ungovernable passions.”10 Among the most notable examples of stasis during the period was the rule of the “Thirty” Spartan tyrants over Athens. Unlike the Corcyrean case, however, the defeat of the Spartans by the democratic “men of Piraeus” is heralded as an exemplary case of how to halt a “downward spiral into chaos.”11 Rather than “vindictively turning upon their foes . . . the victorious Athenian democrats abruptly halted the cycle of retribution by declaring and enforcing an amnesty.”12 The amnesty, established by Thrasybulus, agreed not to “recall grievances against any of the citizens” who had fought on the losing side and to “wipe out all prosecutions for past acts.”13 As Lysias’s impassioned speech against Eratosthenes, a member of the Thirty who was implicated in what would today be described as the extrajudicial execution of Lysias’s brother, Polemarchus, makes clear, the rule of the Thirty was especially brutal. “So enormous, so numerous are the acts they have committed,” he argued, “that neither could lying avail one to accuse them of things more monstrous than the actual facts.”14 The decision of the Athenian democrats to grant a general amnesty to those who supported the Thirty, to “let it go like so much water under the bridge,” was viewed as a remarkable event, not simply driven by a need to halt the cycle of violence but the desire to see the establishment of “one harmonious and equal democracy” in Athens.15 Such was its success that it provided “both the idea and the name” of a practice “adopted by most civilized nations and extolled by historians, ancient and modern” since then.16 Indeed, the significance of the Athenian amnesty for the contemporary study of amnesties is twofold. First, it introduced the notion that amnesties cast into oblivion or “wipe out” the consequences of past crimes. This understanding, as we will see in Chapter 3, persisted until the 1990s when demands for truth led to the abandonment of oblivion as a necessary condition of amnesty. Second, the Athenian amnesty also demonstrates that amnesties were, from the outset, instruments of politics designed to achieve particular sets of political ends, namely the establishment of democracy and the procurement of peace. Accounts of the subsequent history of amnesty typically list the 1660 Act of Free and General Pardon, Indemnity and Oblivion legislated by the English Parliament in the aftermath of the overthrow and execution of Charles I, Louis XVIII’s 1816 amnesty “to all persons who had directly or indirectly taken part in the rebellion and usurpation of Napoleon Bonaparte,”17

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the Prussian amnesty of 10 August 1840, and President Andrew Johnson’s 1865 Proclamation of Pardon and Amnesty for citizens of the Confederate states that had not been restored under Lincoln’s Reconstruction policy.18 In the early part of the twentieth century the international amnesty afforded the Turkish officials responsible for what has become widely referred to as the Armenian genocide demonstrates with considerable clarity how changing political priorities have influenced the granting of amnesties. In the initial aftermath of the 1915 genocide, which claimed the lives of some 1.5 million Armenians, the governments of Great Britain, France, and Russia denounced the massacres as “crimes against humanity and civilization” and declared that the entire Turkish government would be made accountable for them. In light of this, the Paris Peace Conference established a commission to investigate war crimes in January 1919 and insisted that the Treaty of Sèvres include provisions for the prosecution and punishment of those responsible for atrocities committed against the Armenian population. Article 230 of the treaty required Turkey to hand over persons “responsible for the massacres committed during the continuance of the state of war” and gave the Allied powers the right “to designate the tribunal which shall try persons so accused.”19 However, the treaty was never formally ratified and thus never came into force. It was replaced by the Treaty of Lausanne of 24 July 1923, which did not mention the punishment of war crimes and had annexed to it a Declaration of Amnesty “for all offenses committed between 1914 and 1922.”20 This concession was granted to Turkey by the Allies as part of the “political package” tied to the treaty. With the “emergence of a new geopolitical reality,” namely the rise of the Soviet Union, the Allies now viewed Turkey, a former enemy, as “a necessary ally” and were thus willing to forgo the pursuit of justice in favor of an amnesty.21 While a Turkish court later tried “most of the architects of the massacre” and found most “guilty of war crimes . . . few were ever punished” and, as such, benefited from de facto impunity.22 This was certainly Adolf Hitler’s interpretation of the event as he famously remarked in a speech in 1939 justifying his own genocidal plans: “Who after all is today speaking about the destruction of the Armenians?”23 Political considerations were similarly at the heart of the Greek amnesty instituted as part of its transition to democracy in 1974. As the first amnesty associated with the beginning of the “third wave” of democratization, Greece’s amnesty was the most prominent to be implemented prior to the Latin

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American amnesty laws of the 1970s and 1980s. On 21 April 1967, a coup led by a group of right-wing military officers, Colonel Georgios Papadopoulos, Brigadier Stylianos Pattakos, and Colonel Nikolaos Makarezos, plunged Greece into seven years of military dictatorship. In an effort to silence their critics, the leaders banned all political parties in accordance with a policy described as “no party rule,” the prisons were quickly fi lled with “political prisoners detained without trial,” and thousands of people were driven “into exile on inhospitable islands” or forced to flee abroad.24 After its disastrous meddling in the affairs of Cyprus saw Turkey invade the island, however, the rule of the military junta came to an end in 1974. With its departure came the reinstatement of democratic rule under the leadership of the former prime minister Constantine Karamanlis. In an effort to rectify some of the most egregious injustices perpetrated by the military regime, upon taking office Karamanlis “released all political prisoners, abolished the worst prison camps, restored citizenship to all those who had opposed the military regime, [and] removed all orders depriving people of their passports or limiting their right to travel outside Greece.”25 In addition to these efforts, however, just two days after civilian rule was resumed, an ambiguously worded amnesty that appeared to provide immunity from prosecution for political offenses committing during the years of military rule was issued by decree. Th is and Karamanlis’s restorative measures were designed, in large part, to ensure the stability of the new democratic regime and to assist reconciliation by making right the wrongs of the past. Early interpretations of the ambiguously conceived amnesty law brought what many had assumed was its desired effect, encouraging numerous Greek military officers to “step down because they thought themselves protected by the amnesty decree.”26 As Nicos Alivizatos and Nikiforos Diamandouros have written, “[T]o the extent that the phrasing of the amnesty decree appeared to include principals of the authoritarian regime and thus provided them with an additional incentive to remain quiescent, it afforded the incoming civilian leadership precious breathing space during which to proceed with the implementation of its democratization strategy.”27 However, Karamanlis shortly thereafter issued a new decree specifying that “the top leaders of the military regime” were excluded from “the benefits of the Amnesty Law” and later “vehemently denied the existence of any understanding involving the outgoing regime.”28 In doing so, he opened the door for

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trials to take place. This accorded with not only general popular support for prosecutions but with Karamanlis’ belief that “rapid prosecutions would limit the power of veto players and thus promote stability.”29 However, many people also saw these ends as the intended purposes of the amnesty in question, thus bringing the politics of amnesties into direct tension with the politics of prosecutions. As we will see in the following section, debates about the political consequences of granting amnesties have continued into the twenty-first century, although, with the institution of new instruments of international law and increasingly restrictive interpretations of the obligations they impose upon states to prosecute human rights crimes, they have become even more mired in questions of politics and public policy.

The Crux of the Problem Reflecting their political nature, amnesties are most commonly, although not exclusively, granted for politically motivated crimes, those driven by political beliefs, ideologies, dissent, or protest.30 Indeed, Andreas O’Shea goes so far as to define amnesties as “immunity in law from either criminal or civil legal consequences, or from both, for wrongs committed in the past in a political context.”31 Politically motivated crimes range from “purely passive offences such as political dissidence” to extreme violence “against the prevailing social order.”32 However, the category of politically motivated crimes does not simply include obvious “political” crimes such as treason, sedition, and rebellion, but also includes actions ordinarily deemed criminal, otherwise known as common crimes, conducted in the context of a political confl ict. For example, the common crime of theft may be considered a politically motivated crime if goods are stolen to support the subsistence of a party to a political conflict. Thus a range of common crimes, from arson, rape, and assault to murder, can be deemed politically motivated if, and only if, they occur as the specific result of a political motivation. This, of course, means that common crimes enacted during a period of conflict but without material connections to that confl ict are usually, but not always, excluded. For example, the Lusaka Protocol instituted in Angola in 1994 provided amnesty for “illegal acts committed by anyone . . . in the context of the current conflict” without specifying that such crimes must be specifically connected to the conflict.33

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In some contexts amnesties are also granted for crimes proscribed in international human rights and humanitarian law including genocide, crimes against humanity, war crimes, and torture.34 These crimes are set apart from other international crimes by the extent to which they “shock the conscience of humanity” and “threaten the peace and security of humankind” as a whole.35 By allowing political considerations to overrule the law, amnesties granted for human rights violations allow perpetrators “get away with murder,” sometimes quite literally.36 This, of course, makes them highly controversial. At the heart of controversies surrounding the granting of amnesties to the perpetrators of human rights violations is a morally and legally driven sense of repulsion at the thought that those who commit heinous atrocities may not be held to account for their actions.37 Yet, however well founded in respect for human dignity and however strongly felt that sense may be, it competes with pragmatic recognition of the fact that without granting such offenders impunity, the violence they inflict, the havoc they wreak, and the abuses they commit may not come to an end. In legal and political terms, this tension is played out in the conflict between the obligations of states to prosecute the perpetrators of human rights violations and the contending outcomes associated with pursuing prosecutions and granting amnesties.

The Obligation to Prosecute

Given the confidence with which many critics of amnesties refer to international law as providing an authoritative denouncement of their use, it is somewhat ironic that the “only explicit mention of amnesty in a multilateral human rights-related treaty is one of encouragement.”38 Drafted to ensure the protection of the victims of noninternational conflicts, Additional Protocol II of the Geneva Conventions affirms that a range of acts prohibited in international wars are also proscribed in civil conflicts. These include a. Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation, or any form of corporal punishment b. Collective punishments c. Taking of hostages d. Acts of terrorism

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e. Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault f. Slavery and the slave trade in all their forms g. Pillage h. Threats to commit any of the foregoing acts.39 Despite prohibiting this range of acts “at any time and in any place whatsoever” and providing guidelines for the prosecution of those accused of committing crimes in the course of conflict,40 Article 6(5) of Additional Protocol II states, “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”41 The breadth of this article appears to imply that amnesties may be granted even where war crimes are suspected or known to have been committed. Indeed, most domestic courts that have sought to apply Article 6(5) have interpreted it that way, using it “as a legal basis to validate or uphold amnesties covering serious crimes, including war crimes that would violate Protocol II of the Geneva Conventions.”42 Recently, however, the International Committee of the Red Cross has argued that the provision contained in Article 6(5) of Protocol II is “more limited than its plain wording suggests.”43 In particular, in a 2005 volume on customary international humanitarian law, the ICRC argued that Article 6(5) cannot be “construed to enable war criminals, or those guilty of crimes against humanity to evade punishment.” Granting an amnesty in this context, it continues, “would be incompatible with the rule obliging States to investigate and prosecute persons suspected of having committed war crimes in non-international armed conflicts.”44 The notion that states have specific obligations to prosecute and punish certain types of violations of international human rights law and international humanitarian law arises, in the first instance, out of the treaty obligations to which states are subject.45 Among the first international legal instruments to address these obligations were the four Geneva Conventions of 1949. As their commentary makes clear, the Geneva Conventions made “absolute” the obligations of states to prosecute “grave breaches” of international law characterized as war crimes. “Grave breaches” are defined to include “wilful killing, torture, or inhumane treatment, including biological

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experiments, wilfully causing great suffering or serious injury to body or health, extensive destruction of property not justified by military necessity, wilfully depriving a civilian of the rights of fair and regular trial, and unlawful confinement of a civilian.”46 Although limited in this specific context to crimes committed during the course of international armed conflict, the obligation specified by the Geneva Conventions makes it clear that states cannot, under any circumstances, grant the perpetrators of “grave breaches” amnesties. Further international legal instruments also make the obligation to prosecute clear. Most prominently, the Convention on the Prevention and Punishment of the Crime of Genocide (1948) states, “The Contracting Parties confi rm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.”47 The obligation to punish perpetrators of genocide and its associated crime is then reiterated in further articles that specify that states must try persons charged with such offenses in “a competent tribunal” and “provide effective penalties for persons found guilty,” thereby precluding the possibility of granting amnesties in such cases.48 In a similar fashion, the Convention Against Torture, and Other Cruel, Inhumane or Degrading Treatment or Punishment (1984) requires states to “ensure that all acts of torture are offences under its criminal law” and to “make these offences punishable by appropriate penalties which taken into account their grave nature.”49 Stopping short of obligation to prosecute and punish articulated in the Genocide Convention, however, the Torture Convention requires only that states make an “inquiry into the facts” and “submit the case to its competent authorities for the purpose of prosecution.”50 By allowing national authorities discretion in addressing the case, the Torture Convention has been interpreted by some as containing a “degree of permissiveness regarding the manner in which a state must carry out its duties.”51 In particular Diane Orentlicher argues that rather than establishing a strict obligation to prosecute and punish, the Torture Convention “does not explicitly require a prosecution to take place, let alone that punishment be imposed and served.”52 However, Scharf, for one, disputes this interpretation of the “prosecute or extradite” clause in the Torture Convention and argues that the “manifest intent” of those who drafted it “was to ensure that persons convicted of . . . torture serve harsh sentences.”53 A second set of legal instruments confirming an obligation to prosecute the perpetrators of human rights violations are those in which the victim’s

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right to remedy is established. Signatories to the International Covenant on Civil and Political Rights agree “to ensure that any person whose rights or freedoms as herein recognised as violated shall have an effective remedy, notwithstanding that the violations have been committed by persons acting in an official capacity.”54 It continues to specify that an “effective remedy” is one that is “determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State.”55 Although neither is an enforceable international legal instrument, both the van Boven Report, commissioned by the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for the Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, reiterate this right.56 In particular, the van Boven Report argues that amnesties or “situations where impunity has been sanctioned by the law or where de facto impunity prevails with regard to persons responsible for gross violations of human rights” effectively bar victims from “seeking and receiving redress.”57 In a regional setting, the American Convention on Human Rights not only imposes on states 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, [but] to identify those responsible, to impose the appropriate punishment and to ensure the victims adequate compensation.”58 Similarly, the obligation to prosecute is made explicit in the Inter-American Convention to Prevent and Punish Torture and the Inter-American Convention on Forced Disappearance of Persons, as well as in the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, and Declaration on the Protection of All Persons from Enforced Disappearance.59 In particular, explicitly prohibiting amnesties, Article 18 of the Declaration on the Protection of All Persons from Enforced Disappearance specifies that “[p]ersons who have or alleged to have committed [disappearances] . . . shall not benefit from any special amnesty law or similar measure that might have the effect of exempting them from any criminal proceedings or sanction.”60 In a similar manner, the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European

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Court of Human Rights, “does not merely oblige the higher authorities of the Contracting States to respect for their own part the rights and freedoms it embodies.” Rather, it requires that “in order to secure the enjoyment of those rights and freedoms, those authorities must prevent or remedy any breach at subordinate levels.”61

Sources of Tension

Despite these seemingly firm statements establishing an obligation to prosecute human rights violations, for much of the past three decades debate has been waged over the nature and extent of that obligation. In particular, scholars, lawyers, and human rights activists have argued over whether an absolute duty to prosecute exists and whether exceptions to a general obligation are permissible in some circumstances. This second avenue of debate, of course, brings the obligation to prosecute into direct tension with the granting of amnesties. Amnesties, as discussed above, are fundamentally political instruments designed to achieve particular sets of social and political ends. Their institution marks the triumph of politics over law, for no one is amnestied who has not committed a crime for which prosecution and punishment have been considered a fitting response.62 What follows ineluctably from this aspect of their nature is that when proponents of amnesties seek to justify the decision not to uphold the law, they do so by reference to the set of outcomes that is predicted to follow that course of action. Thus, arguments in defense of granting amnesties bring one set of goods into conflict with another: the good principles associated with prosecuting and punishing wrongdoers, and the good ends associated with amnesties. These sets of goods are, of course, derived using different modes of moral reasoning and different theories of law and ethics. The claim that there exists an absolute inviolable obligation to prosecute the perpetrators of human rights violations is fundamentally deontological in nature. Deontological moral reasoning affords absolute primacy to performing one’s duty for the sake of duty, following the law for the sake of the law, and upholding moral principles for their own sake.63 As Immanuel Kant, the foremost proponent of deontological moral reasoning argued, according to this perspective, only actions driven entirely “by duty” have “genuine moral

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worth.” 64 What has become known as the “legalist” position with regard to amnesties is thus underpinned by the deontological idea that “moral conduct . . . is a matter of rule following.” 65 Legalists thus advocate a “just deserts theory” of punishment that holds that “individuals and groups responsible for past crimes” ought to be “held accountable” for their actions and punished.66 The obligation to hold wrongdoers accountable and mete out appropriate punishment is in this case derived from “respect for the norm” that prohibits human rights abuses.67 More generally, the obligation is generated from the need to uphold, without deviation, particular moral principles. Closely related to just deserts theory is the theory of mandatory retribution, which maintains that “every crime should be meted out by a proportional punishment, whatever the consequences of the policy.”68 This retributivist position thus holds that “one who is guilty of a transgression of the law ought to punished,” that the punishment meted out is “justified by the desert,” and that it is “mandatory for the state to impose” that sanction.69 That is, it argues that a violation of the law brings with it both legal and moral obligations to prosecute and punish. Considered in slightly different terms, both the theory of mandatory retribution and just deserts theory can also be considered examples of what Max Weber called the “ethics of conviction,” an “absolute ethic” that “just does not ask for consequences” in making moral judgments.70 Of course, amnesties are, by their very nature, underpinned by a different, consequentialist form of moral reasoning. No one seriously proposes granting amnesties to the perpetrators of human rights violations “on principle.” To do so would be absurd, for it would be to propose a universally applicable maxim that human rights abuses ought not to be punished and, pushed to the extreme, that they are considered “right.” At its core, consequentialist reasoning contends that the most relevant “factor in deciding whether any action or practice is morally right or wrong is its overall consequences, viewed impersonally.”71 Consequentialist arguments therefore involve reasoned predictions about the material outcomes of particular courses of action and assessments of those outcomes after they have been achieved.72 Proponents of amnesties are thus sometimes labeled pragmatists on account of the arguments they offer in favor of amnesties as being in the interests of greater political goods. Their position aligns with what Weber referred to as the ethics of responsibility. In contrast to the ethics of conviction, which concentrate on the “objectives of political action,”

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33

the ethics of responsibility are concerned with the foreseeable consequences of action.73

Obligations and Outcomes

Debate over the legitimacy of granting amnesties to the perpetrators of human rights violations is not, however, nearly as simple as this neat and tidy set of dichotomies would seem to suggest. Alas, we cannot simply line up deontological moral reasoning, the theories of just deserts and mandatory retribution, and the ethics of conviction in support of an obligation to prosecute, and consequentialism, pragmatism, and the ethics of responsibility in favor of amnesties, declare an impasse on the grounds that they are talking at cross-philosophical purposes, and head home for tea. Rather, the lines dividing the two historical “sides” in this debate are extremely blurry indeed, with both becoming increasingly mired in arguments that are explicitly political in nature. As Weber was at pains to point out, an ethic of responsibility does not lack conviction, nor is an ethic of conviction wholly unconcerned with responsibility. On the contrary, no hard and fast distinction can be drawn between the two approaches, in large part because the ethics of responsibility requires the consequences of adhering to one’s duties or obligations to be taken into consideration.74 At the same time, very few legal absolutists actually exist. That is, very few scholars argue that laws, domestic or international, ought to be upheld for their own sake regardless of the outcomes associated with doing so. While it is certainly the case that legalists ground their position in the belief that the law ought to be upheld for its own sake, in practice their arguments about the legitimacy of granting amnesties are coupled with claims about causal relations at play between both amnesties and prosecutions, and particular sets of desirable and undesirable outcomes. In part this is because the philosophical impasse that exists between the consequentialist and deontologically derived positions has forced debate onto common ground. That is, proponents of prosecutions who tend toward deontological arguments have had to turn to consequentialist forms of reasoning to counter the claims of their opponents. Legalists thus utilize consequentialist modes of reasoning and present pragmatic arguments of two distinct types. First are those who believe in the value of international law in combating impunity for human rights violations

34

Chapter 1

but begrudgingly concede the necessity of amnesties in par ticu lar contexts to achieve certain types of ends, such as the establishment of peace. Mark Freeman, for example, considers amnesties to be a “necessary evil” in ending human rights abuses. He writes, “As a human rights advocate, I am repulsed by the idea of impunity for perpetrators of heinous atrocities. Yet because I consider the human rights related to public security paramount— not least the right to life itself—my repulsion for war and tyranny is greater.”75 Freeman thus concedes that forgoing justice in favor of amnesties may be the most effective way to achieve the immediate protection of human rights. Second are those who are in “the business of promoting accountability,” but rather than focusing on the intrinsic value of the law have “decided to hone in on the benefits that international justice can deliver.”76 In what Leslie Vinjamuri has called the “triumph of consequentialism,” critics of amnesties and advocates of prosecutions have “stressed the impact of justice on violence, peace, and democracy in part to galvanize the interests of policymakers and elicit support for judicial interventions.”77 Thus, legalists opposed to amnesties do not simply argue that the perpetrators of human rights abuses ought to be prosecuted because they have committed crimes proscribed in international or domestic law that require redress. Rather, they bolster their arguments with empirical claims about the positive consequences associated with pursuing prosecutions and the negative outcomes associated with amnesties. For example, when the “legalist” scholar Diane Orentlicher argued in her landmark article that the “fulcrum of the case for criminal punishment is that it is the most effective insurance against future repression,” she was not simply arguing that human rights violations ought to be prosecuted because the law requires that course of action, but that prosecuting the perpetrators of such abuses produces a positive outcome.78 Indeed, as she explains in her recent revisiting of that article, “my argument was profoundly shaped by a core belief that exemplary prosecutions, if prudently pursued, could help dispel the toxic effects of impunity.”79 More overtly, M. Cherif Bassiouni notes that in dealing with past injustices, governments and even legal commissions choose particular courses of action “on the basis of the outcomes they are intended to achieve.” 80 That is, notwithstanding their commitment to the law, in practice they are implicitly or explicitly pragmatist in nature. In short, debate about the legitimacy of granting amnesties has turned to focus wholeheartedly on the sorts of political purposes and outcomes associated with pursuing different justice-related policy options. In light of

Politics of Amnesties

35

this, it seems clear that if we are to determine why amnesties persist despite increasing pressure to prosecute perpetrators of human rights violations, we must examine in some detail the political purposes for which amnesties are employed.

The Political Purposes of Amnesties In order to map the implementation of amnesties, a database of 709 cases of amnesty instituted between 1974 and 2007 was constructed. This time frame was selected as it reflects the rise of amnesties as the most popular transitional justice mechanism and incorporates the emergence and spread of the justice cascade. At present, the two most prominent large-scale amnesty databases are those constructed by Louise Mallinder and by the Transitional Justice Database Project.81 While Mallinder’s Amnesty Law Database includes 520 amnesties instituted since the end of World War II, the Transitional Justice Database Project lists some 676 amnesties granted between 1970 and 2007. To avoid simply replicating the work already undertaken in compiling these two substantial databases, their listings were used as the starting point for the construction of a new database cata loguing the political purposes for which amnesties have been implemented. In particular, information on the year in which a country instituted a particular amnesty, the name of the law (in some cases), and the law number (in some cases) provided useful starting points for searching for additional information on the particular details of each amnesty. Further details were ascertained using government websites, the Library of Congress’s legal resources, the Global Legal Information Network, the United Nations High Commissioner for Refugees Refworld site presented in conjunction with Amnesty International, media reports, and a variety of scholarly publications.82 By combining and cross-referencing these sources, references to 709 amnesties were identified. Thus, while the majority of amnesties included in this new database overlap with those of both Mallinder and the Transitional Justice Database Project, there is also some divergence. Of par ticu lar note is the fact that numerous amnesties not listed in either existing database have been included in this study. Of the 709 amnesties identified, 636 were selected for analysis. Four categories of amnesties were excluded from the analysis. The first includes amnesties for which insufficient information was available. In some cases this

36

Chapter 1

was due to a lack of transparency on the part of governments issuing amnesties and in others was due to a lack of publicly available information. Either way, with few, if any, details of the legislation, treaty, or decree establishing the amnesty, whom it applied to, and for what crimes, it was not possible to include these cases. Thus, sufficient information verifying the details of the amnesty, its aims, and its intended beneficiaries in the form of documents outlining the legislation, treaty, or decree establishing the amnesty or in references in scholarly publications or reputable media outlets was a requirement for inclusion. Second, amnesties that involved the release of prisoners due to overcrowding, public health issues, or to celebrate national holidays and cultural festivals and are thus more accurately termed “pardons” were also omitted. Although they are closely related and often conflated with one another, amnesties can be distinguished from pardons in one important respect. While pardons “typically exempt convicted criminals from serving their sentences in whole or in part without expunging the conviction,” amnesties do not allow a conviction to be recorded or punishment to be exacted for past crimes.83 However, as retrospective devices, amnesties are sometimes applied to individuals who have already received punishment, in full or in part, for a crime later amnestied. For example, in the current study, 195 cases of amnesties granted to political prisoners were identified. What stands these cases apart from instances of mere pardon is that they require, in addition to exempting amnestied individuals from further punishment, records of a conviction to be expunged and, in many instances, imply that the individuals receiving the amnesty ought not to have been prosecuted and/or punished for their actions in the first place. Third, amnesties that have not been implemented, such as that proposed in Fiji in 2005, were not included in this part of the study. As we will see through the discussion of some pertinent examples of proposed amnesties in subsequent chapters, however, these cases do provide interesting insights into the reasoning and justifications offered for an amnesty prior to its acceptance and implementation. Fourth, and finally, amnesties designed purely to address military infractions such as draft evasion and desertion were also excluded. The rise to prominence of amnesties, as illustrated in Figure 1, began to gather pace in the 1980s before peaking in 1991 and, again, at a lower level around 2003. Thus, although the popularity of amnesties has not remained at the levels reached in the late 1980s and early 1990s, it has generally

Politics of Amnesties

37

45 40 35 30 25 20 15 10 5 0

74

19

76

19

78

19

80

19

82

19

84

19

86

19

88

19

0

9 19

92

19

4

9 19

96

19

98 000 002 004 006 19 2 2 2 2

Figure 1. Amnesties granted, 1974–2007.

increased over the period under examination. Figure 1 also reveals that the popularity of amnesties has progressed in three main phases: 1. 1975–1981, when amnesties were implemented at an average rate of sixteen per year, with a low of ten in 1979 and peaks of twenty-four in 1977 and twenty-three in 1981 2. 1982–1991, when amnesties enjoyed their greatest period of growth, from a low of eight implemented in 1982 to thirty-nine instituted in 1991, and an average rate of implementation of twenty-two per year 3. 1992–2007, when amnesties rose once more to an average of thirtytwo per year, from a low of fi fteen in 1993 to a peak of twenty-eight in 2003. What is immediately apparent from this preliminary analysis is that although the peaks and base rates at which amnesties have been implemented have fluctuated during the period in question, the average number of amnesties implemented each year has steadily increased across the three phases, from sixteen in Phase 1 to twenty-two in Phase 2 and thirty-two in Phase 3. It thus seems that our analysis of the persistence of amnesties must consider trends in the purposes for which amnesties were instituted across the entire period in question as well as within each of these three phases.

38

Chapter 1

As noted above, amnesties are political instruments instituted to achieve particular types of political outcomes. With this in mind, the amnesties selected for analysis were categorized according to their aims, political purposes, and intended beneficiaries. Interpreting the intentions of an amnesty law is not a straightforward task, especially given that stated intentions may act to disguise or window-dress other less desirable intentions. For example, in the case of Chile, the amnesty granted by General Pinochet to himself and his associates was formally justified as contributing to Chile’s transition to democratic rule. However, other evidence, of the beneficiaries of the amnesty and the political context in which it was instituted, suggests that the primary purpose of the amnesty was not to facilitate a transition to democracy but to provide immunity for Pinochet and his associates. To overcome this problem, categorization was thus based on interpretation of the stated intentions of each given amnesty law (where available), the contents of the law itself, and evidence concerning the underlying intentions of amnesty provisions derived from analysis of the political context in which it was offered and the beneficiaries to whom it was directed. In addition, as some “states deliberately obscure their motives for introducing amnesties, with their true intentions . . . only becoming apparent through implementation,”84 in some cases the outcomes produced by a given amnesty law provided the most reliable evidence of the political ends to which it aimed. In accordance with the fundamental principles of the interpretive approach, the following questions were asked of each amnesty: In what political and historical context was the amnesty granted? Who is named as the target beneficiary of the amnesty? What outcomes or political purposes, if any, were used to justifying the granting of the amnesty? Who actually benefited from the amnesty once it was implemented? And, if they can be identified, what were the consequences of the amnesty? On the basis of answers to all of these questions, an interpretation of the political purpose of each amnesty law was produced. By grouping amnesties according to like purposes, it became clear that in general terms, amnesties are implemented for one or more of nine common purposes (outlined in Table 1). On this basis the amnesties were categorized, with some amnesties placed in more than one category in recognition of the fact that “states often have multiple objectives for introducing an amnesty law.”85 It is interesting to note that by far the largest category of amnesties was those that sought to facilitate the release of political prisoners in the interests of peace and reconciliation. This of course accords with the under-

125 51

Guard against resumption of hostilities, provide healing, distinguish past from future, uncover the truth Facilitate return of exiles and refugees Facilitate release of political prisoners

Entice rebels to cease violent activities

Entice hostile parties to sign a peace agreement

Peace and reconciliation (restorative justice) (276)

End violence (176)

After conflict

29 195

Rebels/militias/guerrillas/ insurgents Combatants

Exiles and refugees Political prisoners

Individual perpetrators and victims of crimes and society

Participants in civil disorder

Potential transition spoilers

Members of the current security forces

Members of the current regime

Beneficiaries

a. One notable exception to this is the amnesty that facilitated a move from one military dictatorship to another in Lesotho (1986).

Unilateral offer by state in response to civil violence During or prior to peace negotiations

After conflict

Prior to, during, or shortly after transition to democracy After coups, protests, rebellions, etc.

Challenge to power/facing potential transition to democracy Challenge to power/facing potential transition to democracy

Context

52

102

39

Protect new regime, usually fledgling democracy, from would-be spoilersa Quell unrest following civil disturbances

35

Protect and/or ensure loyalty of security forces

Regime stability (141)

17

Provide impunity for authoritarian rulers and their associates

Ensure impunity (52)

No.

Political purpose

Aim

Table 1. Purpose, Context, and Beneficiaries of Amnesties, 1978–2007

40

Chapter 1

standing of amnesty as a means of releasing “innocents,” often those unjustly incarcerated for political reasons by a former regime, “from captivity,” championed by Amnesty International.86 As is well known, Amnesty International was founded by a British lawyer, Peter Benenson, in 1961 after reading about the imprisonment of two students who had raised their glasses “to liberty” in a Portuguese cafe.87 His response was to publish a front-page appeal for the “forgotten prisoners” in the Observer, in which he “coined the term ‘prisoner of conscience.’ ”88 Benenson’s Appeal for Amnesty aimed to “work impartially to release those imprisoned for their views; to secure fair trials for them; to expand the right to asylum and assist political refugees in obtaining jobs; and to secure international legal protections for freedom of opinion.”89 Such was its success that it formed the basis of the world’s largest and most well-funded human rights organization. Such was its influence in the decades that followed that by 1977 Amnesty International had been awarded the Nobel Peace Prize. Amnesties designed to facilitate the release of political prisoners often contribute to peace and reconciliation by constituting a form of reparation or by putting right the wrongs of the past. As Louise Mallinder notes, Albania’s 1993 amnesty sought to do just that by stating that “[a]ll those who have been sentenced for political crimes, those who have died in the investigation process, those executed without trials, and those killed while crossing the border are considered innocent.”90 These types of amnesties thus often accompany processes of regime change, particularly the move from authoritarian rule to democracy. For example, the Bulgarian amnesty of 1991 stated, “Now that a democratic order is being established in Bulgaria, it is necessary to amnesty acts declared to be crimes but which actually were an expression of the struggle against an oppressive regime.”91 However, the trajectory of amnesties designed to release political prisoners and, with it, an understanding of amnesty equated with innocence, has not been straightforward. On one hand, as illustrated in Figure 2, amnesties for the release of political prisoners grew in popularity into the early 1990s, matching their earlier peak in the late 1970s, before softening into the 2000s. On the other hand, however, the 1970s saw a return to a more traditional understanding of amnesty in terms of impunity that, ironically, accompanied the rise to prominence of the human rights movement. As Louis Joinet remarked, “with the emergence, then proliferation, of ‘self-amnesty’ laws proclaimed by declining military dictatorships anxious to arrange their own impunity while there was still time . . . [a]mnesty, the

Politics of Amnesties

41

15 10 5

Release Political Prisoners Return Exiles

19

74 19 76 19 78 19 80 19 82 19 84 19 86 19 88 19 90 19 92 19 94 19 96 19 98 20 00 20 02 20 04 20 06

0

Figure 2. Amnesties to release political prisoners and return exiles, 1974–2009.

symbol of freedom” became seen “more and more . . . as a kind of ‘insurance on impunity.’ ”92 Indeed, it is with some irony that one of the very events that helped to precipitate the emergence of the human rights movement in the 1970s, the 1973 military coup in Chile that saw General Pinochet take power, also brought with it a return to the understanding that amnesty entailed impunity.93 Although they are by far the most controversial form of amnesties, “selfamnesties,” those designed to ensure impunity for authoritarian rulers and their associates, including members of the security forces (military and police), are also the least popular form of amnesty by a considerable margin: fewer than 8 percent of amnesties instituted during the period from 1974 to 2007 had these purposes in mind (see Figure 3). What is more, despite very slight gains in these types of amnesties in the mid-1980s and again in the mid-1990s, the rate at which these types of amnesties have been implemented over the thirty years from 1978 to 2007 has remained fairly stable. In fact, the general stability of the rate at which amnesties have been granted to ensure the impunity for members of a current regime and its supporters can be largely attributed to the case of Rhodesia/ Zimbabwe, which accounts for almost one-third of all amnesties of this type, extending from 1978 to 2005. By contrast, distinct trends can be identified when we examine amnesties designed to ensure the stability of the current regime. In these types of scenarios, amnesties are generally instituted in one of two contexts: prior to, during, and after a transition, usually from authoritarian rule to democracy; and in response to civil unrest in the form of riots, protests, and, most commonly, attempted coups. In many states, amnesties offered to quell civil unrest after attempted coups are reiterated multiple times, thus inflating

42

Chapter 1

45 40 35 30 Amnesties Granted Current regime

25 20

Current security forces

15 10 5

20 07

01

20 04

20

95

92

19 98

19

19

86

89 19

83

19

19

80

77

19

19

19

74

0

Figure 3. Amnesties granted to ensure impunity for members and supporters of the current regime, 1974–2007.

figures on the popularity of these types of amnesties. For example, Guinea offered three separate amnesties in 1980 for the perpetrators of an attempted coup in 1970, as well as further amnesties in 1988, 1990, and 2003 for later coup plots. However, amnesties designed to ensure regime stability are also implemented in response to actual coups, such as those undertaken in Fiji. Since gaining independence in 1970, Fiji has experienced three coups, in 1987, 2000, and 2006, earning it the epithet of “coup coup land.”94 At the roots of the strife that has plagued Fijian politics are strong ethnic divisions between indigenous Fijians and the Indo-Fijian community descended from Indian laborers brought to Fiji by the British to work the sugar plantations. In particular the coups enacted in both 1987 and 2000 were carried out to protect “Fijian paramountcy,”95 which, in the “wake of election victories by predominantly Indian-backed political parties,” had seen the appointment of Fiji’s first Indian prime minister, Mahendra Chaudhry.96 On 19 May 2000, a coup d’état led by a civilian, George Speight, and supported by a small section of the army was launched and the government taken hostage at gunpoint. Just

Politics of Amnesties

43

16 14 12 10 8 6

Transition spoilers Quell civil unrest Transitions to Democracy

4 2

19 74 19 76 19 78 19 80 19 82 19 84 19 86 19 88 19 90 19 92 19 94 19 96 19 98 20 00 20 02 20 04 20 06

0

Figure 4. Amnesties to ensure regime stability. Source: Additional data on transitions to democracy drawn from Tricia D. Olsen, Leigh A. Payne, and Andrew Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington, D.C.: U.S. Institute of Peace, 2010), Appendix 1, 165–171.

as Sitiveni Rabuka, the perpetrator of the 1987 coup, had done, Speight justified his actions as being needed to “protect Fijians from the manifest dangers posed by an ‘Indian government.’ ”97 In the days and weeks that followed, Fiji was struck by rioting and the looting of Indo-Fijian businesses, thus creating at least the impression that Speight had “widespread backing,” if not from within the military or the Great Council of Chiefs then from among the general population. In return for the hostages, Speight demanded the resignation of President Ratu Sir Kamisese Mara, “abrogation of the constitution, restoration of complete Fijian political control, permanent immunity from prosecution and an interim administration headed by himself.”98 At the end of the second week of the coup, the head of the Fiji Military Forces, Commodore Frank Bainimarama, imposed martial law. However, it was only after the president had resigned, the elected government had been dismissed, the constitution had been abrogated, and, crucially, Speight had been granted immunity from prosecution in the form of an amnesty that the hostages were released. By this time they had spent almost two months in captivity.99

44

Chapter 1

As illustrated in Figure 4, amnesties designed to quell civil unrest experienced a rise in popularity that culminated in a peak in the late 1980s and early 1990s, following by a second surge in popularity in the mid-2000s, in many ways mirroring trends in the implementation of amnesties more generally. By contrast amnesties designed to ensure the stability of new democratic regimes are commonly granted, prior to, during, and after transition, to members of the former regime who may work to spoil the transition. As we will see in Chapter 2, this type of amnesty is not wholly unrelated to amnesties granted by members of authoritarian regimes to ensure their own impunity, but, in cases such as Argentina and South Africa, have served to  reaffirm, reformulate, or extend the original amnesties granted by the former regime. As illustrated in Figure 4, these types of amnesties have declined in popularity since the early 1990s in accordance with patterns of democratization more generally. That is, the popularity of amnesties in the 1980s and 1990s followed, in large part, patterns of democratic transition and instability surrounding those transitions more generally that were reflected in the more politically oriented side of the “forgive and forget versus prosecute and punish” debate. Yet, amnesties did not suffer a complete demise into the 2000s but, rather, experienced a second period of growth that peaked in 2003. What accounts for this? If amnesties were not being employed in transitional contexts to ensure regime stability at an increasing rate anymore, why were they being used? One answer to these questions is found in the continuing and, indeed, increasing popularity of using amnesties as a tool to end violence, whether perpetrated in the context of a civil war or by rebels, militias, guerrillas, or insurgents within the state. In many ways, the inclusion of amnesties in peace agreements is underpinned by pragmatic recognition of the fact that yesterday’s war monger may be today’s peace broker with whom a negotiated peace settlement much be reached. In these circumstances it is unlikely that the desired outcome of a peace agreement will be achieved if parties involved in negotiations “directly following the agreement . . . would find themselves or their close associates facing life imprisonment.”100 Amnesties are thus viewed as an effective means of ensuring that warring parties come to a negotiated settlement and, ultimately, cease hostilities. As revealed in Figure 5, amnesties designed to entice hostile parties to sign a peace agreement and which were then included in that agreement rose in the mid-1980s and then remained fairly stable through the 1990s and

Politics of Amnesties

45

9 8 7 6 End Rebel Violence Sign Peace Agreement

5 4 3 2 1

20 07

20 04

20 01

19 98

19 95

19 92

89 19

86 19

80

83 19

77

19

19

19

74

0

Figure 5. Amnesties designed to bring an end to violence, 1974–2007.

2000s. While this overall finding is at slight variance with Leslie Vinjamuri and Aaron Boesenecker’s study of accountability in peace agreements, which found that the rate at which amnesties have been included in formal peace agreements remained “fairly stable” from 1980 to 2006, similar trends were identified in the 1990s and 2000s.101 However, amnesties instituted with the intended purpose of ending violence are more often offered on a unilateral basis by states hoping to convince rebel groups to cease their activities than they are included in formal peace agreements. For example, on several occasions in the 1980s and 1990s the government of Bangladesh offered general amnesties for insurgents fighting in the Chittagong Hill Tracts region. In doing so, it attempted to bring an end to a twenty-five-year insurgency perpetrated by the Parbattya Chattagram Jana Samhati Samiti (United People’s Party of the Chittagong Hill Tracts), which fought for the right to self-determination for the numerous small nations that reside in the Chittagong Hill Tracts.102 Thus, in 1983 and 1989 it offered general amnesties to insurgents willing to lay down their arms, adding in 1991 an additional incentive that provided cash payments to insurgents who relinquished their weapons. In 1997, these reiterated unilateral

46

Chapter 1

offers of amnesty were translated into another general amnesty, this time included in the Chittagong Hill Tracts Accord signed by the government of Bangladesh and Parbattya Chattagram Jana Samhati Samiti (JSS). It specified, “A general amnesty shall be given to all the members of the Jana Samhiti Samiti after their return to normal life and a general amnesty shall also be given to all the permanent inhabitants connected with the activities of the Jana Samhiti Samiti.”103 In addition, it provided that all current arrest warrants against members of JSS be withdrawn, cases already under investigation or before the courts be thrown out, “sentences given in absentia . . . [be] remitted,” and members of JSS already imprisoned be set free, as well as specifying that “after the deposit of arms and return to normal life, no case shall be fi led against, or punishment be given to, or arrest be made of any person merely on account of his/her being a member of the Jana Samhiti Samiti.”104 As illustrated in Figure 5, despite year-on-year fluctuations, amnesties offered on a unilateral basis by states to entice rebels, militias, insurgents, and guerrillas to crease their violent activities remained popular throughout the period under examination. However, the continued popularity of amnesties intended to bring an end to violence does not wholly account for the persistence of amnesties since the early 1990s. Rather, amnesties that aim to facilitate peace and reconciliation and, in particular, guard against the resumption of hostilities by encouraging healing and recovery of the truth about wrongs committed in the past also experienced a rise in popularity into the 2000s. As shown in Figure 6, postconflict amnesties designed to assist healing between victims and perpetrators of crimes as well as within society more generally, uncover the truth, and build the sort of (lasting) peace associated with restorative justice and peacebuilding efforts became more popu lar between 1989 and 2007, peaking in the early 1990s (with amnesties more generally) and then again in the mid-1990s and the mid-2000s. Although the peak reached in the mid-1990s coincides with the establishment of the South African Truth and Reconciliation Commission, which, as we will see in Chapter 3, has successfully exported aspects of its model to many other postconflict states around the globe, it remains the case that many “truth and healing” amnesties have not been associated with truth commissions. What the general trends identified thus far would seem in indicate is that the durability of amnesties between 1974 and 2007 can be attributed to the continued popularity of amnesties designed to quell civil unrest and end

Politics of Amnesties

47

6 5 4 Truth and Healing

3 2 1 76 19 78 19 80 19 82 19 84 19 86 19 88 19 90 19 92 19 94 19 96 19 98 20 00 20 02 20 04 20 06

19

19

74

0

Figure 6. Amnesties for truth, healing, and restorative justice, 1974–2007.

rebel violence, and the increased popularity of those intended to facilitate the signing of a peace agreement or to contribute to postconflict truth and healing. However, as amnesties to quell civil unrest have suffered a marked decline since the early 1990s, far in excess of the slight overall reduction that took place in the popularity of amnesties during that period, their role would appear to been exaggerated. To correct for this and to allow us to determine which types of amnesties contributed to the continued popularity of amnesties throughout the thirty-four years from 1974 to 2007, the distributions of amnesties in the three phases of growth in the popularity of amnesties identified in Figure 1 were compared (see Table 2). By comparing Phase 1 (1974–1981) to Phase 2 (1982–1991) we see that the most significant rates of growth occurred for amnesties designed to protect regimes against potential spoilers (where the yearly rate of implementation more than doubled), to facilitate truth and healing (where the yearly rate of implementation rose to more than five times its original level), and to entice hostile parties to sign a peace agreement (where a more than tenfold increase was noted). By comparing Phase 2 to Phase 3 (1992–2007) we see increases in the rates at which amnesties to contribute to truth and healing (56 percent increase), end rebel violence (29 percent increase), and facilitate the signing of peace agreements (83 percent increase) were implemented. Three significant trends marked the implementation of amnesties between 1974 and 2007, each of which has contributed to the persistence of amnesties in the face of the justice cascade. First, between 1974 and 1991, amnesties granted to ensure smooth transitions from authoritarian rule or to protect fledgling democracies by pacifying potential spoilers increased, in line with transitions more generally. Second, amnesties to facilitate truth and healing grew in popularity throughout the period in question. Third,

48

Chapter 1

Table 2. Comparison of Amnesties Granted by Phase 1974–1981

Ensure impunity

Regime stability Peace and reconciliation

End violence

Total

Current regime Current security forces Transition spoilers Quell civil unrest Truth and healing Return exiles Release political prisoners End rebel violence Sign peace agreement

Amnesties granted

Average rate per year

Proportion of total amnesties in period

5 2

0.625 0.25

0.039 0.016

7 18 2 7 54

0.875 2.25 0.25 0.875 6.75

0.054 0.14 0.016 0.054 0.419

33 1

4.125 0.125

0.256 0.008

135

16.875

and finally, amnesties designed to end violence also grew in popularity between 1974 and 2007: while amnesties designed to facilitate the signing of a peace agreement increased from the mid-1980s onward, amnesties offered on a unilateral basis to rebel groups suffered a slight dip in popularity in Phase 2 before regaining popularity into the 2000s.

Conclusion Amnesties are, at their core, political phenomena. From the ancient Greeks to the contemporary age, they have been implemented to achieve different sets of political purposes. Even “legal” debates about the legitimacy of granting amnesties to the perpetrators of human rights violations have coalesced around differing interpretations and predictions of the political outcomes produced by pursuing particular transitional justice mechanisms, including amnesties. What this suggests is that the key to understanding why amnesties persist in the face of mounting pressure to prosecute lies in the purposes for which they are implemented.

Politics of Amnesties

1982–1991 Amnesties granted

Average rate per year

49

1992–2007 Proportion of total amnesties in period

Amnesties granted

Average rate per year

Proportion of total amnesties in period

6 16

0.06 1.6

0.026 0.071

6 17

0.375 1.063

0.021 0.059

19 43 14 11 75

1.9 4.3 1.4 1.1 7.5

0.084 0.189 0.062 0.048 0.33

13 41 35 11 66

0.813 2.563 2.188 0.688 4.125

0.045 0.142 0.121 0.038 0.228

30 13

3.0 1.3

0.132 0.057

62 38

3.875 2.375

0.215 0.131

221

22.1

319

19.938

By analyzing more than six hundred amnesties instituted between 1974 and 2007, this chapter provides us with a rough guide as to where we might start looking to find more detailed, nuanced explanations for the continued persistence of amnesties. Taken at face value, these results suggest that amnesties persisted between the 1970s and 1990s because they were seen as an effective means of ensuring a smooth transition to democracy and, that across the period of time in question, they have endured because they are thought to facilitate truth and healing and end violence. That is, they imply that the pursuit of democracy, truth, and peace has won out over demands for justice. The following three chapters consider each of these trends and their implications in more detail focusing, respectively, on the relationships between amnesties and political transitions, the pursuit of truth, and ending violence.

CHAPTER 2

Transitions to Democracy Transitional actors must satisfy not only vital interests but also vital ideals—standards of what is decent and just.1

Although the first amnesty associated with the “third wave” of transitions to democracy was implemented in Greece in 1974, the first significant rise in the popularity of amnesties was focused on the states of Latin America. The 1970s and 1980s was a time of tremendous social and political upheaval in Latin America. In 1978 Colombia, Costa Rica, and Venezuela were the only states classified as democracies in the region.2 By 1992, a “protracted burst of democratization” that occurred as part of the global “third wave” saw fifteen of the remaining “seventeen authoritarian regimes . . . [give] rise to semidemocracies or democracies.”3 In many of these cases, the end of authoritarian rule was met with the granting of amnesties to members of the outgoing regime suspected of or known to have committed human rights violations during their period in power. These amnesties were either selfgranted by the regime itself prior to its departure or granted by new democratically elected or transitional governments that sought to limit the potential for supporters of the former authoritarian regime to spoil the transition. Despite ostensibly ensuring and even facilitating transitions from authoritarian rule to democracy, however, the practice of granting amnesties to the perpetrators of human rights violations raised serious questions about how new democracies ought to address past human rights abuses. In particular, debate about the legitimacy of amnesties and their relationship to accountability was precipitated by three main events: the self-amnesty granted by Chilean president Augusto Pinochet to himself and members of his regime in 1978, the series of amnesties associated with Argentina’s messy transition to democracy in the 1980s, and the findings handed down in the Velásquez Rodríguez case at the Inter-American Court of Human Rights. As

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we will see in this chapter, issues raised by these events came to a head at a conference held at the Aspen Institute in 1988 that included participants who had been directly involved in the Latin American transitions, as well as other members of the scholarly, legal, and human rights communities. Here the central questions associated with amnesties and accountability were framed and the terms of debate defined in ways that continued to shape the discussion of amnesties for many years to come. This chapter examines both the practice of granting amnesties to facilitate transitions to democracy and ensure the stability of new democratic regimes, and the set of associated scholarly debates that sought to evaluate and adjudicate decisions made by policy makers and, indeed, to direct future policy making. It introduces the main arguments made in defense of many states’ decisions to grant amnesties to the perpetrators of human rights violations to guarantee their transition as well as outlining the grounds on which supporters of prosecutions vehemently opposed these amnesties. In doing so, the chapter argues, in accordance with the findings of Chapter 1, that amnesties persisted in the face of opposition in the 1980s and early 1990s because they were conceived as an essential means of securing transitions to democracy and were justified in those terms. However, the story of the relationship between amnesties and transitions to democracy does not end there. Although amnesties instituted to ensure regime stability before, during, and after transitions to democracy naturally declined as the third wave of democratization began to ebb in the 1990s, they also faced demise from the hands of lawyers, activists, and judiciaries committed to circumventing, overturning, and resisting the very same amnesty laws that ushered in democratic regimes in much of Latin America. As we will see in Chapter 5, the foundations for undermining these amnesties were laid down much earlier, in the arguments that sought to oppose the granting of amnesties in the first place, discussed in this chapter.

The Decline of Authoritarian Rule For many dictators, despots, and juntas staring down the path of political decline, the institution of a self-granted amnesty has been seen as the golden ticket to ensuring that neither they nor their associates face prosecution for human rights violations once they have lost their grip on power. This was particularly the case for the authoritarian rulers of Latin America in the

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1970s and 1980s. As we saw in Chapter 1, amnesties designed to ensure impunity began to gather pace in the late 1970s and retained some degree of popularity into the mid-1980s, before being instituted in isolated instances throughout the 1990s and 2000s. Marking the beginning of this trend was the most famous self-amnesty of all, that granted by the Chilean president Augusto Pinochet.

Chile

On 11 September 1973, a military junta, led by General Pinochet, overthrew the democratically elected government of Salvador Allende. It not only declared that Chile was facing a “time of war,” “abolished Congress by decree,” and banned left ist political parties, but also instituted a “policy of systematic violation of human rights” facilitated by the formal institution of a constitutional amendment that allowed the “security forces to detain citizens incommunicado.” 4 Over the next five years, Chile saw the routine elimination of left ists and subversives, hundreds of thousands of people “detained for political reasons” and “several thousand disappeared or . . . killed.”5 To ensure impunity for these abuses, in 1978 Pinochet granted himself and others “unconditional, total amnesty for crimes committed between 1973 and 1978” by Decree 2191.6 As Brian Loveman and Elizabeth Lira note, rather than introducing a radically new course of action, Pinochet simply instituted a standard response to political cataclysms in Chilean history which had routinely seen amnesties granted for “political crimes and crimes committed by the military, police, and government officials during the period leading up to, during, and up to the end of . . . [times of] political trauma.”7 In accordance with a long-standing tradition of using “impunity . . . and political absolution” to facilitate enforced “reconciliation” and the reestablishment of order after political disturbances,8 Pinochet justified granting amnesties to “those who had committed criminal actions,”9 including members of the government, opposition, and military, on the ground that it was “necessary to preserve the fragile political stability during its transition to democracy.”10 As is often the case with self-granted amnesties, Decree 2191 provided a blanket amnesty covering all crimes committed during the period of the

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statute and of a political nature.11 Under the broad umbrella term of “blanket amnesties” are amnesties that are unconditional, unlimited, or both.12 However, even blanket amnesties that are in some aspects unconditional may still include some limitations. This was the case in Chile. Decree 2191 thus covered all crimes committed, excluding “common crimes” unrelated to the civil conflict such as “patricide, infanticide, robbery by force or intimidation, manufacture or traffic in narcotics, abduction of minors, corruption of minors, arson and other crimes of violence, rape, incest, driving under the influence of alcohol,” and so on.13 What made it a “blanket amnesty” was the fact that it officially granted amnesty to “the opposition as well as to the military,” although in reality it “mostly benefitted the military because it had committed most of the crimes, and because the majority of the opposition had been murdered, disappeared, or exiled.”14 Although the fundamental intention of Decree 2191 was never in doubt, Pinochet made his sentiments perfectly clear following his ousting by popu lar plebiscite in 1988 and the election of Patricio Aylwin in 1990 when he warned the “new civilian president ‘not to touch a single hair of a single soldier’ lest Chile’s democratic process come to an abrupt halt.”15 “No one is going to touch my people,” he proclaimed, “The day they do, the state of law will come to an end.”16 Among the most significant features of Chile’s amnesty was the fact that it was “the first in a series of provisions enacted in Latin America” and, as a result, provided “a model for other nations.”17 In 1979, Law 6683 was instituted in Brazil, providing amnesty for political crimes committed by the armed ser vices and members of the government. Enacted as part of a wider program of legislative reform that also “freed the few remaining political prisoners and allowed most exiles to return to Brazil,” the amnesty technically operated under a tacit agreement between the government and opposition that it was a “mutual amnesty,” designed to benefit former guerillas, security agents, and members of the government.18 Similarly, Guatemala’s 1982 amnesty law provided vaguely worded immunity for “members of the state security forces that, in carry ing out their duties, have participated in actions against subversion,” while in 1983 Argentina instigated an iterated pattern of amnesties that continued until well after its transition to democracy.19 The Argentine amnesties, in particular, represent the first landmark case in which amnesties were explicitly employed to facilitate a transition to democracy and, once established, protect the fledgling democracy. As hinted

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at above, however, Argentina’s amnesties had a less auspicious beginning, originating as self-granted assurances of impunity.

Argentina

In 1976 a coup d’état by all three branches of the Argentine military saw the establishment of a military regime that lasted seven years and brought about the disappearances of an estimated nine thousand civilians.20 As General Jorge Rafael Videla, the military president of Argentina from 1976 to 1981, said shortly before the coup, “all those persons necessary will die in order to achieve the security of the country.”21 To effect this plan and protect its power, the junta fi rst targeted two guerilla groups, branded “subversives,” the Monteneros and the Ejército Revolucionario del Pueblo. Under what was officially termed the Proceso de Reoganización Nacional, Argentina saw the dissolution of Congress and “constitutional meddling and structural redesign” of its legal framework that granted the president and military forces immense political power.22 In particular, the junta allowed the president to “hold civilians in administrative detention, without charges, for unlimited periods; military courts were instituted to try civilians, using the secret procedures of the Code of Military Justice; heavy penalties were provided for such relatively trivial offenses as “insulting” a member of the armed forces; [and] the death penalty for political cases, expressly forbidden by the Constitution of 1853, was instituted.”23 This, as Méndez notes, was “the origin of the campaign of forced disappearances, which became the government’s main weapon” and thrust the very notion of disappearances into the international spotlight.24 By the early 1980s, however, the power of the junta had begun to wane. This was largely the result of the junta’s failure to manage the economy combined with growing divisions in the military and increasing civil society mobilization that had begun in 1977 with the daring protest movement of the Madres (Mothers) and Abuelos (Grandmothers).25 The final nail in the coffin was the military’s embarrassing defeat in the Malvinas/Falkland Islands dispute. In response, General Leopold Galtieri, who had assumed the presidency in 1981, resigned and Reynaldo Bignone was appointed caretaker president charged with ushering a transition to democracy. As part of that transition, the military “sought to negotiate a pact” that would ensure that cases of corruption and crimes committed would not be prosecuted.26 In

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their final days in power in 1983 they “issued an Institutional Act (the legal instrument through which the junta amended the constitution or legislated in extraordinary matters) declaring that all operations against subversion and terrorism conducted by all security forces complied with plans approved and supervised by the high command and constituted ‘acts of duty.’ ”27 The Final Document on the War Against Subversion and Terrorism of 28 April 1983 thus sought to present the junta’s “account of the ‘dirty war’ ” and, while it acknowledged that some “errors” had taken place and that human rights had been violated “at times,” it explained them away as “the unavoidable byproduct of revolutionary insurgency.”28 On 22 September 1983 the junta issued a self-amnesty as part of the Ley de Pacificación Nacional, which provided amnesty “for crimes committed with terrorist or subversive motivation or objective between 25 May 1973 and 17 June 1982” and for “all criminal activities resulting from or motivated by the development of actions directed at the avoidance, prevention or termination of the terrorist or subversive activities.”29 Although the guerillas were included in the provisions of the amnesty, it seems unlikely that many of them would actually have benefited from it, having “already been killed or exiled,” and, as such, the amnesty was primarily self-directed.30 With the democratic election and inauguration of President Raúl Alfonsín, who specifically sought to “restore Argentina’s adherence to the rule of law and respect for human rights,” however, the Ley de Pacificación Nacional was annulled.31 As Alfonsín proclaimed, the junta “will not only have to be judged by history, but also tried by regular civilian courts.”32 He not only established the Comisión Nacional sobre la Desaparición de Personas (CONADEP; National Commission on the Disappearance of Persons) to uncover the truth about human rights violations that had taken place under the military regime but also instituted trials to prosecute those accused of serious human rights abuses. CONADEP was considered the “most successful effort of the decade anywhere in Latin America, and perhaps worldwide, to hold accountable those who committed gross abuses of human rights.”33 Headed by Ernesto Sábato, the commission documented the disappearances of some nine thousand individuals in a report titled Nunca Más (Never Again). A shorter version of the report was also published in book form and remains one of the all-time best sellers in Argentina.34 On 9 December 1985 the Federal Court of Appeals for Buenos Aires found five of the nine former military leaders it prosecuted responsible for “a deliberate, concerted plan to execute a policy of covert repression” and

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sentenced two of them to life imprisonment.35 However, this, and the fact that hundreds of cases against junior officers were still pending in the court system, led to increasing unrest from the military, which “soon boiled over into outright rebellion.”36 In order to quell tensions between the government and the military and prevent a full-scale crisis, on 24 December 1986 Alfonsín “convinced the Congress to approve Punto Final, or the ‘Full Stop Law,’ ” which placed “a sixty-day limit . . . [on] initiating new cases.”37 After that time had elapsed, no new criminal complaints were to be brought before the courts, except where the alleged offenses involved children. However, the result of the Full Stop Law was “a race to the courts by victims” that left more than four hundred additional suspects facing indictment by the end of the period.38 In response, a group within the military “seized the Campo de Mayo army base near Buenos Aires” and, although they maintained that they were not staging a coup, expressed “their resentment toward the trials and the government’s vindictive treatment of the military.”39 To secure their surrender and further quash military unrest, Alfonsín introduced the Ley de Obedencia Debida, the Due Obedience Law, which was passed by Congress on 5 June 1987. As Alfonsín himself acknowledged, he was “not happy about the bill” but thought that “it was necessary for the survival of Argentina’s fragile democracy.”40 This amnesty law “exempted from prosecution all soldiers below the rank of colonel” and was meant to ensure that very few would ever be made to account for the atrocities that had taken place.41 These amnesties proved to a source of great controversy. As Nora Drew Renzulli noted dramatically, “The great bloodbath of the dirty war followed by the correspondingly lesser bloodletting of the public trial and sentencing have left all major contenders, the military, the human rights groups, and the government, with unfinished agendas and the animus to pursue them.”42 Critics of Alfonsín’s approach argued that the Full Stop and Due Obedience Laws contravened not only Argentina’s obligations, specified in its own domestic law, “to punish those guilty of torture,” but also its “international legal obligations under the Convention on Torture,” the American Convention on Human Rights, and the Covenant on Civil and Political Rights.43 Most prominently, Emilio Fermin Mignone, a human rights lawyer and member of the Peronist Party, together with two American lawyers, Cynthia L. Estlund and Samuel Issacharoff, argued that Alfonsín’s “cautious” approach to human rights prosecutions was “not only legally untenable but profoundly anti-legal and ill-suited to the government’s own stated goal: the establishment of a stable civilian government upon a foundation of the

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rule of law.” 44 Particularly problematic, in their view, was Alfonsín’s decision to allow military tribunals rather than civilian courts to hear human rights cases, and his government’s creation of a “following orders” defense for lower and middle-ranking officers in the form of the Due Obedience Law.45 In response, Carlos Santiago Nino, a legal advisor to the President Alfonsín, defended Argentina’s decision not to take an “absolutist approach to punishment,” which may have brought with it “the destabilizing effects of widespread retribution” but to punish only “the most terrible abuses.”46 Mignone, Estlund, and Issacharoff, he argued, had adopted a “radical” Kantian understanding of justice that maintains that “any case in which a criminal is not punished is an absolute injustice which must be remedied regardless of the consequences,” which was not practically applicable to the case at hand.47 With this, Nino raised the possibility that the obligation to prosecute may not, in fact, be absolute, but may be trumped by a prudential concern for “minimizing [the] social harms” associated with the pursuit of widespread prosecutions.48 In June 1989, President Alfonsín resigned and was replaced by President Carlos Menem, who “ushered in a new era of . . . greater leniency for highranking military officials convicted during the Alfonsín government.”49 Although he initially criticized the Full Stop and Due Obedience Laws, Menem issued a raft of pardons throughout the latter part of 1989, further expanding the scope of impunity for human rights violations already established.50 As a result, “[b]y the beginning of the 1990s all this judicial action had resulted in only ten convictions for human rights abuses and all those convicted had been pardoned or released.”51 That, it was thought, was the price to be paid for the continued consolidation of Argentina’s transition to democracy.

Uruguay

Although Argentina provided the dominant amnesty case of the time, Uruguay was also grappling with the question of how to address the widespread use of torture, arbitrary imprisonment, and disappearances that marked its period of military rule from 1973 to 1985. In 1985, Julio Sanguinetti was sworn in as the democratically elected president of Uruguay on a “platform that included bringing the military to justice” for human rights violations committed during its rule.52 However, two amnesties followed his victory. The first, instituted in March 1985, saw the release of political prisoners and

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facilitated the return of property and wealth that had been confiscated. It did not apply to agents of the state. However, in the months that followed, “the courts were flooded” with a large number of “apparently completely unexpected . . . complaints against the military of torture and disappearances.”53 The military, which had retained significant power after the transition to democracy, threatened unrest on the basis that during the Naval Club Pact signed in 1984 to facilitate the handover, “the future civilian president had assured the military leader that the army would not be held to account.”54 In response, a second amnesty law was adopted in December 1986 which provided immunity from prosecution for crimes committed for “political reasons” or under orders, including “most of the military’s human rights violations before 1985.”55 This second amnesty was challenged by the people of Uruguay, who forced a referendum on the issue. However, “after a government-backed scare campaign, the referendum was defeated” in April 1989, but not before those who had campaigned for the end of impunity had highlighted just how controversial the Uruguayan amnesties were.

The Velásquez Rodríguez Case Also sparking interest in the question of amnesties was the judgment handed down by the Inter-American Court of Human Rights in the Velásquez Rodríguez v. Honduras case, heard in 1988. In it the court reiterated the obligation imposed by the American Convention on Human Rights to “investigate every situation involving a violation of human rights.”56 A student activist, Velásquez “disappeared after being abducted by the Honduran military, which subsequently carried out an investigation and declared itself innocent of his kidnap and murder.”57 The court found that there was sufficient evidence to suggest that the Honduran military was responsible for the disappearances of numerous activists, including Velásquez, as part of a systematic practice. The court thus argued that by failing to guarantee the specific human rights “enumerated in the [American] Convention,” Honduras had violated “the state’s obligations under article 1.”58 What is more, it also maintained that “[a]ny impairment of those rights [recognized in the Convention], which can be attributed under the rules of international law to the action or omission of any public authority, constitutes an act imputable to the State, which assumes responsibility in the terms provided by the Convention itself.”59

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However, the court required only that “the state must use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction,” thus leaving open the possibility that states lacking the capabilities to undertake such investigations may be exempt from doing so.60 Similarly, although the court also ruled that “the state has a legal duty . . . to impose appropriate punishment,” it did not “define what is considered to be ‘appropriate punishment’ ” and refrained from “calling for the criminal prosecution of those responsible for disappearances.”61 However, the question of punishment was outside the central concerns of the court in this case for two reasons. First, as the court had already determined that Honduras had violated the American Convention on Human Rights by failing to investigate alleged human rights abuses, it was not required to consider what hypothetical punishments would have been appropriate. Second, the court also expressed the view that “[t]he objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible.”62 Despite its limitations on the subject of punishment, however, the finding handed down in the Velásquez Rodríguez case made a significant early contribution to the establishment of a right to the truth as a customary norm. In its judgment, the court ruled that “[t]he State is obligated to investigate every situation involving a violation of the rights protected by the [American] Convention.”63 In cases where it fails to investigate alleged human rights abuses or where “the State apparatus acts in such a way” as to prevent the punishment of such violations, “the State has failed to comply with its duty.”64 In thus arguing, the court specified that the obligation to investigate requires the state to undertake “[a]n effective search for the truth.”65 In cases of disappearances, such as that of Velásquez Rodríguez, this duty to search for the truth “continues as long as there is uncertainty about the fate of the person who has disappeared.”66 With this, the Inter-American Court precipitated significant debate about whether an obligation to search for the truth or a corresponding right to the truth did in fact exist.

Aspen and After The issues raised by events in Argentina and the findings in Velásquez Rodríguez came to a head at a landmark conference, State Crimes: Punishment

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or Pardon, held at the Aspen Institute from 4 to 6 November 1988. In fact, the Aspen conference came about after the director of its Justice and Society Program, Alice Henkin, had heard Julio Raffo, who worked for the Argentine Center for Legal and Social Studies, speak about Argentina’s Full Stop Law at an Americas Watch meeting. She contacted Stephen Marks at the Ford Foundation, who, as it happened, “had just heard Raffo speaking on the same issue at the Ford Foundation offices.” He agreed to contribute US$47,380 to investigate “the general problem of how countries in transition to democracy deal with past abuses.” 67 With this, the beginnings of the Aspen Institute conference were realized. Among the twenty-four participants at the workshop—“philosophers, political scientists, scholars of constitutional and international law, human right advocates and monitors”—were Jaime Malamud-Goti, who, along with Carlos Nino, who was also in attendance, had been one of the chief architects of Alfonsín’s prosecutions policy.68 Also present was José Zalaquett, who would later become a commissioner of the Chilean National Commission on Truth and Reconciliation, Juan Méndez, an Argentine exile who was the Washington director of Americas Watch (now Human Rights Watch), Aryeh Neier, Lawrence Weschler, Mahmood Mamdani, Margaret Crahan, Samuel Fitch, Father Luis Perez Aguirre, Diane Orentlicher, Paulo Sergio Pinheiro, Theodore Meron, Hugo Fruhling, and the philosophers Thomas Nagel and Ronald Dworkin, who “had already been part of a group of five philosophers that Carlos Nino invited to Argentina in April 1986 (with funding from the Ford Foundation) to discuss human rights policy with himself and Jaime Malamud-Goti.”69 Although the conference did not focus exclusively on the question of amnesties, the four main themes that emerged from the discussions not only reflected the sets of questions and concerns that had been raised by the amnesties that had accompanied the end of authoritarian rule in many Latin American countries, but also went on to shape subsequent debate about granting amnesties for human rights abuses more generally. Attendees at the conference addressed (1) whether there exists an immutable obligation under international law to prosecute the perpetrators of human rights violations; (2) what role ought to be afforded “discretion and prudence” with regard to the pursuit of justice in political transitions, from authoritarian rule to democracy or from a state of conflict to a state of peace; (3) whether states are obliged to uncover the truth about past human rights violations; and, combining the previous three issues, (4) how best to address past human

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rights abuses and prevent future violations.70 This is not, of course, to suggest that these questions had never been considered before or, indeed, that they were confined to that particular period of history, for, as we will see, their relevance has not abated. Rather, the Aspen Institute conference simply represents a moment during which the central concerns about the relationship between amnesty and accountability converged and the agenda was set for the following two decades of debate.

The Obligation to Prosecute

With regard to the first key issue, as Alice Henkin wrote in her conference report, “[i]t was agreed that there was no general obligation under customary international law to punish such violators.”71 In par ticu lar, Aryeh Neier and José Zalaquett came to blows over the very question of whether the obligation to prosecute perpetrators of human rights violations was in fact absolute. Here the different forms of moral reasoning that drove their arguments came forcefully to the fore. Adhering to the just deserts theory of punishment, Neier argued that “allowing political struggles to impinge upon the fulfillment” of the duty to prosecute “was wrong.”72 That is, he argued that the principle that human rights violations ought to be punished must be upheld, for its own sake. Zalaquett, however, was more circumspect. Not only did he ascribe to a consequentialist form of reasoning, but his firsthand experiences had made him keenly aware of the “ambiguities of transitional situations.”73 A Chilean national, Zalaquett was a member of the Allende government ousted in 1973. As the result of his human rights work at the interfaith Comite Pro Paz, he was arrested on numerous occasions before being exiled from Chile in 1976. During his period in exile, Zalaquett began working for Amnesty International, in which capacity he came into contact with President Alfonsín of Argentina, President Sanguinetti of Uruguay, and President Yoweri Museveni of Uganda, all of whom were grappling with the question of how best to address human rights violations committed by the previous regimes in their countries.74 In his paper presented to the Aspen conference, Zalaquett cautioned against applying the ethics of conviction to the complicated and highly contextual question of how new democracies ought to reckon with the human rights abuses committed by the former regime. Rather, he argued that the ethics of responsibility, as Weber advocated in the realm of

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politics, constituted a more appropriate basis on which to make judgments about the pursuit of accountability for past human rights violations.75 The result, as Henkin reported, was there was little agreement on the question of whether or not a customary norm obliging states to prosecute the perpetrators of human rights violations was in the process of emergence. As Diane Orentlicher recalls of her experience at the Aspen Institute conference, “While some of my contemporaries had fairly well-developed views about what international law required, most believed that further study and analysis was needed. In the course of the Aspen seminar, many participants urged me to take up that challenge.”76 Although she was not the first to outline an extensive set of arguments establishing an obligation to prosecute those accused of human rights abuses, Orentlicher’s “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime” became a landmark article on the subject.77 In it she argued that “[a] state’s complete failure to punish repeated or notorious instances” of torture, extralegal killings, and forced disappearances “violates its obligations under customary international law.”78 In doing so, however, she did not adopt the “radical” Kantian understanding of justice that Nino had criticized but argued instead that while “wholesale impunity” constitutes a breach of the state’s responsibility to prosecute those responsible for human rights violations, “a limited program of prosecutions” is sufficient to fulfill those obligations.79 With regard to the question of whether a customary norm obliging states to pursue prosecutions had come into existence, she concluded that although the combined weigh of the international legal instruments’ “reiteration of a duty to punish grave violations of physical integrity” was not absolutely conclusive, it did constitute evidence that the duty to prosecute and punish was “emerging as . . . a customary norm.”80 In response to what he incorrectly interpreted as the absolute retributivism of “Settling Accounts,” Nino argued that “almost all who think momentarily about the issue” of how to best address past human rights violations “are not prepared to defend a policy of punishing those abuses once it becomes clear that such a policy would probably provoke, by a causal chain, similar or even worse abuses.”81 According to him, a more realistic position that takes into account the specific contexts in which accountability for human rights violations is sought is that of the “permissive retributivist.” Permissive retributivism, according to his conceptualization, holds that “a past wrong makes the criminal lose his immunity from punishment, but whether

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the state is morally obligated to punish him depends on the consequences of that punishment.”82 That is, it mandates moral censure for past wrongs but not necessarily punishment.

Discretion and Prudence

At the heart of debate about the legitimacy of granting amnesties during transitions to democracy was thus the question of “whether it was prudent to press fragile democracies to mount prosecutions that they may not yet have sufficient power to survive.”83 For the participants at the Aspen Institute conference this was the most vexing question of all.84 With several transitions to democracy in Latin America premised on the very notion of amnesty in the 1980s, real-world events brought the competing goods at stake into sharp relief. In short, by deciding to “honor nakedly self-serving claims of untouchability” in order to secure a transition, newly installed democratic regimes were effectively betraying “the very principles they had pledged to restore and safeguard.”85 At the same time, the results of pursuing prosecutions were plain to see: the three rebellions that took place against the Alfonsín government in Argentina in response to the prosecution of military officers seemed to confi rm the view that it is not worth risking the stability of the new democracy by pursuing trials.86 On one side of the debate, John Herz, José Zalaquett, Carlos Nino, and Jaime Malamud-Goti “all affirmed the importance of political judgment in developing justice policies.” 87 In a later version of the paper he presented at the Aspen conference, Malamud-Goti argued that “the extent to which a new democracy applies criminal sanctions to human rights violations is largely a matter of political judgment.”88 With particular regard to amnesties, he argued that “[d]uring their early stages, democratic administrations can grant amnesties or pardons, and give restraining directives to prosecutors” to avoid derailing the completion of the transition process.89 In a similar vein, Zalaquett argued that the prosecution of human rights violations, desirable though they are, ought not to undermine transitions to democracy.90 As discussed earlier, both Neier and Méndez vehemently opposed this position. Méndez, in par ticu lar, sought to challenge “the view that because democratic leaders know best what their societies need at any given time, the international community should not attempt to impose

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any rules about what should be done about the recent past.”91 As such, he advocated upholding the obligation to prosecute perpetrators of human rights violations. This is not, however, to say that Zalaquett and Malamud-Goti did not recognize the benefits associated with prosecuting perpetrators of human rights violations or that Méndez did not understand the realities of the political contexts in question. In developing his argument in favor of pursuing only limited prosecutions while granting amnesties to the majority of perpetrators, Malamud-Goti noted that “[c]riminal trials can provide a unique means by which to assert democratic values.”92 At the same time, Méndez acknowledged the dangers inherent in taking an “uncompromising” legalistic or moralistic position on the pursuit of accountability for human rights abuses and highlighted the need to “take a sober and realistic view of political constraints in proposing accountability measures.”93 However, he added that a consideration of constraints ought not to lead to the necessary abandonment of principles in favor of outcomes. Rather, he suggested that the pursuit of prosecutions not only may be “right,” but also may be “politically desirable” because they go “a long way toward realizing our idea of democracy.”94 That is, the obligation to prosecute may be grounded, in moral terms, in both just deserts theory and the weighing of consequences. Méndez’s argument reflected a distinct shift in the focus of debate concerning amnesties in the early 1990s. Although the question of the obligation to prosecute remained in the background and for writers such as Méndez continued to form the basis of their argument, the consequences of pursuing amnesties or prosecutions became the more immediate concern for scholars and activists alike. In response to Orentlicher’s argument that states have a duty to prosecute the perpetrators of human rights violations, Nino defended Argentina’s policy of pursuing only selective prosecutions on the basis that the “circumstances that successor governments may confront . . . are crucial in deciding whether to prosecute human rights violations.”95 Indeed, with regard to the case of Argentina, Méndez, who had been responsible for writing the Americas Watch report, Truth and Partial Justice in Argentina, acknowledged the “extremely difficult political context in which” the government had made its decisions regarding the granting of amnesties. However, he reiterated the argument that “when certain offenses reach the level of crimes against humanity, governments

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have an affi rmative duty to restore justice by prosecuting and punishing those acts.”96

Truth

Although the Aspen conference, held shortly after the findings of the Velásquez Rodríguez case had been made public, was marked by strong differences of opinion on whether or not there was an obligation to prosecute the perpetrators of human rights violations, when the question of truth was raised some degree of consensus reigned. As Alice Henkin noted in her conference report, “[t]here was common agreement that the successor government has an obligation to investigate and establish the facts so that the truth be known and be made part of the nation’s history. Even in situations where pardon or clemency might be appropriate there should be no compromising of the obligation to discover and acknowledge the truth.”97 Henkin’s statement raises two important points. First, and to be discussed shortly, it implies that pardon or amnesty and truth are not necessarily incompatible. Second, and of more direct relevance to the discussions that took place at Aspen, is the distinction drawn by Thomas Nagel between discovering and acknowledging the truth, or between knowledge and acknowledgment. As Lawrence Weschler notes, one of the key concerns of the participants in the conference was addressing the “intertwined demands for justice and truth.” Keenly aware of the fact that former regimes “will abide neither” and may even spark renewed violence in response, Weschler and others noted that “the desire for truth is often more urgently felt by the victims of torture than the desire for justice.”98 For the families of the murdered and disappeared, this desire is only magnified. As the participants noted, however, truth is “a mysteriously powerful, almost magical notion.”99 While in some instances it must be established from scratch, in other contexts everyone already “knows the truth.” That is, not only do the people “know who the torturers were and what they did,” but the “torturers know that everyone knows” too. The question was thus raised, in these types of circumstances, why “risk everything to render that knowledge explicit”?100 The answer to the question came from the philosopher Thomas Nagel, who suggested, “It’s the difference between knowledge and acknowledgment. It’s what happened and can only happen to knowledge when it becomes officially sanctioned, when it is made part of

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the public cognitive scene.”101 With this he established that truth required not simply an excavation of the facts of the case, but official, public acknowledgment of what happened. Rather than being seen as an alternative approach to justice, however, at this time truth was largely conceived as being in conflict with justice. Thus, although some of the early truth commissions, such as Argentina’s CONADEP and Chile’s Truth and Reconciliation Commission, established by President Aylwin in 1990 and chaired by Raúl Rettig, “actually turned their findings over to the courts . . . the model of the ‘truth commission’ ” was widely perceived as “a ‘second-best’ option where trials were deemed too destabilizing.”102 In the Chilean case, the commission even went so far as to decline to name individuals responsible for human rights violations, as that, it argued, was the proper role of the courts.103 In a similar vein, the Guatemalan Historical Clarification Commission (or Commission to Clarify Past Human Rights Violations and Acts of Violence That Have Caused the Guatemalan People to Suffer), established in June 1994, was barred from attributing “responsibility to any individual in its work, recommendations, and report.”104 Even so, truth commissions, it was thought, may provide a means of achieving some sort of accountability for past human rights violations in cases where the pursuit of prosecutions may jeopardize the transition to democracy or peace and stability. In the case of Chile, President Aylwin decided that it “would not be possible to nullify the amnesty” instituted by General Pinochet in 1978 and so turned instead “to a policy of investigating and establishing the truth about the past.”105 In his Mathew O. Tobriner Memorial Lecture in 1991, José Zalaquett explained that the assumption that underpinned Chile’s approach to past human rights violations “was that if Chile gave truth and justice equal priority, the result may well have been that neither could be achieved.”106 In that context, truth was thus prioritized as “an absolute, unrenounceable value” on account of the role it played in determining “what should be repaired and prevented,” developing a shared national memory of what had taken place in the past, bringing “a measure of healthy social catharsis,” and helping to “prevent the past from reoccurring.”107 Although, in thus arguing, Zalaquett explicitly characterized truth and justice as being in opposition to one another, he added that the public airing of the truth might constitute a mild form of punishment by provoking “social censure against the perpetrators or the institutions or groups to which they belonged.”108 In this he conceived truth not as a form of justice itself but as a mechanism that

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contributes to ending continued injustices. As we will see in Chapter 3, this dichotomization of truth and justice collapsed in later thought and was replaced by two alternative characterizations, “truth as justice” and “truth and justice.”

Addressing Human Rights Violations

Debate at the Aspen Institute conference about how best to address past human rights violations largely represented the coming together of the other issues already discussed in the contexts of transitions that were already taking place, namely, whether to prosecute or pardon and whether to pursue truth or justice. However, one further, important issue was added to the mix: the question of whether prosecutions and punishment prevent or deter future human rights abuses. In preventive terms, critics of amnesties have long argued that “physically removing some of the worst criminals” can have a positive impact on human rights.109 More commonly, however, they refer to the “deterrence hypothesis,” which proposes that prosecuting the perpetrators of human rights violations brings about improvements in human rights that would not otherwise be effected. In legal terms, deterrence is the “ability of a legal system to discourage or prevent certain conduct through threats of punishment or other expressions of disapproval.”110 In particular, it “involves the use of various conjectural devices,” including “credible threats of consequences for violations” as well as “rewards for compliance,” that individually and collectively aim to “encourage putative violators in the future to refrain from committing violations.”111 Deterrence comes in two main forms. Specific deterrence “refers to the capacity of a legal system to induce individual perpetrators not to commit” par ticu lar crimes.112 By contrast, general deterrence aims to discourage “potential criminal behaviour in society at large.”113 As Alice Henkin notes in her conference report, “various reasons” were offered by the participants at Aspen for “punishing human rights violators.” Among these were the arguments that “punishment would serve to deter the violators from further violations” and that it “would serve as a general deterrent to human rights violations by others in the future,” thus representing the specific and general variants of the deterrence hypothesis.114 In her article that followed the conference, Diane Orentlicher argued that the “fulcrum” of the case for choosing prosecutions over amnesties was the deterrent effect of

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punishments meted out for those found guilty of committing human rights abuses. “Criminal punishment is,” she argued, “the most effective insurance against future repression.” Not only do prosecutions “deter potential lawbreakers,” but they also serve to “inoculate the public against future temptation to be complicit in such acts.”115 Despite his strong support for pursuing prosecutions, however, Aryeh Neier was more circumspect in his analysis. He argued that the assumed ability of criminal justice processes to deter future violations was an unreliable foundation on which to base arguments and policies about punishment. This, he explained, was because it is not possible to reliably “predict the future behaviour of the relevant actors.”116 Societies can hope that “punishment will deter the transgressor as well as other potential offenders,” but they cannot be assured that this will occur.117 Of course, for Neier, who was opposed to consequentialist forms of moral reasoning in matters of justice, a deontological, just deserts position provided a far more solid ground on which to argue in favor of prosecutions and punishment. Debate about the deterrent effect of trials returned to the forefront of debate about amnesties in the 2000s with several large-scale empirical studies suggesting that prosecutions do, in fact, deter future human rights abuses.118

The Haitian Amnesty “Settling Accounts” did not settle the issue of amnesties once and for all (although, admittedly, that was never its intention). When events in Haiti, precipitated by the 1991 overthrow of the democratically elected president Jean-Bertrand Aristide by a military junta led by Lieutenant General Raoul Cedras, captured the focus of the international community, the pursuit of justice was not even on the agenda.119 In the 1,111 days that Aristide was exiled from Haiti, more than three thousand Haitian civilians are thought to have been murdered by the military regime. Countless others were “subjected to state-sanctioned massacres, disappearances and assassinations, widespread political rape, arbitrary arrests and detentions in inhumane conditions, and torture,” in what U.S. president Bill Clinton called a “reign of terror . . . [that] gets worse every day.”120 In an attempt to reinstate democratic government, the United States, United Nations, and Organization of American States organized a mediated peace settlement between Aristide and the military, discussions of which took place at Governors Island in

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New York from 27 June to 3 July 1993. As a result of the negotiations, both sides eventually agreed to the suspension of sanctions that had previously been imposed by the Security Council “after the confirmation of a new prime minister”; Aristide’s return to Haiti as president on 30 October 1993; “the ‘early retirement’ of General Raoul Cedras”; and “ ‘an amnesty granted by the President of the Republic within the framework of article 147 of the National Constitution.’ ”121 However, Cedras reneged on the deal and, after the further imposition of sanctions failed to convince him to relinquish power, the Security Council authorized a multinational invasion of Haiti.122 In a last-ditch attempt to avert the possibility of renewed armed conflict, President Clinton sent a delegation “to try to reach a last-minute agreement with the Haitian military leaders.”123 It was a success. In what became known as the Port-au-Prince Agreement, Cedras agreed to hand over the presidency to Aristide in exchange for political asylum in Panama along with several other concessions, including an agreement that the amnesty included in the Governors Island Agreement would be “a broad amnesty for all the members of the military.”124 The amnesty law, passed by the two houses of Haiti’s parliament on 6 and 7 October 1994, provided amnesty for “political matters,” defined as “cases of crimes and misdemeanours against the state, internal and external security, crimes and misdemeanours affecting public order and accessory crimes and misdemeanours as defined by the Penal Code.”125 This vaguely worded amnesty was followed by an Amnesty Decree issued by President Aristide that provided amnesty for “the authors and accomplices of the coup d’état of 30 September 1991 which brought about the forced departure for exile of the President of the Republic, Jean-Bertrand Aristide, and his government.”126 With this, Aristide confirmed that he had “no plans to prosecute members of the security forces and their allies” for the human rights violations that had been committed between 1991 and 1994.127 Instituted with the explicit aim of avoiding “massive bloodshed,” the amnesties negotiated at Governors Island and Port-au-Prince were agreed to without any consideration of the international legal ramifications of doing so.128 Nonetheless, they raised, once again, the question of whether an obligation to prosecute the perpetrators of human rights violations exists in international law. As Michael Scharf’s analysis concludes, it is fairly clear that the obligations imposed by the Geneva Conventions, the Genocide Convention, and the Torture Convention were inapplicable in this case: the conflict in Haiti was not an international armed conflict, genocide had not taken

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place, and, as Haiti was not a signatory to the Torture Convention, it could not be held to account on that basis. Where a possible obligation existed, Scharf argued, was with regard to the commission of crimes against humanity. In doing so, Scharf noted that the participants at the Aspen Institute conference had “failed to consider whether crimes against humanity under customary international law might uniquely carry with them the obligation to prosecute in the absence of a controlling treaty.”129 However, his analysis of state practice concluded that a customary norm precluding amnesty for crimes against humanity could not be said to exist. On the contrary, state practice seemed, on a fairly consistent basis, to favor “granting amnesties or de facto impunity to those who commit crimes against humanity.”130 As such, he concluded that customary international law did not, at that stage, “provide a solid basis for challenging the validity of the Amnesty Law” in Haiti or, by inference, anywhere else.131

Developments at the Inter-American Court of Human Rights Although the practice of states and evolution of customary international law regarding the permissibility of domestic amnesties for human rights violations seemed to fluctuate during the 1980s and 1990s, international jurisprudence on the obligation to investigate and prosecute such abuses was moving forward, particularly at the hands of the Inter-American Court of Human Rights. Indeed, during this period the Inter-American Court of Human Rights and its associated commission became “one of the first international human rights monitoring bodies to find amnesty laws contrary to basic human rights principles.”132 Although it had stopped short of doing so in the Velásquez Rodríguez case, in 1992 the Inter-American Commission on Human Rights condemned Uruguay’s amnesty, justified as an attempt to “close a painful chapter in their history,” as being “contrary to the obligation to investigate and punish human rights violations.”133 In the case that followed, Hugo Leonardo de los Santos Mendoza et al. v. Uruguay, the court ruled that “the present amnesty law, as applied in these cases, by foreclosing the possibility of judicial relief in cases of murder, inhumane treatment and absence of judicial guarantees, denies the fundamental nature of most basic human rights. It eliminates perhaps the single most effective means of enforcing such rights, the trial and punishment of offenders.”134 However, the commis-

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sion did not simply argue that Uruguay’s amnesty law violated the American Convention on Human Rights for failing to punish the perpetrators of human rights abuses but that it had breached the convention by denying “the victim or his rightful claimant the opportunity to participate in the criminal proceedings, which is the appropriate means to investigate the commission of the crimes denounced, determine criminal liability and impose punishment on those responsible, their accomplices and those accessories after the fact.”135 It was not until cases were heard against El Salvador and Chile, however, that explicit recommendations came to “identify all the victims and those responsible, and submit the latter to justice in order to establish their responsibility, so that they can receive the sanctions demanded by such serious actions.”136 In the case of El Salvador, the commission ruled that amnesties that had been granted violated the American Convention on Human Rights as well as the Geneva Conventions and Additional Protocol II because they were applied to crimes against humanity. In Monsignor Oscar Arnulfo Romero y Galdámez v. El Salvador the commission found that “the State did not undertake an effective investigation nor did it adopt the necessary measures to bring to trial all of the persons implicated” in the extrajudicial murder of the Jesuit priest Oscar Romero.137 It recommended that, to rectify this, the state ought to “undertake expeditiously a complete, impartial, and effective judicial investigation to identify, try and punish all the direct perpetrators and planners of the violations established in this report, notwithstanding the amnesty that has been decreed.”138 In the Chilean case, the obligations established by Article 1(1) of the American Convention on Human Rights were once again reiterated but with a specific emphasis on “identifying the persons responsible, [and] imposing appropriate punishment on them.”139 In the 1999 case Carmelo Soria Espinoza v. Chile, the Court ruled that a self-granted amnesty instituted by a previous regime in 1978 must be repealed and legislation enacted to enable the investigation and punishment of human rights violations.140 More recently, in Almonacid-Arellano et al. v. Chile, the court reiterated its stance on self-granted amnesties when it argued that “states cannot neglect their duty to investigate, identify and punish those persons responsible for crimes against humanity by enforcing amnesty laws or other similar domestic provisions.”141 In the Barrios Altos case the Inter-American Court ruled that “all amnesty provisions . . . are inadmissible, because they are intended to prevent

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the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance.”142 In doing so, it argued that by “preventing the investigation, capture, prosecution and conviction of those responsible for” the murder of fifteen individuals in the Barrios Altos massacre, Peru’s amnesty law had violated Article 1(1) of the American Convention on Human Rights.143 It thus ruled that Peru ought to “investigate the facts to determine the identity of those responsible for the human rights violations referred to in this judgment, and also publish the results of this investigation and punish those responsible.”144 With this, the position of the InterAmerican Court on amnesties and the obligation to prosecute and punish was rendered unequivocal. Not only are amnesties granted for human rights abuses at the domestic level to be considered null and void at the international level, but states that do not investigate, prosecute, and punish the perpetrators of violations are themselves in violation of the American Convention on Human Rights. Finally, in the 2003 case of Bulacio v. Argentina, the Inter-American Court of Human Rights pushed the scope of the obligation to prosecute even further.145 Walter Bulacio was a seventeen-year-old boy illegally detained and beaten by police officers in Buenos Aires. One week later he died from his injuries, having told “numerous people about the police abuse” he had suffered.146 Although a domestic investigation was undertaken and a police officer was prosecuted, the investigation in the case took more than ten years and was thus “extinguished due to statutory limitations under Argentinean criminal law.”147 In its review of the case, the Inter-American Court of Human Rights argued not only that states have “a duty to punish every violation of the rights recognized” in the American Convention, but also that “extinguishment provisions or any other domestic legal obstacle that attempts to impede the investigation and punishment of those responsible for human rights violations are inadmissible.”148 With this, the court established that even de facto amnesties, resulting, even inadvertently, from the functioning of the domestic legal system, are unacceptable. With these rulings, the Inter-American Court of Human Rights has made a significant contribution to establishing the notion that amnesties for human rights violations are unacceptable and contravene state obligations to prosecute perpetrators. Thus, although “its decisions are not binding” and states have often ignored its recommendations or argued that “the need to balance peace with justice justified the laws,” it has, nonetheless, been a key

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player in the move to end impunity for human rights abuses.149 As we will see in Chapter 5, the Inter-American Court of Human Rights has played a considerable role in overturning the original Latin American amnesties of the 1970s, 1980s, and 1990s by directly challenging some amnesty laws and as a result of the “spillover” effect that has seen the court’s amnesty jurisprudence influence states whose amnesties it has not explicitly addressed.150

Conclusion It is difficult to overplay the significance of the Latin American cases of the 1970s and 1980s for the development of the theory and practice of granting amnesties to the perpetrators of human rights violations. It was there with the secondary ripples of the third wave of democratization that the place for amnesties in transitions from authoritarian rule to democracy, later repeated in Eastern Europe and Africa, was established. It was also in the context of the Latin American transitions that debate about how to address past violations of human rights was reinvigorated with scholars, lawyers, human rights activists, and political agents grappling to find answers to questions about what constituted the optimal balance between amnesties and accountability. As José Zalaquett wrote in his introduction to the English version of the Rettig Report, “The problem may be summarized as follows: How can a country overcome a legacy of dictatorial rule and massive human rights violations if the new government is subject to significant institutional and political constraints? How, in those circumstances, can the equally necessary but often conflicting objectives of justice and social peace be harmonized? What are the moral tenets which should guide the politician’s actions in such ambiguous situations?”151 What these questions reflected was that although the period between 1974 and 1991 saw a rise in the popularity of amnesties intended to ensure the stability of new and transitional democracies, significant discomfort remained surrounding the idea that ending impunity for the perpetrators of human rights violations was a necessary price to pay for the establishment of democracy. The “sobering lesson” taught by the early Latin American amnesties of the 1970s and 1980s was that “the political stakes involved in settling accounts with the past are extraordinarily high, that a fully satisfactory outcome can hardly be expected, and that the social tensions brought about by the legacy of human rights violations linger on for a long time.”152 Thus,

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even in cases where it may have been “feasible to repeal” a particular amnesty law, administrations were forced to “calculate carefully the likely results of such a move.”153 What we will see in Chapter 5, however, is that although political constraints and desired political outcomes dictated the use and acceptance of amnesties during and after transitions to democracy, ongoing political pressure later saw these same amnesties overturned, resisted, and circumvented without producing catastrophic outcomes for democracy. Finally, and as we will also see in the chapters to come, the initial debates about amnesties sparked by the Latin American transitions brought together a core group of people who not only set the initial terms of those debates but also went on to become prominent participants in debates about amnesties in other political contexts. In particular, Henkin, Neier, Mendez, Zalaquett, Nino, Orentlicher, and Weschler are all characters who have continued to play a role in this unfolding story. What is more, these same questions, as we will see in the chapters that follow, were asked many times over in many other transitional and postconflict contexts. In those contexts, the original answers provided in response to the Latin American amnesties were revisited, reevaluated in light of subsequent developments, and applied to contemporary cases at hand.

CHAPTER 3

The Pursuit of Truth We must deliberately sacrifice the formal trapping of justice, the courts and the trials for an even higher goal: Truth. We sacrifice justice, because the pains of justice might traumatize our country or affect the transition. We sacrifice justice for truth so as to consolidate democracy, to close the chapter of the past and to avoid confrontation.1

As with debates about democratic transitions and the obligation to prosecute the perpetrators of human rights violations, those concerned with the right to truth and its relationship to amnesties were also precipitated by events taking place in the 1970s and 1980s in Latin America. This new emphasis on truth largely came in response to the nature of the repression in Latin America. In large part, there “the military governments did not openly kill their opponents,” but rather made them “disappear.”2 Such was the effectiveness of these disappearances that in very many cases the bodies of those presumed to have been murdered have never been found. In order to satisfy increasing demands for truth, more and more postauthoritarian civilian governments in Latin America began instituting truth commissions to investigate and document human rights violations. Precisely what a truth commission entails is a matter of some debate. According to Ruti Teitel’s definition, a truth commission is “an official body, often created by a national government, to investigate, document, and report upon human rights abuses within a country over a specified period of time.”3 By contrast, Priscilla Hayner defines them more expansively as “bodies that share the following characteristics: (1) truth commissions focus on the past; (2) they investigate a pattern of abuse over period of time, rather than a specific event; (3) a truth commission is a temporary body, typically in operation for six months to two years, and completing its work with the

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submission of a report; and (4) these commissions are officially sanctioned, authorized, or empowered by the state (and sometimes also by the armed opposition, as in a peace accord).”4 Geoff Dancy, Hunjoon Kim, and Eric Wiebelhaus-Brahm note limitations associated with each of these definitions. Teitel’s, they argue, is “too vague to distinguish truth commissions from other kind of human rights institutions.”5 While they are more satisfied with Hayner’s definition and argue that by specifically focusing on the past “truth commissions do not investigate ongoing human rights abuses as human rights ombudsman might,” they maintain that her “emphasis on the completion of a report seems needlessly limiting.”6 They suggest, instead, that the production of a report ought to be a goal but not a requirement of a truth commission. Due to this absence of consensus on precisely what a truth commission is, analyses of truth commissions vary considerably. Nonetheless, general— although by no means complete—agreement exists on the assertion that the first truth commission was the Commission of Inquiry into the Disappearance of People in Uganda Since 25th January, 1971, established in 1974 to “investigate the accusations of disappearances at the hands of the military forces” during the early years of President Idi Amin’s rule.7 It was followed in 1982 with the first Latin American truth commission, Bolivia’s National Commission of Inquiry into Disappearances. However, the report of the Ugandan commission was never published, and the Bolivian commission was disbanded after more than two years of investigations without producing a report. As a result, Kathryn Sikkink and Carrie Booth Walling argue that “Argentina’s truth commission was the first major commission that would have a more lasting impact regionally and globally.”8 Many truth commissions, particularly some early examples, such as those established in Argentina and Uruguay, were accompanied by substantial and widespread amnesties. In the case of Uruguay, the establishment of the Investigative Commission followed just one month after an amnesty was granted providing release from prison for numerous political prisoners.9 This amnesty excluded state agents and sought to “provide reparations to political prisoners by . . . restoring property and funds that had been confiscated” from them, in addition to securing their release.10 However, the establishment of the commission was itself followed by two further amnesties. The first, granted in March 1985, covered all political, criminal, and military crimes committed since 1 January 1962 except “[o]ffences committed by

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police or military personnel, equiparados, and others who have subjected individuals to inhuman, cruel or degrading treatment or detained individuals who subsequently disappeared,” accomplices to these acts and those who attempted to cover them up.11 The second provided amnesty for “offences committed between 1984 and 1985 by military and police personnel for political motives or in the course of discharging their functions, and for offences committed on orders received during the ‘de facto period’ when a situation of internal violence prevailed.”12 In Argentina, as we saw in Chapter 2, the establishment of CONADEP was both preceded and followed by several targeted amnesties. That said, however, “information collected by the commission . . . was critical in the trial of senior members of the military juntas” and succeeded “in putting five generals in jail.”13 In some ways, truth was thus conceived as an antidote to amnesty, the means of pursuing accountability in the face of impunity. In this chapter, however, we witness a series of shifts in the relationship between amnesty and truth: first, from truth conceived as a response to the suppression of the facts entailed by the granting of self-amnesty, as in the case of Argentina discussed in the previous chapter, to, second, amnesties granted as a form of enforced public amnesia after the truth has been revealed in the case of El Salvador, and, third, amnesty granted in exchange for rendering the truth in South Africa. In particular, this chapter argues that increasing demands for truth necessitated a fundamental change in how amnesty was itself conceived that, in turn, helped to justify its growing popularity in the 1990s and 2000s. That is, as amnesty came to be employed to achieve the sets of political outcomes associated with uncovering, as opposed to suppressing, the truth, conventional understandings of amnesties as instruments of “amnesia,” “oblivion,” and “forgetfulness”14 gave way to new understandings of amnesties as mechanisms designed to render truth, prompt memory, and even facilitate accountability. At the same time, accountability, once understood almost exclusively in terms of retribution, prosecution, and punishment, came to be conceived as an element of restorative justice that contributes to reconciliation and healing. Thus, amnesties instituted to render the truth were conceived not as opponents of justice per se, but as instruments of a more holistic, restorative form of justice. Driving both these changes, this chapter argues, was increasing recognition of the importance of uncovering and acknowledging the truth about human rights violations committed in the past and a sense that amnesties constitute an obvious way

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of facilitating the recovery of truth and fostering reconciliation in postconflict societies.

Amnesty as Amnesia In contrast to the earlier cases of Argentina and Uruguay, the establishment of a truth commission in El Salvador was embedded in a negotiated peace settlement rather than a transition from authoritarian rule to democracy. Between 1980 and 1992, El Salvador was gripped by a civil war fought between the military-led government and Farabundo Martí National Liberation Front (FMLN), a coalition of five left-wing militia groups. An extremely “effective guerrilla movement” that “enjoyed substantial support inside El Salvador as well as international recognition,” the FMLN not only remained undefeated by government forces but “was able to negotiate a far-reaching peace accord as the price for ending the war.”15 Negotiated by the United Nations in conjunction with several high-profile human rights experts, the Chapultepec Agreements reached between the government of El Salvador and the FMLN agreed to establish a Truth Commission and to “put an end to any indication of impunity on the part of officers of the armed forces particularly in cases where respect for human rights is jeopardized.”16 A Commission on the Truth for El Salvador was thus established with a mandate to investigate “serious acts of violence that occurred since 1980 and whose impact on society urgently demands that the public should know the truth.”17 Its report, “From Madness to Hope: The 12-Year War in El Salvador: Report on the Commission on the Truth for El Salvador,” was presented on 15 March 1993. It recommended that members of the Salvadoran armed forces, civil ser vice, and judiciary who were “personally implicated in the perpetration or cover-up of serious acts of violence, or who did not fulfi l their professional obligation to initiate or cooperate in the investigation and punishment of such acts” be dismissed from their positions.18 Among these acts, the commission documented some twenty-two thousand complaints of extrajudicial killings, disappearances, and torture, including the murders of Monsignor Oscar Romero while conducting Mass in a San Salvador church in 1980 and six Jesuit priests nine years later. As Aryeh Neier noted, upon the completion of the commission’s work, “[t]he truth has now been acknowledged, as a consequence of meticulous and scrupulous fact-finding by a team of young human rights professionals.”19 In doing so, he high-

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lighted the significance of acknowledging the already well-known truth established at Aspen. Significantly, El Salvador’s Truth Commission sought to end impunity for human rights violations by naming names. “Not to name names,” it argued in its final report, “would reinforce the very impunity to which the parties instructed the Commission to put to an end.”20 On 20 March 1993, however, just five days after the commission released its report, the legislative assembly of El Salvador passed “a sweeping amnesty law” that called for the “extinction of both criminal and civil liability” and “conferred unconditional amnesty to any individual (including guerrillas) who perpetrated politically motivated crimes prior to 27 October 1987.”21 In doing so, President Christiani, referred to as the “peace President” in the commission’s report, stated that the “Salvadoran people need ‘to forgive and forget this painful past.’ ” “What is important now,” he said, is “to erase, eliminate and forget everything in the past.”22 Thus, unlike in earlier cases where truth was conceived as an antidote to the silence implied by the granting of amnesties, here an amnesty was specifically instituted to limit the potential negative effects associated with making the truth about the past public. Christiani’s action was viewed by many, including the Inter-American Commission on Human Rights, as the subversion of justice. In particular, El Salvador’s amnesty law was ruled to have “violated the state’s obligations under the American Convention on Human Rights by not permitting the investigation of crimes committed by state agents, or the identification and sanction of those responsible.”23 Similarly, Neier argued that “[w]hatever the obstacles to bringing El Salvador’s mass murders to trial,” his preferred course of action, “President Alfredo Christiani’s amnesty, which implies forgiveness, must be vigorously opposed.”24 Indeed, Christiani’s amnesty, widely conceived as “enforced amnesia,” sparked controversy over both the nature and extent of the right to truth, and the various relationships between amnesty, amnesia, forgiveness, and justice.

The Right to Truth

As with much of the international jurisprudence surrounding amnesties, early developments in the relationship between truth, justice, and amnesty can be traced to the Inter-American Court of Human Rights. In the 1999 case of Ellacuría v. El Salvador, which dealt with the assassination of the Je-

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suit priest Ingacio Ellacuria, the court affirmed the right of the victim’s family to “know the truth with respect to the facts that gave rise to the serious human rights violations that occurred in El Salvador, and the right to know the identity of those who took part in them.”25 According to the commission, this “private right to know the truth” is derived from Article 25 of the American Convention, which provides for the right to an effective remedy for human rights violations.26 The court thus ruled that “[b]ecause El Salvador’s amnesty impeded ‘access to information relating to the facts and circumstances surrounding the violations,’ the truth was not available for the relatives, and as a result, neither were remedies available under domestic jurisdiction.”27 The Inter-American Court’s ruling in the Ellacuría case mirrored similar developments in other areas of international law in which the individual’s right to truth can become readily conceived as “part of the effective remedy owed to the victims and their loved ones.”28 This individual right to truth, and its source, was confirmed in the 1993 van Boven Report on the right to restitution, compensation, and rehabilitation for the victims of gross violations of human rights, commissioned by the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities. It reiterated the point that “[u]nder international law, the violation of any human right gives rise to a right of reparation for the victim” and noted that “[e]very State has a duty to make reparation in case of a breach of the obligation under international law to respect and to ensure respect for human rights and fundamental freedoms.”29 With regard to the truth, the van Boven Report recommended that “[v]erification of the facts and full and public disclosure of the truth” may constitute part of the right to remedy and reparation. A “complete and public revelation of the truth,” van Boven argued, is “the first requirement of justice.”30 Drawing on both the van Boven Report and the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts, the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for the Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law thus maintains that “[a] victim of a gross violation of international human rights law or of a serious violation of international humanitarian law” has the right to “[v]erification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s

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relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations.”31 However, the right to truth is not simply an individual right. In its 1985– 1986 annual report, the Inter-American Commission on Human Rights stated that “[e]very society has the inalienable right to know the truth about past events as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent repetition of such acts in the future.”32 In doing so, it identified the rights of societies to know the truth about the past that was reiterated in the Velásquez Rodríguez case and the Joinet Report on the “[q]uestion of the impunity of perpetrators of human rights violations (civil and political).” In it, Louis Joinet, Special Rapporteur on amnesty, argued that the right to know is “not simply the right of any individual victim or closely related persons to know what happened” but also “a collective right, drawing upon history to prevent violations from recurring in the future.”33 That is, societies have a right to know the truth. This right is derived from the obligations of the state to investigate “violations committed within its jurisdiction,” to “identify those responsible,” and to protect their populations from future human rights violations.34 For Joinet, the natural “corollary” of the collective right to the truth “is a ‘duty to remember.’ ”35

Forgiving and Forgetting

President Christiani’s decision not only to grant amnesties in the aftermath of El Salvador’s Truth Commission report, but also to couch those amnesties in terms of forgiving and forgetting made explicit the contentious relationship between amnesties, mandated public amnesia, and forgiveness. Unsurprisingly, proponents of forgiveness have gone to great lengths to distance their practice from the more controversial granting of amnesties. In doing so, they have argued that political forgiveness does not entail the granting of amnesties or forgetting past misdeeds. However, the relationship between amnesty, forgiveness, forgetting, and truth is not nearly as clean-cut as many proponents of forgiveness would like. In practice, amnesties are routinely conceived in terms of forgiveness, while forgiveness itself entails revealing, then deliberately forgetting the truth. Despite the protestations of forgiveness’s increasingly vocal proponents, it remains the case that amnesty is routinely conceived, both in theory and in practice, in terms of forgiveness. In this vein Black’s Law Dictionary de-

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fines amnesty as “[a] sovereign act of forgiveness for past acts, granted by a government to all persons (or to certain classes of persons) who have been guilty of crime or delict, generally political offences—treason, sedition, rebellion, draft evasion—and often conditioned upon their return to obedience and duty within a prescribed time.”36 Similarly, portrayals of amnesty as an act of “political forgiveness” or as the public expression of forgiveness have become increasingly common.37 When Geoffrey Robertson argued that “crimes against humanity are, by definition, unforgivable,” he was arguing that they must not be amnestied but prosecuted.38 In particular, in several recent cases amnesty laws have been defined and even explicitly justified in terms of forgiveness. For example, in promoting and justifying the 1996 amnesty law, Guatemalan politicians proclaimed, “We do want to live in peace. We have to learn how to forgive.”39 Similarly, Annex 6 of the 1994 Lusaka Protocol, which sought to bring an end to civil conflict in Angola, called upon “all Angolans” to “forgive and forget offences resulting from the Angolan conflict.”40 Political forgiveness remains highly controversial.41 In addition to questioning the legitimacy of transposing the fundamentally interpersonal practice of forgiveness to the sociopolitical realm, critics question the religious foundations of forgiveness,42 the legitimacy of soliciting and granting forgiveness on behalf of others,43 and, most of all, its “potential for shortcircuiting justice.”44 Underpinning some of the most commonly held doubts about the justness of forgiving the perpetrators of serious offenses is the common, but partially inaccurate, association of forgiving with forgetting. Although relatively uncontroversial in the context of minor infractions, where more serious offenses have occurred forgetting is often viewed as the “enemy of justice.” 45 However, some argue that the relationship between forgiving and forgetting is far more complicated than the popular missive instructing the victims of wrongs to “forgive and forget” would seem to suggest. They argue that despite this ready association, forgiving is not synonymous with forgetting but rather requires the past to be conjured up “to the extent of making it present again, repeating the injury, opening the wound, so that its full extent may indeed be forgiven.”46 On a fundamental level, forgiveness thus requires remembering. As Solomon Schimmel notes, “if you totally forget that you were once hurt by someone you can’t forgive them.”47 Others, however, note that it is far too simplistic to say that forgetting plays no role in the process of forgiving. After all, when victims of a wrong decide to forgive the perpetrator of that wrong, they are making the deliber-

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ate decision to leave the wrongful action in the past and cease allowing it to influence the way in which they relate to the wrongdoer. Forgiveness thus entails a particular type of forgetting according to which “the offense no longer dominates waking consciousness or continues to feed a festering sense of rage or bitterness” but rather “recedes into the background.” 48 Of course, memories of injustice are not miraculously erased from the minds of their victims as soon as forgiveness has been offered; they simply take on a different, less intense, less influential form. Forgiveness thus simultaneously requires that transgressions “be forgotten but also remembered.”49 That is, releasing victims and perpetrators from the burdens of past wrongs, it is constituted by what Elshtain calls “knowing forgetting,” the conscious decision to limit the extent to which acts committed in the past may influence the present and the future.50 This balancing between forgetting and remembrance is particularly apparent in the practice of political forgiveness and the granting of amnesties. As we saw in Chapter 1, the very notion of amnesty reinforces forgetting by its association with the Greek term “amnestia,” meaning “forgetfulness.” In the case of El Salvador, this was precisely the meaning of amnesty invoked by President Christiani. However, as we will see shortly, this “traditional conception of amnesty as ‘amnesia’ is increasingly becoming outdated.” Instead, “states are finding innovative ways to address past crimes without burying the truth or enforcing widespread retributive justice” that do not require past wrongs to be forgotten.51 That, as we will see shortly, is what happened in the case of South Africa.

Forgiveness and Justice

In addition to touching on wider debates about the relationship between amnesties, forgiveness, and forgetting, Christiani’s amnesty provoked debates about the relationship between forgiveness, conceived in terms of amnesty, and justice. These “forgiveness versus justice” debates took three main forms and culminated in the formulation of a “forgiveness and justice” position. The first variant of the “forgiveness versus justice” debate was, as mentioned above, largely legal in its orientation. Here various human rights organizations and lawyers argued that the amnesty provision contravened El Salvador’s obligations under international law, established above, to investigate the truth. As Margaret Popkin notes, however, the Salvadoran

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Supreme Court viewed the amnesty issue as “a political matter and not subject to judicial review,” thus upholding the Amnesty Law in the face of legal opposition.52 The second variant of the “forgiveness versus justice” debate was consequentialist in form. Here advocates argued in favor of the policy of forgiving and forgetting on the grounds that it would help “maintain political stability . . . accomplish a transition to democracy or both.”53 Indeed, the defense of forgiving and forgetting offered by Christiani himself was an explicitly consequentialist “appeal to promoting the best way to build a more secure democratic future for El Salvador.”54 However, proponents of this view did not simply rely on the predicted positive outcomes associated with granting amnesties but also referred to the “politically dangerous position” Argentine president Raúl Alfonsín found himself in when he attempted to prosecute members of the former regime.55 A more just outcome, as far as they were concerned, involved the establishment of political stability. Finally, the third variant of the debate was explicitly theological in nature. On one side of the debate were those, including some conservative Catholics and Protestant evangelical Christians, who argued that “forgiveness, at least in these highly charged political circumstances, requires forgetting about past harms.”56 Referring to scriptural understandings of forgiveness, they argued that Christian morality simply requires forgiveness and, with that, forgetting. Ideas commonly translated as “forgiveness” in the common foundations of the Judeo-Christian tradition are represented in the Hebrew Old Testament of the Bible by words from three main roots: kpr, which is generally associated with the notion of atonement and is thus often used in the context of ritual sacrifices; the verb nś’, which means “to lift” or “to carry away”; and slh, which, although of unknown derivation, is thought to signify “letting go.” In the Greek New Testament two main verbs are used to convey the idea of forgiveness: charizomai, meaning “to deal graciously with,” and aphiēmi, meaning “to send away” or “to lose.” In addition, in the passage of the Gospel of Luke in which Jesus commands his followers to “[f]orgive, and you will be forgiven” (Luke 6:37), the word used is apolyō, meaning “to release.”57 Others, however, have argued in theological terms that forgiveness is not a substitute for justice but “justice must trump forgiveness when they compete with one another in the political realm.”58 In the case of El Salvador, however, the forgiveness versus justice debate culminated with the formulation of a forgiveness and justice position by the

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Jesuit rector of the University of Central America in San Salvador, José Maria Tojeira. Although he initially supported granting amnesties to those who confessed their crimes, he later shifted his support from amnesties to legal pardons on the ground that the latter required recognition that a crime has been committed and avoided the ready association of amnesties with amnesia. Tojeira argued that the perpetrators of human rights violations ought to be presented with two options: “confess and ask society for forgiveness, or stand trial.”59 Although Tojeira’s “truth for pardon” suggestion “was never adopted,” he and other members of the Jesuit community continued to argue that “Christian forgiveness neither supplants truthfulness nor undermines accountability.” What is more, they maintained, the “triple dimension[s] of truth, justice, and forgiveness” were required if reconciliation was to be achieved.60 As we will see shortly, a modified version of Tojeira’s idea later found form in South Africa’s “truth for amnesty” approach, which combined elements of truth, justice, and forgiveness in the pursuit of reconciliation.

Learning from Latin America In 1992, the Charter 77 Foundation hosted the inaugural meeting of the Project on Justice in Times of Transition in Salzburg to “focus on the question of whether and how Eu ropean leaders might learn from the experience of the Latin American transitions of the past decade.” 61 Of the original group of scholars, lawyers, and activists who had attended the Aspen Institute conference, Alice Henkin, Jaime Malamud-Goti, Diane Orentlicher, and Lawrence Weschler were in attendance at the Salzburg meeting. They were joined by current and former politicians from Latin America including Raúl Alfonsín (president of Argentina, 1983–1989), Roberto Garretón (deputy foreign minister of Chile), Rafael Michelini (deputy in Chamber of Representatives, Uruguay), scholars of law and human rights including Robert Goldman, Claudio Grossman, Stephen Holmes, Samuel Huntington, Claus Offe, Herman Schwartz, and Ruti Teitel, members of human rights organizations, and representatives of Poland, Hungary, Germany, Czechoslovakia, Lithuania, France, Yugoslavia, and Spain.62 By now debate had become focused on two themes: acknowledgment and accountability.63 However, little consensus existed over precisely which

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lessons the new democracies of Eastern Europe ought to learn, and which particular lessons were applicable to each specific state. The discussions that took place at Salzburg made it clear that the view that the truth about the past much be acknowledged was by no means settled: “the question still remain[ed] of whether or not to acknowledge the crimes of the past.” 64 Initially, three main reasons for uncovering the truth about the past were identified: “1) to seek justice for the victims and help restore their dignity; 2) to facilitate national reconciliation; and 3) to deter further violations and abuses.” 65 As Weschler reminded his fellow participants, however, “general knowledge” of crimes committed in the past is not enough; what is required is official acknowledg ment of that knowledge.66 By contrast, “official forgetting,” as Robert Goldman argued, “can make second class citizens of the victims by eliminating their legal recourse.” 67 Interestingly, when the discussion turned to the cases of Latin America and Europe, the will of the public seems to have taken center stage in determining the legitimacy of the amnesties granted in Uruguay and Spain. In particular, it was noted that while Uruguay’s amnesty law faced significant public opposition, only narrowly being upheld in a national plebiscite, the amnesty instituted in Spain in 1977 to “allow the country to move forward and strengthen its fledgling forces of democracy” enjoyed “consensual support from all political parties and groups.”68 The comparison drawn here was that without popular support, Uruguay’s failure to continue investigating the truth had left the “institutions of the military unreformed and the same leaders [in] control [of] the military,” while in Spain the decision to forget allowed it to “forge ahead toward democracy without looking back to its bloody past.”69 Where debate about accountability was concerned the dual demands of  justice and democracy were also at play.70 On one hand, the specter of Argentina’s aborted prosecutions and subsequent amnesties loomed large, while on the other were doubts that trials would have actually destabilized new democracies that had instituted amnesties from the start. In particular, some argued that rather than “derailing his country’s transition to democracy” President Sanguinetti might have actually strengthened Uruguay’s transition to democracy by prosecuting military leaders accused of human rights abuses.71 The lack of a clear set of consistent outcomes associated with granting amnesties or pursuing prosecutions was reflected in much of the debate that

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followed the Salzburg conference. Arguments for and against amnesties thus seem to have been based on “soft” predictions of outcomes, informed speculations based on limited numbers of cases, and theoretical relationships between amnesties, prosecutions, democracy, and the rule of law.

The Turn to Africa

The mid-1990s were marked by a shift in regional focus of debates about amnesties from Latin America and Eastern Europe to Africa and, in particular, the case of South Africa. In February 1994, the Institute for Democracy in Africa (IDASA) hosted a conference in South Africa on Dealing with the Past. The conference was funded by the Open Society, and its participants included several individuals who had been present at both the Aspen Institute and the Charter 77 Foundation conferences, such as Juan Méndez, Aryeh Neier, Lawrence Weschler, and José Zalaquett. In this it represented an extension of existing debates about the legitimacy of granting amnesties and, in particular, their role in securing a peaceful transition to democracy. Just as the Salzburg conference had sought to apply the lessons of Latin America to Eastern Europe, so too the IDASA conference aimed to consider the challenges faced by a transitional South Africa in light of lessons learned in Latin America and Eastern Europe.72 In this it also marked the continuation and development of work already begun by scholars such as Frederick van Zyl Slabbert and André du Toit, who had not only looked to the transitions of Latin America and Eastern Europe to try to make sense of what was happening in South Africa but also drew on the theoretical frameworks used to explain them devised by Schmitter, O’Donnell, and Przeworski.73 South African participants in the workshop included several figures who became central players in debates about amnesties, truth, and reconciliation in South Africa and more broadly, including Alex Boraine, the cofounder (with Frederick van Zyl Slabbert) of IDASA and who later established the International Center for Transitional Justice and served as deputy chair of the South African Truth and Reconciliation Commission; Richard Goldstone, who headed the Goldstone Commission, which investigated political violence in South Africa between 1991 and 1994, and who later became the chief prosecutor of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda; Wilmot James, the executive director of IDASA from 1994; Albie Sachs, a human

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rights activist, former prisoner, and former exile who later became a judge in the Constitutional Court of South Africa; and many others. The IDASA conference saw, in particular, the continuation of debate between Aryeh Neier and José Zalaquett on the correct philosophical basis on which to make judgments about whether amnesties or prosecutions were preferable. In his keynote address, Zalaquett argued that “all things being equal, forgiveness and reconciliation are preferable to punishment.”74 This was in direct contrast to Neier, who in his keynote speech had highlighted the importance of “establishing and upholding the rule of law” and “deterring future abuses.”75 As Zalaquett explained, in both political and ethical terms the key purpose of any approach to dealing with the wrongs of the past must be maximization, “achieving the best that is possible in the circumstances.”76 In his view, maximization could entail the granting of amnesties, ideally where those amnesties were “based on the truth,” that truth was acknowledged, and the amnesty was “approved democratically in the sense that it must be the will of the nation to forgive.” 77 In his later contribution to debate about the merits of prosecution, Neier argued that this “approach of utilitarian calculus is illegitimate,” thus perpetuating his longstanding disagreement with Zalaquett.78 Neier proposed instead an “accounting approach” according to which “concern for the victim is in fact the concern to uphold the rule of law.”79 Taking a more moderate stance, Méndez argued that building a new democracy requires, from the start, “the non-discriminatory application of the law.”80 That is, he implied that a successful transition to democracy requires the law to be applied to all on an equal basis, thereby seemingly eliminating the possibility of amnesties. However, Méndez was well aware of the constraints faced by transitional states in pursuing prosecutions and thus did not go so far as to recommend prosecutions in all cases. Rather, he cautioned against the increasing propensity of those active in the transitional justice community to take it for granted that new democracies are unable to undertake prosecutions. “We should not,” he argued, “simply assume they are inherently powerless.”81 This is what unfortunately happened in Guatemala following the election of Marco Vinicio Cerezo Arevalo. As Méndez lamented, Arevalo was given “so many excuses not to do anything that at the end of his term there was less truth, justice and accountability and many more human rights violations than when he started out.”82 The issue at play here, as André du Toit noted, was the tension between what is desirable and what is feasible.83 The consensus among most of the

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South Africans present at the conference was that feasibility and, indeed, the outcomes to be achieved by pursuing various transitional justice mechanisms, had to be a major consideration. This reflected how the politics of the case actually unfolded.

The South African Amnesty Widely viewed as the outcome of a political deal struck by the National Party apartheid regime and the African National Congress (ANC), the South African amnesties were explicitly conceived as a tool to ensure a smooth transition to democracy.84 For more than forty years, South Africans had lived under an apartheid system that saw not only the promulgation of laws facilitating racial discrimination and the banning of opposition anti-apartheid groups, but also the perpetration of severe and wide-ranging human rights violations by the security forces under the guise of security and antiterrorist operations. With antiapartheid activism on the rise, South Africa’s transition to democracy was precipitated by the abrupt resignation of President P. W. Botha on 14 August 1989 and his replacement by President F. W. de Klerk. Shortly after assuming the presidency, de Klerk revoked the “ban on antiapartheid parties such as the ANC,” released the head of the ANC, Nelson Mandela, from prison, and began negotiations with the ANC and other opposition groups. “A crucial part of the negotiation process,” as Pumla Gobodo-Madikizela writes, “concerned the question of amnesty and whether perpetrators of gross human rights violations from both sides of the political conflict would be granted political pardon.”85 In a direct and deliberate reference to its Greek origins, Erik Doxtader writes that “[t]houghts of amnesty arose” in South Africa, “at a time when politics needed to be crafted from within a stasis that confounded the pragmatic and ideological interests of both the Nationalist government and the African National Congress.”86 At the time, bilateral negotiations between the ANC and the National Party had reached a relative stalemate, marked by “bloody bargaining” in which neither side was willing to accede to the other’s demands.87 Negotiations over both the general terms of the transition and, in particular, the drafting of an interim constitution to govern South Africa in the first five transitional years was marked by intense disagreement over the question of amnesties. While some, mostly but not exclusively associated with the ANC, argued that “there should be no amnesty” for the “gross human rights violations”

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that had been perpetrated by both sides during the political conflict, others were keen to protect themselves and their subordinates.88 In particular, F. W. de Klerk “advocated a system of general amnesty so as to indemnify himself and his government for its past actions.”89 In August 1993, however, a further issue intervened that may be attributed with helping to soften the ANC’s position on amnesties. Here, at a meeting of the national executive committee of the ANC, the report of the Motsuenyane Commission into acts of violence committed in ANC detention camps found the ANC guilty of human rights violations, including torture, and accused it of “staggering brutality.”90 Although Nelson Mandela eventually “accepted collective responsibility on behalf of the ANC leadership,” at the time the national executive was unsure of how to proceed with negotiations with the NP in light of the commission’s report, and many surmised that accepting an amnesty for all who had committed acts of political violence emerged as the best solution.91 Archbishop Desmond Tutu tells a different although not incompatible story. He argues that the unavoidable question of how South Africa might deal with its violent past was initially met by responses from two extremes. At one end of the spectrum were “those who wanted to follow the Nuremberg trial paradigm by bringing to trial all perpetrators of gross violations of human rights and letting them run the gauntlet of the normal judicial process.”92 As Tutu argues, this was not considered to be a “viable option at all.” Unlike in the case of Nuremberg, where the Allies were able to impose “victors’ justice” and then leave without fearing the consequences of their actions, in South Africa, perpetrators, victims, those meting out justice and those facing its rigors would all have to continue living together.93 As the Nuremberg option was widely viewed by the individuals negotiating the transition not to be conducive to the establishment of democracy, the rule of law, and respect for human rights, it was rejected. At the other end of the spectrum were those who “suggested rather glibly that we let bygones be bygones.”94 They argued that the institution of a blanket amnesty akin to that self-granted by General Pinochet would help leave the past in the past. However, this too was rejected. As Tutu notes, it was felt very strongly that general amnesty was really amnesia. It was pointed out that none of us possess a kind of fiat by which we can say, “Let bygones be bygones” and, hey presto, they then become bygones. Our common experience in fact is the opposite—that the

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past, far from disappearing or lying down and being quiet, has an embarrassing and persistent way of returning and haunting us unless it has in fact been dealt with adequately. Unless we look the beast in the eye we find it has an uncanny habit of returning to hold us hostage.95 The course of action chosen for South Africa was thus a “ ‘third way,’ a compromise between the extreme of Nuremberg trials and blanket amnesty or national amnesia.”96 This third way was the agreement that individual conditional amnesties would be granted in exchange for the truth. With this, a new understanding of amnesty was ushered forth. In the end, the amnesty provision was thus included in the postamble to South Africa’s Interim Constitution.97 Its justification in terms of facilitating a peaceful transition to democracy is reiterated, both implicitly and explicitly, throughout the passage. In particular, the postamble states that the interim constitution “provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future grounded on the recognition of human rights, democracy, and peaceful coexistence and development of opportunities for all South Africans, irrespective of colour, race, class, belief, or sex.”98 In doing so, the postamble sought to establish that the interim constitution was necessary for the achievement of democracy. However, it also recognized that it was, by itself, insufficient for the establishment and consolidation of that democracy.99 It thus continued by including the provision of an amnesty to ensure the transition: In order to advance such reconciliation and reconstruction, amnesty shall be granted in all respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this constitution shall adopt a law determining a firm cut-off date which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.100 Although protracted debate ensued over the precise meaning of the term “shall” and whether or not “significant parts of the amnesty process would

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occur in secret, President Mandela signed the Promotion of National Unity and Reconciliation Act in mid-1995.”101 The act, which established the South African Truth and Reconciliation Commission, provided for the establishment of an Amnesty Committee, making the TRC the first of its kind “to be given the power to grant amnesty.”102 However, the amnesty was not a general or blanket amnesty but applied only to perpetrators of politically motivated human rights abuses “who [made] full disclosure of all the relevant facts relating to acts associated with a political objective and [complied] with the requirements of [the] Act” (3(1)(b)).103 Amnesties were thus to be conditional on revealing the truth, individual and public, bringing with them some sense of personal accountability.104

After Amnesty

Unsurprisingly, the very decision to grant the perpetrators of human rights violations amnesties was highly controversial and precipitated further debates about the obligation to prosecute and the relative outcomes associated with amnesties and trials. These points of contention were represented, most prominently, in a public debate, After Amnesty? Restorative Justice, Prosecutions, and Nation-Building, which took place in Cape Town on 4 October 2001 and was followed by a conference at the University of the Western Cape.105 Here, following the popular narrative that characterized South Africa’s amnesty as an “historic compromise,” amnesty was routinely justified by its supporters as a necessity for a peaceful transition from authoritarian rule to democracy.106 In particular, Alexander Boraine argued that “[w]here transitions occur through a process of peaceful negotiation between the democratizing force and the previous totalitarian regime, the political constraints become even more heightened” thus requiring “compromise, first and foremost.”107 In his view, the compromise entailed by the provision of amnesty was thus inevitable if South Africa wanted to achieve democracy without further violence.108 This view was echoed by those who also sought to justify the amnesty by highlighting the negative outcomes that would likely have followed had the compromise not been reached. In this vein Charles Villa-Vicencio argued that the amnesty was a better outcome than “full-blown civil war . . . a disaster too ghastly to contemplate.”109 Similarly, Justice Richard Goldstone argued elsewhere, “[i]f the ANC had insisted on Nuremberg-style trials for the leaders of the former apartheid government,

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there would have been no peaceful transition to democracy. And if the former government had insisted on a blanket amnesty then, similarly, the negotiations would have broken down. A bloody revolution—sooner rather than later—would have been inevitable.”110 Although, as Doxtader notes, “it is hard to know if the apartheid generals who were calling for amnesty actually had the capacity to launch a coup or disrupt the 1994 election,” the amnesty was thus routinely justified as the means of overcoming the potential risks to the democratic transition posed by its likely spoilers.111 In the case of South Africa the choice was thus not so much one between amnesties and prosecutions as between a “general amnesty . . . [and] a limited form of amnesty.”112 Both “valuable and . . . unacceptable,” the institution of a conditional amnesty left room for prosecutions to take place where the perpetrators of human rights violations had not met the requirements of the amnesty law. Thus those who had not applied for amnesty as well as those who applied but whose crime was found not to have been politically motivated or who were deemed not to have fully disclosed the facts of their crime by the Amnesty Committee remained liable for prosecution. The conditional nature of the South African amnesty provoked several interesting developments in debates about the obligation to prosecute perpetrators of human rights violations in which several stringent supporters of trials appeared to soften their positions over time. As Jeremy Sarkin-Hughes notes, while some have remained “vehemently opposed to any type of amnesty. . . . South Africa’s version of amnesty has been identified as legally the most stringent, and politically the most legitimate of amnesties granted in transitions to democracy in more than thirty years.”113 Thus, despite his strong belief that it “sticks in the craw to allow torturers and assassins to walk free as a reward for talking to a Truth Commission,” Geoffrey Robertson has argued that the South African TRC “succeeded where the South American commissions failed, in identifying criminals and either shaming them (if they testified) or recommending their prosecution (if they did not apply for amnesty or did not receive it or failed to tell the truth).”114 Similarly, Naomi Roht-Arriaza argued that by individualizing accountability, allowing victims to have their “day in court,” and “making at least part of the truth accessible,” the South African amnesty was able to overcome some of the objections leveled at those granted in Latin America.115 Perhaps most surprising of all was Aryeh Neier’s acknowledgment that “in the specific circumstances of South Africa, it is not easy to quarrel

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with Archbishop Tutu when he contends that the Truth and Reconciliation Commission process of providing amnesty in exchange for acknowledgement and full disclosure, served the country better than a process that would have relied solely on prosecutions.”116 In doing so, he appears to agree with Tutu’s famous statement: “We have had to balance the requirements of justice, accountability, stability, peace, and reconciliation. We could very well have had retributive justice, and had a South Africa lying in ashes—a truly Pyrrhic victory if ever there was one.”117

The AZAPO Case

This is not to say, however, that South Africa’s amnesty did not face formal legal challenges. The most famous of these came with the case of the Azanian People’s Organization (AZAPO) and Others v. President of the Republic of South Africa and Others, brought before the Constitutional Court of South Africa. The applicants in this case were the families of several antiapartheid activists and included the widow of Steve Biko, the so-called martyr of the anti-apartheid movement who died in police custody in 1977. They sought to challenge the constitutionality of the amnesty provision included in the Promotion of National Unity and Reconciliation Act that established the TRC and, in addition, argued that “the state was obliged by international law to prosecute those responsible for gross human rights violations.”118 The challenge was unanimously rejected. Significantly, much of the justification provided by the Constitutional Court for its decision relied on arguments about the relative consequences of associated with granting amnesties and pursuing prosecutions. The court thus explained its decision in terms of “two rationales: the necessity of amnesty legislation for a democratic transition, and the value of the truth resulting from the bargain at the heart of the amnesty legislation.”119 With regard to the first, Chief Justice Ismail Mahomed concluded, Decisions of States in transition, taken with a view to assisting such transition, are quite different from acts of a State covering up its own crimes by granting itself immunity. In the former case, it is not a question of the governmental agents responsible for the violations indemnifying themselves, but rather one of a constitutional compact being entered into by all sides, with former victims being well-

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represented, as part of an ongoing process to develop constitutional democracy and prevent a repetition of the abuses.120 In addition, in response to the suggestion that South Africa may have breached its international obligations to prosecute the perpetrators of violations of the Geneva Conventions, in an aside the court provided the most prominent legal discussion of Article 6(5) of Additional Protocol II. It argued, It is one thing to allow the officers of a hostile power which has invaded a foreign state to remain unpunished for gross violations of human rights perpetrated against others during the course of such conflict. It is another thing to compel such punishment in circumstances where such violations have substantially occurred in consequence of conflict between different formations within the same state in respect of the permissible political direction which that state should take with regard to the structures of the state and the parameters of its political policies and where it becomes necessary after the cessation of such conflict for the society traumatized by such a conflict to reconstruct itself.121 With regard to the second rationale, Chief Justice Mohamed argued that truth, which the victims of repression seek so desperately to know, is, in the circumstances, much more likely to be forthcoming if those responsible for such monstrous misdeeds are encouraged to disclose the whole truth with the incentive that they will not receive the punishment which they undoubtedly deserve if they do. Without that incentive there is nothing to encourage such persons to make the disclosures and to reveal the truth, which persons in the positions of the applicants so desperately desire. With that incentive, what might unfold are objectives fundamental to the ethos of a new constitutional order.122 With this, the AZAPO judgment thus forged a set of connections not only between amnesty and democracy, and amnesty and truth, but between truth and democracy as well. This reflects a growing sense that “[e]stablishing a comprehensive account of the past is . . . a vital element of a successful

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transition to democracy,” although this assumption has not been without its challengers.123

Amnesty, Truth, and Forgiveness The South African approach to transitional justice thus not only shifted the relationship between truth and amnesty to one in which the first was a prerequisite of the second, but constituted an attempt to negotiate the “doubleagenda” of upholding the “duty to remember,” while recognizing the “need to forget” the past and focus on the future.124 In this equation, truth was to provide the element of remembrance, and amnesty the element of forgetting (albeit knowing forgetting). As Desmond Tutu argued in an attempt to reassure those people who were uncomfortable with the role played by forgiveness in the South African TRC process, “in forgiving, people are not being asked to forget. On the contrary, it is important to remember, so that we should not let such atrocities happen again.”125 With this a new relationship among amnesty, truth, and forgiveness was forged. As Antje du Bois-Pedain notes, the significance of truth to the South African Truth and Reconciliation Commission was made evident in the unusually expansive definition of truth it employed. In its 1998 report, the TRC identified four different types of truth, all of which had, at different times, and in different contexts, been the result of the TRC’s activities. It thus distinguished “factual or forensic truth; personal or narrative truth; social or ‘dialogue’ truth . . . and healing and restorative truth.”126 Significantly, the truth sought by the TRC was explicitly conceived in opposition to “the formal trappings of justice” ordinarily provided by courts and trials.127 However, this did not mean that the pursuit of truth was wholly conceived in opposition to justice. Rather, truth was understood as a key element of reconciliation and restorative justice. In particular, many pointed to the supposed contribution that recovering the truth makes to healing and reconciliation. Echoing this assumption, the TRC itself “affirmed the ‘healing potential of storytelling, of revealing the truth before a respectful audience and to an official body.’ ”128 In reality, however, the results were far more mixed. While it is certainly the case that “truth commissions have a healing psychological potential,” whether individual victims will experience healing and restoration is another matter entirely.129 This was acknowledged in the report of the TRC, which stated that “the reconciliation of victims

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with their own pain is a deeply personal, complex and unpredictable process. Knowing the complete picture of past gross human rights violations, or even the facts of each case, may not lead to reconciliation. Truth may, in fact, cause further alienation.”130 What is more, the promise of amnesty for truth did not render that truth in all cases. For one, not everyone who had committed a crime during the apartheid era applied for amnesty and with their application confessed their wrongdoing.131 What is more, of the 7,116 individuals who applied for amnesty, only 1,167 were actually granted it. Of the 5,143 who were denied amnesty, almost 700 were deemed not to have made a full disclosure of the facts, denied their guilt, or refused to specify the crime they committed.132 However incomplete the truth rendered by the amnesty process, it did, nonetheless, bring more truth to the victims of past human rights violations and their families than may otherwise have been uncovered. In accordance with its emphasis on reconciliation, amnesty was also conceived in the South African case in terms of forgiveness. In fact forgiveness was explicitly promoted by the TRC, which was established with the thought that while forgiveness in the form of amnesty would be forthcoming from the state, it would also be extended to the perpetrators of crimes by their victims and their families. While derived, in an obvious sense, from Christian theology, the TRC referred more readily to the “African concept of ubuntu (humanity) than to Christian doctrine.”133 There were two main reasons for thus. First, the concept of ubuntu, which “speaks to the very essence of being human,” was viewed as an authentically African alternative to a Christian concept imposed from elsewhere.134 Second, by referring to ubuntu, the TRC sought to allay the concerns of protestant Boers who “felt that the idea of forgiveness” embedded in processes of transitional justice was borrowed from the Latin American, Catholic experience.135 As du Bois-Pedain notes, however, the “expectation that amnesty applicants would use amnesty hearings to apologise to their victims, and that victims would rise to the occasion by extending their forgiveness to them” based on Christian ideals or the principle of ubuntu turned out to be “naive” and “was quickly dampened as the amnesty process unfolded.”136 In part, this was because the TRC did not mandate apology, leaving many perpetrators free to confess their crimes without apologizing or showing any sign of remorse. For many victims of abuse and their families, however, the very problem lay with the connection forged by the TRC between state amnesty and personal forgiveness. For some the granting of amnesty seemed to mandate

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forgiveness on their part. As one woman stated, “The oppression was bad, but what is much worse, what makes me even more angry, is that they are trying to dictate my forgiveness.”137 Indeed, the sense that the granting of amnesties in some way breached the principle that “only the victims have the authority to forgive” was common throughout the TRC process and served to highlight the fact that many participants conceived forgiveness and amnesty as being directly related. For example, in response to an application for amnesty made by the individuals responsible for killing her son, Joyce Mthimkulu objected, “They are not asking forgiveness from us, the people who have lost their loved ones. They are asking forgiveness from the government. They did not do nothing [sic] to the government. What they did, they did to us.”138 At the same time, however, others conceived amnesty and forgiveness separately and, in doing so, were able to reconcile in their minds the fact that a perpetrator they were not willing to forgive would, nonetheless, be amnestied. That is, they accepted that the state could grant amnesty, but individual forgiveness would remain their personal prerogative. This was the view expressed in the testimony of Candice van der Linde at the amnesty hearing of Robert McBride, the former member of the ANC responsible for bombing a beachfront bar in Durban in 1986 and, in doing so, killing her mother. McBride was convicted of the attack in 1988 but released in 1992 “as one of the few handpicked ANC members whose release was specifically demanded by the ANC as a precondition for continuing their negotiations with the apartheid government.”139 In response to McBride’s lack of remorse and failure to attempt to reconcile with her, van der Linde said, “The last thing I have to say to you is that you were convicted of murder so whether you get amnesty or not, you are a murderer in my eyes and the only way you can make me forgive you for that is the way you decide to. You’re the only one who can do it, it’s really and truly up to you whether we, the victims and myself, forgive you.”140

Conclusion The case of South Africa marks the first significant turning point in the relationship between amnesty and accountability. Here, for the first time, a stand was taken against granting blanket amnesties to the perpetrators of human rights violations. However, rather than being aimed at ending impu-

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nity for the perpetrators of human rights violations, South Africa’s move away from blanket amnesties was directed at a different set of political ends, ensuring a transition to democracy, uncovering the truth, and facilitating reconciliation. By making truth telling a condition for receiving an amnesty, the South African TRC formalized a new understanding of amnesties as instruments of remembrance, acknowledg ment, and knowing forgiveness divorced from their traditional association with oblivion or forgetfulness. In doing so, South Africa demonstrated that amnesty not only could be an instrument used to furnish the truth but also could bring with it some measure of accountability. Thus, despite presenting vociferous arguments against retributive justice, proponents of South Africa’s “third way” were not opposed to justice in toto. Rather, their approach saw the widespread entrenchment of restorative justice as an end to which transitional justice processes ought to aim, an idea that has since been adopted in numerous other postconflict contexts. One good example of this is found in Fiji’s now defunct Promotion of Reconciliation, Tolerance and Unity Bill, presented to the Fijian parliament on 31 May 2005. This bill sought to address the “expressions of deep concern and resentment among members of various ethnic communities in the Fiji Islands” in part by offering an amnesty, defined as “an act of forgiveness granted by the President . . . in respect of acts associated with political objectives.”141 The proposed bill was “ostensibly aimed at bringing closure to five years of police investigations, settling differences between the victims and aggressors” of the 2000 military coup and “establishing a framework for greater harmony” between the indigenous Fijian and Indo-Fijian communities.142 Driven by Prime Minister Laisenia Qarase’s Ministry of Multi-Ethnic Affairs and National Reconciliation and Unity, the bill drew heavily upon the “ideals of Christian forgiveness, harmony and cooperation” as well as traditional Fijian notions of restorative justice as “a way forward for Fiji.”143 In particular, the proposed RTU Act was explicitly “based on the principle of restorative as opposed to retributive justice” and, in accordance with this, sought “to provide for mechanisms, criteria and procedures for the granting of amnesty to persons who make full disclosures of all facts relevant to acts associated with a political, as opposed to a purely criminal, objective committed during” the period designated in the bill.144 In doing so, proponents of reconciliation in Fiji drew explicitly on the idea that an amnesty may facilitate truth and thus contribute to wider societal reconciliation.

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Indeed, one of the most pronounced outcomes of the South African experience has been the export of the “South African model” of truth and reconciliation to other states, whether explicitly or in implicit terms. As we will see in Chapters 4 and 6, both East Timor and the Solomon Islands specifically adopted elements of the South African model as part of their transitional justice efforts. In debates surrounding draft legislation before Nepal’s parliament detailing the framework according to which its proposed Truth and Reconciliation Commission might operate, political leaders have argued in favor of granting the commission powers that would allow amnesties to be “offered in exchange for the truth of what happened.”145 Similarly, the mandated objectives of Kenya’s Truth Justice and Reconciliation Commission, established in law in November 2008, included the following: II.5(m) facilitating the granting of conditional amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with gross human rights violations and economic crimes and complying with the requirements of this Act; [and] (n) providing victims, perpetrators and the general public with a platform for non-retributive truth telling that charts a new moral vision and seeks to create a value-based society for all Kenyans.146 However, according to the framework agreed at the Kenyan National Dialogue and Reconciliation earlier in 2008, the commission had no power to grant “a blanket amnesty for past crimes.” Rather, it stated,“Individual amnesty may be recommended by the Commission in exchange for the full truth, provided that serious international crimes (crimes against humanity, war crimes, or genocide) are not amnestied, nor persons who bear the greatest responsibility for crimes covered by the Commission.”147 Thus, the commission was intended to complement the pursuit of criminal prosecutions for the worst offenders at either an international tribunal in Kenya or the International Criminal Court. As the process unfolded, six individuals deemed most responsible for the 2007–2008 postelection violence that gripped Kenya were indicted by the ICC, all accused of committing crimes against humanity. The case continues at the ICC.148 Despite providing an even more restrictive understanding of amnesty as a means of garnering the truth than the South African TRC had, the Kenyan amnesty was not without controversy. In particular, despite welcoming the

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decision not to provide amnesties for genocide, war crimes, or crimes against humanity, Amnesty International raised concerns that the bill still allowed the commission to grant amnesties for “other gross human rights violations such as torture, extrajudicial executions and enforced disappearances.”149 This, it argued, is unacceptable. In doing so, Amnesty International cited the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, which acknowledged the role that truth and reconciliation commissions can play “in ensuring justice and accountability,” but added that amnesties “granted in exchange for public confessions by . . . perpetrators” have generally “been considered unacceptable in international law.”150 Thus, Amnesty International argued, even the widely heralded “conditional amnesty process of the South African Truth and Reconciliation Commission is now considered to be unacceptable under international law.”151 However, this does not indicate that justice has won a wholesale victory over truth; far from it. Even bodies that are committed to prosecuting perpetrators of human rights, such as the International Commission of Inquiry on Darfur, have been willing to concede that while amnesties for truth are unacceptable where human rights violations are concerned, immunity provisions may be permissible. That is, guarantees of “immunity” “may be held to be acceptable in international law, at least in the circumstances of a TRC” precisely because “it contributes to the revelation of truth.”152 Thus, immunity may be appropriate in cases where witnesses have been summoned to give evidence under subpoena and, in doing so, have been “compelled to testify against themselves.”153 This type of immunity has been employed in several recent cases of truth commissions in Mauritius, Chile, Ghana, and Panama, all of which preclude the possibility of evidence presented before their commissions being used as evidence in future criminal prosecutions.154 This, as the International Commission of Inquiry on Darfur suggests, represents a kind of compromise between the pursuit of truth and the requirements of justice: “Perpetrators are constrained to reveal all, albeit on the limited assurance that their testimonies at the TRC will not be used against them in criminal proceedings. Nevertheless, society can hold them accountable for the crimes they admit to have committed, and they may still be prosecuted, the only evidence not usable against them being the one they gave at the TRC hearings.155 Whether such impunity holds in these cases, whether we start seeing prosecutions based on self-incrimination before truth commissions, albeit

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reinvestigated within the judicial system, or whether we see increased demand for amnesties in exchange for truth precipitated by such prosecutions remains to be seen. What is clear, however, is that states continue to avoid prosecutions, through amnesties or immunity, in order to uncover the truth about their violent pasts.

CHAPTER 4

Ending Violence The question that should be asked by negotiators is how to make it clear to the parties concerned that the options have changed and impunity is no longer available.1

Amnesties have long been conceived as an instrument of peace. Employed as a bargaining tool to bring about the end of a protracted period of conflict, in this context amnesties are underpinned by the idea that warring parties and rebel groups may be more willing to negotiate a peaceful settlement of their dispute if they will not face prosecution for acts committed during the conflict. Here the tensions between amnesty and accountability are posed in their most stark terms where the choice does, indeed, appear to be a straightforward peace versus justice decision. Amnesties designed to end violence are often instituted as a last resort, the means of ending an “urgent and grave situation” or to halt or “avert mass violence.”2 That is, they are implemented in contexts in which additional leverage is required, or thought to be required, to bring a conflict to settlement. As we will see in this chapter, however, three major trends have marked the practice of granting amnesties to end violence and debate surrounding their implementation since the 1970s. First, advances in the areas of peace negotiations have brought the very necessity of using amnesties to procure peace settlements into question and highlighted the trade-off they usually entail. In particular, it has become increasingly well acknowledged that an inherent danger lies in holding out the prospect of an amnesty to warring parties: namely, doing so holds the state or party issuing the amnesty, as well as the victims of wrongs, hostage to a sort of blackmail that demands impunity for human rights violations. In the absence of an amnesty, perpetrators can argue, “there will be no prospect of negotiated settlement” and, as a result, “the abuses or mass violence will continue or possibly worsen.”3

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As such, many scholars and practitioners have highlighted the need to find other ways to end violent conflicts that do not entail, implicitly or explicitly, impunity for human rights violations. Second, in the context of amnesties designed to bring an end to violence, some of the most significant shifts in the relationship between amnesties and accountability and, indeed, the implementation of amnesties have taken place. In large part, this can be attributed to the involvement of the international community in negotiating formal peace agreements. In particular, in these types of contexts, overt pressure has been brought to bear on states to uphold their obligation to prosecute the perpetrators of human rights violations even when the offer of an amnesty might expedite the signing of a peace agreement. Thus, where once peace settlements routinely entailed impunity for all combatants on all sides of a conflict, recent decades have witnessed a decline in acceptance of blanket amnesties, even in contexts where they may produce a negotiated settlement. Rather, conditional amnesties, excluding impunity for genocide, crimes against humanity, torture, and other human rights violations, have become viewed as the only legitimate form of amnesty by many members of the international community, including the United Nations. As such, the broad and permissive notion of amnesty once accepted as the necessary price to pay for peace has largely been replaced by a far more restrictive understanding that does not allow justice to be completely bargained away in the interests of peace. However, as we saw in Chapter 1, a third and contradictory trend has seen the popularity of amnesties included in peace agreements grow since the 1970s. Even with increasing pressure to prosecute the perpetrators of human rights violations after 1999, the turning point in the United Nations’ position on peace settlement amnesties, the rate at which amnesties have been included in peace agreements has risen. While some, such as those implemented in Burundi and East Timor, have explicitly excluded human rights violations, many others have not. At the same time, amnesties designed to bring an end to rebel violence have remained popular since the 1970s, with mounting international pressure to prosecute seemingly having little impact on the desires of states to use guarantees of impunity to end conflicts within their borders. This chapter traces the evolution of amnesties designed to end violence from their permissive application as part of the Arias Plan in Central America to the highly restrictive stance taken up more recently by the United Nations. In particular, the chapter highlights 1999 as the year in which the

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most significant turning point in the acceptance of amnesties took place. As we will see, 1999 was the year in which the United Nations issued the definitive statement that impunity for gross violations of human rights, including genocide and crimes against humanity, was too great a price to pay for peace. At the same time, however, it also notes that despite these moves, amnesties have persisted as a consistent feature of peace agreements because they continue to be perceived as a useful way of ending violence when all other attempts have failed.

Amnesties to End Rebel Violence Amnesties designed to bring an end to rebel violence are usually offered by states on a unilateral basis in contexts of ongoing civil violence perpetrated by rebels, guerrillas, insurgents, or paramilitary groups. The resort to offering an amnesty thus often indicates that the state is unwilling or unable to resolve the conflict at hand in other ways, particularly by inflicting a decisive military defeat. Thus, amnesties used in these contexts are employed as what some have called a “pre-post-conflict device.”4 That is, they are a transitional justice mechanism used not in the context of a transition from authoritarian rule to democracy, or from violence to peace, but to effect a transition in the first place. Because states in this predicament usually lack sufficient power to end violence coercively, they also lack the ability to limit, restrain, or condition the application of the amnesties they offer too heavily, lest they reduce their value as a bargaining chip. Thus, amnesties offered to rebel groups to end civil violence tend to be broad and unrestricted. What is more, faced with demands from the civilian population to bring an end to violence and without significant international involvement in their design or implementation, these types of amnesties are generally not subject to the same pressure to prosecute that other amnesties face. As we saw in Chapter 1, amnesties designed to end rebel violence are the most popular type of amnesty after those implemented to facilitate the release of political prisoners. What is more, their popularity has remained relatively stable since the 1970s. This is possibly due in part to the fact that many states have offered reiterated amnesties to rebel groups operating within their borders. Two pertinent examples of the reiterated use of amnesties to end violence are found in the cases of Nepal and Angola, both of which ultimately resulted in the signing of a peace agreement. In Nepal, violence

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perpetrated by Maoist rebels between 1996 and 2006 resulted in the deaths of some sixteen thousand individuals as well as the entrenchment of widespread torture and other human rights violations. Instigated by the Communist Party of Nepal, which aimed to overthrow the Nepalese monarchy, the conflict also left more than one hundred thousand people displaced. In an attempt to curb violence perpetrated by the Maoist rebels, the government of Nepal issued unilateral offers of amnesty on three separate occasions, in 1998, 1999, and 2003. In 1999, Prime Minister Krishna Prasad Bhattarai offered an amnesty to rebels on the condition they surrender their arms. This offer of amnesty came “in the wake of growing pressure on the government to find a solution to the [then] four-year[-old] Maoist insurgency.”5 In the wake of a similar offer in 2003, the Maoist leader Pushpa Kamal Dahal “issued a statement calling the government offer ‘an extremely ridiculous and shameless exercise.’ ”6 In particular, the Maoist rebels interpreted the offer of amnesty as a sign that government forces were unable to defeat them militarily. On 21 November 2006, a Comprehensive Peace Accord was signed between the government of Nepal and the Communist Party of Nepal (Maoist). Although amnesty is not mentioned in the terms of the accord, considerable ambiguity surrounds the question of whether those held responsible for perpetrating human rights violations will be prosecuted. For example, Article 7.3.1 states, “Both sides express the commitment that impartial investigation and action as per the law would be carried out against the people responsible in creating obstructions to the exercising of the rights envisaged in the letter of agreement and guarantee not to encourage impunity. Apart from this, they shall also guarantee the right to relief of the families of the conflict and torture victims and the disappeared.”7 Yet, in an earlier provision “[b]oth sides guarantee[d] to withdraw accusations, claims, complaints and under-consideration cases levelled against various individuals due to political reasons and immediately make public the state of those imprisoned and immediately release them” without specifying the crimes to which these accusations pertain.8 More recently, the question of amnesty has arisen in the context of the proposed establishment of a Truth and Reconciliation Commission “to probe about those involved in serious violation of human rights and crimes against humanity in course of the armed conflict.”9 In 2011, an agreement between the Unified Communist Party of Nepal–Maoist, previously the Communist Party of Nepal (Maoist), and the United Democratic Madhesi Front called for the government to “withdraw criminal cases and grant amnesty

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to people accused of human rights violations” as part of the ongoing peace and reconciliation process.10 This agreement has brought two main results. First, the promise of amnesties for war crimes has been credited with inspiring large numbers of Maoist rebels to surrender their weapons and decamp in 2011. Second, it has raised the specter of amnesties granted by truth commissions in the context of Nepal’s planned TRC. At the time of writing, the Nepalese parliament was considering a bill to grant “amnesty power” to the proposed commission, on the basis that “amnesty would be offered in exchange for truth” in the face of considerable international pressure not to provide impunity to those accused of human rights violations, even in exchange for truth.11 In this, criticism made of the proposed Nepalese amnesty reflects a shift from acceptance of amnesties as an instrument for garnering the truth, as in the case of South Africa, to the notion that even the South African amnesty would now be considered illegitimate in international legal terms. Like the case of Nepal, the case of Angola provides a useful example of reiterated instances of amnesties offered to rebels that ultimately ended in a peace agreement and, in doing so, reflected broader shifts in international perspectives on the use of amnesties to procure peace. Between 1975 and 2002, Angola was gripped by a civil war that resulted in the deaths of more than a million people and left around four million others displaced from their homes.12 Beginning at the time of Angola’s independence from Portugal, the conflict was primarily fought by three liberation movements, the People’s Movement for the Liberation of Angola (MPLA), the National Front for the Liberation of Angola (FNLA), and the National Union for the Total Independence of Angola (UNITA), as well as a separatist group, the Front for the Liberation of the Enclave of Cabina (FLEC), which continued its struggle after the end of the civil war in 2002. Throughout the civil war, the Angolan government offered amnesties, mostly on a unilateral basis and occasionally as a precursor to a peace agreement, to the various rebel groups challenging its power. In 1978 and 1980 it offered amnesties to members of the FNLA, while in 1983 it offered similar immunity to members of the FNLA and UNITA willing to lay down their arms. In 1989, at a meeting in Launda with several other African heads of state, “the president of Angola put forward a comprehensive plan of national reconciliation in Angola, which provided for an end to the armed conflict, an amnesty to the rebels and the reintegration of UNITA forces and cadres into the Angolan government and Army.”13 The leader of UNITA, Jonas

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Savimbi, was henceforth invited to attend a summit in Gbadolite, Zaire, the following month at which it was reported he accepted “a ‘temporary and voluntary retirement’ in exchange for amnesty and national reconciliation.”14 Savimbi denied having made any such agreement, and UNITA rejected the general amnesty offer and, before long, announced the resumption of a “general offensive.”15 A similar amnesty was offered again in 1990. In 1991, Savimbi and the president of Angola José Eduardo dos Santos of the MPLA signed the Bicesse Peace Accords in Portugal. The Bicesse Accords provided for a transition to multiparty elections and again included an amnesty to be afforded to the rebels. The agreement was heralded as a model of Cold War peacemaking, with the U.S. secretary of state, James Baker, remarking that it “offered an ‘opportunity to show the world that a multi-party democracy can be built where there was destruction and mistrust.’ ”16 Yet, within a year, enthusiasm had abated, “the country had entered a new and bloodier phase of conflict,” and the “peace accord had become a lesson on what to avoid in a new era of peacemaking.”17 In the elections that followed the Bicesse Accords, Savimbi received just 40 percent of the vote and it soon became “clear that his adherence to the ceasefire had hinged on the belief that UNITA would win the elections.”18 In 1994, the government of Angola and UNITA signed the Lusaka Protocol, which required UNITA to respect the core principles of the Bicesse Peace Accords and reiterated the amnesty provision previously offered. Annex 6 of the Lusaka Protocol, which addresses the issue of national reconciliation, thus states, “In the spirit of National Reconciliation, all Angolans should forgive and forget the offenses resulting from the Angolan conflict and face the future with tolerance and confidence. Furthermore, the competent institutions will grant an amnesty, in accordance with Article 88(h) of the Constitutional Law, for illegal acts committed by anyone prior to the signing of the Lusaka Protocol, in the context of the current conflict.”19 Again, Savimbi refused to adhere to the terms of the agreement and continued to fight. By the end of 1999, “a major military offensive by the Angolan government reclaimed almost all the territory it had lost to the UNITA rebels during the previous years.”20 With Savimbi and the rest of the UNITA leadership on the run, however, it offered an amnesty once more, suggesting to Savimbi that “if he were to ask for it and ask for the forgiveness of the Angolan people” he would receive it.21 This was followed, three months later, by an offer of general amnesty to all rebels, including Savimbi, who laid down their arms and adhered to the terms of the peace process. By now the Ango-

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lan government had realized that it had three options available if it wanted to bring a permanent end to the violence. First, it could continue its military offensive, reestablish its authority over all of Angolan territory, and, in doing so, capture Savimbi and prosecute him as a war criminal. Second, it could continue its military operations and kill Savimbi in combat. And third, it could continue to offer Savimbi an amnesty in the hope that he would surrender. As it happened, Savimbi chose the second option. In February 2002 he found himself “surrounded by government troops.” Rather than surrender, he fought to the death.22 In the absence of Savimbi, the peace process was back on track with the government of Angola and UNITA signing a Memorandum of Understanding Addendum to the Lusaka Protocol. In it, the government guaranteed to approve and publish “an Amnesty Law for all crimes committed within the framework of the armed confl ict between the UNITA military forces and the Government.”23 Interestingly, “[t]he special representative of the UN Secretary-General, who signed the Memorandum as a witness, made a handwritten disclaimer to the effect that the UN ‘does not recognise amnesties for crimes against humanity and war crimes.’ ”24 This was despite the fact that the original Lusaka Protocol, also signed under the auspices of the United Nations, did not include such a disclaimer. Indeed, in the period that had elapsed between the 1994 Lusaka Protocol and the 2002 MoU, the United Nations’ position on amnesties included in peace agreements had shifted considerably. Thus, while the Lusaka Protocol accorded with the general pattern of permissive amnesties implemented prior to 1999, the MoU reflected a new, restrictive understanding of the legitimate use of amnesties in peace settlements. Though obviously unique, the reiterated amnesties offered to rebel groups in Nepal and Angola provide interesting insights into the use of amnesties designed to bring an end to rebel violence more generally. Of the forty-three states that offered amnesties to rebel groups between 1974 and 2007, twentyeight offered the amnesty more than once. Of these, nineteen offered the same amnesty three or more times, resulting in the institution (conscious or otherwise) of a reiterated pattern of amnesties. The implication of this pattern is that granting amnesties to violent rebel groups is not an effective means of ending violence. If it were, we would expect to see states achieve their desired end following the implementation of the initial amnesty, thereby eliminating the need to reiterate it. Even if we were to suppose that each state that employed this type of amnesty

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eventually achieved peace as a result, the success rate would be only around 34 percent.25 As we will see in the concluding chapter of this book, however, this assumption renders a conclusion that is far too generous: the rate at which amnesties offered to rebels actually bring peace, either in isolation or by contributing to the signing of a peace agreement, is even lower. A preliminary conclusion might thus suggest that states continue to offer amnesties to rebel groups for one of two main reasons: first, despite evidence to the contrary, amnesties are perceived as being a useful way of procuring peace, and/or, second, amnesties constitute a last resort for states attempting to deal with protracted violent confl icts. Where intractable confl icts are concerned, even a low probability of success affords some possibility of peace where perhaps there otherwise was none, an outcome preferable to ongoing violence.

Permissive Amnesties in Peace Accords The second broad context in which amnesties are instituted to end violence sees them used as a tool to encourage hostile parties to sign peace agreements. Where amnesties have been included in peace agreements we can identify a move (through, as we will see, not a comprehensive one) from the permissive amnesties of the 1980s to increasingly restrictive demand being placed on those charged with draft ing amnesty laws. In accordance with the general nature of peace accords, until recently amnesty provisions included in their terms have often entailed nothing more than a guarantee that the parties to the agreement will institute an amnesty law subsequent to its signing. This, of course, has meant that the terms of the amnesty, including precisely which individuals it applies to and which crimes are included and excluded, are not specified. For example, in 1987 the Arias Peace Plan, designed to establish “a firm and lasting peace in Central America” and signed by the presidents of Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua, included the following amnesty provision: “In each Central American country, except those where the International Commission of Verification and Follow-Up determines that such a mea sure is not necessary, an amnesty decree will be issued containing all the provisions for the guarantee of the inviolability of life; as well as freedom in all its forms, property, and the security of the persons to whom these decrees apply. Simultaneous with the issuing of the am-

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nesty decree by the government, the irregular forces of the representative country will place in freedom all persons in their power.”26 This open-ended provision did not make explicit “who should be included in the amnesty nor who should be excluded” and did not specify “any limits or restrictions on the scope of amnesty.”27 Thus, the signatories to the Arias Plan were granted the freedom to determine the terms of their states’ amnesties independently. As the Nicaraguan president, Daniel Ortega argued, “We signed the agreement to bring peace to Nicaragua, but the agreement does not define the type of amnesty we must give.”28 In an attempt to placate a group of mothers whose sons had been killed fighting against the recipients of an amnesty, he thus explained that the Arias Plan “does not obligate us to give a general amnesty, and we will take into account the document, the feelings of the Nicaraguan mothers and the necessity of justice.”29 Following a great deal of vacillation and political maneuvering, however, in the end the Nicaraguan government agreed to a “general amnesty for persons on trial and convicted of violations of the Law for Maintenance of Order and Public Security, and for members of the army of the previous regime for crimes committed before July 19, 1979.”30 It was a gradual amnesty, allowing for the release of the “first 100 prisoners on Palm Sunday,” 50 percent of the remaining prisoners on verification that the Nicaraguan resistance forces had restricted themselves to the “mutually agreed upon zones,” and the final 50 percent “on a date after the signing of the definitive cease-fire.”31 By 1989, the Sandinista government had begun negotiations with the opposition regarding a national reconciliation process and, in the end, agreed to holding internationally monitored elections in February 1990.32 Reconciliation in this case entailed the establishment of Nicaragua’s Reconciliation Commission, headed by Archbishop Miguel Obando y Bravo. Charged with monitoring the ceasefire agreement and the democratization process, the Reconciliation Commission did not have a truth seeking component. As Rose Spalding thus notes, “[p]ushed to ‘reconcile,’ without a chance to air their grievances, clarify abuses, and call to account, combatants on both sides” remained “hostile and unreceptive” and, as a result, “Nicaragua tipped quickly back into demiwar.”33 Thus although the Arias Plan and its associated amnesty did bring a cessation of hostilities to Nicaragua, in the absence of any other transitional justice mechanisms the peace it brought was limited and fragile. More readily cited as a peace settlement amnesty success story is the case of Mozambique. On 25 June 1975, after thirteen years of struggle,

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Mozambique finally gained independence from Portugal. Less than two years after the “extremely abrupt” departure of the Portuguese colonial administration, however, Mozambique was engaged in a bloody civil war that would last for fifteen years and leave between six and nine hundred thousand people dead (either as casualties of war or through starvation).34 The conflict was primarily fought between the Frelimo (Frente de Libertação de Mozambique) government that had assumed control after the departure of the Portuguese and Renamo (Resistencia National Moçambicana), a resistance movement established in 1976 backed by “the White minority rulers in neighbouring Rhodesia” and their South African counterparts “who felt threatened by the collapse of White colonial rule in Mozambique and Angola and by the support that Frelimo gave to Black nationalist guerrillas inside Rhodesia.”35 By the late 1980s, however, South Africa’s apartheid government was falling apart and support for Renamo was dwindling. Thus, in August 1989, the leader of Renamo, Afonso Dhlakama, met with the president of Mozambique, Joaquim Chissano, in Kenya to begin discussions about a peace settlement. Although this initial meeting did not lead to an agreement, after two rounds of negotiations the parties agreed to participate in direct negotiations to be held in Rome and sponsored by the Sant’Egidio Community, a lay Catholic organization. Mozambique’s General Peace Agreement (GPA) was finally reached in Rome in 1992. At its center was a general amnesty “granted to all Mozambicans in violation of the law and the normative practices of the government” and the release of all political prisoners.36 The idea of using an amnesty to end the civil war was not, however, a new one but had been unsuccessfully attempted on a unilateral basis by Frelimo in 1987. Unlike earlier attempts, the amnesty provided in the GPA was realized with the promulgation of Law No. 15/92, which “granted generalised and unconditional amnesties for crimes committed between 1979 and 1992 in Mozambique.”37 While the GPA made reference to the importance of “human rights in the process of stabilization and development,” it was primarily intended to bring an end to war and provide “a comprehensive framework for the transition to democracy.”38 As Raúl Domingos, the head of the Renamo negotiating team, noted in an interview with Helena Cobban, “We agreed that no one should be prosecute for what had been done during the war—because if so, then both sides would be prosecuted! For the benefit of peace and reconstruction we needed to forget those things. We agreed on that approach in the very end; and all the things that we agreed on in Rome, including the general amnesty, were

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adopted by the Mozambican parliament. . . . No, we never discussed the idea of offering amnesty in exchange for truth telling.”39 However, as Brazão Mazula has noted, this part of the agreement took “five or six very difficult” months to resolve before the negotiations even started. As he explains, both Frelimo and Renamo initially required the other party to acknowledge the crimes they had committed in the past as a prerequisite for holding peace talks. Such was the tension associated with the issue of mutual recognition of past crimes that it was “almost impossible” to even “get negotiations started.” In the end, through Church-led mediation, “a policy of ‘reconciliation’ was agreed to, which was understood to mean that there were crimes, that they were forgiven, and that there would be a general pardon.”40 In this case, amnesty facilitated not simply the signing of a peace agreement but the peace negotiation itself. In 1993 the United Nations Operation in Mozambique arrived in the country with a mandate to supervise the demobilization of combatants and assist in the preparations for democratic elections that were held in 1994. Due to the amnesty provision of the GPA, however, postconflict justice was left to the traditional healers, the curanderos and curanderas. As Carolyn Nordstom explains, the curandero/as use their skills and traditional practices to help individuals and communities to relearn “healthy ways.”41 According to the traditional philosophy that underpins social healing practices in Mozambique, when people commit an act of violence, they do so because they are suffering from a spiritual problem or “have some kind of a wrong spirit” with them.42 What is more, once such acts of violence have been committed, the soul of the perpetrator is “corrupted by what they have seen and done.” The role of the curanderos is thus to “take this violence out of these people.”43 Although some have argued that “Mozambican state officials failed to consider the implications that their enacted unconditional amnesty would have in the communities that had been severely affected by the civil war violence” and others have pointed to the limitations of traditional healing practices, it remains the case that the amnesty did facilitate what has been lasting peace.44

The Development of the United Nations’ Position I Mozambique’s amnesty came at a time when the United Nations’ position on amnesties was decidedly inconsistent. In 1992 the United Nations

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Human Rights Committee declared, with regard to the specific crime of torture, that “[a]mnesties are generally incompatible with the duty of States to investigate such acts (of torture); to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future.”45 This “cautious observation” was followed, in 1994, with a far stronger statement, which argued, Where [the investigations that States parties are required to undertake] reveal violations of certain Covenant rights, States parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment . . . summary and arbitrary killing . . . and enforced disappearance.46 Despite these claims, during the same period, however, amnesties were actively encouraged by the UN Security Council (in the cases of South Africa, Angola, and Croatia), the UN General Assembly (Afghanistan and Kosovo), and even the UN Commission on Human Rights (Bosnia and Herzegovina, and Sudan).47 In the case of Haiti in 1993, the Security Council “declared readiness to give the fullest possible support to the Agreement signed on Governors Island” because it believed that it was “the only valid framework for the solution of the crisis in Haiti.”48 In the same year, however, UN Secretary-General Boutros Boutros-Ghali “expressed regret over the amnesty law in El Salvador” but quickly dismissed it as “an internal matter.” 49 However, it was with the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY), also in 1993, that the UN made its strongest statement to date in support of accountability and against impunity.

The International Criminal Tribunal for the Former Yugoslavia

What makes the case of the former Yugoslavia particularly significant is that in this instance the “Security Council voted to create” an ad hoc interna-

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tional tribunal “while the fighting and atrocities still raged.”50 Acting under Chapter VII of the UN Charter, which confers upon the Security Council the power to pass binding resolutions in response to a threat to international peace and security, Security Council Resolution 827 argued that the establishment of an ad hoc international tribunal for the “prosecution of persons responsible for serious violations of international humanitarian law would . . . put an end to such crimes and . . . contribute to the restoration and maintenance of peace.”51 With this, the Security Council made a conscious decision not to purchase peace with amnesty. Rather, what hovered “over the negotiations . . . [was] the international community’s determination to bring to trial as war criminals those political leaders responsible for atrocities in Bosnia, including rape and ‘ethnic cleansing.’ ”52 Among the most prominent supporters of pursuing prosecutions for the perpetrators of human rights violations committed during the war in Yugoslavia was the United Nations rapporteur for the establishment of the Yugoslav war crimes tribunal, M. Cherif Bassiouni. He lamented the fact that “justice is all too frequently bartered away for political settlements. Whether in international, non-international, or purely internal conflicts the practice of impunity has become the political price paid to secure an end to the violence of ongoing conflicts or as a means to ensure tyrannical regime changes.”53 He argued, instead, that accountability is the key to peace and reconciliation. Without accountability, he suggested, “the embers of yesterday’s conflict can become the fire of tomorrow’s renewed conflict.”54 However, many others questioned whether it was “realistic to expect” the military leaders engaged in the war in Yugoslavia “to agree to a peace settlement . . . if, directly following the agreement, they may find themselves in the dock.”55 Thus Anthony D’Amato suggested that in this case a reasonable argument could be made that it would be “better to stop the bloodshed of innocent civilians . . . than to insist on punishing war criminals.”56 In short, he argued that “peace may here seem more important than justice.”57 However, the most vehement criticisms of the establishment of the ICTY during the peace negotiations came from an anonymous author, who argued in an article published in Human Rights Quarterly, “Thousands of people are dead who should have been alive—because moralists were in quest of the perfect peace. Unfortunately, a perfect peace can rarely be attained in the aftermath of bloody conflict. The pursuit of criminals is one thing. Making peace is another.”58 The author suggested that by insisting on the inclusion of justice measures the negotiators had prolonged the war by as much as two years.59

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What is more, they specifically sought to reinforce the divide between peace and justice, coming down heavily in favor of peace at the expense of justice. On this matter, the chief prosecutor of the ICTY, Judge Richard Goldstone, was firmly in the sights of the anonymous author who took aim at Goldstone’s claim that “he would not be deterred by delicate negotiations to reach a lasting peace deal” in his pursuit of justice. Goldstone, as the author noted, had stated that “[t]hese are matters that will not affect the decisions that we take, but they may affect how well we are able to do the job. . . . We are interested in building a body of legal evidence regardless of the political consequences.”60 This, according to the anonymous author, was “wrong as a policy,” for its consequences may be the “breakdown of the peace talks and thousands” more deaths.61 The anonymous article provoked several responses, including an official response in Human Rights Quarterly that expressed “dismay” that the author had been allowed “to remain anonymous, and that the article was so critical of the human rights community which had acted so vigorously and bravely during the conflict.”62 In it Felice Gaer acknowledged that “the war was prolonged” but denied that this was due to the “demands for justice” included in the peace negotiations. She suggested instead that “the unwillingness of the international community to uphold the principles it proclaimed emboldened the ethnic cleansers and warriors to continue to conduct both atrocities and military battles for ‘facts on the ground,’ thereby prolonging the peace negotiations.”63 While acknowledging the significant shortcomings of many of the key actors involved in the peace process, Gaer argued that the case of Yugoslavia was not an unmitigated failure in human rights terms. Rather, the “new human rights landscape” of the conflict “led to a series of extraordinary institutional innovations in the human rights field for the United Nations: the first emergency session of the Commission on Human Rights, the first Special Rapporteur (or investigator) appointed with authority to report continuously and to share the reports with the Security Council, the first human rights monitors sent by the Commission to be stationed in the field in the country under scrutiny, and the first war crimes commission and the first ad hoc war crimes tribunal convened by the Security Council.”64 Richard Goldstone also responded, on several occasions, to the charge that the work of the ICTY was “inimical to the peace process.”65 He argued, unsurprisingly, that it was not, and that such arguments were based on a false distinction between peace and justice. In particular, he noted that the decision of the Security Council to mandate the establishment of a war crimes

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tribunal for the former Yugoslavia was “founded upon the recognition of a direct link between peace and justice.”66 In defense of this decision, Goldstone argued that “a complete failure for act in trying to bring the criminals to justice is a recipe for long term violence.”67 In doing so, he acknowledged that the indictment of key individuals might “make current negotiations more difficult to carry out” but concluded that, in the end, the pursuit of justice “can only serve to assist” in achieving the aim of enduring peace.68 While the cases of Angola and the former Yugoslavia provided the first indication that the UN’s position on the use of amnesties in peace settlements may have shifted, it was with the case of Sierra Leone that it was finally spelled out.

The Case of Sierra Leone

One of the most brutal civil wars of the twentieth century, the war in Sierra Leone, began in March 1991 when the Revolutionary United Front (RUF), led by Foday Sankoh and supported by Liberian forces led by Charles Taylor, raided the border town of Bombali. Although figures cited vary considerably, over the next decade as many as 50,000 people were killed, two million were internally displaced, 500,000 lost their homes and became refugees, 400,000 survived the amputation of one or more limbs, and thousands “of children were killed, raped, mutilated” or “turned into brutal combatants.” 69 Following the failure of the Abidjan Peace Accord in 1996, the formal, if not material, end of hostilities was reached with the signing of the Lomé Peace Agreement in Togo on 7 July 1999.70 Largely an extension of the Abidjan Peace Accord, the Lomé Peace Agreement reiterated and extended an amnesty provision included in Article 14 of the earlier accord.71 As Priscilla Hayner notes, the amnesty was not only the first and “least controversial” item agreed on but also “settled quickly as ‘a prerequisite for any meaningful negotiation.’ ”72 However, the United Nations human rights officials and other members of the human rights community who advised those taking part in the negotiations were strongly opposed to the inclusion of an amnesty in the peace agreement. Although they recognized that calling for “comprehensive and immediate judicial accountability” would likely jeopardize the very attendance of the rebels at the negotiating table, they argued that the inclusion of a blanket amnesty would breach “international human rights standards and basic principles of

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combating a culture of impunity.”73 Instead, at least one international advisor produced a document that argued that any amnesty included in the final agreement should be individual, as opposed to blanket, should exclude “crimes of universal jurisdiction,” and should be “dependent on full cooperation with the Truth and Reconciliation Commission.”74 In the end, however, their advice was not heeded and a blanket amnesty was included. This, as Attorney-General Berewa explained, reflected the government’s deliberate decision to choose peace over international justice: “The government’s position was clear. What we wanted most, above everything else, was peace, for the war to come to end. Whatever the view of the international community was not our business. Whatever we could do to produce that result, we would do.”75 As one UN official noted, the UN team also seemed resigned to this reality: “It was about strategy and tactics. The strategy was to pursue peace. The tactics included: don’t let justice get in the way. It was the price to pay for peace.”76 Article IX of the Lomé Peace Agreement thus states that “[a]fter the signing of the present Agreement, the Government of Sierra Leone shall also grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present Agreement.” In addition to granting a blanket pardon, it also included an amnesty “[t]o consolidate the peace and promote the cause of national reconciliation.”77 According to its terms, the government of Sierra Leone agreed to “ensure that no official or judicial action is taken against any member of the RUF/SL [Revolutionary United Front], ex-AFRC [Armed Forces Revolutionary Council], ex-SLA [Sierra Leone Army] or CDF [Civilian Defense Forces] in respect of anything done by them in pursuit of their objective as members of those organisations, since March 1991, up to the time of the signing of the present Agreement.”78 In addition, the amnesty provision also granted an “absolute and free pardon” to Corporal Foday Sankoh, who had been captured in Nigeria before being tried and sentenced to death in Freetown.79 As is well known, however, immediately after the signing of the Lomé Peace Agreement, the Special Representative of the United Nations SecretaryGeneral, Francis Okello, at the request of Secretary-General Kofi Annan added a “hastily scribbled . . . note” stating that the “United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law.”80

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As Robertson notes, however, this was not what the signatories to the agreement had intended but rather reflected discomfort and, indeed, disapproval of amnesties for crimes against humanity by the international community.81 Indeed, as Hayner reveals, when rebel leader Foday Sankoh, who had signed the agreement before Okello, realized that the amendment had been attached, he said, “ ‘What does this mean? Are you going to try us?’ No one answered, and the signing ceremony continued.” 82 Whatever the intention of the signatories of the Lomé Agreement, “Okello’s disclaimer revealed itself as a watershed for the UN Secretariat’s position on amnesties and ultimately mutated into the public baseline of the United Nations’ position.” 83 It remains unclear whether, at the time of signing the Lomé Peace Agreement, Okello had the chance to read a document attached to a cable sent by the Office of the United Nations Secretary-General on peace negotiations. In his Guidelines for United Nations Representatives on Certain Aspects of Negotiations for Conflict Resolution, the secretary-general made it clear that the “United Nations could not condone amnesty for war crimes, crimes against humanity, or genocide.” 84 The guidelines were, according to the secretary-general, intended as “a useful tool with which the United Nations can assist in brokering agreements in conformity with law and in a manner which may provide the basis for lasting peace . . . [and] a significant step in the direction of mainstreaming human rights.”85 As we will see shortly, these guidelines have provoked concern that rather than assist the brokering of peace agreements they unwisely restrict options available to negotiators. Despite widespread agreement that “an amnesty was necessary for a peace agreement to be reached” in the case of Sierra Leone, to say that the Lomé amnesty has been controversial is a vast understatement. In the face of widespread criticism, in a statement before the Truth Reconciliation Commission also established by the Lomé Peace Agreement for Sierra Leone, President Kabbah confirmed, “We had resisted the persuasions of the international community for the exclusion of war crimes, crimes against humanity and against international humanitarian law from the applicability of the amnesty provision in the Lome Agreement. We did this deliberately.”86 However, in the immediate aftermath of the Lomé Peace Agreement, the UN secretary-general had explained his instruction to the UN representative present at the negotiations and, in doing so, reiterated the UN’s position on amnesties. In a report to the UN Security Council he stated,

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As in other peace accords, many compromises were necessary in the Lome Peace Agreement. As a result, some of the terms under which this peace has been obtained, in particular the provisions on amnesty, are difficult to reconcile with the foal of ending the culture of impunity, which inspired the creation of the United Nations Tribunals for Rwanda and the Former Yugoslavia, and the future International Criminal Court. Hence the instruction to my Special Representative to enter a reservation when he signed the peace agreement, explicitly stating that, for the United Nations, amnesty cannot cover international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.87 The question of the legitimacy of the Lomé amnesty became even more fraught with the decision of the government of Sierra Leone to pursue the establishment of a tribunal to try those accused of the worst atrocities. As the Permanent Representative of Sierra Leone to the UN wrote in a letter to the president of the Security Council, the aim of the Lomé Peace Agreement “was to bring peace and a permanent cessation” to the conflict and to atrocities “described generally as the worst in the history of civil conflicts.” To facilitate that end, he continued, the government of Sierra Leone had “even conceded to the granting of total amnesty to the RUF leadership and its members in respect of all the acts of terrorism committed by them up to the date of the signing of that Peace Agreement.” Since then, however, the RUF had “reneged on the Agreement” by continuing its violent activities. As such, the government of Sierra Leone requested that the United Nations establish a tribunal to try the RUF leadership and provided a draft “[f]ramework for the special court for Sierra Leone.” The mandate of that court, it suggested, should be narrow in its design, allowing for the prosecution of “the most responsible violators and the leadership of the Revolutionary United Front.”88 On 14 August 2000, the UN Security Council agreed in Resolution 1315 that the UN secretary-general should negotiate an agreement with the government of Sierra Leone to establish a court. Following a period of negotiations, the Special Court for Sierra Leone was established on 16 January 2002.89 Article 10 of the Statute of the Court states that “[a]n amnesty granted to any person falling within the jurisdiction of the Court in respect of the crimes referred to in articles 2 to 4 of the present Statute [crimes against humanity, violations of the Geneva Conventions and of

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Additional Protocol II and other serious violations of international humanitarian law] shall not be a bar to prosecution.”90 The court has subsequently indicted thirteen individuals, including, most famously, Charles Taylor, to stand trial.91 The question of amnesty was raised with the cases of Prosecutor v. Morris Kallon and Prosecutor v. Brima Bazzy Kamara, the subjects of which were indicted for war crimes, crimes against humanity, and other serious violations of international humanitarian law. In separate preliminary motions, the defendants both challenged the jurisdiction of the court and appealed to the amnesty provision contained in the Lomé Peace Agreement. Referring to the Vienna Convention on the Law of Treaties, they argued that “obligations deriving out of an international treaty could not be altered by a later treaty . . . without the consent of the parties to the Lome Agreement.”92 That is, they maintained that the amnesty provided in the Lomé Agreement could not be overruled by the Statute of the Court. In the Lomé Amnesty Decision of 13 March 2004, the Appeals Chamber of the court found that the “mere fact that the United Nations and other third State parties signed the Lomé Agreement” as “moral guarantors” did not mean that the Lomé Agreement could be categorized as an international treaty.93 These moral functions, it determined, did not “presuppose a legal obligation” and, as such, did not confer on the agreement the status of an international treaty governed by the Vienna Convention on the Law of Treaties. In addition, it also found that as the court is “concerned only with international crimes,” the provision of an amnesty in the “domestic law of Sierra Leone is of no importance for its conclusion.”94 Finally, and most significantly, the Appeals Chamber also ruled that amnesties cannot be declared for “crimes under international law that are the subject of universal jurisdiction.” In doing so, it argued that “it stands to reason that a state cannot sweep such crimes into oblivion and forgetfulness which other states have jurisdiction to prosecute by reason of the fact that the obligation to protect human dignity is a peremptory norm and has assumed the nature of obligation erga omnes.”95 These rulings were upheld in a further three cases. The United Nations’ about-face on the subject of amnesties has remained controversial. In its final report, the Sierra Leone Truth and Reconciliation Commission stated that it was “not clear why” the United Nations had accepted unconditional amnesty, only to later condemn it. It also stated that it was

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unable to condemn the resort to amnesty by those who negotiated the Lome Peace Agreement. The explanations given by the Government negotiators, including in their testimonies before the Truth and Reconciliation Commission, are compelling in this respect. In all good faith, they believed that the RUF would not agree to end hostilities if the Agreement were not accompanied by a form of pardon or amnesty. Accordingly, those who argue that peace cannot be bartered in exchange for justice, under any circumstances, must be prepared to justify the likely prolongation of an armed conflict. Amnesties may be undesirable in many cases. . . . The Commission also recognizes the principle that it is generally desirable to prosecute perpetrators of serious human rights abuses, particularly when they rise to the level of gravity of crimes against humanity. However, amnesties should not be excluded entirely from the mechanisms available to those attempting to negotiate a cessation of hostilities after periods of brutal armed conflict. Disallowing amnesty in all cases is to deny the onground reality of violent conflict and the urgent need to bring such strife and suffering to an end.96 It thus concluded the chapter of its report that addressed “Lomé, Amnesty and the TRC” by stating that it was “unable to declare that it considers the amnesty too high a price to pay for the delivery of peace to Sierra Leone,” although, it did acknowledge that peace did not immediately follow the signing of the Lomé Agreement.97

The Case of East Timor

If the United Nations introduced its new position on amnesties with the case of Sierra Leone, it was during the evolution of the case of East Timor that it consolidated that position. The invasion of East Timor by Indonesia on 7 December 1975 marked the beginning of more than twenty years of human rights violations for the people of East Timor. As the report prepared by the Commission for Reception, Truth and Reconciliation in East Timor notes, some 102,800 people died as a result of East Timor’s ensuing independence struggle. Of these, 18,600 were killed while 84,200 “excess” deaths occurred as the result of war-related starvation and disease.

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In 1975, the East Timorese guerrilla force Falintil, the military wing of Fretilin (Frente Revolucionária do Timor Leste Independente), launched an offensive against the Indonesian military forces that occupied East Timor. A “well-trained” army, Fretilin “mounted stiff resistance,” resulting in a “bloody struggle” that continued for many years.98 In 1991, however, the Timorese independence movement began to attract widespread international support. This came in the aftermath of the Dili Massacre, during which more than 250 proindependence demonstrators were killed in the Santa Cruz cemetery. However, the worst of the violence was yet to come. In 1999 the Indonesian government announced that it was willing to hold a referendum on independence in East Timor. In the lead-up to the vote, “pro-Indonesian militia, supported by Indonesian security forces, used violence, threats, and intimidation in an attempt to goad the East Timorese population into supporting continued integration in Indonesia.”99 Despite this, on 30 August 1999, facilitated by the United Nations Mission in East Timor (UNAMET), the people of East Timor overwhelmingly voted in favor of independence. In an act of apparent revenge, pro-Indonesia militias killed “an estimated one thousand supporters of independence,” sent hundreds of thousands of people fleeing from their homes, forcibly expelled many others into Indonesia, and generally terrorized the East Timorese population with “murders, assaults, rapes, and torture, combined with widespread arson, looting, and plunder.”100 Following negotiations between the governments of Indonesia and Australia and the United Nations, on 15 September 1999 the UN Security Council passed a resolution authorizing an Australian-led multinational intervention into East Timor to quell the violence. INTERFET (Intervention Force for East Timor) was deployed on 20 September 1999 with a mandate “to restore peace and security in East Timor, to protect and support UNAMET in carry ing out its tasks and, within force capabilities, to facilitate humanitarian assistance operations.”101 The Security Council authorized “the States participating in the multinational force to take all necessary measures to fulfil this mandate” and did not specifically exclude the use of amnesties as a “necessary measure”—the resolution does not mention amnesties at all.102 However, in the preamble of the resolution the Security Council expressed “concern at reports indicating that systematic, widespread and flagrant violations of international humanitarian and human rights law have been committed” and stressed that “persons committing such violations bear individual responsibility.”103 Thus, although the Security Council

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did not take an explicit stance on amnesties in this case, it indicated that some sort of individual accountability for human rights violations was expected. Of course, by now, the Juba Peace Agreement had been signed and thus debate about Sierra Leone’s amnesty was well under way. With no direct guidance as to how best to address past human rights violations, INTERFET and the United Nations Transitional Administration in East Timor (UNTAET), which replaced the INTERFET administration in October 1999 and military command in February 2000, was left to determine the most appropriate course of action. In 2000, UNTAET promulgated Regulation 2000/15 establishing the Serious Crimes Special Panels within the District Court in Dili to try individuals accused of genocide, war crimes, crimes against humanity, murder, sexual offenses, and torture.104 To complement the Special Panels, in 2001 it also established the Commission for Reception, Truth and Reconciliation (CAVR). Its central objectives were to “establish the truth regarding the commission of human rights violations in East Timor” and to “assist the reception and reintegration of persons into their communities” who had committed “criminal or non-criminal acts . . . within the context of the political conflicts in East Timor between 25 April 1974 and 25 October 1999.”105 As part of this latter objective, Regulation 2001/10 mandated the establishment of a Community Reconciliation Process (CRP) vested with the power to grant immunity to those who “fully complied with all obligations arising under” the Community Reconciliation Agreement into which they entered.106 The obligations included the public disclosure of the truth regarding the individuals’ involvement in criminal activities and the execution of acts of reconciliation such as community service, reparation, public apology, or another act of contrition.107 Significantly, however, the regulation did not extend amnesty to those who were found to have committed a “serious criminal offence,” such as those under the jurisdiction of the Special Panels.108 Thus, while East Timor’s CRP followed the South African model by demanding truth in return for amnesty, it diverged from the South African approach by conferring amnesty only upon those who had committed low-level crimes. In 2005, however, with the establishment of the Commission for Truth and Friendship (CTF), a bilateral Indonesian–East Timorese truth commission, the scope of amnesties available for the perpetrators of human rights violations was cast much wider. Article 14(c)(1) of the Terms of Reference (ToR) establishing the CTF state that the commission “may recommend am-

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nesty for those involved in human rights violations who cooperate fully In revealing the truth.”109 In doing so, the ToR of the CTF do not distinguish between serious and lesser crimes, thus opening up the possibility that perpetrators of war crimes and crimes against humanity may be amnestied.110 In an attempt to address criticisms of this provision, in the glossary the ToR amnesty is defined as being for those involved in Human Rights violations who fully cooperate in establishing the truth. Amnesty will only be recommended by the CTF if the following conditions are met: the suspect provides considerable assistance to the CTF in establishing the truth, and must appear and admit his role and responsibility in incidents of human rights violations. Notes (provisions for recommendation): Amnesty will be recommended for suspects who have fulfi lled the requirement of being cooperative. Suspects are obliged to make a public statement expressing regret which includes an individual apology and/or will emphasize institutional responsibilities.111 Full cooperation is conceived here in terms of “sincere and open testimony/ clarification that contributes to establishing the truth.”112 In this vein, the CTF may be interpreted as having the power to grant amnesties to the perpetrators of “less serious crimes” who told the truth about their actions to the commission.113 This was not, however, the United Nations’ interpretation of the Terms of Reference. In 2007, it decided to “boycott” the CTF because it left open the possibility of recommending amnesties “in respect of acts that constitute a crime against humanity, a gross violation of human rights or a serious violation of international humanitarian law.”114 As spokesperson for the secretary-general, Ban Ki-moon, argued, “the Organization cannot endorse or condone amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, nor should it do anything that might foster them.” She added that “[u]nless the terms of reference are revised to comply with international standards, officials of the United Nations will, therefore, not testify at its proceedings or take any other steps that would support the work of the CTF and thereby further the possible grant of amnesties in respect of such acts.” This position was consistent with that expressed by the

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former secretary-general Kofi Annan in August of the previous year when he stated that it “would be deeply regrettable, however, if the reconciliation process foreclosed the possibility of achieving accountability.”115 This sentiment played into debates that have continued to take place about the role of amnesties and forgiveness among the people of East Timor. In August 2007 East Timor celebrated the tenth anniversary of its independence from Indonesian rule. Commemorated with joyous festivities at the very place on Dili’s foreshores where militia leader Eurico Guterres had instructed his followers to seek out and kill independence supporters a decade earlier, the occasion was marked by a controversial statement by the president of East Timor and Nobel laureate José Ramos-Horta. In the statement, RamosHorta called for an end to investigations led by the United Nations Serious Crimes Unit into atrocities committed by Guterres’s forces and other factions in East Timor’s bloody struggle for independence. “My stated preference, both as a human being, victim, and head of state,” he said, “is that we, once and for all, move [beyond] that 1975–1999 chapter of our tragic experience, [and] forgive those who did harm to us.” “We must forgive our brothers and sisters and those in the Indonesian army who committed heinous crimes against us,” he said.116 Ramos-Horta, along with his co–Nobel laureate, Bishop Ximenes Belo, has long been an enthusiastic advocate of forgiveness and reconciliation as the means of achieving peace and justice in East Timor. In his Nobel Peace Prize acceptance speech, Belo argued, “To make peace a reality we must be flexible as well as wise. We must truly recognise our own faults and move to change ourselves in the interests of making peace. . . . Let us banish anger and hostility, vengeance and other dark emotions, and transform ourselves into humble instruments of peace. . . . The people in East Timor are not uncompromising. They are not unwilling to forgive and overcome their bitterness. On the contrary they yearn for peace—within their community and within the region.”117 In a 1998 human rights oration, Ramos-Horta similarly argued that “[w]e have to appeal to our best sentiments of humility, tolerance and forgiveness not to allow the demand for justice and the temptation for revenge to be blurred.”118 In doing so, he struck straight at the heart of the problem of how postconflict states are best able to strike a balance between the demands of justice and the desire for peace. For RamosHorta, this balance is best achieved by eschewing conventional forms of criminal justice in favor of alternative justice and peacebuilding mecha-

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nisms. Pursuing the prosecution of perpetrators of human rights and war crimes is, he argues, counterproductive, for it ignores the fragility of the new state of East Timor and could very well result in “the unraveling of a fragile peace.”119 Prosecutions, Ramos-Horta argues, often amount to little more than “victor’s justice,” feeding “resentments and grievances” and ultimately doing “more harm than good to the prospects for lasting peace and reconciliation.”120 However, Ramos-Horta’s “forgiving stance” came under serious fire.121 Human rights advocates, campaigning under the slogan “no reconciliation without justice,” have argued that the approach favored by Ramos-Horta and the prime minister of East Timor, Xanana Gusmão, masks “an unpleasant reality” that provides impunity for members of the Indonesian military (TNI) accused of human rights violations.122 This, they maintained, would amount not to justice but the circumventing of justice. As Christine Carrascalao, the sister of a man killed by Guterres’s men in 1999, argued, “Justice is not about forgiving. It is about setting what is right and what is wrong.”123 As we will see in the following section, these debates about the relationship between peace and justice mirrored those taking place more widely among scholars and practitioners of transitional justice.

The Legacy of Abuse From 10 to 12 November 2000, the Aspen Institute, together with the Hauser Global Law School Program at New York University School of Law, hosted another conference, this time “to discuss important new developments in the field of transitional justice in the past decade.”124 Held at Wye Woods, Maryland, and sponsored by the Ford Foundation, the conference was explicitly posed to follow-on from the State Crimes: Punishment or Pardon conference held in Aspen in 1988. The two conferences shared several common aspects, the most significant of which was that several key participants from Aspen, including Alice Henkin, José Zalaquett, and Juan Méndez, were also in attendance at Wye Woods. They were joined by Alex Boraine (the cofounder of IDASA and former vice chair of South Africa’s Truth and Reconciliation Commission who was by then the director of the Project on Transitional Justice at New York University), Catherine Fitzpatrick, Carol Gluck, Kent Greenawalt, Thomas Hammarberg, Priscilla Hayner, Michael

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Ignatieff, D. Bambi Kraus, Neil Kritz, Ian Martin, Gabriele Kirk McDonald, Bacre Waly Ndiaye, Michael Posner, Kenneth Roth, Philippe Sands, Jonathan Steinberg, Paul van Zyl, and Patricia Viseur-Sellers. In the twelve years that had elapsed since Aspen, however, the landscape of transitional justice had changed significantly. Whereas in the late 1980s “there appeared to be ‘only two ways in which successor regimes might deal with human rights violators who had remained part of the community . . . arrest, prosecute, and punish, or amnesty and amnesia’ ” by then the realization had dawned that “[p]unishment or pardon [were] no longer the only available options.”125 Now a range of options were available to states wanting to deal with past human rights violations, from international human rights trials to truth commissions, reconciliation processes, and reparations. Where amnesties were concerned debate had also moved on from the “prosecute and punish or forgive and forget” dichotomy of the 1980s and early 1990s. In a paper surveying recent developments in transitional justice, Neil Kritz noted that the sands were shift ing on the use of amnesties to procure peace agreements. Where once a blanket amnesty was viewed as “the necessary price for obtaining a peace agreement” or a “readily acceptable way of achieving . . . the departure of a repressive regime,” recent experience was beginning to suggest that the calculation underpinning the decision to grant amnesties was “flawed.”126 Blanket amnesty, he thus argued, “may prove to constitute not only a moral sacrifice but also a tactical blunder” as it “can actually preclude the demarcation of past and future” and allow the “culture of impunity” to be carried forward into the present and beyond.127 To illustrate his point, Kritz referred to the amnesty logic that prevailed during the negotiations of the Lomé Peace Agreement. As discussed above, while most commentators agree that without offering an amnesty the Lomé Agreement may never have been reached, it is also the case that “[w]ithin months of the accord abuses were renewed, with the RUF attacking not only its fellow citizens but also UN peacekeepers.” In the case of Sierra Leone, Kritz thus argued, “impunity did not provide for lasting peace; to the contrary, it arguably emboldened those responsible for past abuses.”128 In light of Kritz’s assessment of the relationship between amnesties and peace, the central focus of debate at the workshop became centered on “the asserted virtues of the ‘holistic’ approach to legacies of abuses as compared to the ‘criminal justice’ approach.”129 As Paul van Zyl and Mark Freeman

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note in their conference report, those in favor of the holistic approach were “jokingly . . . described as ‘closet forgivers’ ” while members of the criminal justice camp were referred to as “romantic punishers,” thus harking back to the original positions expressed in earlier iterations of the debate.130 However, what underpinned this debate was a set of assumptions about the nature of the peace being brought into tension with the demands of justice. This was explored in depth in a paper presented by Ian Martin and in the discussion that it provoked. Martin’s paper was concerned with the responsibilities and dilemmas faced by peacemakers and peacebuilders regarding amnesties and accountability for past human rights abuses. At first sight, his argument is marked by a straightforward tension between peace and justice. It notes, on the one hand, that the set of guidelines that Kofi Annan had issued the previous year had made the inclusion of amnesties in peace agreements more difficult, and on the other that the UN’s new position was to be applauded. In particular, Martin argued that the UN’s actions in supporting an amnesty in the case of Haiti when “egregious human rights violations were still being committed . . . were improper” and that its “refusal to endorse the amnesty in Sierra Leone” ought to be “applauded.”131 In doing so, he seemed to endorse the view that justice cannot be traded for peace through the use of amnesties. However, Martin also acknowledged that the issue of amnesty can prove “a stumbling block in negotiations.” “There is no avoiding the dilemma for negotiators,” he argued, “maintaining the principle of accountability may well raise the initial hurdle to a peaceful transition, even if it serves its eventual sustainability.”132 The concern, as Martin posed it, was that without being able to offer amnesties to secure a negotiated peace settlement, peace may be possible only following a decisive military defeat. In this case, the pursuit of “the fullest principle of accountability” may ultimately lead to “a greater dependence on military action.”133 However, this dilemma is coupled with the converse problem, that pursuing peace by any means sends the message that those who wish to avoid accountability for past crimes should simply “prolong the fighting.”134 With this, the peace versus justice dichotomy is collapsed, for both the amnesty and prosecution options are tied to conflict. The more complete collapse of the peace versus justice dichotomy, particularly where amnesties are concerned, was, however, effected on the peace side of the ledger. In his assessment of the dilemmas faced by peacemakers, Martin concluded that the “responsibility of the UN is not only to bring

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immediate peace, but to look to the sustainability of the peace.” This, he explained, requires negotiators to anticipate “how far the pursuit of individual justice will sustain or threaten the peace” as well as how best to support justice, truth, and reconciliation as elements of peace in the longer term.135 In the discussion that followed Martin’s paper, Michael Ignatieff cautioned against “trading . . . justice for peace.” He argued that doing so is likely to result in neither peace nor justice for two main reasons. First, he argued that “granting impunity both legitimizes violators and removed any future incentive they may have to keep the peace,” and, second, he warned that “no deal that affords impunity to violators is likely to translate into a durable peace.”136 What Kritz, Martin, and Ignatieff all touched upon in their analyses of amnesties and peace agreements was a shift in the understandings of peace that had dominated the peace versus justice debate. This move, which saw negative understandings of peace become dominated by “positive” holistic notions, coincided with the embedding of transitional justice within broader peacebuilding initiatives.

Understanding Peace

Arguments about the relative merits of prosecutions and amnesties largely depend on differing understandings of precisely what peace entails. Indeed, to some extent, proponents of amnesties and supporters of trials have argued at cross-purposes, each maintaining that their approach best facilitates the establishment of peace.137 Famously distinguished by Johan Galtung, negative peace is characterized in terms of the “absence of direct violence,” while positive peace signified “the overcoming of structural and cultural violence as well.”138 Positive peacebuilding, of the sort promulgated by Galtung, was envisaged as a means of resolving and preventing “violent conflicts by addressing root causes of poverty, political repression, and uneven distribution of resources,” among many other factors.139 As discussed in Chapter 1, in contemporary thought positive peace is conceived holistically, and, as such, the process of peacebuilding “encompasses the full array of stages and approaches needed to transform conflict toward sustainable, peaceful relations and outcomes.”140 As the discussion at Wye Woods highlighted, in the main advocates of the use of amnesties in peace negotiations have focused on the establish-

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ment of negative peace as the crucial and, indeed, immediate end to which they aim. This is not to say that they have no interest in the development of self-sustaining, positive peace, but rather that they tend to view achieving the cessation of hostilities as the necessary prerequisite for later achieving the larger set of goals defined by “positive” definitions of peace. That is, they tend to adhere to a “negative peace now, positive peace later” view. Advocates argue that amnesties not only help to encourage the signing of peace accords but neutralize potential spoilers who may seek to derail the peace process. This type of reasoning underpinned the decision to grant amnesties in many Latin American cases where “prior dictators and their military and civilian supporters still wielded a good deal of power, and could credibly threaten mayhem if their interests were not respected.”141 However, supporters argue not only that amnesties confer these significant positive benefits on the postconfl ict state but also that they help to avoid many of the potential pitfalls associated with prosecutions, in particular backlashes that threaten to spark a descent back into violent conflict. By contrast, proponents of trials have mostly, although as we will see not exclusively, focused on the impact of amnesties and prosecutions on the establishment of positive peace. As a recent Human Rights Watch Report, “Selling Justice Short,” argues, “accountability matters for peace.”142 The judicial pursuit of accountability for human rights violations helps to “prevent future cycles of violence” by providing redress to victims, establishing the rule of law, and deterring future atrocities.143 Focusing on their psychological effects, others suggest that prosecutions inspire or “foster societal reconciliation in the aftermath of horrific crimes.”144 Trials are thus “promoted as a way for societies to engage in a painful but necessary discussion about the past in order to ‘come to terms’ with the recent horrific events, to achieve ‘closure’ and the rebuild a ‘healthy society’ free of the encumbrances that destroyed its civic stability.”145 For example, Neil Kritz argues that “[s]ocieties shattered by the perpetration of atrocities need to adapt or design mechanisms to confront their demons, to reckon with these past abuses. Otherwise . . . the past will haunt and infect the present and future in unpredictable ways.”146 For proponents of trials, prosecutions represent the best way to do this. Indeed, the establishment of the International Criminal Tribunal for the Former Yugoslavia was justified not simply in terms of the contribution it would make to ending interethnic violence and impunity for human rights violations, but “to the restoration and maintenance of peace.”147 It was similarly argued that the “prosecution of persons responsible for serious

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violations of international humanitarian law” at the International Criminal Tribunal for Rwanda would “contribute to the process of national reconciliation and to the restoration and maintenance of peace.”148 Others, however, suggest that proponents of prosecutions may have overplayed their hand, elevating the significance of trials beyond what they can actually achieve.149 Making more limited claims, however, other proponents of prosecutions focus on the contributions that trials make to the establishment of negative peace. Also noting the potentially damaging impact that spoilers have on peace processes, they argue that prosecutions may facilitate the “establishment of peace in post-conflict nations” by removing them from power.150 Among the most vocal defenders of prosecutions, Payam Akhavan similarly argues that international criminal trials do not “impede peace settlements and thus prolong atrocities.”151 On the contrary, he argues, with specific reference to the ICTY and the International Tribunal for Rwanda (ICTR) that trials “significantly contributed to peacebuilding in postwar societies.”152

The Development of the United Nations’ Position II Increasing recognition of the role that justice, conceived in terms of prosecutions and punishment, may play in the establishment of self-sustaining peace has also been reflected in the most recent developments on the United Nations’ position on the use of amnesties in peace negotiations. In 2004, the secretary-general issued a report titled “The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies.” At the outset the report noted that “[j]ustice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives” in what has become an oftenrepeated phrase in UN documents.153 In particular, it noted that the experience of the UN over the past decade had “demonstrated clearly that the consolidation of peace in the immediate post-conflict period, as well as the maintenance of peace in the long term, cannot be achieved unless the population is confident that redress for grievances can be obtained through legitimate structures for the peaceful settlement of disputes and the fair administration of justice.”154 For this reason and on the ground that “an ounce of prevention is worth significantly more than a pound of cure,” the secretary-general thus recommended that transitional justice strategies be comprehensive and holistic and embrace a range of integrated and complementary approaches, including “prosecutions, reparations, truth-seeking, in-

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stitutional reform, vetting and dismissals” and measures undertaken to build democracy and the rule of law.155 It did not include amnesties among these approaches. Rather, in its final conclusions the report recommended that the Security Council “[e]nsure that peace agreements and Security Council resolutions and mandates . . . [r]eject any endorsement of amnesty for genocide, war crimes, or crimes against humanity, including those relating to ethnic, gender and sexually based international crimes, [and] ensure that no such amnesty previously granted is a bar to prosecution before any United Nationscreated or assisted court.”156 By the 2010 publication of the secretary-general’s guidance note on the “United Nations Approach to Transitional Justice,” the claim that “[p]eace and justice should be promoted as mutually reinforcing imperatives” had become commonplace.157 The question for the UN had thus become “when and how . . . to pursue accountability and justice” for human rights violations, rather than whether to do so or not.158 In its recommendations, the note thus argued that in order to strengthen its transitional justice activities the UN ought to “[t]ake human rights and transitional justice considerations into account during peace processes.” This, in part, entails “[i]nsisting that peace agreements not grant amnesties for war crimes, crimes against humanity, genocide, and gross violations of human rights.”159

Conclusion During the late 1990s and 2000s two major shifts associated with the role that amnesties play in procuring and sustaining peace have been brought to bear on the relationship between amnesties and accountability. First, with the United Nations’ actions in the case of Sierra Leone came the final and complete dismissal of blanket amnesties. While self-granted blanket amnesties had long been considered illegitimate, until 1999 the use of blanket amnesties had been accepted as a last resort measure to be employed when peace was at stake. However, with the case of Sierra Leone, the legitimate scope of amnesties, even during peace negotiations, was limited to exclude serious violations of human rights. Thus, while the United Nations remained willing to pay the price of peace procured via a conditional amnesty applied to lower ranking officers and/or less serious crimes, from the late 1990s on it made it clear that it was unwilling to pay the price incurred by allowing the perpetrators of gross violations of human rights to walk free.

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Second, at the same time as the United Nations was overturning the role once played by blanket amnesties in peace negotiations in favor of more limited forms of immunity, in practical and theoretical terms, the opposition once forged between peace and justice was being dismantled. Beginning with the Security Council’s resolution to establish the ICTY as an instrument of peace and security, transitional justice mechanisms have become increasingly embedded in peacemaking and peacebuilding processes. Although, on one hand, the pairing of peace with the justice entailed by prosecutions helped to further diminish the legitimacy of granting amnesties during peace negotiations, it did, on the other, help to establish a new place for amnesties in broader peacebuilding initiatives. Just as trials were no longer conceived in direct opposition to peace, so too amnesties ceased to be understood as a direct challenge to justice. Rather, amnesties (and trials) came to be viewed as just one in a number of mechanisms that when implemented as part of comprehensive peacebuilding strategies together seek to provide both peace and justice. Despite the existence of a significant trend away from recognizing the legitimacy of amnesties for human rights violations included in peace agreements, states continue to implement these types of amnesties. While peace agreements in East Timor, Burundi, and other contexts have excluded human rights violations from their amnesty provisions, adherence to the new international legal norms is by no means complete. Thus, states that wish to implement a general amnesty have generally pursued one of two options: simply ignoring international pressure to uphold the obligation to prosecute or finding ways to circumvent prosecutions by instituting “disguised” amnesties.160 These, along with other means of resisting the pressure to prosecute, are discussed in Chapter 6.

CHAPTER 5

The End of Impunity? [I]mpunity is over. . . . What was once accepted as an acceptable price to pay for peace is no longer a legal possibility. This is the decision of the States who created the Rome Statute. This is the legal reality.1

Since the 1980s the legitimate bounds within which amnesties may be granted have been significantly compressed. Where once a permissive understanding of amnesties reigned now stands a highly restricted, conditional understanding of the acceptable limits of the practice. Even where peace is at stake, the notion that no price is too high to pay to see the end of conflict has been replaced, at least in scholarly terms, by a more nuanced view that takes both the immediate and longer term goals of peace into consideration. These shifts have not, however, taken place in isolation but have been coupled with two related trends in the practice of pursuing accountability for human rights violations and their associated scholarly debates. First, the past three decades have seen a marked increase in the institution of trials to address past human rights violations. This trend has brought a “rapid shift toward recognizing the legitimacy of human rights norms and an increase in international and regional action to effect compliance with those norms.”2 Evidence of this trend is found in the “changing popular and political expectations” concerning precisely how the perpetrators of human rights violations ought to be treated.3 Increasing acceptance of the idea that individuals accused of human rights abuses must be held to account for their actions has been “operationalized through a series of norm-affirming events” including the establishment of international and hybrid courts to try human rights cases, the increased willingness of many domestic courts to prosecute individuals accused of human rights violations, and the “decisions of foreign courts to try cases involving violations of international human rights” that were not perpetrated by their citizens or in their territories.4 Four main

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avenues of prosecution are thus now open to states and other actors that wish to try perpetrators of human rights violations: domestic trials, foreign trials, international tribunals, and hybrid tribunals. Domestic trials have long been and remain the most popular form of judicial redress for human rights violations. They are concerned with apportioning individual criminal responsibility for human rights violations within their jurisdiction. Foreign trials, by contrast, address crimes committed in a state other than that in which the court is situated. Like domestic trials, they also seek to attribute individual criminal responsibility for human rights violations. Foreign courts ordinarily exercise jurisdiction over crimes committed in another state where the perpetrator of the crime is a citizen or dual citizen of the state in which the court is located, where the victim of the crime is a citizen within the court’s jurisdiction, or by reference to the notion of universal jurisdiction. The principle of universal jurisdiction asserts that “a state is entitled or even required to bring proceedings with respect to certain serious crimes, irrespective of the location of the crime and irrespective of the nationality of the perpetrator of the victim.”5 It is underpinned by the notion that “some crimes are so heinous that they offend the interest of all humanity” and, as such, “any state may, as humanity’s agent, punish the perpetrators.”6 Universal jurisdiction thus “transcends national sovereignty” where the serious crimes of war crimes, crimes against humanity, torture, slavery, and piracy are concerned.7 International trials similarly seek individual criminal responsibility for violations of human rights and humanitarian law. They have taken place through the establishment of ad hoc tribunals including the ICTY and the ICTR and, more recently, the ICC. Finally, the prosecution of individuals accused of perpetrating human rights violations has also begun to occur in the hybrid courts that began emerging from 2000 onward. Blending aspects of international and domestic law and run by both national and international staff, these tribunals include the East Timor Serious Crimes Special Panels established in 2000, the Kosovo Courts’ “Panels 64” (2000), the Special Court for Sierra Leone (2002), and the ECCC (2006). The second trend that has accompanied the entrenchment of an increasingly restrictive understanding of amnesties is that states and other actors are finding increasingly innovative and inventive ways to overturn, annul, resist, circumvent, or balance amnesty laws in order to prosecute the perpetrators of human rights violations. They have sought to do so in four main ways. First, human rights activists and others have sought to challenge the

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legitimacy of existing amnesty laws by launching formal court challenges at either the domestic level or through regional human rights courts such as the Inter-American Court of Human Rights.8 As we saw in Chapter 2, in the Barrios Altos case the Inter-American Court ruled that “all amnesty provisions . . . are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance.”9 Similarly, in 2005, the Supreme Court of Argentina overturned the 1986 Ley de Punto Final and the 1987 Ley de Obediencia Debida. Second, where amnesty laws are legally impenetrable or where there is insufficient political will to have them overturned, human rights activists and the victims of human rights violations and their families have turned to foreign jurisdictions to have cases heard. By exercising national jurisdiction over the perpetrators or victims of crimes, or by invoking the principle of universal jurisdiction, foreign courts have thus been able to try those accused of human rights violations without taking amnesties, which are applicable only within the jurisdiction in which they were granted, into consideration. That is, because foreign courts are not restricted by previous amnesties in the way that domestic courts often are, they have become an avenue down which the prosecution of previously amnestied perpetrators of human rights abuses can take place. Third, in other instances posttransitional and postconflict states are simply finding ways to circumvent and resist existing amnesty laws. They are doing so by legally redefining the crimes included in the original amnesty law (as in the case of Argentina to be discussed in this chapter) or finding technical loopholes to render a previous amnesty law inapplicable to persons for whom prosecution is sought (as in the case of the Solomon Islands). Fourth, and finally, states have sought to mitigate the negative effects of amnesties, in particular impunity, by embedding them, after the fact, in holistic or balanced justice processes.10 Thus, by following amnesties with selective prosecutions and/or truth commissions, in some circumstances amnesties have been viewed not as an abrogation of justice but as the means of providing justice without risking peace and stability. This chapter is concerned with the ways in which states and other actors have circumvented, resisted, and balanced existing amnesty laws. It starts, once again, with the case of Argentina before outlining developments associated with the Pinochet case, both internationally and within Chile, the intervention of the International Criminal Court in the case of Uganda, the

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decision of the Extraordinary Chambers in the Courts of Cambodia to overturn Ieng Sary’s amnesty and thus try him for crimes against humanity and grave breaches of the Geneva Conventions, and the Solomon Islands’ efforts to balance its amnesty law with selective prosecutions and a truth commission. However, the story does not end there for, to labor the point, amnesties persist despite their lack of legitimacy, despite ever-increasing pressure to prosecute the perpetrators of human rights violations, and despite the fact that, in many instances, they no longer provide permanent immunity. Chapter 6 thus examines the ways in which states have sought to circumvent the pressures of the justice cascade and found innovative ways to grant amnesties without completely ignoring demands for accountability.

Circumventing and Overturning Amnesties Efforts to circumvent and overturn past amnesties tend to share three common features. First, most if not all of the amnesties in question were originally designed to ensure impunity for an authoritarian ruler and their associates, or to protect a fledgling democracy from would-be spoilers. Second, in all of the cases to be discussed, democracy was not only established but stable and consolidated before the amnesty was overturned, thus removing the possibility that prosecutions would jeopardize the transition. Third, and finally, in each of the cases, the amnesty law in question had stood for a considerable amount of time, a decade in the case of Argentina, and two decades in the case of Chile. As such, they contradict Huntington’s declaration that justice must come “quickly or it does not come at all”11 and support Sikkink’s argument that justice is occasionally a long time coming.12

Domestic Efforts to Circumvent Amnesties

Once again, Argentina has led the way with regard to the institution of a new trend in transitional justice. It is there that the most obvious moves to overturn existing amnesty laws have taken place. With this, Argentina has gone from being a “pariah state” scolded for granting amnesties to the perpetrators of human rights violations to a “global human rights protagonist” that has “set procedural precedents” for other transitional and postconflict

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states to follow.13 This rehabilitation of Argentina’s reputation in the human rights world has been a three-faceted process that culminated in the overturning of its 1986 and 1987 amnesty laws and the prosecution of several key players in the military regime that ruled Argentina from 1976 to 1983. First, renewed efforts by Argentine human rights activists helped to build domestic public and international support for pursuing accountability for human rights violations. In par ticu lar, several Argentine human rights organizations helped to bring the case of Consuelo et al. before the InterAmerican Court of Human Rights. The petitioners in this case all expressed the same “fundamental grievance”: they argued that the Full Stop Law of 1986, the Due Obedience Law of 1987, and the Pardon Decree of 1989 violated the American Convention on Human Rights by curtailing and ultimately extinguishing “the criminal proceedings involving the egregious human rights violations that occurred during the de facto government.”14 In its judgment, the IACHR ruled that by passing the Full Stop and Due Obedience Laws, Argentina had indeed breached the right to judicial protection (Article 25) and the right to a fair trial (Article 8) of the American Convention on Human Rights.15 What is more, in doing so, it referred to its judgment in the 1989 Velásquez Rodríguez case in which it stated, with regard to amnesties, that [t]he 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. . . . If the state apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the state has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction.16 Second, a further “key legal innovation in Argentina was the concept and practice of ‘truth trials.’ ”17 Although the amnesty laws passed in the 1980s had prevented trials for human rights violations, with the encouragement of human rights organizations, the relatives of the victims did not give up on their right to know the truth about what had happened to their family

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members, many of whom had disappeared. Thus, in 1995, with the assistance of the Centro de Estudios Legales y Sociales (CELS), family members presented a petition to the federal court which argued that “although the amnesty laws blocked criminal proceedings, family members still had the ‘right to truth’ through judicial investigations.”18 The eventual result of their petition was the establishment of truth trials that, as many supporters of the Argentine human rights movement argue, is “yet another example of Argentine leadership in developing new human rights tactics and mechanisms.”19 Blurring the “line between truth commissions and trials,” the truth trials spread to numerous cities across Argentina, hearing testimonies and uncovering new evidence along the way.20 Before long, the testimonies presented by thousands of witnesses “began to undermine the legitimacy of the amnesty laws.”21 This had been the explicit intention of the human rights community that had pushed for the truth trials to take place.22 Third, and finally, Argentina has also sought to circumvent the impunity provided by its past amnesty laws to the perpetrators of human rights violations by finding innovative ways around them. This has entailed, most notably, redefining the crimes presumed to have been included in the original amnesty laws to allow continuing investigations and prosecutions. Among the most heart-wrenching crimes committed during the rule of the military junta was the kidnapping of babies and children from women who later disappeared. In many cases pregnant women were captured, forced to give birth while manacled, and then, presumably, murdered. Their babies were then given to the families of supporters of the regime to raise as their own. This widespread and systematic practice had two main goals: to terrorize the population and to “separate from their families those children whose parents were considered linked to ‘subversion.’ ”23 In 1996 lawyers acting on behalf of the Grandmothers of the Plaza de Mayo drove a significant wedge into the amnesty laws by redefining the crimes associated with forcibly separating children from their parents. They argued that kidnapping and changing the identity of the children of the disappeared were not further instances of disappearance.24 The redefinition of these crimes as kidnapping and forcibly changing the identity of a child had two major implications. First, disappearances but not kidnapping and forcible change of a minor’s identity were included in the amnesty laws. Second, as ongoing crimes, instances kidnapping could continue to be investigated. Lawyers were thus able to “open a breach in the amnesty laws,” which led to the prosecution of several “lower-level military officers and the adoptive

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families” implicated in the kidnapping of children and babies.25 However, it also resulted in the eventual trial and imprisonment of higher ranking officials such as General Videla. In the early 1980s, following the collapse of the military regime, General Videla had been tried and found guilty of murder, kidnapping, torture, and a whole host of other offenses, and sentenced to life imprisonment. However, he served only five years of his life term, having benefited from a pardon granted by President Menem in 1990. In the wake of prosecutions over the kidnapping of babies delivered by women who later disappeared, however, in 1998 Videla and Admiral Massera were placed in preventive detention for kidnapping babies and for the falsification of public documents associated with changing their identities to be consistent with those of their adoptive families. Shortly after, CELS, utilizing the provision in Argentine law that allows any individual or organization to file a complaint to initiate a criminal prosecution, filed a “complaint to overturn the amnesty laws.”26 In his one-hundred-page ruling, Judge Gabriele Cavallo argued that the amnesty laws were null and void on two main grounds. First, he argued that by facilitating “the usurpation of public power or state terrorism” the amnesty laws breached Article 29 of the Constitution, which expressly prohibits amnesties for those purposes. Second, he also argued that according to the Argentine Constitution, “international treaties have priority over national law.”27 By referring to the international human rights treaties to which Argentina is a party, including the Convention Against Torture, the American Convention on Human Rights, and the International Covenant on Civil and Political Rights, and interpreting the crimes covered by the amnesties as “crimes against humanity,” he maintained that Argentina’s obligations under international law ought to take precedence over provisions included in domestic law in this case. As such, his ruling amounted to “an emphatic condemnation of the amnesty laws.”28 Cavallo’s ruling was eventually supported by the Court of Appeals, which stated that “in the present context of development of the constitutional law of human rights, the invalidation and declaration of unconstitutionality of the laws is not an alternative. It is an obligation.”29 In 2003 the Argentine Congress “passed a law that declared” the Full Stop and Due Obedience Laws “null and void.”30 In June 2005, this decision was confirmed by the Supreme Court of Argentina, which, citing the ruling of the Inter-American Court of Human Rights in the Barrios Altos case, ruled that the amnesty laws were unconstitutional. At the same time, the

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Supreme Court also “decided that the crime of disappearance was a crime against humanity for which no statutes of limitations applied,” thus allowing hundreds of human rights cases to be reopened.31 With his presidential pardon declared unconstitutional by Judge Noberto Oyarbide in September 2006, and overturned by a federal court in April 2007, in 2010 General Videla was tried for human rights violations associated with the deaths of thirtyone prisoners during his rule. On 22 December 2010, he was found guilty of these charges and sentenced to life imprisonment. However, developments in the fight against impunity within Argentina did not take place in isolation but were coupled with and in many ways encouraged by events taking place in Europe. In particular, the indictment and prosecution of Argentine citizens in Spain under the principle of universal jurisdiction “helped to revitalize the anti-impunity movement in the legislature, the courts, and society.”32

Universal Jurisdiction Cases in Foreign Courts

On 28 March 1996, members of the Spanish Union of Progressive Prosecutors fi led a complaint in the Spanish Audiencia Nacional alleging that members of the Argentine military junta had committed acts of terrorism, torture, disappearances, and genocide during its rule. The case was assigned to Judge Baltasar Garzón, who would become one of the key international players in the exercise of the principle of universal jurisdiction for human rights violations. Garzón soon determined that the court had jurisdiction to try the case at hand and offered two main arguments to explain his decision. First, he referred to Article 23.4 of the Spanish Judicial Law, which “allows for the prosecution of certain crimes committed by non-Spaniards outside Spain, including genocide, terrorism, and other international treaties ratified by the Spanish government.”33 That is, he appealed to a notion of universal jurisdiction that had been enshrined in Spanish criminal law since 1985. Second, he also argued that the prosecution of this case amounted to the exercise of Spanish sovereignty as some of the victims involved in the case were Spanish citizens or descendents of Spanish citizens. Indeed, despite the prominent invocation of the principle of universal jurisdiction in this case, in its early proceedings the case was posed, for political reasons, in terms of Spanish sovereign jurisdiction. It was only “after the case had been

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accepted for investigation” that “non-Spanish victims” were added to the complaint.34 Using the Office of the Public Prosecutor, the government of Spain opposed the case at hand on several grounds. Among these was the claim, made by the chief prosecutor, that this case, as well as that being pursued simultaneously against members of the Chilean junta, “were res judicata, that is, legally rendered moot, as a result of both Argentine and Chilean amnesty laws.”35 However, this was not the case as domestic amnesties “cannot disable prosecution of an alleged offender in another State for conduct that must be prosecuted under international law.”36 Despite Argentina’s refusal to cooperate with the proceedings by providing information relevant to the case, Garzón moved forward and issued international arrest warrants for General Galtieri and nine others officers. At this stage it seemed that Garzón’s actions in issuing arrest warrants would “be largely symbolic” as “Spanish law does not allow criminal defendants to be tried in absentia.”37 However, two cases proceeded somewhat unexpectedly. The first was that of retired navy captain Adolfo Scilingo, who was arrested in Spain and charged with genocide, 30 counts of murder, 93 of causing injury, 255 of terrorism, and 286 of torture. Although he initially refused to enter a plea, Scilingo eventually confessed to taking part in “death flights” during which Argentine forces would throw prisoners alive from airplanes into the Atlantic Ocean, leaving them to drown.38 After a length judicial process, Scilingo was found guilty of crimes against humanity, including extrajudicial executions, and sentenced to 640 years imprisonment, although under Spanish law his sentence is limited to 30 years. The second case involved Ricardo Miguel Cavallo, a former Argentine naval officer who had worked at the Naval Mechanics School (Escuela de Mecánica de la Armada, ESMA), which in reality operated as a detention center where numerous victims were tortured and then made to disappear. At the time that his international arrest warrant was issued, Cavallo was living in Mexico under an assumed name. Shortly thereafter, a Mexican newspaper identified him as a former torturer and, following an attempt to flee the country, Cavallo was arrested at the airport on 24 August 2000. Following an extradition request by Spanish authorities who wished to try him for genocide, terrorism, and torture, a Mexican court determined that “there were grounds for complying with Spain’s extradition request regarding the allegations of genocide and terrorism, but not of torture because the statute

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of limitations had expired for this crime.”39 Cavallo appealed the court’s decision on several grounds, including that “as a member of the military he was immune from prosecution by virtue of Argentina’s 1987 amnesty law” and that “Mexico could not interfere with the sovereignty of Argentina by extraditing him for crimes for which he was granted amnesty.”40 However, on 10 June 2003, the Supreme Court of Mexico upheld the court’s decision to extradite Cavallo as being in accordance with the 1978 Extradition Treaty and the Mexican Constitution. It also “upheld the lower Court’s reasoning that the Argentine amnesty law invoked by Cavallo was not applicable to the crimes subject to the extradition request and observed that one State’s decision not to prosecute certain crimes did not prevent another State from prosecuting such crimes in accordance with international law and its domestic legislation.”41 After further legal and political wrangling, on 28 June 2003, Cavallo was eventually extradited to Spain. This was the first time that a state (Mexico) had extradited an individual to a second state (Spain) for crimes committed in a third state (Argentina). In the end, Cavallo was tried not in Spain but in Argentina. By the time the Cavallo case was to proceed before the Spanish courts, Argentina had overturned its amnesty laws. With prosecution now a possibility in Argentina, after some vacillation the Spanish court determined that it was in the best interests of justice for Cavallo to be tried in the jurisdiction in which he was alleged to have committed his crimes. It thus acceded to an Argentine request for extradition, which took place in March 2008. In December 2009, eighteen officials including Cavallo and Alfredo Astiz, who had already been convicted and sentenced in absentia to life imprisonment by a French court for the murder of two French nuns, were brought to trial in Buenos Aires. Described by some as the “Auschwitz trial in Argentina,” the ongoing ESMA trial has seen the defendants face some eighty-five counts of violations of human rights.42 Of course, the Cavallo case took place at the same time as the more highprofile indictment and extradition hearings concerning the case of the former Chilean president Augusto Pinochet. Here again Judge Baltasar Garzón played a lead role, establishing the jurisdiction of the Spanish court over crimes alleged to have been committed by Pinochet in Chile. On 16 October 1998, Garzón issued what would be the first of three arrest warrants served to Pinochet. The following day he was arrested at a clinic in London where he had been receiving treatment for a back complaint and charged with murder. On 22 October, a second arrest warrant was issued, this time in accor-

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dance with British extradition law, which charged Pinochet with conspiracy to torture, torture, conspiracy to commit murder, and hostage taking.43 In response, lawyers acting on behalf of the accused immediately “sought the annulment of the arrest order.”44 In doing so, they pursued two main avenues of appeal. First, they argued that as Pinochet was not nor had he ever been a subject of Spain, he could not be subject to a Spanish extradition order. Second, they also maintained that as a former head of state, Pinochet enjoyed immunity from prosecution. This was an argument that the Chilean government had earlier tendered in response to the decision of the Criminal Division of the Spanish National Court to uphold Garzón’s ruling that Spain did have legitimate jurisdiction over the case at hand. At this time, the Chilean government had “objected vehemently” to the Spanish decision, arguing that “Pinochet had immunity as an ex-head of state and had parliamentary immunity as a ‘Senator-for-Life.’ ”45 Despite these objections, the case was handed to the British Law Lords for consideration. This, in and of itself, was highly controversial: “Never before had an ex-head of state of one country, accused of human rights violations largely committed within the sovereign territory of his own nation, been arrested in a second country pending extradition to a third country.”46 In their deliberations, the Law Lords were not as concerned with the question of the immunity of a former head of state per se as they were with the question of whether that immunity ought to extend to gross violations of human rights. In the end, they concluded that “ex-head of state immunity did not apply in the case of certain international crimes such as torture, hostage taking, and other grave crimes.”47 The reasoning that underpinned their decision was an acknowledgment of the fact that “allowing for head of state immunity for the most serious crimes imaginable was in direct conflict with legal obligations to respect basic principles of international human rights and represented a misunderstanding of the legitimate actions of a head of state.”48 That is, they determined that international human rights law brought with it unassailable obligations to prosecute the perpetrators of particular types of especially heinous crimes, and that although heads of state and former heads of state could enjoy general immunity from prosecution, that did not extend to crimes that cannot, in any circumstances, be justified as the legitimate and necessary actions of a ruler. Significantly, the issue of the self-amnesty Pinochet had granted to himself and others in 1978 was barely afforded a mention during the lengthy proceedings over his proposed extradition. Pinochet’s lawyers did not raise

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the issue during the legal proceedings, nor did the Chilean government in its objections to the idea that Pinochet might be tried outside the bounds of its national jurisdiction. By now, it seems, the general realization had come that “a foreign court was unlikely to give serious consideration to an amnesty decree in effect granted by Pinochet to himself.”49 What is more, with only two exceptions, the Law Lords simply refused to consider the possible legitimacy of the self-amnesty. Following an appeal and constitution of a new panel of Law Lords to consider the case, extradition proceedings on the more limited charge of torture were finally approved by the British home secretary, Jack Straw.50 In the end, however, Straw reversed his decision to extradite Pinochet to Spain and released him, on compassionate grounds owing to ill health, to return to Chile, where he was eventually indicted on charges of kidnapping and torture. However, Pinochet died on 10 December 2006, without having been convicted of any of the crimes of which he was accused. Although the Pinochet case made headlines for demonstrating that former heads of state were no longer immune from prosecution for human rights violations committed while in office, the greater significance of the case, particularly where amnesties are concerned, was actually the impact it had on moves to end impunity within Chile.51

Domestic Impact in Chile

The arrest of General Pinochet and the case that followed not only raised the profi le of the human rights movement in Chile but appeared to lift the “psychological, political and juridical barriers to justice by weakening the powerful forces blocking such trials in Chile since the return to democracy.”52 As in Argentina, human rights activists, lawyers, and judges employed innovative methods to circumvent the amnesty law that had prevented the perpetrators of human rights violations facing prosecution for their actions.53 Here again, the crime of disappearance was redefined in terms of kidnapping, an ongoing crime that warranted continued investigation. In particular, in June 1999, Judge Guzmán argued that in “cases where no body had been recovered,” the crime at hand was that of “kidnapping” for which individuals could be investigated and tried.54 In doing so, he “put the onus on the defendants: if they wanted the amnesty to apply, they needed to come up with proof of where, quite literally, the bodies were buried. If they couldn’t

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or wouldn’t, they would stand trial.”55 Guzmán’s decision was upheld by the Criminal Chamber of the Supreme Court and, with this, a “large hole” was “blasted . . . in the amnesty’s coverage.”56 What is more, in a later ruling, the Supreme Court specified that amnesties for crimes still covered by the 1978 amnesty law could not be considered “until the end of the trial stage” in any legal proceeding. That is, it determined that “[e]ven if the kidnappings later turned out to be homicides” it was only after the complete investigation of the facts, through the usual judicial process, that individuals may possibly be granted amnesties.57 However, further limiting the scope for amnesties even at this stage, Judge José Benquis noted that, in any case, “the amnesty law was no obstacle to prosecution under the provisions of the Geneva Conventions, which required prosecutions of ‘grave breaches.’ ”58 Thus although the amnesty law remained “textually intact,” its scope was severely limited and now could not prevent large numbers of human rights trials taking place.59 The pattern of amnesties followed by trials has been repeated throughout Latin America. As Sikkink and Booth Walling note, in 16 of the 19 Latin American countries that made the transition from authoritarian rule to democracy after 1979, amnesties were employed. Of those 16 countries, “15 also had human rights trials,” 60 leaving only Brazil with an intact amnesty law.

Resisting Amnesty Laws In contrast to attempts to circumvent and annul existing amnesty laws, efforts to resist amnesties have largely taken place in international courts or substantial international involvement in the domestic legal system, as in the case of the Solomon Islands, to be discussed shortly.

The International Criminal Court

With the establishment of the International Criminal Court (ICC), an additional sphere of international legal jurisdiction was added to the question of amnesties granted to the perpetrators of human rights violations. Governed by the Rome Statute, which entered into force on 1 July 2002, the ICC was established to try genocide, crimes against humanity, war crimes, and the crime of aggression.61 It marks the extension of the notion of universal

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jurisdiction to encompass “universal international jurisdiction,” according to which the “international community as a whole” is permitted, “in certain limited circumstances, to supplement, or even displace, ordinary national laws of territorial application with international laws that are universal in trust and unbounded in geographical scope.” 62 That said, however, it does not replace the original notion of state-exercised universal jurisdiction but rather affirms its validity in the preamble of the Rome Statute, which recalls “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” 63 That is, states retain the obligation to prosecute the perpetrators of crimes committed within their jurisdictions and that fall within the bounds of universal jurisdiction. The ICC is thus centered around the principle of complementarity, which states that a case is inadmissible before the court if it is being investigated or prosecuted by a domestic court. The only circumstances in which a case is admissible before the ICC are those in which “the State is unwilling or genuinely unable to carry out the investigation or prosecution.”64 The ICC’s jurisdiction is therefore “complementary to national criminal jurisdictions,” allowing states to prosecute international crimes committed within their borders as per their obligations if they are able to, but providing a mechanism for the investigation and prosecution of such crimes where states genuinely do not have the capacity or willingness to do so themselves. Somewhat problematically for questions surrounding the legitimacy of granting amnesties to the perpetrators of human rights violations, including those crimes that fall within the jurisdiction of the ICC, the Rome Statute does not mention amnesty at all. This is not, however, to suggest that the individuals charged with draft ing the Rome Statute were unaware of the importance of addressing the, admittedly contentious, subject. At the ICC Preparatory Commission (PrepCom IV), the issue of amnesty was raised with the circulation of a nonpaper by the U.S. delegation on the importance of amnesties in some contexts.65 In it, the delegation argued that “a responsible decision by a democratic regime to allow an amnesty was relevant in judging the admissibility of a case.”66 In particular, the United States was “worried that the ICC [would] prevent efforts to restore peace and halt human rights violations” by refusing to honor domestic amnesties.67 In doing so, it recognized that amnesties are sometimes necessary “to encourage the surrender or reincorporation of armed dissident groups” and thus close the “door on the conflict of a past era.”68 Despite vigorous debate on the subject,

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the issue of amnesties was not resolved or even discussed in the Rome Statute. Rather, a certain “creative ambiguity” left open the possibility for the court to exercise “discretion in dealing with amnesties.”69 Th is, along with the principle of complementarity articulated in Article 17 of the Rome Statute, also reflects the fact that those charged with draft ing the Rome Statute wanted it to “take account of national reconciliation initiatives entailing legitimate offers of amnesty or internationally structured peace.” 70 In par ticu lar, one interpretation of the Rome Statute suggests that the intention of the draft ing committee was to allow sufficient leeway for the court to “accept good faith amnesties granted in the context of a truth commission like the one in South Africa while rejecting bad faith amnesties such as the ones granted by South American dictators.” 71 Whatever its intentions, by not making its stance on amnesties clear, the Rome Statute has sparked further and considerable debate about their legitimacy. In particular, debate has been waged over whether or not Articles 17, 20, and 53 can be read “more broadly to allow for amnesty.”72 Article 20 invokes an exception to the ne bis in idem principle (double jeopardy), which allows the ICC to hear cases that have previously been subject to unsatisfactory legal processes at the domestic level. This seems to suggest that amnestied crimes or those benefiting from de facto amnesties created by a failure to investigate human rights abuses can be subject to retrial at the international level. At the same time, however, Article 53 allows the prosecutor discretion “in deciding whether to investigate or prosecute a crime,” thus making it possible for domestic amnesties to be effectively upheld.73 Adding to the indeterminate position of the Rome Statute on amnesties, Article 17 “requires states to submit cases to the ICC if the national proceedings failed to bring a perpetrator to justice,” but, critically, it does not specify “what is required to bring someone to justice.”74 In doing so, it appears to leave room open for conceiving justice in a broad sense to include the granting of amnesties to confirmed perpetrators of human rights violations. Indeed, Michael Scharf maintains that although the Rome Statute does not mention amnesties explicitly, it may recognize them nonetheless. That said, he qualifies this point by arguing that even where domestic amnesty arrangements serve “both the interests of peace and justice, the International Criminal Court should defer prosecution only in the most compelling of cases.”75 Ambiguity surrounding the question of amnesty in the Rome Statute proved problematic as soon as the ICC began proceedings in its first case,

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that of Uganda. Yet, at the same time, the case of Uganda helps to demonstrate the extent of resistance to blanket amnesties for human rights violations even where their institution may very well be the price of peace.

The Case of Uganda

For more than twenty years, the government of Uganda has been engaged in a civil war against the Lord’s Resistance Army (LRA). Although it is extremely difficult to obtain accurate figures depicting the impact of the conflict on the people of northern Uganda, to date tens of thousands of civilians have been killed, thousands more tortured, raped, and mutilated, and up to two million driven into internally displaced persons (IDP) camps.76 With little popular support, the LRA has relied on violence to intimidate the civilian population and the abduction and forced conscription of children to fill its ranks. Indeed, its leader, Joseph Kony, has used the people’s refusal to back him as justification for inflicting horrific forms of violence, including cutting off ears, noses, and lips, and argued that “if the Acholi don’t support us, they must be finished.”77 In addition, between 24,000 and 66,000 children have been abducted by the LRA, although reaching an accurate figure is extremely difficult.78 In January 2000 the Ugandan government passed the Amnesty Act, which sought to provide “amnesty for anyone who had engaged in armed rebellion against the government since 1986 and who agreed to renounce and abandon such rebellion, and to surrender his or her arms.”79 Amnesty, it was argued, constituted the most politically expedient way to bring the conflict to an end and avoid the further harm to the LRA’s abductees a decisive military victory would inevitably inflict. By defining amnesty as “a pardon, forgiveness, exemption, or discharge from criminal prosecution or any other form of punishment by the State,” the Amnesty Act (2000) firmly associated amnesty with forgiveness. Many participants in the process also saw amnesty in this way. For example, one returnee who took advantage of the amnesty said, “The best thing that amnesty has done is to forgive me for what I did.”80 One possible reason for this is that “amnesty” and “forgiveness” are not distinct words in the Lwo language spoken in northern Uganda: “the same word (timo-kica) is used” for forgiveness, amnesty, and reconciliation.81 The Amnesty Act thus also equated amnesty with reconciliation and restorative justice. To these ends, the Am-

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nesty Commission was established, before which individuals were required to “denounce their activities by signing a declaration, after which they are registered, receive an Amnesty Certificate, and then, in theory, a package” to help with their resettlement.82 By the end of January 2005, 14,695 people had presented themselves to the commission, although senior LRA leaders rejected the offer and implored their soldiers to keep fighting, some of whom did.83 The actions of the LRA commanders amounted, at least in part, to a specific rejection of the amnesty itself for what would, in their view, have entailed an implied admission of guilt they were not willing to countenance.84 In December 2003, President Museveni referred the situation to the ICC. Chief Prosecutor Luis Moreno-Ocampo, in turn, “determined that there [was] a sufficient basis to start planning for the first investigation of the [ICC].”85 The referral read, “Having exhausted every other means of bringing an end to this terrible suffering, the Republic of Uganda now turns to the newly established ICC and its promise of global justice. Uganda pledges its full cooperation to the Prosecutor in the investigation and prosecution of LRA crimes, achievement of which is vital not only for the future progress of the nation, but also for the suppression of the most serious crimes of concern to the international community as a whole.”86 The first state referral and investigation of the ICC resulted in the first arrest warrants being issued. Kony was named in twelve counts of crimes against humanity and twenty-one counts of war crimes.87 Despite initiating proceedings with the ICC, however, the Ugandan government later indicated that it was unwilling to fulfill its international obligation, specified in Article 89 of the Rome Statute, “to arrest and surrender” the indicted individuals.88 It preferred instead to pursue “peace first and . . . justice later,” using the ICC arrest warrants as leverage to coerce the LRA leaders to attend peace talks and negotiate a settlement to the conflict.89 The Ugandan government thus pursued peace talks with the LRA, mediated by the Sudanese vice-president, Riek Machar, which began in July 2006 in Juba. To ensure the LRA’s continued participation, the Ugandan government offered a further amnesty “to all combatants which shall be granted upon successful completion of the talks.”90 In conjunction with this, traditional leaders present at the Juba talks strongly advocated “the application of traditional justice to deal with atrocities committed during the conflict,” thereby rejecting the sort of formal justice embodied in the ICC’s processes.91 Indeed, proponents of amnesty and forgiveness sought to portray the ICC as

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reflecting “flawed and compromised systems of justice” that “could not comprehend the meaning of the real justice known to the Acholi, grounded in what are asserted to be traditional or Christian values.”92 Throughout the peace process, however, serious questions were raised about the legitimacy of granting amnesties and implementing traditional justice processes in place of more conventional criminal trials. The Ugandan government maintained the right to administer justice in accordance with the principle of complementarity and, in doing so, sought to circumvent its international obligation to arrest the indicted LRA leaders and surrender them to the ICC. However, the ICC and the UN High Commissioner for Human Rights expressed doubts that traditional forgiveness and reconciliation ceremonies satisfied the requirements of justice sufficiently enough to halt ICC proceedings. Indeed, as Richard Goldstone remarked, “It would be fatally damaging to the credibility of the international court if Museveni was allowed to get away with granting amnesty.”93 On the other hand, critics of amnesties argued that the ICC’s interference in the Uganda case was undermining efforts at peace.94 Moreno-Ocampo was well aware of the tensions at play in the case. In a keynote address in 2006, he cited amnesties as “an example of local justice” but noted that the UN guidelines issued in 2001 prohibit their implementation for war crimes, crimes against humanity, and genocide.95 With regard to the case of Uganda, he told a short story to illustrate the dilemma at hand: I received in the same week two letters that illustrate these two very different perspectives on the issue of amnesties. One letter came from Amnesty International, telling me to ignore the amnesty law in Uganda because international law, which does not recognize amnesties for serious violations, must prevail. In the same week, I received a letter from a paramount chief. He said that the amnesty law is a decision of the local people to reintegrate the children that were abducted and forced to become child soldiers. I must respect the amnesty law, he continued, because the amnesty law is not impunity. He said that they will apply traditional African mechanisms based on truth, reconciliation, and compensation.96 However, as Moreno-Ocampo had long maintained, he was not averse to the notion of amnesties per se. In a 2003 policy paper, the Office of the Prosecutor stated that “as a general rule” it should “focus its investigative and

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prosecutorial efforts and resources on those who bear greatest responsibility, such as the leader of the State or orga ni zation allegedly responsible for those crimes.”97 In doing so, it recognized that an “immunity gap,” according to which many perpetrators of human rights violations will escape prosecution, will be left and will need to be fi lled.98 This, as a later policy paper suggested, can be fulfilled by a range of “alternative means” including “domestic prosecutions, truth seeking, reparations programs, institutional reform and traditional justice mechanisms in the pursuit of a broader justice.”99 As Moreno-Ocampo stated himself, “[t]his case in Uganda is to show how traditional justice mechanisms to reconcile people can work together with investigations and prosecution. . . . Basically, we are doing a case on four people, all the others could be handled using different mechanisms.”100 As Greenawalt notes, Moreno-Ocampo thus advocated the sort of selective prosecutions approach long favored by M. Cherif Bassiouni and Diane Orentlicher.101 However, the case of Uganda poses a par ticu lar problem in this regard: the amnesty law included as part of the peace negotiations is a general amnesty for all combatants. It is not a conditional amnesty that provides for individual investigations to be conducted regarding the actions of “those most responsible,” nor does it contribute to ending impunity, as some argue a complementary justice process must to avoid being superseded by the ICC.102 On 29 June 2007, a compromise, in the form of the Agreement on Accountability and Reconciliation, was reached that combined concern for the needs of victims and the wider community for the restoration of peace with the requirement to meet international standards of justice. In par ticular, the Ugandan government and LRA agreed that an “overarching justice framework . . . [to] provide for the exercise of formal criminal jurisdiction, and for the adoption and recognition of complementary alternative mechanisms” needed to be established. The alternative justice mechanisms to be used were to include “traditional justice processes, alternative sentences, reparations, and any other formal institutions and mechanisms.”103 Succumbing to pressure from the international community to pursue retributive justice for the leaders of the LRA, the agreement allows domestic courts to “exercise jurisdiction over individuals who are alleged to bear particular responsibility for the most serious crimes, especially crimes amounting to international crimes, during the course of the conflict.”104 However, by incorporating a combination of formal and traditional justice methods, it also

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allows for LRA leaders to stand trial but then face only traditional justice ceremonies rather than the punishments ordinarily exacted in a criminal justice system.105 At the beginning of 2008, with talks resumed between the Ugandan government and the LRA in Juba, the negotiators still faced the significant challenge of formulating a way to “bring Kony to a judicial processing, probably in Uganda, which would permit the ICC to suspend or life its indictment.” Not only had Kony’s behavior become increasingly erratic, “[b]ut there [was] no indication that [he] would be willing to submit himself to Ugandan justice particularly not before a tribunal that would satisfy the ICC.”106 In par ticu lar, Kony sought clarification over “what kinds of punishments he could face” and precisely how traditional justice would be used in his case if he submitted himself to a court trial.107 Thus, while the Ugandan government retained its offer of an amnesty and remained willing to pursue traditional justice for lesser LRA combatants, they resolved not to “accept amnesty for Kony.”108 Reflecting this, in May 2008, a special war crimes court was established with a mandate to try LRA leaders. This, it was hoped, would allow the ICC to withdraw its indictments against the LRA leaders. With no resolution of the key issue of amnesty at hand, the Final Peace Agreement drafted between the LRA and the Ugandan government has not been signed. Kony remains at large, now terrorizing civilian populations in the Congo, the ICC continues to pursue his arrest, and with the advent of the extraordinary Kony 2012 campaign, Kony has become the subject of the most pervasive social media phenomenon to date.

Resisting Amnesties in Hybrid Tribunals

As we saw in Chapter 4, the hybrid domestic-international tribunals established in Sierra Leone and East Timor both took a strong stand against granting amnesties to the perpetrators of serious human rights abuses. Article 10 of the statute establishing the Special Court for Sierra Leone, in particular, made it clear that amnesties granted for crimes against humanity, war crimes, and other breaches of the Geneva Conventions would not protect individuals from prosecution.109 As we saw in Chapter 4, this proved to be highly controversial. Since then, the most direct confrontation over the status of domestic amnesties before hybrid tribunals has taken place in the

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context of the Extraordinary Chambers in the Courts of Cambodia (ECCC) established to prosecute crimes committed during the period of Democratic Kampuchea, otherwise known as the Khmer Rouge era. The reign of the Khmer Rouge over the people of Cambodia stands as one of the most significant mass atrocities of the twentieth century.110 Led by Pol Pot, between 17 April 1975 and 6 January 1979, the Khmer Rouge systematically murdered at least 1.7 million people, just over 20 percent of the population, and subjected countless others to “torture, arbitrary imprisonment, forced separation of families, and the denial of the most basic freedoms of worship, expression, and human intimacy.”111 Save for a few highly questionable attempts at justice, such as the three-day trial and death sentence passed on Pol Pot and his deputy prime minister and foreign minister Ieng Sary, in absentia, in 1979, these crimes were left without adequate redress for more than twenty-five years. In 2006, however, the ECCC came into operation, carry ing with it the hopes of many Cambodians, and indeed members of the international community, that those responsible for one of the worst humanitarian atrocities of the twentieth century would finally be held to account for their actions. As a hybrid international-domestic tribunal, the ECCC is authorized to try crimes committed under Cambodian domestic law as well as under international humanitarian law and custom. Indeed, the process of drafting the “tribunal law incorporating both domestic and international law was,” by all accounts, “an immense legal task.”112 The result was that the court is mandated to try eight specific crimes: homicide, torture, and religious persecution as set forth in the 1956 Penal Code of Cambodia;113 the “crimes genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948”;114 crimes against humanity;115 grave breaches of the Geneva Conventions of 12 August 1949;116 “the destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for Protection of Cultural Property in the Event of Armed Conflict”;117 and “crimes against internationally protected persons pursuant to the Vienna Convention of 1961 on Diplomatic Relations.”118 Right from its inception, the question of amnesty has been high on the agenda of the ECCC due to the fact that some senior Khmer Rouge officials accused of committing human rights violations had, in the past, been granted amnesties. In an attempt to combat impunity, however, the Law on the Establishment of the ECCC specified that the government of Cambodia “shall not request an amnesty or pardon for any persons who may be investigated

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for or convicted of crimes referred” to in the law.119 However, it also allowed the chambers discretion to rule on amnesties and pardons already granted. This provision has been of particular relevance to the case of Ieng Sary, one of the defendants in Case 002, a senior Khmer Rouge figure and deputy prime minister and foreign minister of Democratic Kampuchea from 1975 to 1979. Ieng Sary is accused of sending thousands of intellectuals and other Cambodians returning from abroad to Boeung Trabek, a prison camp at which they were subjected to a “re-education” program. From there, some 90 percent of those interred were sent to the torture and extermination facility, S-21, to be killed.120 Following the overthrow of the Khmer Rouge, on 19 August 1979, Ieng Sary, along with Pol Pot, was sentenced to death in absentia for having committed genocide. However, in 1996 he was granted a royal pardon in the interests of national reconciliation. The amnesty was offered in return for Ieng Sary’s “defection to the side of the Cambodian Government, which led to an end of the conflict between Government forces and those forces which had been under” his control.121 On 13 November 2007, the Office of the Co-Investigating Judges (OCIJ) of the ECCC issued an order to take Ieng Sary into custody, upon which he was charged with crimes against humanity and grave breaches of the Geneva Conventions of 12 August 1949. In its Provisional Detention Order, the OCIJ determined that neither the principle of double jeopardy nor the Royal Pardon and Amnesty he was granted was an impediment to his prosecution by the ECCC. It determined that the double jeopardy rule did not apply in this case as Ieng Sary was not charged with genocide but with crimes against humanity and grave breaches of the Geneva Conventions, that “the 1979 trial did not cover all of the offences coming within the jurisdiction of the ECCC,” and that the amnesty did not “cover offenses within the jurisdiction of the ECCC.”122 Indeed, as Diane Orentlicher notes, “when he granted Ieng Sary a royal amnesty at the behest of Cambodia’s two Prime Ministers but against his own conscience, Prince Sihanouk made plain that such a pardon would not prevent an international tribunal from prosecuting Ieng Sary.”123 Nonetheless, Ieng Sary’s defense team argued that the amnesty he was granted included crimes “covered within the jurisdiction of the ECCC.”124 On 11 April 2011, however, the Pre-Trial Chamber dismissed his appeal, arguing that upholding the amnesty would be “inconsistent with the international obligations of Cambodia” as set forth in the Geneva Conventions and the Conventions on Genocide and Torture. “[T]he grant of an amnesty,” the

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chamber argued, “without any prosecution or punishment, would infringe upon Cambodia’s treaty obligations to prosecute and punish the authors of such crimes.”125 With regard to customary international law, the chamber argued that as Cambodia has ratified the International Covenant on Civil and Political Rights it is obliged to “ensure that the victims of crimes against humanity which, by definition, cause serious violations of human rights, were and are afforded an effective remedy.” This remedy, in its opinion, “would generally require the state to prosecute and punish the authors of those violations.”126 Thus, although initial indications seemed to imply that the court would rest its argument on the nature of the crimes covered by Ieng Sary’s amnesty, in the end it made a very straightforward argument about the obligation to prosecute. That is, it states in unequivocal terms that the obligation to prosecute perpetrators of human rights violations overrides all related amnesties. The trial of Ieng Sary and his co-accused began on 27 June 2011 and is ongoing.

The Impact of Resisting, Overturning, and Circumventing Amnesties Although the significant inroads that domestic, national, and international courts have made into redressing past guarantees of impunity have been applauded in many spheres, on an intellectual level, moves to overturn, resist, and circumvent amnesties reignited old debates about the relative outcomes achieved by pursuing prosecutions and granting amnesties and, in particular, the deterrent effect of human rights trials. Perhaps the most forceful revisiting of debates about accountability for human rights violations came with Jack Goldsmith and Stephen Krasner’s 2003 article on the limits of idealism. In it, Goldsmith and Krasner took aim at the universal jurisdiction cases that had recently been heard in Europe and the establishment of the ICC, along with “recurring demands for humanitarian intervention.”127 Underpinning their argument was the assumption that those in favor of prosecutions offered exclusively “deontological rather than . . . consequentialist ethics.”128 This, as we will see shortly, was mistaken, as both historical and contemporary arguments in favor of prosecutions have sought to demonstrate the benefits associated with trying perpetrators of human rights violations. Nonetheless, taking a consequentialist approach themselves, they argued that

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universal jurisdiction prosecutions have the potential to “provoke resentment among the affected groups . . . domestic unrest or international confl ict.” That is, they suggested that universal jurisdiction prosecutions “may cause more harm than the original crime[s]” they indent to address.129 By contrast, they argued that “amnesties have been an important component in several peaceful settlements of bloody civil confl icts” in recent years, including the controversial cases of Chile, Haiti, Sierra Leone, and South Africa.130 In support of amnesties, they cited Michael Scharf’s “correct” argument that “a rejection of amnesty and an insistence on criminal prosecutions ‘can prolong . . . conflict, resulting in more deaths, destruction, and human suffering.’ ”131 However, Goldsmith and Krasner also took aim at the ICC which, they argued, also “lacks the institutional capacity” to adequately assess the possible negative consequences produced by pursuing prosecutions.132 Rather, they argued, ICC prosecutions have the potential to “aggravate bloody political conflicts and prolong political instability in the affected regions.”133 In thus arguing, Goldsmith and Krasner explicitly sought to counter arguments made by individuals such as Human Rights Watch’s Kenneth Roth that “an effective ICC” might help to deter “atrocities in the first place.”134 Roth was not alone in this view. M. Cherif Bassiouni argued, along similar lines, that the “public processes of the ICC will reinforce social values and expectations concerning international conduct, and that will in turn contribute to the individual internalization of these values.” This, in turn, he argued, will “enhance individual and collective compliance, and thus reduce harmful results.”135 The issue of the assumed deterrent effect of human rights trials was also raised at around the same time by Jack Snyder and Leslie Vinjamuri, who argued that international criminal trials had “utterly failed to deter subsequent abuses in the former Yugoslavia and Central Africa.” By contrast, they maintained that amnesties, “when implemented in a credible way,” constituted a far more effective means of “curbing abuses.”136 For Christoph Safferling, this first argument has some merit, although not necessarily because of the assumed negative outcomes associated with prosecutions. Rather, he suggests that “[d]eterrence has . . . failed thus far,” in large part because international criminal law is enforced so sporadically that human rights offenders need not be seriously concerned that they will be indicted and tried.137 For Payam Akhavan, however, it is directly at odds with his findings about the deterrent effects of the ICTY.

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The ICTY was established with the explicit aim of deterrence in mind. Its first annual report to the United Nations Security Council stated, “One of the main aims of the Security Council was to establish a judicial process capable of dissuading the parties to the conflict from perpetrating further crimes. It was hoped that, by bringing to justice those accused of massacres and similar egregious violations of international humanitarian law, both belligerents and civilians would be discourages from committing further atrocities. In short, the Tribunal is intended to act as a powerful deterrent to all parties against continued participation in inhuman acts.”138 Confirming the achievement of this end, Akhavan’s study of the ICTY and the ICTR found that the “stigmatization of criminal conduct may have far reaching consequences” including the promotion of “post-conflict reconciliation.”139 However, Snyder and Vinjamuri disagreed with Akhavan’s findings. They argued, instead, that “[r]ather than individualizing guilt, the ICTY seems to have reinforced ethnic cleavages . . . [and] complicated progress toward peace and democracy in Serbia” and conclude their piece by stating that “[t]rials do little to deter further violence and are not highly correlated with the consolidation of peaceful democracy.”140 Elsewhere, in defending the use of amnesties, Vinjamuri and Snyder have argued, not simply that trials do not deter future human rights violations but that “[p]roponents of legalistic justice who underrate the centrality of . . . political considerations cause more abuses than they prevent.”141 This is a charge that proponents of prosecutions vehemently deny. In particular, in the mid- to late 2000s scholarship concerned with the outcomes associated with various transitional justice mechanisms underwent a major shift. Here, with the emergence of large-scale databases of transitional justice mechanisms, and the large-N comparative studies that followed from them, a move from “faith-based” to “fact-based” analyses of the outcomes of transitional justice took place.142 The first significant study of this type was Kathryn Sikkink and Carrie Booth Walling’s 2007 analysis of the impact of human rights trials in Latin America. In direct response to the claims made by Goldsmith and Krasner and by Vinjamuri and Snyder, they presented five main findings that have bearing on how the relationship between amnesties and accountability is conceived. First, they argued that human rights trials are not “likely to undermine democracy and lead to military coups” as supporters of amnesties claim. In particular, they note that in Latin America, the region “which has made the most extensive use of human

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rights trials” we have also seen “the most complete democratic transition of any transitional region.” What is more, they also highlight the fact that, contrary to its classical characterization as the quintessential example of the negative outcomes associated with pursuing prosecutions, Argentina’s pursuit of more human rights trials than “any other country in the world” coincided with the “longest period of democratic rule in its history.”143 Second, Sikkink and Booth Walling demonstrate that in the face of wideranging human rights data, “it remains hard to sustain” the argument that “human rights trials actually lead to more atrocities in the Latin American cases.”144 On the contrary, their findings show that human rights trials are actually related to a reduction in human rights violations as “countries that held more trials had a higher average improvement in human rights than the countries that had fewer trials.”145 Third, with regard to the impact of trials on peace, Sikkink and Booth Walling argue that “[t]here is not a single transitional trial case in Latin American where it can be reasonably argued that the decision to undertake trials extended or exacerbated conflict.”146 With this, they comprehensively address the major arguments against pursuing prosecutions for human rights violations presented by proponents of amnesties. Indeed, when it comes to the question of amnesties, their results similarly refute Snyder and Vinjamuri’s argument that amnesties “have been highly effective in curbing abuses.”147 On the contrary, their study found that, in Latin America at least, “there is no evidence that amnesties are highly effective” on the ground that they have been an almost constant feature of transitional justice in the region.148 In particular, with regard to the amnesty success story cited by Snyder and Vinjamuri, El Salvador, they argue that “[t]here is no evidence that the amnesties in El Salvador or anywhere else in the region were effective by themselves in curbing abuses.”149 Finally, with this, Sikkink and Booth Walling note that the dichotomies once accepted between trials and amnesties, trials and forgiveness, truth and justice, and so on, have broken down with amnesties, as noted earlier in this chapter, often being implemented in association with prosecutions rather than as their alternative.150 Extending this project to human rights trials on a global level, Sikkink and Hunjoon Kim have, in a study involving one hundred cases, confirmed that human rights trials not only have a deterrent effect on human rights violations in the country in which they are held, but also “have a deterrence impact beyond the confines of the single country.”151 In doing so, they explicitly respond to the argument that amnesties are sometimes necessary to

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prevent a backlash from spoilers that would reduce protection of human rights. They argue that it is a given that “spoilers will always prefer no transitional justice at all, preferably guaranteed by an amnesty” and will “attempt to block domestic prosecutions, through threats, coup attempts, blocked peace processes, and the like.”152 However, when scholars such as Snyder and Vinjamuri argue, on that basis, that amnesties ought to be the preferred course of action over prosecutions, they are missing “the bigger and longer strategic game that prosecutions can set in motion” the longer game that sees future generations and citizens of other states adopt and comply with human rights norms.153 Significantly, however, Kim and Sikkink’s findings are at odds with another large-N study of transitional justice conducted by Tricia Olsen, Leigh Payne, and Andrew Reiter, which found that prosecutions do not, by themselves, produce positive outcomes for democracy, peace, and human rights. The theory of “transitional justice in balance” they develop, adopts a holistic approach based on the idea, advocated by the International Centre for Transitional Justice, that “[n]o single [transitional justice] measure is as effective on its own as when combined with the others.”154 In doing so, they diverge from the “maximalist approach” which “advocates the strictest form of accountability to address past atrocity” in the form of human rights trials, the “minimalist approach” which maintains that “amnesties provide the best form of transitional justice to protect transitions from authoritarian rule and violent conflict,” and even the “moderate approach” which “finds middle ground between the maximalist promotion of accountability through prosecutions, on one hand, and the minimalist endorsement of amnesties and respect for political constraints, on the other—by endorsing truth commissions.”155 Rather, the holistic justice balance approach argues that “no one mechanism will achieve” the central goals of transitional justice, namely, improvements in human rights, democracy, and peace.156

Balancing Amnesties The justice balance argument maintains that while amnesties “do not achieve accountability on their own,” they contribute to transitional justice in two main ways, through the processes of selectivity (prosecuting leaders and/ or those who have committed serious crimes and amnestying others) and sequencing (granting amnesties in sequence with trials and/or truth

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commissions). Where a former regime has collapsed, thus precipitating a transition, amnesties implemented in combination with trials can help to limit the considerable strain that costly, large-scale prosecutions place on new democracies and states recovering from conflict. In this context, amnesties are viewed not as “a trade-off with justice but as complementary [to justice] . . . a way to limit the number and scope of trials without undermining them.”157 In contexts where a transition has not resulted from the demise of the former regime but through a process of negotiation, amnesties may provide stability in the short term, which may eventually allow trials to take place sometime later.158 In some ways, the justice balance argument thus shares key features with the “necessary evils” argument,159 both of which imply that the simultaneous rise of amnesties and prosecutions for human rights violations can in part be attributed to the different functions these two mechanisms perform: amnesties provide stability in the short term, while trials bring justice, in the present or in the future. The case of the Solomon Islands provides an excellent example of precisely how this type of balancing takes place. In this case an amnesty was agreed as part of peace negotiations. After cessation of hostilities was achieved those individuals accused of the worst human rights violations were prosecuted, and then, adding the dimension of truth to the mix, a truth commission was established to overcome some of the negative effects that the trials had brought.

The Case of the Solomon Islands

In late 1998 the Melanesian archipelago state of the Solomon Islands was plunged into a period of chaos and violent civil confl ict precipitated by a complex web of grievances, injustices, ethnic tensions, and economic insecurities. Known colloquially as “The Tensions,” the low-intensity conflict dragged on until the middle of 2003, leaving an estimated two hundred people dead and more than twenty thousand displaced from their homes.160 Marked by the protracted and consistent violation of human rights, the Tensions saw rampant torture, the entrenchment of gender-based violence, including the widespread rape of women and girls, and the kidnapping and murder of local and international civilians, including several missionaries and peace envoys.161 Following a long and arduous peace process marked by numerous false starts, the Townsville Peace Agreement was finally reached on 15 October

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2000. In order secure a cease-fire it included two linked amnesties. The first was a weapons amnesty that provided anyone who relinquished their weapon with “immunity from prosecution in respect of the stealing or possession of that weapon (or any of a similar kind) at any date after the 1st January, 1998.”162 The second was a general amnesty for “[m]embers, leaders and other civilian advisors associated with” the warring parties, as well as members of the police, prison ser vice, or military “who participated in military operations during the course of the ethnic crisis.” It provided immunity for criminal acts perpetrated in connection with the Tensions, including “killing in combat conditions or in connection with the armed conflict on Guadalcanal.”163 That is, the vaguely worded TPA amnesty appeared to be a blanket amnesty, providing immunity from prosecution for  all crimes committed during the conflict, including, presumably, human rights violations.164 In order to facilitate the further surrender of weapons, the Solomon Islands government instituted Amnesty Acts in 2000 and 2001 that, like the amnesty provision included in the TPA, controversially included immunity from prosecution for offenses such as murder. However, unlike the TPA amnesty, the 2001 Amnesty Act placed certain conditions on the granting of immunity. First, it limited the scope of the amnesty to crimes committed by members of each party to the conflict during particular defined periods.165 Second, the act made the surrender of “all weapons and ammunition and stolen property in possession and in the custody of the militant groups” a prerequisite for receiving amnesty.166 Third, and finally, the act specified, in its final provision, that amnesty “not apply to any criminal acts done in violation of international humanitarian laws, [or] human rights violations or abuses.”167 This limitation, it is thought, was included to “allay potential international concerns that the Acts had been drafted so as to provide amnesty for grave breaches of the Geneva Conventions that had been allegedly committed by” both sides in the conflict.168 Thus, it seems that by this stage the Solomon Islands government had accepted that blanket amnesties providing immunity for the perpetrators of human rights violations were no longer considered acceptable, even when proposed as part of ongoing peace negotiations. However, as the precise constitution of “human rights violations” was never specified, exactly which crimes were excluded by the amnesty remained unclear.169 Following a request made by the prime minister of the Solomon Islands, Sir Allan Kemakeza, for assistance to quell the increasing insecurity and instability in his country, on 24 July 2003, the Australian-led Regional

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Assistance Mission to the Solomon Islands (RAMSI) arrived in the capital, Honiara. Operating under the pidgin name Operation Helpem Fren, RAMSI was mandated to “[e]nsure the safety and security of the Solomon Islands” and to institute significant reforms and improvements in the “machinery of  government,” economic governance, and law and justice, the so-called “three pillars” of the mission.170 In particular, what made RAMSI unusual among interventions of its type was its “unusually strong rule-of-law agenda,” which, in the immediate phase, demanded the restoration of the Solomon Islands’ “ ‘barely functioning’ criminal justice system.”171 Less than four months after arriving in the Solomon Islands, RAMSI had facilitated the arrests of some 1,340 individuals, including large numbers of militia members and police officers who were charged with a range of offenses including “very serious charges” such as murder and other human rights violations.172 Predictably, RAMSI’s success in arresting so many militants drew criticism from those who thought that their actions breached the terms of the amnesties included in the TPA and the Amnesty Acts of 2000 and 2001. In accordance with their commitment to reestablish the rule of law and justice and, by extension, prosecute the perpetrators of serious crimes, RAMSI officials and the prosecutors they supported ultimately found a way to circumvent the amnesty laws. The first issue to be considered in deciding whether the amnesties ought to be upheld was how Section 3(5) of both Amnesty Acts, prohibiting amnesties for violations of international humanitarian law or of human rights, should be interpreted. As no definition of what constituted a human rights violation was provided in any of the amnesty laws, the focus centered on international humanitarian law. The question thus became whether or not the conflict in the Solomon Islands could be considered a “non-international armed confl ict,” thus placing it under the jurisdiction of the Geneva Conventions and Additional Protocols of 1977 to which the Solomon Islands is a signatory.173 As Watson argues, there was “sufficient evidence to conclude . . . that there was a state of noninternational armed conflict,” thus binding the parties to the principles set out in the Geneva Conventions. Thus, members of the warring parties accused of breaches of the Geneva Conventions could be prosecuted for their actions and were not eligible for immunity provided by the Amnesty Acts. Despite the specter of the Geneva Conventions looming large over both the drafting and interpretation of the Amnesty Acts, ultimately they did not have a great deal of bearing on the efforts to circumvent the amnesties or in the prosecutions that followed. Rather, RAMSI officials simply sidestepped

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the issue of amnesty by arguing that they could not reliably determine who ought to qualify for immunity. That is, because they could not, as per the terms of the amnesties, reliably establish that suspects had returned “all weapons and ammunition and stolen property” “all allegations of criminal behaviour would be investigated.”174 What is more, in the end no one was ever charged with “grave breaches of the Geneva Conventions” or any other offense proscribed in international humanitarian law. Rather, individuals were only ever prosecuted for offenses under the Solomon Islands Penal Code. By sidestepping the amnesties that had been instituted as part of and following the TPA, RAMSI and the prosecutors paved the way for the “Tensions Trials,” which saw several high-profi le militia leaders tried and convicted of a range of crimes including murder. While few, if any, other postconflict peacebuilding operations have been more successful in securing convictions, particularly among senior militants, RAMSI has faced significant criticisms. In particular, some have come to the view that the pursuit of prosecution and punishment for the perpetrators of serious crimes committed during the Tensions has only served to hamper attempts at reconciliation.175 While significant reconciliation processes have taken place within Rove Prison, the incarceration of so many militants has run the risk of preventing “reconciliation processes outside the prison walls.”176 In particular, some have argued that “whilst charges are outstanding there is unlikely to be any acceptance of culpability for what occurred” and, as such, the adversarial nature of the criminal justice system inhibits the recovery of truth.177 Thus, on 29 April 2009, Archbishop Desmond Tutu launched a Truth and Reconciliation Commission (TRC) for the Solomon Islands. In accordance with the TRC Act, passed by the Solomon Islands government on 28 August 2008, it is a hybrid commission, presided over by three commissioners from the Solomon Islands and two international commissioners. The mandate of the TRC is threefold: to investigate and report on human rights violations that took place during the Tensions, to provide “opportunities for affected parties . . . to tell their story” through a range of mechanisms, and to recommend “policy options or measures that may prevent future repetition of similar events.”178 However, the TRC represents not only the Solomon Islands’ most concerted effort to confront its violent past to date but an attempt to reconcile the seemingly incompatible approaches to transitional justice that had previously been pursued in the postconflict context. It has attempted to do

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this in two interrelated ways: first, by overcoming the problem of silence associated with the criminal justice system, and, second, by pursuing truth and reconciliation but not at the expense of attributing accountability or responsibility to the perpetrators of serious crimes. Unlike the South African TRC on which it was modeled, the Solomon Islands TRC does not have the power to grant amnesties in exchange for truth.179 What is more, although witness statements are “inadmissible against the person in any action, suit, or proceeding,” witnesses are granted the usual right not to incriminate themselves or members of their immediate family, and “facts or information disclosed or statements made” cannot be considered “admissible evidence in any proceeding before a court of law,” the TRC is authorized to recommend criminal proceedings.180 This leaves open the possibility that on the basis of the evidence heard at the TRC it will, in its final report, refer a new set of matters to the High Court for prosecution. With the TRC’s final report still outstanding, it remains to be seen whether it will pursue this course of action. Although the TRC Act was passed unanimously, the provisions allowing for the TRC to recommend further prosecutions is not universally supported in the Solomon Islands. In particular, in July 2009, before the TRC had begun its hearings, the Solomon Islands Minister for National Unity, Reconciliation and Peace, Sam Iduri, proposed the introduction of a “Forgiveness Bill” to provide amnesty for perpetrators giving evidence before the TRC.181 However, like many that have gone before it in other countries and contexts, the proposed bill has faced criticism from a number of quarters. In particular, the chairman of Transparency International, Australia, Bob Pollard, has argued that “forgiveness is something that can only be given by the victim to the offender” and, as such, there is no way “to legislate for forgiveness.” In addition, he has suggested that offering amnesties to the perpetrators of serious crimes “could actually offend those who suffered during the civil war” and, in doing so, suggested that the Forgiveness Bill may even “set the country’s healing process back.”182 In contrast to Pollard, however, the Solomon Islands Western Province premier, George Solingo Lilo, has argued that “there will be no nation building and reconciliation and our people will forever remain blemished if we fail to forgive each other and forget the past.” Lilo has thus argued that the members of the TRC “may have to put themselves in the position of those perpetrators of these gross human rights violations, who genuinely demonstrates remorse and regret and were willing to ask for forgiveness and help

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our society move forward.”183 Despite continued opposition from some quarters, the Solomon Islands government still plans to put forward the Forgiveness Bill, although that has not, as yet, taken place.184

The Significance of Sequencing

While the theory of transitional justice in balance provides us with useful insights into some of the ways in which amnesty-granting states confront the pressure to prosecute, we must be careful not to extrapolate from that a general conclusion about why states continue to grant amnesties. If we examine the rate of incident of sequencing and selectivity, the reasons for this note of caution become clear. Of the 319 amnesties Olsen, Payne, and Reiter list in Appendix 4 of their work as being granted between 1970 and 2007, 275 have been instituted in states that also instituted trials and/or truth commissions. However, the mere coincidence of amnesties with trials and/or truth commissions over a twenty-eight-year period does not, by itself, indicate that processes of sequencing or selectivity have been employed. Rather, to be considered part of a holistic approach, two or more transitional justice mechanisms must be implemented with reference to the same incident or set of issues. Thus states that implement an amnesty to address one set of crimes and try the perpetrators of unrelated offenses cannot be said to be following a holistic approach but rather picking and choosing which single mechanism to use on a case-by-case basis. When analyzed according to this criterion, amnesties were implemented in conjunction with either trials and/or a truth commission through the processes of sequencing or selectivity in only just over one-fifth of cases examined between 1978 and 2007. What is more, when analyzed according to the year in which the amnesty was instituted, no significant increase in the rate at which amnesties have been combined with other mechanisms was identified. Rather, processes of sequencing and selectivity have remained fairly constant throughout the past thirty years, leaving it highly doubtful that they can account for the persistence or, indeed, rise of amnesties in the face of the justice cascade (see Figure 7). As sequencing and/or selectivity requires that more than one transitional justice mechanism be implemented to address the same issue, however, it is possible to argue that the processes of sequencing and selectivity begin only once a second mechanism is instituted. For example, in 2000 the Solomon Islands include an amnesty in the Townsville Peace Agreement

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8 6

Year of Amnesty

4

Combination Year

2 0 78

19

80 982 984 986 988 990 992 994 996 998 000 002 004 006 2 1 2 1 1 1 1 1 1 1 2 1 2

19

Figure 7. The amnesties in combination with trials and/or truth commissions, 1978–2007.

intended to bring an end to their civil conflict. It was not until 2005 that a second mechanism, trials, was implemented, taking amnesty from being a stand-alone mechanism to being part of a sequence that eventually also included a truth commission. When amnesties granted in conjunction with other transitional justice measures were tracked according to the year in which an amnesty became part of a sequence or selective process, either because another mechanism was implemented in conjunction with an existing amnesty or because an amnesty joined one or more other mechanisms already in operation, however, a similar result was reached.185 That said, we ought to remember that the purpose of Olsen, Payne, and Reiter’s investigation was not to ascertain why amnesties persist, but to examine which combinations of transitional justice mechanisms are most effective. In doing so, they provide us with some important clues about where we might look to find the answer to the question of why amnesties endure despite the justice cascade. In par ticu lar, Olsen, Payne, and Reiter’s work prompts us to consider the purposes amnesties might be put to. As discussed above, they offer two explanations: that amnesties provide stability and that amnesties allow the pursuit of (minimal) justice within the strained politico-economic contexts that many transitional states find themselves in. This book, as we have seen, has drilled down further to consider the range of more specific aims to which amnesties are intended.

Conclusion In the past two decades, significant progress has been made in the fight against the type of impunity provided by amnesties granted to protect out-

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going authoritarian rulers, to ensure the stability of new democratic regimes, and, less often, to encourage warring parties to sign peace agreements. These actions serve to confirm the argument that the justice cascade is not only rendering amnesties less acceptable in theoretical terms, but also bringing about changes in the behavior of states and other institutions. Despite the undeniable successes of the justice cascade, however, it remains the case that only a very small proportion amnesties have been overturned, circumvented, annulled, or resisted. With few exceptions, amnesties that have been overturned, resisted, or circumvented have shared one or more of three common features. First, most of the amnesties in question were originally granted by outgoing authoritarian rulers to protect themselves and their supporters from future prosecutions or by transitional regimes hoping to ensure the security of their fledgling democratic regimes. Second, in most cases in which amnesties have been overturned or annulled, a stable and consolidated democratic regime has been in place for some time. Third, ending impunity has generally required significant involvement by the international community, in the form of the active engagement of the international human rights movement, the referral of the case to a regional human rights court, such as the Inter-American Court of Human Rights, or the involvement of an international or hybrid criminal tribunal. What these fi ndings imply is that amnesties are most readily overturned, circumvented, or annulled in states where the end of impunity will not jeopardize peace and security or bring a return to conflict, thus confirming, from a very different angle, the argument the perceptions of utility readily attach to amnesties.

CHAPTER 6

The Persistence of Amnesties Aceh is presently enjoying a situation of peace. The parties of the conflict have agreed to engage in political negotiations, no longer using violence as a means to resolve differences. But the post-conflict situation has left residual suffering for the majority of the people of Aceh. . . . What is still missing is how the State will take responsibility for the past and ensure a new future for the people of Aceh.1

In contemporary political practice, the status of existing amnesty laws is bifurcated along distinct historical and contextual lines. On one hand, amnesties no longer afford the perpetrators of serious human rights violations the iron-clad protection they once did. With a range of political actors going to increasing lengths to find ways to circumvent, overturn, and resist existing amnesty laws, some individuals who have lived under an assumed guarantee of impunity now have very good reasons to be nervous about their continued freedom. In particular, in corners of the globe where the justice cascade is entrenched and within international institutions that represent its manifestation, efforts to end the impunity afforded by amnesties are gathering pace. As we saw in Chapter 5, however, this trend has not been all-encompassing. Rather, the majority of amnesties that have faced legal challenges to date either were granted in Latin America, where a strong, internationalized human rights movement exists and is overseen by the Inter-American Court of Human Rights, or have been resisted by international legal bodies such as the ICC and the hybrid ECCC. It thus seems that in cases exhibiting strong international engagement, the future status of past amnesties is increasingly precarious. On the other hand, however, it remains the case that most perpetrators of human rights violations granted amnesties in the past can rest secure in the knowledge that it is highly unlikely they will ever face prosecution for

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their crimes. Despite the considerable advances made by individuals, states, and organizations committed to ending impunity for human rights violations, amnesties continue to be implemented, and, what is more, most existing amnesty laws remain in force. With this in mind, this chapter examines the ways in which amnesty-granting states have resisted the obligation to prosecute human rights crimes. Just as justice processes have sought to resist and circumvent amnesty laws, so too in other contexts have the responses to the demands for justice entailed resisting and circumventing the pressure to prosecute perpetrators of human rights violations. As we will see in this chapter, the pressure to prosecute can be exerted on the amnesty process at two main points: prior to the establishment of the amnesty law, pressure may be brought to bear on the parties involved not to allow the inclusion of human rights violations within its provisions; and after the amnesty law has been enacted, pressure may be applied to states to overturn or annul it. Where existing laws are concerned, the vast majority of amnesties remain untouched, with little prospect of being overturned, resisted, or circumvented in the near future. Some states, such as Brazil, have even gone so far as to actively resist pressure to annul old amnesty laws. Where proposed amnesty laws are concerned, states and other parties wishing to include human rights violations have tended to ignore the pressure to prosecute or disguise their amnesties, thereby appearing to placate demands for justice while actually providing impunity. Alternatively, where self-determination is at stake, states and other negotiating parties have returned, once more, to the original arguments used to justify amnesties in terms of the establishment of democracy and the pursuit of peace. In each of these types of scenarios the justification for upholding or designing an amnesty is the same: amnesties, it is argued, constitute an effective means of ensuring the stability of democratic regimes and bringing an end to violent conflict.

Resisting the Pressure to Prosecute For a significant number of states granting amnesties, international pressure to prosecute the perpetrators of human rights violations has had little discernible impact. Admittedly, without comparing the rate at which proposed amnesties were subsequently shelved as a result of international pressure to those that were implemented as an amnesty law, it is not possible to

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ascertain the precise impact of that pressure. Yet, the mere facts that so many states continue to grant amnesties and most existing amnesty laws remain unchallenged suggest that the international justice movement is not penetrating amnesty laws to the extent that proponents of prosecutions would like. Where international pressure to pursue prosecutions is nonexistent or minimal, states can readily ignore their obligations to try perpetrators of human rights crimes. However, even where it is considerable, some states have still found ways to resist the pressure to prosecute, both during negotiations concerning the design of an amnesty law and after the amnesty has entered into force. The case of Brazil is something of an outlier in terms of Latin American states’ responses to past human rights violations: it remains the only state not to have pursued prosecutions for human rights crimes. The main obstacle to trials in Brazil is an amnesty law passed by the military regime in 1979. In part, the very nature of this amnesty, as well as the political context in which it was instituted, has contributed to its ongoing longevity. Brazil’s 1979 amnesty was in many ways a political compromise, enacted in response to a growing social movement that from the mid-1970s had begun to “demand the public acknowledgement of human rights violations committed” since the beginning of the military regime in 1964.2 However, this movement was itself divided between those “who insisted on punishing human rights transgressors” and those who preferred the idea of a political compromise in the form of a general amnesty, either combined with the “clarification of human rights violations committed” or as a means of “reconciliation in the form of a total silencing of the past.”3 Amnesty Law No. 6683 was thus posed as a compromise to benefit both “ ‘torturers’ and ‘tortured’ alike,” although, in reality, the only individuals who enjoyed the full benefits of its provisions were members and supporters of the regime.4 Unlike similar amnesties in Argentina, Uruguay, and Chile, however, Brazil’s amnesty law still stands. Several different factors appear to have contributed to its persistence, some of which related directly to the very purposes for which amnesties of this type are often implemented. First, the case of Brazil has been marked by a distinct lack of popular interest in punishing perpetrators of past human rights violations. One possible reason for this is the fact that a relatively small number of individuals were actually killed by the Brazilian military regime (474 in Brazil, compared to the tens of thousands killed in Argentina). With relatively few families directly affected, the

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impetus to pursue prosecutions has not been particularly strong. Another reason concerns the current priorities of the Brazilian population, who are focused on the more immediate problems of poverty and inequality. In addition, the deterioration of human rights standards under democratic rule has left many people unwilling to pursue those who led a less violent era in Brazil’s recent history. As Kathryn Sikkink notes, Brazil “receives worse human rights scores today than it did during the military government,” thus dampening enthusiasm for historical justice.5 A second factor contributing to the endurance of Brazil’s amnesty law concerns the nature of the transition it preceded. Unlike Argentina, which experienced a “rupture” in the authoritarian regime or a “clean break” between authoritarian and democratic rule, Brazil underwent a negotiated or “pacted” transition to democracy. This gradual process of democratization “strengthened the position of the former authoritarian leaders to control events afterwards,” and as a result “it was more difficult . . . to hold prosecutions” in the initial years after the transition.6 In addition, the Brazilian “armed force have continually justified military rule by highlighting the spectacular economic growth achieved between 1968 and 1973” that led to Brazil being heralded as an “economic miracle.”7 Despite these factors hampering moves to overturn Brazil’s amnesty law, it is not correct to suggest that significant support for the former regime exists. As Nina Schneider writes, even “those who reject punishment are often far from being defenders of the regime.” 8 According to her analysis, four main positions on the question of Brazil’s amnesty can be identified: the “truth and justice” position, which demands “punishment of military officials involved in human rights violations”; the “truth” position, which advocates clarifying “the circumstances of the murders and the whereabouts of the corpses”; “the past is the past” position, which favors “a politics of silence”; and the “ideological struggle” position taken up by those who object to the work of human rights activists and “accuse them of trying to gain either power or financial compensation.”9 In this climate, the fight to have Brazil’s amnesty law overturned has been left to the Brazilian Lawyers’ Organization, Ordem dos Advogados. In 2008, it appealed to the Supreme Court of Brazil to reinterpret the 1979 Amnesty Law to allow certain human rights violations to be tried. In particular, they argued that torture was not a political crime covered by the Amnesty Law, but a common crime eligible for prosecution. In its ruling handed down on 29 April 2010, the Supreme

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Court ruled “seven to two to uphold the interpretation that crimes committed by members of the military regime were political acts and therefore covered by the amnesty.”10 Significantly, in the discussion that followed, “[f]our Supreme Court Ministers stressed that the Amnesty Law had contributed to present day democracy in Brazil, calling it a ‘landmark democratization.’ ”11 More recently, attempts by prosecutors to argue that the crimes of kidnapping and disappearance are not covered by the amnesty law on account of the fact that they are ongoing crimes, as previously argued in Argentina and Chile, have also been rejected. The case of Brazil thus provides one pertinent example in which a state has successfully resisted attempts to overturn an existing amnesty law. Although we must be careful not to draw any general conclusions from this single case, an unusual and exceptional one at that, it does highlight a significant factor at play in the persistence of amnesties. In the absence of a strong human rights movement, the impetus to resist or overturn amnesty laws is insufficient to outweigh the perception that amnesties help to facilitate good political ends, including transitions to democracy. Where peace agreements are concerned, however, amnesties do not persist through a lack of will on the part of the international community to prevent their implementation. Here the perceived purposes of amnesties directly outweigh the pressure to prosecute.

Confronting the Pressure to Prosecute in Peace Agreements

As demonstrated in Chapter 1, amnesties included in peace agreements remain very popular, in spite of the justice cascade. What is more, as the rate at which peace agreements were concluded fell in the 2000s,12 the rate at which amnesties were included in peace agreements actually rose during that period. The pressure to prosecute the perpetrators of human rights violations has thus been confronted in three main ways: by resisting demands for justice, by limiting the crimes to which amnesties apply, and by embedding amnesties in “balanced” justice processes, discussed in Chapter 5. Where amnesties are designed to end violence by ensuring the signing of a peace agreement, the pressure to prosecute perpetrators of human rights violations is perhaps most acute. As we saw in Chapter 4, with significant international involvement in the processes of negotiating peace settlements, considerable pressure is brought to bear on states considering offering am-

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nesties. What is more, since the United Nations’ 1999 intervention in the Lomé Peace Agreement, the view that amnesties used as negotiating tools to end violent conflicts cannot include human rights violations has been voiced with increasing regularity. Given the strength of this position and the United Nations’ actions in Angola and Sierra Leone, we would reasonably expect amnesties included in peace agreements after 1999 to exclude human rights violations. Yet in practice this has not been the case. Of the twentyone amnesties that were included in peace agreements between 1999 and 2007, fewer than one-quarter specified that amnesty provisions did not apply to human rights violations. Thus, while in general terms it is the case that increasing numbers of amnesty laws have excluded international human rights crimes over the past three decades, the number of amnesties explicitly including human rights violations has also increased over the same period.13 In contrast, the vast majority of amnesties implemented in the context of a peace agreement were general in scope and interpreted as including all crimes, including human rights violations. For example, on 7 January 2002, the government of Chad and the Movement for Democracy and Justice (MDJT) signed a peace agreement providing “a general amnesty for MDJT rebels” in an attempt to bring an armed conflict waged since 1998 to an end. The terms of the agreement were accepted by the Chadian parliament on 26 February 2002, which, as per its terms, “passed a law granting amnesty to all members of the MDJT.”14 One day later the MDJT declared that it was “satisfied with the terms of this amnesty” and it was brought into force.15

Disguised Amnesties Standing somewhere between states that explicitly resist the pressure to prosecute and those that overturn, circumvent, or balance amnesties are those states that use deception or selectivity to appease demands for justice while actually allowing amnesties. These types of cases are interesting because they provide evidence of both the justice cascade and the persistence of amnesties. In particular, the very fact that some states feel the need to disguise the amnesties they grant constitutes evidence that the pressure brought to bear, explicitly or implicitly, on states not to grant impunity to perpetrators of human rights violations is having some impact. Although that pressure is not having the desired effect of encouraging states not to grant amnesties in

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the first place, it does seem to be helping to reinforce the idea that granting impunity for human rights violations is unacceptable. However, these cases also provide evidence of the lengths to which some states will go to ensure they receive the perceived benefits of granting amnesties. Disguising an amnesty, as we will see, may involve straightforward deception, as in the case of Côte d’Ivoire, or a more nuanced and selective application as part of a broad package of transitional justice measures.

Deception

In the case of Côte d’Ivoire, a “disguised amnesty” was been used to circumvent international pressure to prosecute perpetrators of human rights violations. The Ouagadougou Peace Agreement, signed by the president of Côte d’Ivoire and Guillaume Soros, the leader of the Forces Nouvelles, on 4 March 2007 “was a recognition of the military and diplomatic stalemate in which the two parties were locked.”16 In this, it was at least in part, “an agreement between victors,” both of which had won elements of the conflict at hand. As such, the agreement determined to “extend the scope of ” an amnesty law passed in 2003 that had been implemented as part of the LinasMarcoussis agreement: “To this end, they have decided to adopt, by ordinance, a new amnesty law covering crimes and offences related to national security and arising from the conflict that shook Côte d’Ivoire and which were committed between 17 September 2000 and the date of entry into force of the present Agreement, with the exception of economic crimes, war crimes, and crimes against humanity.”17 It is interesting to note that during the Ouagadougou talks, “there was no pressure from international actors or from the lead or assisting mediators” to achieve any particular set of outcomes.18 Rather, the meetings were attended by the negotiating parties and international mediators who, by all accounts, often took a back seat and let the parties fight out their differences, without the presence of any external observers. On the one hand, the agreement to limit the Ouagadougou amnesty and thereby exclude war crimes and crimes against humanity speaks to the pervasiveness of the norm prohibiting amnesties for the most serious human rights violations. As Simon Mason remarks, it is well known that “no peace agreement is endorsed by the international community if it contains a blanket amnesty covering war crimes, crimes against humanity or genocide.”19

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However, as Mason also notes, “since negotiating parties are often the conflict parties who are responsible for the human rights violations, they are not interested in integrating clauses in the agreement that will then be used against them.”20 Thus, on the other hand, the implementation of the amnesty speaks to the continued acceptance of amnesties as an instrument of peace. Although the amnesty included in the Ouagadougou agreement conformed to international expectations that individuals accused of perpetrating human rights violations would not be granted immunity from prosecution, the wording of the ordinance implementing it is somewhat vague on the issue of exclusions. Article 3 of Ordinance 2007–457 thus states that the “present amnesty does not apply to . . . the offences qualified by the Ivorian penal code as crimes and offences against international law, crimes and offences against persons, crimes and offences against objects other than those listed in articles 1 and 2.”21 Côte d’Ivoire’s Penal Code (1981, amended 1998) “provides for the punishment of certain acts committed ‘in time of war or occupation,’ such as ‘crimes against the civilian population’ (Article 138) and ‘crimes against prisoners of war’ (Article 139).”22 However, as the ordinance does not “explicitly exclude” war crimes and crimes against humanity, some, including the Office of the United Nations High Commissioner for Human Rights, have argued that it contravenes international law.23 Thus, in practice, the general amnesty implemented in this case was disguised, whether intentionally or otherwise, by the agreement that mandated its provision.

Selective Application

A second prominent instance of what has been termed a “disguised amnesty” has been implemented in the case of Colombia. However, beyond this description the Colombian case bears little relationship to that of Côte d’Ivoire for three main reasons. First, in the case of Colombia transitional justice mechanisms were not embedded in a peace agreement but were employed as a substitute for a peace agreement.24 Indeed, in this case “no transition from authoritarian to democratic regime is taking place, nor . . . [were] amnesties . . . proposed for governmental violators of human rights.”25 Rather, the use of amnesties in the case of Colombia represents an attempt to stage a transition, from conflict to peace, “in the absence of peace accords—indeed, in the midst of war.”26 Colombia thus primarily chose to implement an

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amnesty as a means of achieving disarmament, demobilization, and reintegration (DDR). Second, as we will see shortly, in contrast to Côte d’Ivoire where an amnesty was simply implemented with little comment or justification, in Colombia amnesty was conceived and justified as a means of achieving “equilibrium” between the competing demands of peace and justice. Third, and as we will also see, unlike the case of Côte d’Ivoire in which little, if any, overt international pressure was brought to bear on the negotiating parties, Colombia faced immense international pressure to hold those responsible for human rights violations accountable for their crimes. Colombia has existed in a state of internal armed conflict since it achieved independence in the nineteenth century. However, the contemporary Colombian confl ict is usually defi ned as starting in 1964 with the formation of the fi rst communist guerrilla groups, the Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo (Revolutionary Armed Forces of Colombia—People’s Army, FARC-EP), Ejército de Liberación Nacional (Army of National Liberation, ELN), and Ejército Popu lar de Liberación (Popular Liberation Army, EPL). They were joined, in 1986, by Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia, AUC), a paramilitary group that, by 2005, boasted a membership of thirty thousand combatants.27 Throughout the conflict, “all groups have committed serious human rights violations,” with Amnesty International estimating that “70,000 people have been killed in the . . . twenty years” to 2007, and the United Nations High Commissioner for Refugees estimating that “almost three million people have been internally displaced.”28 In addition, it is widely thought that “thousands more have been kidnapped, disappeared, tortured and forcibly recruited by illegally armed groups, among other grave violations of human rights.”29 Th roughout the confl ict, Colombia has upheld a long history of offering amnesties in an attempt to secure peace. For example, in the early 1980s, the Betancour administration instituted Law 35, Ley de Amnestía no condicionada y en pro de la Paz (Law of Unconditional Amnesty in Favor of Peace), to “establish a framework for demobilization efforts not connected to a peace treaty.”30 The institution of this amnesty reflected “a legal environment in which blanket amnesties were offered in exchange for ‘peace and stability.’ ”31 In 2002, Álvaro Uribe was elected to the Colombian presidency, amidst increasing demands from the Colombian public to secure peace. Although he was unwilling to negotiate with the FARC, “whom he considered a ‘terrorist threat,’ ” he did enter discussions with the AUC.32 The initial result of

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their dialogue was the implementation of Law 782 of December 2002, which provided for the extension of Law 418 of 1997. Law 418 had been established to give the “government legal instruments ‘to seek a peaceful coexistence’ with the guerrillas, and was made temporary and effective for two years” before being extended and amended by Law 548 in 1999.33 Designed in part to allow negotiations to take place with “armed groups at the margins of the law,” Law 782 “encountered strong resistance from national and international human rights organizations” that saw it as a tool for “guaranteeing impunity instead of punishment for AUC members.”34 Decree 128, which regulates Law 782, provided economic and legal benefits to ex-combatants, including “pardons, conditional suspension of the execution of a sentence, a cessation of procedure, a resolution of preconclusion of the investigation or a resolution of dismissal” as well as “immunity from future prosecution for the same crimes underlying the benefits granted.”35 However, the translation of Law 782 into Decree 128 created a gap with regard to the treatment of militants accused of committing human rights violations. Thus, while Decree 128 applied only to ex-combatants who chose to take part in DDR programs but who were “being investigated or serving sentences for ‘lesser’ crimes, such as illegal possession of arms,” and excluded those who are “being processed or have been condemned for crimes which according to the Constitution, the law or international treaties signed and ratified by Colombia cannot receive such benefits,” “Law 782 defines the crimes referenced in Decree 128 as ‘atrocious acts of ferocity or barbarism, terrorism, kidnapping, genocide and murder committed outside combat, among others.’ ”36 As such, further “negotiations between the Colombian government and the AUC were largely focused on developing legal incentives for the demobilization of paramilitary soldiers who were excluded from the benefits of Law 418, Law 782, and Decree 128.”37 On 15 July 2003, the government of Colombia and representatives of the AUC signed a peace accord at Santa Fe del Ralito, Córdoba. Throughout the negotiations, the question of “accountability for past paramilitary violence” not only dogged the discussions but became “the subject of vigorous public debate in Colombia” and saw “intense” international pressure exerted on the Colombian regime to pursue prosecutions.38 In the end, however, a “kind of compromise on accountability for paramilitary crimes became necessary to entice AUC leaders . . . to give up their arms permanently.”39 The compromise reached in the Ralito II agreement, signed on 13 May 2004, established a “concentration zone” to process combatants. According to the process put

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in place, paramilitary leaders were required to give “the government a list of their members and the weapons they will surrender.” Those members were transported to the concentration zone where they were identified, their weapons seized, and their criminal records “checked for outstanding arrest warrants for crimes not covered by Decree 128.”40 The government would then assess whether individual members had committed human rights violations. If they were found not to have done so, they were released and afforded the benefits of the DDR package. If they were suspected of having committed human rights violations, however, the individuals were deemed ineligible to benefit from Decree 128 and thus remained in the concentration zone. Although in theory this process was intended to avoid granting amnesties to individuals accused of human rights violations, in practice as many as 160 “individuals charged with atrocities such as kidnapping and forced disappearances . . . received judicial benefits.”41 The Ralito II agreement brought with it questions about how accountability could be achieved for those who had been accused of committing human rights violations. Debate surrounding the issue was characterized by three general positions.42 The first, which Arvelo terms the “peace-forgiveness approach,” advocated “a broad if not total amnesty for paramilitary-related humanitarian crimes.”43 Supported, unsurprisingly, by the AUC, it maintained that prosecutions and punishment were acts of vengeance that would hamper the peace process. An AUC statement released in 2005 thus argued, “if the long peace negotiations of Santa Fe del Ralito end up in Congress with a humiliating process of subjection to justice, we will opt to stay on the hills facing war and death.”44 The second “peace-justice balancing” position combined “a rather narrow conception of peace (formally demobilizing an actor to the conflict as demonstrated by the decommissioning of arms) with a broader conception of accountability” that was not analogous to or strictly associated with punishment.45 This approach was manifested in the Uribe administration’s “Alternative Sentencing” bill presented before Congress shortly after the Ralito Accord was signed in 2003, which proposed replacing prison sentences for paramilitaries with various forms of probation in exchange for demobilization. Founded on the restorative justice idea that “criminal punishment would not contribute to reconciliation,” it thus “proposed a guarantee of amnesty for all demobilised actors.” 46 In response to criticisms leveled at the bill, President Uribe made clear that while he recognized “the concern raised by offering alternative sentences for grave crimes . . . in a context of 30,000 terrorists, it must be understood that a de-

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finitive peace is the best justice for a nation in which several generations have never lived a single day without the occurrence of a terrorist act.”47 Nonetheless, international and national criticism, largely by proponents of the third “strict justice” approach, ensured that the “Alternative Sentencing” bill was ultimately withdrawn for lack of support.48 The “strict justice” position, as its title suggests, conceived justice in formal retributive terms and, interestingly, endorsed a broad understanding of peace as a “long-term and sustainable” goal.49 The “strict justice” position was manifested in several pieces of attempted legislation that culminated in Senator Rafael Pardo Rueda’s “Truth, Justice and Reparation” bill. Focusing on the rights of the victims and “compliance with so-called international standards of justice,” it argued that Colombia’s approach to past crimes must be “in conformance with constitutional norms, the human rights treaties ratified by Colombia, the provisions of International Humanitarian Law[,] and [human rights protection and promotion] principles [against] impunity.”50 The bill thus endorsed the pursuit of prosecutions and punishment for the perpetrators of human rights violations and established the victims’ rights to reparations and the truth. To entice paramilitaries to participate in the demobilization process, Pardo’s bill did allow some legal benefits, including granting parole to combatants who had served two-fifths of their sentences, had confessed their crimes, had admitted responsibility for what they had done and sought forgiveness, had returned all property unlawfully obtained or obtained through the proceeds of crime, and had “effectively collaborated with the state to dismantle illegal groups and construct the truth of what happened.”51 However, it too failed to gain sufficient support in Congress. In the end, a compromise bill was presented in the form of the Justice and Peace Law (Law 975/05), which combined the “peace-justice balancing” approach to accountability with the “strict justice” approach to victims’ rights. Significantly, the only position to be rejected, at least in an overt sense, was the “peace-forgiveness” approach, which had advocated general amnesties. Combining the outcomes intended by each of the other approaches, the Justice and Peace Law aimed “to facilitate the peace process and the individual and collective reincorporation of members of extra-legal armed groups into civil life, guaranteeing the rights to truth, justice and reparation of victims.”52 It provided benefits to demobilized guerrillas and paramilitaries who did not qualify for those provided in Law 782 or Decree 128, as well as mechanisms designed to garner the truth about crimes they had committed. Those benefits included reduced sentences, defined as the “deprivation of freedom

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for . . . a minimum of five years and [a maximum] of eight years” for combatants willing to comply with particular requirements, including confessing “facts related to the crimes for which he or she seeks benefits.”53 As such, the Law on Justice and Peace represented a compromise that satisfied the demands for peace being expressed by a general public increasingly weary of the confl ict, but left both combatants and the victims of their crimes unsatisfied.54 Unsurprisingly, the Law on Justice and Peace has faced stringent criticism as well as several legal challenges, the most notable of which, the case of Gustavo Gallón Giraldo v. Colombia, was heard by the Constitutional Court of Colombia.55 Among the many legal arguments presented in the course of this case, two are of particular significance to questions of amnesties. First, although the Law on Justice and Peace did not provide amnesties for former combatants, it has been characterized as a “de facto,” “disguised,” or “veiled” amnesty nonetheless.56 In particular, the law not only provides for reduced sentences for combatants who have perpetrated human rights violations but allows time spent in the “concentration zone” to count as time already served, thereby further reducing sentences by as much as eighteen months. What is more, the law also empowers the government to determine “where the prisoners will serve their sentences,” thereby “potentially obviating incarceration in regular prisons.”57 Thus, although these measures do not accord with formal definitions of amnesty, they have been interpreted as granting the same sorts of impunity that overt amnesties provide. As the claimants in Gallón Giraldo v. Colombia argued, Law 975/05 constituted “a very sophisticated mechanism for impunity since it presents definitions and announcements apparently very generous with regard to the rights of victims, but designs a system that in an undercover way permits impunity.”58 Second, the claimants also argued that in relying on “spontaneous confessions” the Law on Justice and Peace did not provide any real “incentive to give a full confession.” Rather, combatants were able to “receive full benefits of the law” without making “a genuine contribution to the clarification of the truth.”59 In particular, the claimants in Gallón Giraldo v. Colombia argued that only an “infinitesimal minority” of demobilized combatants were required to tell the truth about their actions: in statistical terms, only 0.48 percent of paramilitaries were subject to Law 975/05, of which it is estimated only a fraction told the complete truth about their crimes, leaving the truth about paramilitary activities in Colombia largely hidden.60 In the case of Mapiripán v. Colombia, the Inter-American Court of Human Rights ruled

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in August 2005 that Law 975/05 “did not provide sufficient incentive for exhaustive confessions, and that the multiple perpetrators who were part of demobilized paramilitary clocks could deny the full truth.”61 What is more, it determined that Colombia must “remove all actual and juridical obstacles to an exhaustive judicial examination of the violations, prosecution of those responsible, and reparations for the victims.”62 In doing so, it exerted significant pressure on the Constitutional Court of Colombia to issue a comparable finding in its judgment. On 18 May 2006, the Constitutional Court of Colombia thus ruled on the merits of the Gallón Giraldo case. With regard to the truth, the court ruled, in accordance with the earlier findings of the IACHR that the Law on Justice and Peace did not “design an effective incentive system that promotes the full and accurate revelation of truth” and as such must apply far more serious sanctions to those who withhold information.63 Where the question of a veiled amnesty was concerned, however, the court’s ruling was less favorable to the claimants. In particular, the court declared that it could not offer a ruling on the claim that Law 975/05 was part of a “system of veiled pardon and coveredup impunity” as it pertained to laws promulgated as part of the peace process over which the court did not have jurisdiction.64 What is more, the court also ruled that the alternative or reduced sentences provided in the law did not constitute a hidden amnesty because it did “not exempt the demobilized person from having to serve the criminal sentence.” That is, because the law did not “eliminate the sentence imposed under the standards of ordinary criminal procedure” it could not be deemed an amnesty, veiled or otherwise.65 Perhaps more notable about the Constitutional Court’s ruling in Gallón Giraldo v. Colombia was, however, its attempt to address the competing rights of peace and justice. In particular, it “noted the tension between ‘finding peace by establishing juridical mechanisms to disarticulate armed groups’ and ‘the interests of justice’ under human rights and international humanitarian law.”66 Rather than seeing this tension as being “insoluble,” however, the court argued that the rights to peace and justice are complementary. That is, it articulated the view that “justice does not necessarily oppose peace; . . . [the] administration of justice contributes to peace because it resolves controversy and conflict through institutional routes.”67 In doing so, the court recognized the intention of Law 975/05 to find “equilibrium between peace and justice,” while acknowledging that “peace does not justify everything.”68 However, the court offered one significant caveat when it acknowledged that in contexts where “democratic transition and overcoming armed conflict” are

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at stake, the “apparent tension” between peace and justice remains. In these contexts, it argued “it is necessary to provide penal benefits to those who have committed grave human rights violation and humanitarian law infractions to overcome the conflict.”69 It is thus in the context of self-determination that the granting of amnesties constitutes what is perhaps the greatest challenge to the pursuit of justice.

Amnesties and Self-Determination As we saw in Chapters 1 and 2, in the 1970s and 1980s amnesties associated with democratization gained significant popularity. For proponents of amnesties, the establishment of democracy was simply preferable to the pursuit of justice, and, as we have seen, many states accepted this reasoning to justify their paths from authoritarian to democratic rule. As we have also seen, throughout the 1980s, 1990s, and 2000s, amnesties designed to end violent conflicts have remained popu lar. Despite the United Nations’ best efforts to eradicate amnesties granted to the perpetrators of human rights violations during peace negotiations, peace agreements continue to be drafted with provisions for wide-ranging amnesties, and states continue to fi nd ways to circumvent the obligation to prosecute human rights crimes. Where self-determination is at stake, these two trends come together with considerable force. Where wars fought to secure the right to self-determination are concerned, amnesties remain a consistent feature. Although amnesties instituted in the context of self-determination represent only a small fraction of amnesties, it is here that the competing priorities of peace, justice, and democracy appear in their starkest form. Indeed, where self-determination is concerned, the expectations of amnesties are twofold: they are instituted to end violence and usher in democracy. In many ways, amnesties instituted to provide self-determination thus represent the rebranding of amnesties designed to facilitate democratic transitions in terms of a right to selfdetermination. These types of amnesties thereby add a level of justification to their implementation: not only are they instituted in the interests of peace and democracy, but they seek to uphold a fundamental human right. In doing so, they switch the grounds of debate from human rights versus other public goods that may or may not contribute to the protection of human rights, to being squarely between competing sets of human rights.

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The right to self-determination is enshrined in numerous instruments of the United Nations. Article 1 of the UN Charter thus states that the purpose of the United Nations is “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”70 Similarly, both the UN Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights state in their opening articles that “[a]ll peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 71 In doing so, both reiterated word for word the defi nition of self-determination in the UN’s earlier Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514, 1960.72 However, as the United Nations made clear in Resolution 2625 in 1970, the right to self-determination does not simply pertain to colonial countries and peoples but can be applied to a range of different political arrangements: “The establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.”73 That is, “selfdetermination . . . [is] not synonymous with independent statehood,” but is a “collective right enjoyed by all peoples, without distinction and regardless of whether they are claiming statehood or the enjoyment of an autonomous organisation within a state.”74 In customary international law, the right to self-determination and the bounds of its application have been set forth in several cases heard before the International Court of Justice, most notably the cases of Namibia, Western Sahara, East Timor, and Kosovo. In the Western Sahara case, the ICJ argued that exercising the right to self-determination “requires a free and genuine expression of the will of the peoples concerned,” while in the case of Kosovo several judges acknowledged that a new concept of “remedial selfdetermination,” self-determination borne of “the persistent and discriminatory exclusion from governance and participation in society . . . underpinned the Kosovo declaration of independence.”75 As Judge Yusuf argued, the “existence of discrimination against a people, its persecution due to racial or ethnic characteristics, and the denial of autonomous political structures and access to government” may be considered sufficient criteria for qualifying as a case of remedial self-determination.76

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Four main sets of outcomes are commonly associated with appeals to self-determination, whether prospective or remedial: failure of the selfdetermination movement; autonomy; autonomy with the possibility of future independence; and independence. Where some form of self-determination has been won, amnesties are a common feature. For example, as we saw in Chapter 4, a limited amnesty formed part of the process that ushered forth East Timor’s transition to independence. In the course of Bougainville’s pursuit of independence from Papua New Guinea, amnesties have also been a consistent feature. The Bougainville Peace Agreement, signed in 2001, which provides a framework establishing Bougainville’s autonomy and the process by which it will hold a referendum on independence in or after 2015, provides that “grants of amnesty and pardon . . . for all persons involved in crisisrelated activities or convicted of offences arising out of crisis-related activities should be expedited.”77 This, as the peace agreement notes, is in accordance with the earlier Lincoln Peace Agreement reached in 1998, which also provided “amnesty to persons involved in crisis-related activities on all sides.”78 In Aceh, Indonesia, amnesty has brought self-determination in the form of autonomy, but without the prospect of future independence.

The Case of Aceh In January 2005, the first of five rounds of negotiations took place culminating in the signing of the MoU in Helsinki on 15 August the same year.79 The MoU includes six substantive provisions that outline agreements made between GAM and the government of Indonesia on the governing of Aceh, human rights, amnesty and reintegration into society for GAM combatants, security arrangements, the establishment of the Aceh Monitoring Mission (AMM), and dispute settlement. At its center stands the amnesty provision, without which provisions pertaining to matters of governance, human rights, and security would, in all likelihood, not have been possible. It reads, 3.1 Amnesty 3.1.1 GoI will, in accordance with constitutional procedures, grant amnesty to all persons who have participated in GAM activities as soon as possible and not later than within 15 days of the signature of this MoU.

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3.1.2 Political prisoners and detainees held due to the conflict will be released unconditionally as soon as possible and not later than within 15 days of the signature of this MoU. 3.1.3 The Head of the Monitoring Mission will decide on disputed cases based on advice from the legal advisor of the Monitoring Mission. 3.1.4 Use of weapons by GAM personnel after the signature of this MoU will be regarded as a violation of the MoU and will disqualify the person from amnesty. The MoU also ensures the right of all persons granted amnesty or released from prison to “all political, economic, and social rights as well as the right to participate freely in the political process in both Aceh and on the national level” (3.2.1). It promises that both the government of Indonesia and the authorities of Aceh will help to facilitate the reintegration of amnestied persons into civil society through “economic facilitation” (3.2.3) and by allocating “suitable farming land” or providing employment or social security to former combatants (3.2.5). Th is latter provision of land, employment, or social security was also made available to “civilians who have suffered a demonstrable loss due to the conflict” (3.2.5c). The amnesty provision of the MoU was brought into effect by Presidential Decree 22/2005 Regarding the Granting of Amnesty and Abolition to Every Person Involved in the Free Aceh Movement on 30 August 2005. Despite initial attempts by some members of the Indonesian government to exclude foreign members of GAM from the terms of the amnesty, in the end all members of GAM were included. In effect, the amnesty thus applied to three different sets of GAM members: those serving prison sentences for a range of offenses, primarily treason; those under investigation for a range of crimes; and those who fought for GAM and, it was hoped, could be convinced to surrender if offered an amnesty and resettlement package. Although the release of amnestied GAM prisoners went “remarkably smoothly,” with some 1,424 GAM members granted freedom “almost on schedule,” the amnesty provision has not been wholly uncontroversial.80 In particular, two controversies have surrounded its nature and implementation and have served to highlight a disjuncture between the amnesty provisions as included in the MoU and in Presidential Decree 22/2005. The first regards the application of the amnesty, while the second concerns its apparently “one-sided nature.”81 Although, as defined in the MoU, the provision appears

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to provide for a blanket amnesty for all GAM members, the Indonesian government argued that it would not extend the amnesty to “GAM members held for purely criminal activities.”82 In par ticu lar, the question of whether or not the “amnesty should apply to GAM members imprisoned for any crime carried out on behalf of the movement, as GAM argued” or whether it should “be restricted to those imprisoned only for narrowly defined crimes against the state” was highly disputed.83 As a result, more than one thousand prisoners remained captive while debate continued over whether or not their crimes were criminally or politically motivated. As Damien Kingsbury, a political advisor to GAM during the peace talks, notes in his account of the peace process, during the negotiations the terms of a possible amnesty had been far more explicit. In particular, a paper tabled by GAM during Round 4 of the negotiations, argued that as “[t]he term ‘amnesty’ implies a pardon for alleged ‘crimes,’ ” what was required in this context was not an amnesty but “an unconditional release” of political prisoners. What is more, it stated that “[a]ll GAM prisoners are by defi nition political prisoners” and, as such, “must be unconditionally released” upon identification as members of GAM by GAM authorities. It concluded by noting, “The provision of an unconditional release of all political prisoners is equally a part of any solution to the political resolution of the conflict in Atjeh. This should be observed as a logical part of the process of conflict resolution, not as a possible consequence of such resolution.”84 In an assessment of the apparent stalemate reached between the negotiating parties some days later, Kingsbury wrote that the Indonesian delegation had argued that “the issue of amnesty could not be included in an immediate peace agreement, but could only follow once such an agreement was reached. That is, in practice, amnesties were not guaranteed but were at best provisional, with no clarity about who might or might not be granted amnesty, and consequently who would find personal security under such an agreement, much less who might or might not be allowed to stand for political office.”85 That is, it reflected the Indonesian preference for a process that required GAM fighters to surrender before “amnesties be granted to some,” followed by “reintegration of those fighters not otherwise charged and convicted into Acehnese society, and therefore the opportunity for them to enter other aspects of civil life, including political life.” 86 However, the issue of the amnesty appears to have dropped to the background of the negotiations that centered on provisions for the governing of Aceh and, in particular, the establishment of local Acehnese political parties. By the time the fi rst draft of the

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MoU was circulated on 1 July 2005, the amnesty provision simply read, “GoI will grant amnesty to all persons who have participated in GAM activities. Political prisoners and detainees held due to the conflict will be released.” 87 Although the timing of the amnesty had been clarified by the final draft, considerable ambiguity remained regarding the precise crimes to which it pertained. To break the deadlock, the AMM called upon a Swedish judge, Christer Karphammer. Karphammer based his judgments on two sets of criteria, “connection of the crime to GAM’s struggle, and its seriousness” and determined that most of the prisoners whose cases were in question should be released.88 Those he ruled should remain in detention included individuals convicted of “ ‘cold-blooded’ crimes against civilians,” such as Teungku Ismuhadi bin Jafar, the alleged mastermind behind the 13 September 2000 bombing of the Jakarta Stock Exchange in which ten people were killed.89 The second major controversy, to be discussed further in the following section, concerned the “one-sided nature of the amnesty and its implications for possible future human rights investigations and processes.”90 In particular, concerns were raised over the possibility that members of the Indonesian military might be subject to human rights investigations while GAM combatants were amnestied for similar crimes. However, this fear seems misplaced for one good reason and for one unsatisfactory reason. First, the terms of the amnesty, as confirmed by Judge Karphammer, did not include human rights violations committed by members of GAM, thus leaving them equally open to prosecution for such offenses. Second, as we will see in the following section, a general reluctance on the part of Indonesia to prosecute any perpetrators of human rights violations, regardless of their affi liations, has meant that neither members of GAM nor members of the TNI have had much to fear on that account. Nonetheless, others voiced the more broadly based concern that the granting of amnesties would derail the process toward greater respect for human rights in Aceh and the establishment of meaningful judicial processes to address their violation.

Evaluating the Aceh Amnesty Several years on from the signing of the Helsinki MoU, the Aceh peace process is widely viewed as a success story.91 Although some have questioned the appropriateness of the MoU’s reintegration provisions, the facilitator of

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the negotiations, Marti Ahtisaari, has concluded that the “mechanisms for amnesty have by and large worked,” bringing with them half a decade of peace.92 Despite this general sense of success, however, questions remain about the price paid for peace in this case, in terms of its impact on democracy and the rule of law, truth, and human rights.

Democracy

Along with providing an amnesty, the Helsinki MoU includes three major provisions that have bearing on the establishment of special autonomy and democracy in Aceh. First, it mandated that a Law on the Governing of Aceh be “promulgated and . . . enter into force as soon as possible and not later than 31 March 2006” (1.1.1). Although this deadline was missed by some months, Law No. 6/2006 on the Governing of Aceh (LoGA) was finally promulgated in August 2006. A lengthy and “extremely complex piece of legislation,” the LoGA does not simply address the issue of autonomous regional governance in Aceh but includes regulations on a wide range of other matters.93 Second, the Helsinki MoU also included provisions allowing for the establishment of local political parties (1.2.1). This, as Edward Aspinall notes, was of such importance to GAM that is “almost caused the collapse of the Helsinki talks.”94 Indeed, it was only as the GAM delegates were packing their bags that the Indonesian government negotiators agreed to the establishment of “Aceh-based political parties using national criteria.”95 In December 2005, the Aceh Transition Committee (Komite Peralihan Aceh, KPA), was established by a former commander of GAM’s armed wing, Mazakkir Manaf. Although it is ostensibly a new, “transitional” organization, the KPA not only appears to be a permanent body but also, for the majority of people living outside major urban areas, is indistinguishable from GAM.96 Partai Aceh, also led by Mazakkir Manaf, was founded by Malik Mahmud through the auspices of the KPA in 2008. Although not all of its candidates are members of GAM, their close connection is made apparent by the use of GAM symbols by Partai Aceh.97 Finally, the MoU also mandates the full participation of the people of Aceh in free and fair local and national elections (1.2.3; 1.2.6). On 11 December 2006, Aceh’s first democratic elections took place without serious incidents of violence. Contrary to “most predictions,” Irwandi Yusuf, a for-

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mer GAM strategist, won election as Aceh’s governor. With 38 percent of the vote, he finished “far ahead of his nearest rival who won [just] 17 per cent” of the vote.98 What is more, GAM candidates were also elected in “seven out of nineteen races for district heads (bupati).”99 Although free and fair elections are only the start of the process of establishing and consolidating democracy in Aceh and many challenges remain—not least of all those posed by the fact that members of GAM have little experience of governing and the ever-looming potential for conflict with the Indonesian government over natural resource revenues and past human rights violations—Aceh’s current democratic status certainly marks a significant improvement on the political situation in the province prior to the Helsinki MoU, improvements that could not have taken place without GAM combatants being granted amnesties.

Human Rights

Where human rights are concerned, assessments of postsettlement Aceh are particularly conflicted. On one hand, the five years since the signing of the Helsinki MoU have seen a marked improvement in human rights abuses. In particular, as soon as the terms of the settlement began to be implemented, levels of violence against members of GAM and the general population “dropped to very low levels.”100 Thus, in an immediate sense, the Aceh peace process and, indeed, amnesty, brought with it a significant material improvement in respect for human rights. This was even in spite of the fact that human rights abuses, although “a key Acehnese grievance during the conflict years,” were not a conspicuous feature “on the agenda of the Helsinki peace negotiations.”101 On the other hand, however, concerns remain over the failure to hold those guilty of past violations accountable for their actions and the wider development of a culture of respect for human rights in Aceh. The Helsinki MoU contains two major provisions pertaining to human rights. The first provides not only that the government of Indonesia will “adhere to” the universal principles of human rights set down in the UN Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights, but that Aceh’s legal code will be redrafted to comply with them (2.1, 1.4.2). However, the inclusion of sixteen articles of Shari’ah law in the 2006 LoGA contradicts these conventions. In particular, by imposing the observance of Islamic religious law and, with it, rules pertaining to head covering

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for women and drinking alcohol, the LoGA contravenes articles regarding “minority rights, religious freedom, freedom of expression, and gender equality.”102 Second, although the MoU includes provisions for the establishment of a human rights court for Aceh (2.2), “few political actors in Aceh seriously believe that prosecutions for past abuses will take place.”103 Although the LoGA includes provisions for the establishment of such a court, Article 228 specifies that a Human Rights Court for Aceh would have jurisdiction only over cases of abuses that took place after the “enactment of the LoGA, rendering it meaningless for resolving past human rights crimes.”104 In any case, the twelve-month deadline set down in the LoGA for the court’s establishment has long since passed without any real progress being made. However, some writers argue that the existence of operational human rights courts in Indonesia fulfill the terms of the MoU. Indeed, in 2000, Law No. 26/2000 on Human Rights Courts established a number of human rights courts across Indonesia including one in Medan, North Sumatra, which has jurisdiction over Aceh, although it has not, as yet, heard any cases relating to Aceh.105 In fact, “[n]o senior officer has been successfully prosecuted by any such court regarding acts in Aceh.”106 Law No. 26/2000 also includes provisions for “serious human rights violations prior to 2000 to be tried in ad hoc human rights courts established by the president with the agreement of parliament.”107 However, significant opposition has been voiced even to the possibility that human rights abuses perpetrated in Aceh may be investigated and tried by this process. In particular, concerns have been raised over the potential for such prosecutions to be one-sided, enforcing human rights laws against members of the TNI for which members of GAM have been amnestied. Indeed, while the majority of accounts of human rights violations in Aceh have focused on atrocities committed by the TNI, GAM is certainly not innocent in this regard. In particular, although “[i]ts human rights record has never been systematically investigated . . . the movement’s leaders themselves openly admit that they executed people they accused of  betraying the movement or collaborating with government security forces.”108 As such, a serious investigation and prosecution of past human rights violations in Aceh would have to consider acts perpetrated by both sides in the conflict. In any case, it is not at all clear that the amnesty granted in accordance with the MoU actually precludes prosecuting the perpetrators of human rights abuses at a later date. Although legal opinion on the matter is divided,

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“it appears that the amnesty granted by the Presidential Decree” does not “confer immunity to GAM members for crimes against civilians.”109 In particular, as the mediation process facilitated by Judge Karphammer established, the amnesty did not apply to those who had “committed gross or ‘cold-blooded’ crimes against civilians,” and it was on that basis that “a small number of GAM members remained in prison.”110 By extension, it seems that if evidence that particular GAM members committed human rights violations can be procured, the amnesty law ought not to protect such individuals from prosecution. This technically means that both GAM members who have not faced conviction for any prior offenses related to the conflict as well as those who were previously amnestied for politically motivated crimes could face prosecution for human rights abuses. However, this requires a large degree of political will that does not appear to be forthcoming, either at the moment or in the near future, with some actors arguing that human rights prosecutions could “endanger the peace process by triggering military resistance.”111 That is, it is not so much the amnesty that is at issue here but the failure of Indonesia to prosecute human rights violations in general.

Truth

The MoU also includes provisions for the establishment of a Truth and Reconciliation Commission for Aceh (2.3), although this too has failed to even get off the ground. Indeed, “[b]oth the MoU and the LoGA assumed” that a TRC for Aceh would be established “as part of the national TRC structure” mandated by Law No. 27/2004.112 However, in 2006, before President Yudhoyono had even appointed its members, the Constitutional Court revoked Law No. 27/2004 establishing the TRC. In large part, the Constitutional Court acted out of concerns over an amnesty provision included in the law that provided “legal immunity for perpetrators of gross human rights abuses.”113 Serious debate has thus been waged in Aceh over whether or not the provincial government should wait until the issue of a national TRC has been resolved or whether it should go ahead and establish a specifically Acehnese TRC.114 With no resolution in sight, the question of a TRC for Aceh remains in “ legal limbo.”115 In the face of a distinct lack of action on the part of the Indonesian government or the provincial government in Aceh, some local human rights activists have, however, continued to push for the establishment of a TRC.

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In par ticu lar, in 2007 the KPK (Koalisi Pengungkapan Kebenaran, Coalition for Truth Recovery), which brings together various human rights groups and NGOs operating in Aceh and Indonesia more widely, presented a proposal for the establishment of a TRC. In A Proposal for Remedy for Victims of Gross Human Rights Violations in Aceh, KPK argued that “there cannot be peace without the disclosure of truth” and thus maintained that uncovering “those facts that have been intentionally hidden” was essential to Aceh’s continued peace and stability.116 Although the KPK argued in favor of forgiveness and reconciliation through traditional and community reconciliation practices, they were strongly opposed to establishing a TRC process that would grant impunity to perpetrators of gross violations of human rights.117 In their stand against impunity, the KPK recommended that a TRC should “[c]learly name those most responsible for gross human rights violations. There shall be no amnesty recommendations for those most responsible for gross human rights violations. The Commission shall work in a complementary manner with the courts for serious crimes, namely, crimes against humanity, genocide, and war crimes. The Commission shall give legal immunity recommendation to the perpetrators who have confessed their crimes during the process of reconciliation facilitated by the Commission.”118 With this, the KPK was clearly suggesting the application of a modified South African TRC model, according to which “truth for amnesty” would be granted to the perpetrators of less serious crimes. What is more, by proposing that the commission work in association with the judicial system, the KPK also sought to combine amnesties with truth and prosecutions. In doing so, KPK effectively proposed a holistic approach to transitional justice akin to that implemented in the Solomon Islands.119 Unfortunately for the people of Aceh, these suggestions have not, as yet, been implemented.

Conclusion In the past two decades, amnesties have faced a two-pronged assault. First, as we saw in Chapter 4, pressure brought to bear on peace negotiators by the United Nations has seen increasing restrictions placed on the use and scope of amnesties to procure peace agreements. Second, as we saw in Chapter 5, the indefatigable efforts of members of the human rights movement, states, and institutions committed to ending impunity have seen numerous amnesties overturned, circumvented, and annulled. And yet, amnesties remain

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incredibly popular. The vast majority of existing amnesties remain unchallenged, while new amnesties are being instituted at a relatively steady rate. Where these trends of persistence (on the part of amnesties) and challenge (on the part of the justice cascade) come to a head, several different responses ensue. First, as we saw in Chapter 5, in some circumstances the duty to prosecute overrides existing amnesty laws, resulting in their circumvention or annulment. Second, in other circumstances, the negative effects of amnesties, in particular impunity, are mitigated by embedding existing amnesty laws in holistic or balanced transitional justice processes. In both of these scenarios, the pressure to provide justice for human rights violations brings about a fundamental change in the status and implementation of an existing amnesty law. For the most part, however, amnesties resist the challenges posed by the justice cascade, by simply ignoring them, by actively resisting the pressure to prosecute, or, in some cases, through deception and disguise. In each of these scenarios, the institution and maintenance of an amnesty law is justified in terms of the contribution it has made or is predicted to make to democracy and/or peace. Where self-determination is concerned, the weight of these justifications is only magnified. The case of the Acehnese amnesty provides several interesting insights into the role that amnesties play in establishing peace and achieving justice in the aftermath of protracted violent conflict. As proponents of amnesties readily predict, in this case the granting of an amnesty facilitated the conclusion of a peace agreement. As concern over the continued imprisonment of five GAM negotiators after the conclusion of the Helsinki peace process made apparent, achieving immunity from prosecution and the release of political prisoners was key to GAM’s willingness to compromise on other issues.120 Indeed, it is difficult to see how the MoU could have been tabled, let alone signed, if members of GAM faced the threat of imminent prosecution at the conclusion of the Helsinki talks. At the same time, several of the negative outcomes predicted by critics of amnesties have not eventuated in this case. While the establishment of law and order continues to pose a significant problem in the province, Aceh has seen the institution of functional democracy and a reduction in human rights violations in the past five years. However, critics might argue that although the granting of an amnesty has been associated with basic improvements in democracy and human rights in Aceh, even more positive results may have been achieved through the pursuit of other measures, such as prosecutions and punishment. Rather than simply facilitating the establishment

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of democracy and bringing about a reduction in human rights violations, they might argue that prosecutions and punishment may have assisted in instilling respect for democratic authority and positively promoting human rights in this case. After all, achieving a reduction in or cessation of human rights violations is only the first step in achieving meaningful respect for human rights and must be followed by the implementation of mechanisms designed to assist in the achievement and protection of those rights. As is the essential nature of these sorts of counterfactual arguments, it is ultimately impossible to know what the exact outcome would have been in this case had an amnesty not been granted. However, what we can say with some degree of certainty is that the granting of an amnesty in this case has not been associated with a worsening of human rights or democracy. On the contrary, the Acehnese amnesty has coincided with demonstrable, if insufficient, improvements in each of these areas. This is not to suggest that amnesties are responsible for improvements in democracy and human rights through a direct, causal relationship. They may well be, but that has not been demonstrated here. Rather, the case of Aceh suggests that in cases such as this where peace settlement amnesties have brought about the cessation of hostilities, amnesty may be a crucial prerequisite for achieving advances in these areas. Indeed, it is hard to imagine that without offering GAM an amnesty any of the improvements achieved thus far, for democracy, human rights, and especially peace, would have been possible. For the case of Aceh the question of how the amnesty was granted is thus of particular significance. As disputes over the implementation of the amnesty mandated in the Helsinki MoU make clear, although they may help to avoid further disagreements during the negotiating process, loosely defined amnesties have the potential to cause significant problems in the postsettlement period. Thus, the inclusion of what appeared to be a blanket amnesty without any specified exclusions in the MoU but which actually turned out to include some limitations caused what may have been unnecessary tension in the implementation phase. Yet, at the same time, the very indeterminate nature of the MoU amnesty is what ultimately allowed it to be first limited and then circumvented. By limiting the applicability of the amnesty to exclude those who had committed very serious crimes against civilians, those charged with its implementation brought Aceh’s amnesty closer to being in line with the contemporary trend that prohibits impunity for gross human rights violations even when included in negotiated peace settlements.

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Even more significant in this case is the institution of amnesties in conjunction with other measures, such as human rights courts and truth and reconciliation commissions. As the Helsinki MoU reveals, in the case of Aceh the explicit intention was that the granting of amnesties would be coupled with the establishment of both a human rights court and a truth and reconciliation commission for Aceh. In large part, institutions such as these serve to mitigate the sense that amnesties afford the perpetrators of serious human rights violations absolute impunity, establish the truth, and provide justice, however incomplete it may be, to the victims of these abuses. That is, they allow amnesties to be accompanied by a form of accountability. Here too the Helsinki MoU was drafted in accordance with contemporary trends that favor the implementation of comprehensive approaches to peacebuilding. As Olsen, Payne, and Reiter’s findings suggest, the combination of mechanisms proposed by the MoU ought, ideally, to produce an optimal set of outcomes for peace, democracy, and human rights in Aceh. The amnesty ought to bring stability, while the truth and reconciliation commission and trials, held through either the judicial system or through a human rights court, ought to provide the other crucial component of accountability. The key here is the combination of amnesty and accountability. In the absence of either component, the extent of the advances made may be limited or, indeed, short-lived. Thus, for Aceh, the failure to implement the mandated truth and reconciliation commission or a meaningful, functioning human rights court has rendered the stability brought by the granting of an amnesty tenuous at best.

Conclusion There can be no substitute for justice and accountability for serious crimes. Shielding people from justice and accountability will encourage future abuse and hinder national reconciliation.1

On 17 December 2010, in the Tunisian town of Sidi Bouzid, a twenty-sixyear-old street vendor by the name of Mohammed Bouazizi set himself on fi re in the middle of a busy street. His act of self-immolation was a protest against what he viewed as the unjust treatment he had received at the hands of the local police and government officials. That morning the fruit and vegetables Bouazizi was trying to sell were confiscated on the grounds that his did not possess a street vendor’s license. A municipal official, Faidi Hamdi, had allegedly slapped him across the face and spat on him before seizing his scales and pushing over his cart. It was not the fi rst time that Bouazizi had fallen foul of the local police, but, according to his friends and relatives, for some years they had regularly harassed him.2 Typically, the abuse was the result of “petty bureaucratic tyranny.” The police “would confiscate his scale and his produce, or fi ne him for running a stall without a permit.” Earlier in 2010, Bouazizi had been fi ned for vending without a license. The fi ne had been equivalent to more than two months’ wages. 3 On the day that he set himself alight, Bouazizi had appealed to the office of the governor to have his scales returned. When his request was denied, he doused himself in petrol and set himself on fire. Mohammed Bouazizi died from his burns eighteen days later, having sparked a wave of revolutionary protests against authoritarian regimes across the Arab world. In the face of increasingly intense violent protests, by 14 January 2011 the president of Tunisia, Zine El Abidine Ben Ali, had stood down and fled to Saudi Arabia. However, the Jasmine Revolution, as it became known, did

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not end there. Taking to the streets with “a rock in one hand, a cell phone in the other” the Tunisian protesters were able to defy the authorities’ censorship laws and media blackout.4 Before long, Tunisia’s revolution had thus spread to Egypt, Libya, Yemen, Bahrain, Syria, Algeria, Morocco, Kuwait, Lebanon, Mauritania, Oman, Saudi Arabia, Sudan, Western Sahara, and Mali and become known as the Arab Spring. While some of these states, such as Lebanon, Mauritania, and Oman, experienced only minor protests, to date the authoritarian governments of four Arab states have been toppled. Following eighteen days of civil protests, on 11 February 2011 President Hosni Mubarak resigned, bringing his thirty-year rule of Egypt to an end. On 23 August of the same year, the Libyan dictatorship of Muammar Gaddafi was overthrown after ruling for more than forty years. After two more months of bloody conflict between anti-Gaddafi forces fighting under the auspices of the National Transitional Council established to guide Libya’s transition to democracy and those loyal to the former ruler, Gaddafi was killed on 20 October 2011. In Yemen, a year of protests came to fruition on 27 February 2012 when President Ali Abdullah Saleh handed power to his deputy, Vice-President Abd Rabbuh Mansur al-Hadi, and fled to exile in Ethiopia. Violent civil uprisings continue in Syria and Bahrain. Unsurprisingly, the question of how best to address the human rights violations committed by the former regimes has been at the forefront discussion and debate, of both the scholarly and public varieties, about the Arab Spring. The four authoritarian governments that have been overthrown thus far were all well known for the persistent perpetration of human rights crimes. Indeed, the impunity with which authoritarian rulers in the region unjustly treated their people was one of the central grievances that stood at the heart of the revolutionary protests. However, alongside their demands for an end to impunity, protesters have also been fighting for self-determination, most pervasively understood in terms of democracy. On the face of it, the revolutions of the Arab Spring have thus brought debate about transitional justice full circle: just as discussions emanating from the Latin American “third wave” transitions brought debates about the relative merits of using amnesties to usher out authoritarian rulers and facilitate smooth transitions to democracy, so too have these debates been revived with this new wave of democratization. In the case of Egypt, a combination of justice and impunity has been pursued. On 24 May 2011, Hosni Mubarak was charged with “intentional murder” and the “attempted killing of some demonstrators,” as well as

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several financial and economic crimes.5 The charges stemmed from the killing of approximately eight hundred demonstrators during a crackdown on protests prior to Mubarak’s resignation. The trial began on 3 August 2011, and a verdict was reached in early June 2012. Although Mubarak was found guilty of being an accessory to murder, he escaped the death penalty and was sentenced instead to life imprisonment. Several of Mubarak’s former officials, also allegedly implicated in the killings, were cleared of all charges and released. As M. Cherif Bassiouni remarked in an interview with the New York Times, the outcome can be likened to “the proverbial glass half full.” The glass-half-full part of the equation is that “After a peaceful revolt, a ruler resigned, his citizens tried him and, on Saturday he was sent to prison.” As for the other side of the equation, “ ‘The half empty part is that, ultimately, he is not going to hang for it, and I don’t think he is going to spend 30 days in jail,’ Mr. Bassiouni added. ‘There is no basis in Egyptian law’ for the conviction that was handed down, he said, and it would be easy for the defense to overturn on appeal. As for the prosecution’s chances of winning a tougher verdict on appeal, he said, ‘It can’t.’ ”6 At the same time, however, two forms of amnesty have also been proposed as part of Egypt’s transition. First, as has long been a common feature of political transitions, in April 2012 a committee of the Egyptian People’s Assembly “approved in principle a bill that would grant comprehensive amnesty to people suspected or convicted of political charges” under the reign of former President Mubarak.7 The proposed amnesty is to apply to all those who had been imprisoned for “voicing opposition to the former regime . . . were subjected to exceptional tribunals that lacked guarantees of due process,” or had been convicted or were awaiting trial for “felonies and misdemeanours committed or attempted for political motives,” as well as those who had been “accused of aiding them or covering up their crimes” between 6 October 1981 and 11 February 2011.8 Harking back to the original understanding of amnesty promulgated by Amnesty International, this proposed amnesty has proved relatively uncontroversial. A similar amnesty decree was signed into operation by Tunisia’s caretaker President Foued Mebazaa on 18 February 2011.9 More contentious, however, has been a second proposed amnesty designed to facilitate the “safe exit” of the Supreme Council of the Armed Forces (Scaf), which has been in control of Egypt since the toppling of the Mubarak regime. Despite promising the people of Egypt a “swift transition to civilian

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government,” however, Scaf and its leader, Field Marshal Mohamed Hussein Tantawi, have dragged their feet on democratic reform and instead launched several bloody crackdowns against pro-change demonstrators, leaving more than a hundred dead and thousands injured.”10 According to representatives of the Muslim Brotherhood, several Western governments have suggested the generals be offered a “safe exit” in the form of amnesty “in exchange for a smooth transition to democracy.”11 Although the British Foreign Office, for one, has vehemently denied undertaking any such advocacy, it remains the case that “[the generals] seem to feel threatened by the possibility of prosecution once they’re out of office.”12 A final decision on the proposed amnesty has not yet been made. In the case of Yemen, the promise of immunity was held out throughout negotiations directed at securing the resignation of President Ali Abdullah Saleh. In April 2011, the Gulf Co-operation Council issued a plan for the president’s departure from office that included a guarantee of “immunity from prosecution” for him and for “those who worked with him during his rule.”13 Saleh eventually signed the agreement on 23 November 2011, before handing over power to his deputy in February 2012. The amnesty provisions that were included in the Gulf Co-operation Council plan have yet to be codified in Yemeni, law and, as such, the final shape they take remains to be seen. Finally, and most recently, on 2 May 2012, Libya’s National Transitional Council passed Law 38: On Some Procedures for the Transitional Period. This controversial law provides amnesty for “military, security, or civil actions dictated by the 17 February Revolution that were performed by revolutionaries with the goal of promoting or protecting the revolution.”14 It is ostensibly designed for the revolution’s “success or protection.”15 What is notable about the new amnesty laws instituted and proposed in the context of the Arab transitions to democracy are the ways in which they have been justified, by the states issuing them and by the states and institutions that have supported them. Here, as in the 1970s, 1980s, and early 1990s, amnesties have been justified as a useful means of ending violence and facilitating transitions to democracy. The most prominent, and indeed, controversial case of this is Yemen. As stated in its text, the Gulf Co-operation Council deal, which included immunity from prosecution for President Saleh and his supporters, was intended “to achieve a peaceful political transition of power.”16 Despite

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potentially allowing the president to escape prosecution and punishment for large numbers of alleged human rights violations, the deal was supported by several Western states, including the United States. When pressed on the issue of immunity, State Department spokeswoman Victoria Nuland argued, “This is part and parcel of giving these guys confidence that their era is over and it’s time for Yemen to be able to move forward towards a democratic future.”17 The United Nations Security Council’s position on the issue was somewhat more equivocal. On one hand, Resolution 2014 (2011) (“Calls for End to Violence, Acceptance of Gulf Co-operation Council Peace Plan, with Orderly Transfer of Power”) underlined “the need for a comprehensive, independent and impartial investigation consistent with international standards into alleged human rights abuses and violations, with a view to avoiding impunity and ensuring full accountability” in accordance with concerns raised by the United Nations High Commissioner for Human Rights.18 On the other hand, however, it also reaffirmed “its view that the signature and implementation as soon as possible of a settlement agreement on the basis of the Gulf Cooperation Council initiative is essential for an inclusive, orderly, and Yemeni-led process of political transition.”19 Thus, although it did not explicitly support the immunity clause included in the peace deal, it did not explicitly oppose it either. Rather, the focus of the resolution remained resolutely on ending violence and ensuring a “peaceful transition of power.”20 Unsurprisingly, both the immunity provision and the apparent support it has received from members of the international community has come under fire from human rights organizations committed to ending impunity. In a statement about Resolution 2014, Human Rights Watch argued that the Security Council “should have more clearly distanced itself from the GCC impunity deal. By signaling that there would be no consequence for the killing of Yemenis, the immunity deal has contributed to prolonging the bloodshed.”21 Similarly, Jose Luis Diaz, from Amnesty International, argued that the immunity provision was “in breach of Yemen’s obligations under international law to investigate and prosecute human rights violations.”22 However, he went further than this to argue that providing immunity to leaders such as Saleh is “not only a slap in the face of the victims, but . . . also eat[s] away at the still fragile gains made to consolidate international justice and fight impunity.”23 Similar debates have also marked Egypt’s transition. Although many have applauded the decision to prosecute of former president Mubarak (notwithstanding concerns regarding the conduct of his trial), others have

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voiced concerns that the trial may “deter other leaders from quitting.”24 Likewise, support for Egypt’s proposed amnesty law for members of Scaf have focused on the need to complete the country’s transition to democracy. However, as Hossam Bahgat, the head of the Egyptian Initiative for Personal Rights, has stated, If indeed western nations have been advocating [an amnesty] . . . then it’s an indication that they have learned nothing from the history of transitions or the recent developments in international criminal law that make it abundantly clear that no peace is possible without justice. I am astonished that we are still having this old and tired debate about accountability versus stability; it also shows that these western governments have learned nothing from the mistakes they committed under the Mubarak regime where they were willing to look the other way and just pay lip ser vice to human rights and accountability for the sake of what they believed was stability.25

PB

In many ways, Bahgat’s assessment of the situation is an accurate one. Debate about amnesties associated with the Arab Spring does, indeed, appear to have regressed to the level of the simplistic dichotomies that marked debate in the 1970s and 1980s. Once again, amnesties are being justified as instruments of peace and democracy and conceived in opposition to justice. However, there are two ways to look at the recent events in the Arab world. The pessimistic view suggests that, despite the best efforts of the revolutionary protesters, impunity has won out. States that wish to implement amnesties continue to do so, often with the support of members of the international community, and usually with reference to the good outcomes they are perceived to produce, namely peace and democracy. With the exception of Mubarak and Gaddafi, outgoing authoritarian rulers and their supporters have held sufficient power to ensure their own immunity as part of their exit strategies. In doing so, they have been able to trade impunity for the transition to democracy that the revolutionary protesters have been so desperate to see. In this, it seems, the fight against impunity has a long way to go. By contrast, the optimistic view notes that although current discussions of the relative merits of granting amnesties to former authoritarian rulers and their supporters have largely mirrored similar debates that took place in the context of the Latin American transitions, an added dimension can now be discerned. Although they have been unable to stop their institution,

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activists have repeatedly noted that amnesties for human rights violations are no longer universally binding. In the case of Libya’s Law 38, Human Rights Watch has thus highlighted the fact that “[a]ny grant by the NTC has no legally binding effect on other national or international courts, such as the International Criminal Court (ICC), that have jurisdiction over serious violations of international law.”26 In doing so, it has raised the possibility that crimes amnestied in Libya may be prosecuted by a foreign national jurisdiction, presumably in accordance with the principle of universal jurisdiction, or by the ICC, which “has ongoing jurisdiction over war crimes and crimes against humanity committed in Libya since February 15, 2011.”27 In a similar frame, Jose Luis Diaz, from Amnesty International, has argued that the ICC should also pursue similar cases in Yemen, Egypt, and Syria. Although none of these states is a party to the Rome Statute, he has suggested that the UN Security Council could use its power to ask the prosecutor of the ICC to investigate situations outside the court’s jurisdiction.28 With this, a small window of hope has been opened for individuals and institutions committed to ending impunity for human rights violations: precedents have been set for such laws to be circumvented, overturned, annulled, and resisted. It thus remains to be seen whether there will be sufficient political, from both within the Arab Spring states and the international community, to overturn these amnesty laws, or whether their longevity will be justified by reference to their perceived roles in ending violence and establishing democracy in the Middle East. Either way, the wait is likely to be a lengthy one.

Amnesties, Peace, Democracy, and Truth

What the cases of the Arab Spring and those discussed throughout this book reveal is that amnesties persist because of their perceived utility. That is, they are implemented because they are thought to possess the power to bring about particular sets of political outcomes. Historically, those outcomes have been threefold. First, until the early 1990s amnesties persisted because they were perceived as a useful way of ushering out authoritarian rulers and ensuring the stability of new democratic regimes. With this, the initial rise in the popularity of amnesties accompanied the third wave of democratization particularly, although not exclusively, in Latin America. As reflected in debates about

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how to address the human rights violations of the former Latin American regimes revealed, however, where amnesties were concerned the transitions were something of a double-edged sword. On one hand, the very fact that so many states in the region had ushered forth democracy on the back of an amnesty, whether granted by the outgoing authoritarian ruler or by the new transitional regime, lent credence to the view that amnesties were a useful, if not necessary, means of achieving democracy. On the other hand, however, the end of authoritarian rule and establishment of democracy signaled an end to the impunity of old. With democracy came the expectation that accountability for human rights violations extended to all, even members of the former authoritarian regimes. In practice, these dual expectations have been played out in different ways. As we saw in Chapter 1, in the 1980s and early 1990s, the use of amnesties to ensure the stability of new or transitional democratic regimes largely followed general trends associated with transitions more broadly. This is not to say that all or even most transitions to democracy employed an amnesty: on the contrary, as we saw in Figure 4, most did not. Rather, during that period, when amnesties were instituted, ensuring a smooth transition to democracy was often the end to which they aimed. It is thus not at all surprising to see that as the third wave of democratization began to subside in the 1990s, so too did the rate at which amnesties designed to ensure the stability of new democratic regimes were implemented. That is, the decline of these types of amnesties was not so much the result of them being considered less acceptable or justifiable after the early 1990s, but of a decline in the incidence of the sorts of contexts in which they are usually implemented. Indeed, as we saw in Chapter 6 and in the more recent cases of the Arab Spring, the notion that amnesties are a useful way of securing a transition to democracy or protecting a new transitional or democratic regime remains alive and well in contemporary international politics. Now overtly justified in terms of the right to self-determination, amnesties remain a transitional justice tool employed with some frequency in postauthoritarian and pre-postauthoritarian contexts. At the same time, however, transitions to democracy have brought with them growing expectations of accountability for past human rights violations. As we saw in Chapters 2 and 5, a flourishing human rights movement in most of the postauthoritarian states of Latin America has brought significant pressure to bear on the amnesties of old. Thus, the very amnesties that ushered forth eras of democratic rule are now under attack by individuals

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and groups exercising their democratic rights and fighting impunity on the basis of the democratic principles of universal human rights, the separation of powers between the judiciary and the legislature, the equality of all under the law, and the right to due process within the criminal justice system. In practice, this has meant that amnesties associated with successful transitions to democracy have been at the greatest risk of being overturned, circumvented, or annulled. Second, from the late 1980s to the present, amnesties conceived as the means of assisting healing between victims and perpetrators of crimes as well as within society more generally, uncovering the truth, and building the sort of long-term peace associated with restorative justice and peacebuilding efforts have also grown in popularity. The emergence of these types of amnesties signaled a significant shift in precisely how amnesties were conceived and brought with them a new, much broader understanding of what accountability necessarily entailed. By making truth telling a condition for receiving an amnesty, the South African TRC dissociated amnesties from notions of oblivion and forgetfulness and aligned them instead with the restorative practices of remembrance, acknowledgment, and (knowing) forgiveness. What is more, proponents of these types of amnesties justified their persistence in the face of the justice cascade by shifting the grounds of debate away from the traditional amnesty versus justice dichotomy. By focusing on the assumed contribution of amnesties to restorative forms of justice, debates about the merits of granting amnesties became focused on contending modes of accountability, rather than the pursuit of justice per se. That is, these types of amnesties persisted because they were perceived as a useful means of garnering the truth about past human rights violations (a good in itself) that did not necessarily entail the abrogation of justice. Rather, as the case of South Africa demonstrated, amnesties could now be conceived not only as an instrument used to furnish the truth but as a means of ensuring some measure of accountability for past human rights crimes. Third and finally, throughout the period under examination, amnesties have persisted because they have been perceived as an effective way of bringing an end to violent conflict. From the 1970s to the 2000s, amnesties offered on a unilateral basis by states to rebel groups operating within their territories have remained popular. From the mid-1980s on, they have been joined by the increasingly popular inclusion of amnesties in formal peace agreements. This second trend is particularly significant as it is within the context of peace negotiations that perhaps the greatest pressure is brought

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to bear on states not to allow amnesties for human rights violations. And yet, it is also in this context that the stakes are at their highest and the apparent choice between peace and justice appears in its starkest form. The end of violent conflict requires the successful negotiation and signing of a peace agreement; for many, amnesty may be the necessary price to pay to ensure that happens. Thus, while the United Nations has advocated an increasingly restrictive position regarding the use of amnesties in peace negotiations, their continued use in that context has been defended in scholarly terms by those who conceive peace as a priority more immediate than the pursuit of justice.

Perception Versus Reality

PB

However, this again brings us back to the question of outcomes. Amnesties, as we have seen, persist because of the outcomes they are thought to produce for peace, democracy, and truth. But do they actually bring about these sorts of outcomes? Or does a discrepancy exist between the perceived consequences of amnesties and the actual results they produce? When it comes to the issue of truth, a conclusive answer to this question is difficult to reach. Without any objective measures of the truth or, indeed, the reconciliation it is assumed to facilitate, it is difficult to make any firm judgments about the extent to which amnesties live up to their promise of garnering the truth. Rather, what we can conclude from the cases discussed in this book is that amnesties do hold the potential to facilitate the truth. However, the extent of that potential depends largely on the way in which the amnesty is administered: compare for example the case of South Africa, where a complete rendering of the truth was a requirement for amnesty, to that of Colombia, where numerous individuals were amnestied without revealing anything of significance. What is more, even in contexts of optimal implementation, the truth uncovered will almost inevitably be incomplete and partial. Thus, if we are willing to accept an imperfect rendering of the truth, then we can say that in some contexts amnesties hold the potential to facilitate truth telling. Where democracy and peace are concerned, however, it is possible to employ more objective (although again not completely objective) measures to determine the outcomes produced by granting amnesties. To date, Olsen, Payne, and Reiter’s study remains the only work to examine the consequences of amnesties for peace and democracy, in isolation and in conjunction with

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other transitional justice measures. Their study found that although they did not have a “significant effect on the quality of democracy,” at both five and ten years posttransition amnesties were associated with improvements to democracy.29 That is, amnesties do not, as many of their critics argue, “prove harmful to democracy.”30 However, a further aspect of Olsen, Payne, and Reiter’s findings is worth noting here. Although amnesties produce generally positive outcomes for democracy, when compared with other transitional justice mechanisms they do not produce the best outcomes for democracy. Rather, amnesties sit behind trials and truth commissions in terms of the improvements they bring to democracy. It thus seems that “the more accountability, the greater the improvement in democracy.”31 That is, we can only argue with reservations that amnesties do in fact live up to their perceived expectations of contributing to the establishment and consolidation of democracy. Where the outcome of peace is concerned, the consequences associated with granting amnesties are more contentious. Here Olsen, Payne, and Reiter’s results come into direct confl ict with a study of the relationship between postconflict justice measures and sustainable peace conducted by Lie, Binningsbø, and Gates. According to Lie, Binningsbø, and Gates, while amnesties may play a role in securing a peace settlement in the first place, they reduce the likely duration of that peace and “significantly increase the risk of peace failure.”32 That is, amnesties are ultimately destabilizing. By contrast, Olsen, Payne, and Reiter found “little descriptive evidence that extending amnesties to the opposition during the confl ict helps end that conflict.”33 In particular, they note that where amnesties have been issued on a unilateral basis by governments to rebel groups “wars lasted longer” than in those cases in which no amnesty was offered. Indeed, as noted in Chapter 4, the rate at which amnesties granted to rebels have brought an end to violence is not particularly high, leading to the conclusion that amnesties are not, in fact, an effective way of ending violence. As suggested in Chapter 4, two possible reasons thus exist for the persistence of these types of amnesties: first, it may be the case that although empirical evidence suggests that amnesties granted to rebels do not work, the perception that they are a useful way of procuring peace remains more pervasive; and second, in the absence of any other available course of action, amnesties may constitute a last resort for states attempting to deal with protracted violent conflicts. Until these conclusions are subjected to further empirical examination, however, they remain tentative.

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Where establishing longer-term peace is concerned, however, Olsen, Payne, and Reiter argue that amnesties play an important role in “preventing renewed violence.”34 That is, although they may not in their view contribute to ending violence, they do contribute to the establishment and longevity of peace. This conclusion is interesting because it appears, on the face of it, to contradict the findings of Paul Collier’s study into why some states relapse into civil war. As is well known, however, “[p]ost-conflict situations are dangerous.”35 In fact, a recent history of war is not only the “single most important contributing factor to the outbreak of civil war,” but conflict within the past five years significantly increases the likelihood of further war.36 Indeed, “approximately half ” of all states experiencing a period of postconflict peace “will fall back into conflict within . . . [a] decade.”37 According to Collier, along with a number of other factors, the perpetuation of ongoing grievances is a significant risk factor for renewed violence in postconflict societies.38 Where those “grievances are sufficiently acute,” they may serve to trigger rebellion in the form of violent protest or in the instigation of civil war.39 Addressing those grievances by ensuring accountability thus appears to be essential to the ongoing maintenance of peace. What is thus required to resolve these anomalies is further examination of the precise role that amnesties play in peace negotiation processes. Most arguments that claim that amnesties are a useful means of ensuring the signing of peace agreements are based more on conjecture and assumption than on empirical evidence. In particular, most still rest on the assumption that where amnesties have been included in peace agreements they were necessary for its successful conclusion. And yet, we know that many peace agreements are reached without providing guarantees of impunity, thus bringing that assumed necessity into question. What is thus needed is a comprehensive comparative study of the role that amnesties play in peace negotiations resulting in peace agreements that include amnesties, peace agreements that do not include amnesties, and the failure to reach an agreement at all. This type of study will provide essential insights into the assumed “necessity” of offering amnesties as part of negotiated peace processes and will help to clear up discrepancies in the results of studies by Lie, Binningsbø, and Gates, Olsen, Payne, and Reiter, and Collier et al. Amnesties, as we have seen, persist because of their perceived utility for ending violence, ensuring the stability of new democracy regimes and rendering the truth. Although some evidence suggests that each of these perceptions does in fact meet with reality, where each is concerned a caveat

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applies. As argued above, although amnesties may help render the truth, the manner of their implementation is crucial to their ability to do so. Although amnesties do not appear to assist in ending violence perpetrated by rebel groups, they do seem to play a role in establishing and maintaining peace, particularly where some peace agreements are concerned. However, the complete absence of accountability measures leaves postconflict states vulnerable to a relapse into violence precipitated by the culture of impunity of the past continues unabated. And, finally, although amnesties may contribute to the establishment and consolidation of democracy, greater improvements are achieved when they are coupled with prosecutions either shortly after transition or some years down the track.

What of Aceh?

In the years that have elapsed since the signing of the Helsinki MoU, Aceh has remained at peace. This is a significant achievement. Aceh made it through the critical first five postconflict years, but successfully traversing the next five to ten may prove equally perilous. For Aceh, solidifying peace is therefore critical, and complacency in this matter could prove disastrous. As Sidney Jones cautions, “No one should take peace in Aceh for granted. Major social and political tensions [remain in the province] and . . . it does not take much to set a spark to the kindling.”40 Addressing tensions precipitated by a perceived lack of accountability for human rights violations is thus imperative if Aceh is to avoid a slide back into conflict, bringing with it the disintegration of democracy and a rise in human rights violations once more. Less than ten years on from the end of its violent civil conflict, it is not too late for Aceh or Indonesia to address its human rights violations. Indeed, as Kathryn Sikkink has comprehensively demonstrated, the absence of justice in the immediate aftermath of transition does not preclude its possibility at a later date; in some cases justice can be a long time coming. As we have seen in this book, efforts to overcome amnesties have been most successful in states boasting stable, consolidated democracy, and in contexts in which members of the international community have become actively engaged in the local human rights cause. Aceh is on its way to achieving that level of democracy, its human rights movement is flourishing, and international engagement is growing. With greater political will, on the part of Indonesia, the people of Aceh and, indeed, the international community,

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there is no reason to assume that Aceh’s amnesty is a permanently insurmountable obstacle to truth and justice. Rather, having done its work in facilitating a peace settlement and achieving stability in the immediate postconfl ict period, the time has come to consider whether it can now be combined with other transitional justice measures like truth commissions and trials without jeopardizing the hard-won peace.

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. Hodgson

NOTES

Introduction 1. Tgk Faisal Aly, secretary general of HUDA (Himpunan Ulama Dayah Aceh), quoted in Edward Aspinall, Peace Without Justice? The Helsinki Peace Process in Aceh (Geneva: Centre for Humanitarian Dialogue, 2008), 6. 2. International Crisis Group (ICG), “Aceh: So Far, So Good” (Asia Briefing No. 44, Jakarta/Brussels, 13 December 2005); Aspinall, Peace Without Justice?, 5. 3. Hamid Awaluddin, “Why Is Peace in Aceh Successful?,” in Aguswandi and Judith Large (eds.), Reconfiguring Politics: The Indonesia-Aceh Peace Process, Accord, Issue 20 (London: Conciliation Resources, 2008), 25. 4. Pierre-Antoine Braud and Giovanni Grevi, “The EU Mission in Aceh: Implementing Peace,” European Union Institute for Security Studies Occasional Paper No. 61 (2005), 14. 5. Faisal Hadi, “Human Rights and Justice in Aceh: The Long and Winding Road,” in Aguswandi and Large, Reconfiguring Politics, 66. 6. Awaluddin, “Why Is Peace in Aceh Successful?,” 25. 7. Aspinall, Peace Without Justice?, 28. See the “Memorandum of Understanding Between the Government of the Republic of Indonesia and the Free Aceh Movement, Helsinki, Finland, 15 August 2005,” in Damien Kingsbury, Peace in Aceh: A Personal Account of the Helsinki Peace Process (Jakarta: Equinox, 2006), 199–208. 8. Chandra Lekha Sriram, “Revolutions in Accountability: New Approaches to Past Abuses,” American University International Law Review 19 (2003): 301– 429. 9. Francesca Lessa and Leigh A. Payne (eds.), Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives (Cambridge: Cambridge University Press, 2012). 10. Ellen Lutz and Kathryn Sikkink, “The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America,” Chicago Journal of International Law 2 (2001): 1–33. 11. Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: Norton, 2011). Although some have questioned the existence of the “justice cascade,” it is not my specific purpose here to critique the idea or Sikkink’s argument more broadly. Rather, I simply take the idea, expressed by

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numerous other authors, that we are seeing increased demands for accountability for past human rights violations as the starting point of my analysis. 12. For example, the cases of Adolfo Scilingo, Ricardo Miguel Cavallo, and Augusto Pinochet discussed in Chapter 2. 13. Hun Joon Kim and Kathryn Sikkink, “Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries,” International Studies Quarterly 54, no. 4 (2010): 949. 14. Diane F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal 100, no. 8 (1991): 2537–2615. 15. Chumbipuma Aguirre et al. v. Peru (Barrios Altos), Inter-American Court of Human Rights (Merits), 14 March 2001, para. 41, http://www.corteidh.or.cr/docs /casos/articulos/seriec_75_ing.pdf (accessed 2 August 2011). 16. Lomé Peace Agreement, Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, Lome, Togo, 7 July 1999, http://www.sierra-leone.org/lomeaccord.html (accessed 21 October 2010). 17. Mark Freeman, Necessary Evils: Amnesties and the Search for Justice (Cambridge: Cambridge University Press, 2009), 89; Antonio Cassese, “On the Current Trends Toward Criminal Prosecution and Punishment of Breaches of International Human Rights Law,” European Journal of International Law 9 (1998): 5; Michael P. Scharf, “The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Cases,” Law and Contemporary Problems 59, no. 4 (1996): 41– 61. 18. For example, Chile’s 1979 Amnesty Law was successfully circumvented by redefining the crimes to which it applied; Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia: University of Pennsylvania Press, 2005), 77–78. 19. For example, in 2005 the Ley de Punto Final (1986) and Ley de Obediencia Debida (1987), which had provided immunity for members of the Argentine junta accused of disappearances, was overturned by the Supreme Court of Argentina. 20. For example, the ICC continues to resist Uganda’s 2000 amnesty granted to Joseph Kony and other indicted members of the Lord’s Resistance Army. See Renée Jeffery, “Forgiveness, Amnesty, and Justice: The Case of the Lord’s Resistance Army in Northern Uganda,” Cooperation and Conflict 46, no. 1 (2011): 78–95. 21. Louise Mallinder, Amnesty, Human Rights, and Political Transitions: Bridging the Peace and Justice Divide (Oxford: Hart, 2008), 19; Tricia C. Olsen, Leigh A. Payne, and Andrew G. Reiter. “Transitional Justice in the World, 1970–2007: Insights from a New Dataset,” Journal of Peace Research 47 (2010): 804. 22. Kathryn Sikkink and Carrie Booth Walling, “The Impact of Human Rights Trials in Latin America,” Journal of Peace Research 44, no. 4 (2007): 427. 23. Olsen, Payne, and Reiter, “Transitional Justice in the World,” 804. 24. Lutz and Sikkink, “Justice Cascade,” 4.

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25. Tove Grete Lie, Helga Malmin Binningsbø, and Scott Gates, “Post-Conflict Justice and Sustainable Peace,” Post-Conflict Transition Working Paper No. 5, World Bank Policy Research Working Paper No. 4191 (April 2007), http://go.worldbank.org /0LQ66BH110 (accessed 30 July 2013). 26. Norman Weisman, “A History and Discussion of Amnesty,” Columbia Human Rights Law Review 48, no. 2 (1972): 529. 27. J. R. Lucas, Responsibility (Oxford: Clarendon, 1993), 5. 28. Sikkink, Justice Cascade. 29. United Nations Development Programme, “United Nations Development Report, 2000,” 89, http://hdr.undp.org/en/media/hdr_2000_ch5.pdf (accessed 3 March 2011). 30. Ruti G. Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16 (2003): 69. 31. Weisman, “History and Discussion of Amnesty,” 529; Orentlicher, “Settling Accounts,” 2543. 32. Teitel, “Transitional Justice Genealogy.” 33. Sikkink, Justice Cascade, e-book. 34. Ibid. 35. Teitel, “Transitional Justice Genealogy,” 82. 36. Ibid., 82. 37. Antonio Cassese, International Criminal Law, 2nd ed. (Oxford: Oxford University Press, 2008), 30–31. 38. “Crimes against peace” were defined in Article 6 of the charter annexed to the London Agreement of 8 August 1945, 59 Stat. 1544, E.A.S. no. 472, which determined to establish “an International Military Tribunal for the trial of war crimes” as the “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” 39. War crimes were defined as “violations or the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.” 40. Crimes against humanity were defi ned as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.” 41. Charter annexed to the London Agreement of 8 August 1945, Article 7.

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42. Steven R. Ratner, Jason S. Abrams, and James L. Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 3rd ed. (Oxford: Oxford University Press, 2009), xlv. 43. Sikkink, Justice Cascade. 44. Teitel, “Transitional Justice Genealogy,” 82; Ruti G. Teitel, “International Law in a New Era,” Fordham International Law Journal 26, no. 4 (2002–2003): 893. 45. Samuel Huntington, The Third Wave: Democratization in the Late-Twentieth Century (Norman: University of Oklahoma Press, 1991), 213, 211. 46. Aryeh Neier, “What Should Be Done About the Guilty?,” New York Review of Books 37, no. 1 (1990): 32–35; Orentlicher, “Settling Accounts”; Naomi Roht-Arriaza, “State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law,” California Law Review 78, no. 2 (1990): 449–514. 47. Gary J. Bass, “War Crimes Tribunals,” in Keith E. Whittington, R. Daniel Keleman, and Gregory A. Calderia (eds.), The Oxford Handbook of Law and Politics (Oxford: Oxford University Press, 2008), 237. 48. Huntington, Third Wave, 215, 231. 49. Sikkink, Justice Cascade, 142. 50. Huntington, Third Wave, 228. 51. Guillermo A. O’Donnell and Philippe C. Schmitter, Transitions from Authoritarian Rule: Conclusions About Uncertain Democracies (Baltimore: Johns Hopkins University Press, 1986), 29. 52. See, for example, Andrew Rigby, Justice and Reconciliation: After the Violence (Boulder, Colo.: Lynne Rienner, 2001); Margaret Popkin, Peace Without Justice: Obstacles to Building the Rule of Law in El Salvador (University Park: Pennsylvania State University Press, 2000); Paul R. Williams and Michael P. Scharf, Peace Without Justice? War Crimes and Accountability in the Former Yugoslavia (Lanham, Md.: Rowman & Littlefield, 2002); Rachel Kerr and Eirin Mobekk, Peace and Justice: Seeking Accountability After War (Cambridge: Polity, 2007); Rama Mani, “Balancing Peace with Justice in the Aftermath of Violent Confl ict,” Development 48, no. 3 (2005): 25–34. 53. Teitel, “Transitional Justice Genealogy,” 78–79. 54. Howard Zehr, “Restorative Justice: The Concept,” Corrections Today 59, no. 7 (1997): 68; Burt Galaway and Joe Hudson, “Introduction,” in Burt Galaway and Joe Hudson (eds.), Restorative Justice: International Perspectives (Monsey: Kugler, 1996), 2. 55. Elizabeth Kiss, “Moral Ambition Within and Beyond Political Constraints,” in Robert I. Rotberg and Dennis Thompson (eds.), Truth v. Justice: The Morality of Truth Commissions (Princeton, N.J.: Princeton University Press, 2000), 79. Closely related to restorative justice, Rama Mani’s concept of rectificatory justice seeks to specifically address the injustice of “direct physical violence suffered by people during conflict.” Motivated by a set of overlapping legal, political, and psychosocial rationales, rectificatory justice is partly driven by recognition that healing, particularly of

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the psychosocial variety, “must be addressed to promote reconciliation with communities and consolidate peace.” Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge: Polity, 2002), 7, 8. 56. Zehr, “Restorative Justice,” 68. 57. Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice vs Peace in Times of Transition (London: Frank Cass, 2004), 7. 58. Karen Gallagher, “No Justice, No Peace: The Legalities and Realities of Amnesty in Sierra Leone,” Thomas Jefferson Law Review 23, no. 1 (2000–2001): 151. 59. Teitel, “Transitional Justice Genealogy,” 78–79. 60. Ibid., 90. 61. Kieran McEvoy, Harry Mika, and Barbara Hudson, “Introduction: Practice, Performance, and Prospects for Restorative Justice,” British Journal of Criminology 42 (2002): 469; Lucia Zedner, “Reparation and Retribution: Are They Reconcilable?,” Modern Law Review 57, no. 2 (2004): 249. 62. Michael Barnett, Hunjoon Kim, Madalene O’Donnell, and Laura Sitea, “Peacebuilding: What Is in a Name?,” Global Governance 13 (2007): 49–50; Robert Ricigliano, “Networks of Effective Action: Implementing an Integrated Approach to Peacebuilding,” Security Dialogue 34 (2003): 447; Oliver Ramsbotham, “Reflections on UN PostSettlement Peacebuilding,” International Peacekeeping 7, no. 1 (2000): 182. 63. Chandra Lekha Sriram, “Transitional Justice and Peacebuilding,” in Chandra Lekha Sriram and Suren Pillay (eds.), Peace Versus Justice? The Dilemma of Transitional Justice in Africa (Scottsville: University of KwaZulu-Natal Press, 2009), 1. 64. By placing the purposes for which amnesties are instituted at the heart of my examination, I go one step further than Louise Mallinder, who, in her impressive and near comprehensive examination of amnesty laws from 1945 to 2007, also considers why states grant amnesties. Mallinder, Amnesty, Human Rights, and Political Transitions, 37– 68. 65. Oskar N. T. Thoms, James Ron, and Roland Paris, “State-Level Effects of Transitional Justice: What Do We Know?,” International Journal of Transitional Justice 4, no. 3 (2010): 331–332. 66. Oskar N. T. Thoms, James Ron, and Roland Paris, The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners (Ottawa: University of Ottawa, Center for International Policy Studies, 2008), 12; Christoph J. M. Safferling, “Can Criminal Prosecution Be the Answer to Massive Human Rights Violations?,” German Law Journal 5 (2004): 1483. 67. Mark Bevir, Democratic Governance (Princeton, N.J.: Princeton University Press, 2010), 6. 68. Kim and Sikkink, “Explaining the Deterrence Effect”; Tricia D. Olsen, Leigh A. Payne, and Andrew Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington, D.C.: U.S. Institute of Peace, 2010); see also Lie, Binningsbø, and Gates, “Post-Confl ict Justice.”

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69. Both Akhavan and Meernik have evaluated the impact of the International Tribunal for the Former Yugoslavia, with differing results, while Gibson has focused on the impact of the South African Truth and Reconciliation Commission and MayerRieckh and de Greiff have considered the consequences of vetting processes. Smalland medium-N comparative studies have been conducted by de Brito et al. on trials, truth commissions, and purges in nineteen states, by Call on postconfl ict justice systems in eight states, by Stromseth et al. on trials in Yugoslavia, East Timor, Rwanda, and Sierra Leone, by Sikkink and Booth Walling on the impact of trials on democratic stability, human rights, and confl ict in seventeen Latin American cases, and by Long and Brecke on “reconciliation events” in eleven civil wars. Payam Akhavan, “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?,” American Journal of International Law 95 (2001): 7–31; James Meernik, “Justice or Peace: How the International Criminal Tribunal Affects Societal Peace in Bosnia,” Journal of Peace Research 42 (2005): 271–290; James L. Gibson, “Does Truth Lead to Reconciliation? Testing the Causal Assumptions of the South African Truth and Reconciliation Process,” American Journal of Political Science 48, no. 2 (2004): 201– 217; James L. Gibson, “Truth, Justice, and Reconciliation: Judging the Fairness of Amnesty in South Africa,” American Journal of Political Science 46, no. 3 (2002): 540–556; Alexander Mayer-Rieckh and Pablo de Greiff (eds.), Justice as Prevention: Vetting Public Employees in Transitional Societies (New York: Social Science Research Council, 2007); Alexandra Barahona de Brito, Carmen González Enríquez, and Paloma Aguilar (eds.), The Politics of Memory: Transitional Justice in Democratizing Societies (Oxford: Oxford University Press, 2001); Charles Call (ed.), Constructing Justice and Security After War (Washington, D.C.: U.S. Institute of Peace, 2007); Jane E. Stromseth, Rosa Ehrenreich Brooks, and David Wippmann, Can Might Make Rights? Building the Rule of Law After Military Interventions (Cambridge: Cambridge University Press, 2006); Sikkink and Booth Walling, “Impact of Human Rights Trials,” in William J. Long and Peter Brecke, War and Reconciliation: Reason and Emotion in Conflict Resolution (Cambridge, Mass.: MIT Press, 2003). 70. Naomi Roht-Arriaza, “The New Landscape of Transitional Justice,” in Naomi Roht-Arriaza and Javier Mariezcurrena (eds.), Transitional Justice in the TwentyFirst Century: Beyond Truth Versus Justice (Cambridge: Cambridge University Press, 2006), 12. 71. Thoms, Ron, and Paris, Effects of Transitional Justice Mechanisms, 5. 72. Ibid., 5. 73. See, for example, Sikkink, Justice Cascade, which relies on both in-depth case studies and the analysis of a large data set. 74. Alexander Wendt, “Social Theory as Cartesian Science: An Auto-critique from a Quantum Perspective,” in Stefano Guzzini and Anna Leander (eds.), Constructivism and International Relations: Alexander Wendt and His Critics (London: Routledge, 2006), 152.

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75. Mark Bevir and Asaf Kedar, “Concept Formation in Political Science: An Anti-Naturalist Critique of Qualitative Methodology,” Perspectives on Politics 6 (2008): 505. 76. Mark Bevir and R. A. W. Rhodes, The State as Cultural Practice (Oxford: Oxford University Press, 2010), 43– 44. 77. Bevir, Democratic Governance, 8. 78. Bevir and Rhodes, State as Cultural Practice, 45. 79. Bevir, Democratic Governance, 8. 80. Ibid. 81. Ibid., 9. 82. Mark Bevir, “Narrative as a Form of Explanation,” Disputatio 9 (2000), 13, available at http://www.disputatio.com/uploads/pdfs/articles/009-2.pdf (accessed 30 July 2013). 83. Ibid., 13, 14. 84. Ibid., 14. 85. Mark Bevir, “How Narratives Explain,” in Dvora Yanow and Peregrine Schwartz-Shea (eds.), Interpretation and Method: Empirical Research Methods and the Interpretive Turn (New York: M. E. Sharpe, 2006), 283.

Chapter 1 1. Anonymous, “Human Rights in Peace Negotiations,” Human Rights Quarterly 18, no. 2 (1996): 258. 2. Louis Joinet, “Study on Amnesty Laws and Their Role in the Safeguard and Promotion of Human Rights,” UN Doc. E/CN.4/Sub.2/1985/16/Rev.1, http://www1 .umn.edu/humanrts//Amensty %20Laws _Joinet.pdf (accessed 2 August 2011), para. 5. 3. This qualification is included for, as Mark Freeman points out, some amnesties, such as tax amnesties, are of a legal-bureaucratic and not explicitly political nature. Freeman, Necessary Evils, 17. 4. Max Pensky, “Amnesty on Trial: Impunity, Accountability and the Norms of International Law,” Ethics and Global Politics 1, nos. 1–2 (2008): 9. 5. Ibid., 7. 6. Ibid., 9. 7. This is despite the fact that Solon, the chief magistrate and great reformer of Athenian politics and society, enacted an amnesty in 592 b.c.e. that “recalled all who were exiled before his archonship, except those who had been condemned by the established authorities on charges of murder, manslaughter, or attempted tyranny.” Sara Forsdyke, Exile, Ostracism and Democracy: The Politics of Expulsion in Ancient Greece (Princeton, N.J.: Princeton University Press, 2005), 92. 8. Josiah Ober, “Social Science History, Cultural History, and the Amnesty of 403,” Transactions of the American Philological Association 132 (2002): 127.

220

Notes to Pages 22–26

9. Ibid. 10. Thucydides, History of the Peloponnesian War, trans. Rex Warner (London: Penguin, 1954), 3.84, 244–245. 11. Ober, “Social Science History,” 128. 12. Ibid. 13. Andocides, quoted in James M. Quillin, “Achieving Amnesty: The Role of Events, Institutions, and Ideas,” Transactions of the American Philological Association 132 (2002): 72; the Athenian Politeia, 40– 43, quoted in Ober, “Social Science History,” 128. 14. Lysias, “Against Eratosthenes,” quoted in W. R. M. Lamb, Lysias with an English Translation (Cambridge, Mass.: Harvard University Press, 1920), 12.1. 15. William Tieman, “ ‘Cause’ in History and the Amnesty at Athens: An Introduction,” Transactions of the American Philological Association 132 (2002): 63; George Grote, History of Greece, 12 vols. (New York, 1846–1856), 8:300. 16. John Gilles, The History of Ancient Greece: Its Colonies and Conquests from the Earliest Accounts till the Division of the Macedonian Empire in the East (Philadelphia: Thomas Wardell, 1831), 269. 17. Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004), 32. 18. Peter Krapp, “Amnesty: Between an Ethics of Forgiveness and the Politics of Forgetting,” German Law Journal 6, no. 1 (2005): 187. 19. Treaty of Sèvres, Between the Allied and Associated Powers and Turkey, 10 August 1920, Article 230, http://wwi.lib.byu.edu/index.php/Section_I,_Articles _1_-_260 (accessed 9 March 2011). 20. M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd ed. (The Hague: Martinus Nijhoff, 1999), 68. 21. M. Cherif Bassiouni, “Combating Impunity for International Crimes,” University of Colorado Law Review 71 (2000): 414. 22. John Shamsey, “80 Years Too Late: The International Criminal Court and the 20th Century’s First Genocide,” Journal of Transitional Law and Policy 11 (2001–2002): 368. 23. Adolf Hitler, “Speech to Chief Commanders and Commanding Generals” (22 August 1939), reprinted in Bassiouni, Crimes Against Humanity, 176. 24. Peter Siani-Davies and Stefanos Katsikas, “National Reconciliation After Civil War: The Case of Greece,” Journal of Peace Research 46 (2009): 565. 25. Ibid., 567. 26. Elster, Closing the Books, 190. 27. Quoted in ibid. 28. Sikkink, Justice Cascade; quoted in Elster, Closing the Books, 190. 29. Sikkink, Justice Cascade, 238. 30. One obvious exception is amnesties granted to celebrate national and religious holidays. Although they too are “political,” in the sense that they are enacted for po-

Notes to Pages 26–28

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litical reasons, they do not necessarily amnesty individuals who have committed political crimes. 31. Andreas O’Shea, Amnesty for Crimes in International Law and Practice (The Hague: Kluwer, 2002), 1–2, emphasis added. 32. Christine van den Wyngaert, The Political Offence Exception to Extradition: The Delicate Problem of Balancing the Rights of the Individual and the International Public Order (The Hague: Kluwer, 1980), 95. 33. Lusaka Protocol, Lusaka, Zambia, between the Government of the Republic of Angola (GRA) and the “União Nacional para a Independência Total de Angola” (15 November 1994), http://www.usip.org/files/file/resources/collections/peace_agreements /lusaka _11151994.pdf (accessed 9 March 2011). In practice, however, distinguishing between political and common crimes is often difficult and sometimes impossible. Thus different amnesty laws provide defi nitions of what constitutes a politically motivated crime with varying degrees of specificity. For example, the 1996 Guatemalan amnesty defi nes common crimes as being politically motivated and thus eligible for amnesty where they are “ ‘directly, objectively, intentionally, and causally’ linked to war-related political acts.” Mallinder, Amnesty, Human Rights, and Political Transitions, 137. 34. M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes,” Law and Contemporary Problems 59 (1996): 65. 35. Ibid., 69. 36. This is reflected in Ben Chigara’s definition of amnesties as “laws [that] purport to extinguish legal liability of agents of a prior regime alleged to have violated basic human rights of individuals.” Ben Chigara, Amnesty in International Law: The Legality Under International Law of National Amnesty Laws (London: Longman, 2002), 1–2. 37. Freeman, Necessary Evils, 8. 38. Ibid., 4. Of course, the Geneva Conventions are not human rights treaties, per se, but conventions of humanitarian law that have been incorporated into the broadly conceived corpus of human rights law. 39. Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 4(2), http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003 e636b/d67c3971bcff1c10c125641e0052b545 (accessed 15 October 2010). 40. Ibid., Article 4(2) and Article 6. 41. Ibid., Article 6(5). 42. Freeman, Necessary Evils, 34. See, for example, the South African AZAPO case, discussed in detail in Chapter 3. 43. Ibid., 36. 44. International Committee of the Red Cross, “Customary International Humanitarian Law 1: Rules,” ed. Jean-Marie Henckaerts and Louise Doswald-Beck (Cambridge: Cambridge University Press and the International Committee of the Red Cross, 2005), Rule 159, 612.

222

Notes to Pages 28–30

45. Cassese, “On the Current Trends,” 5. 46. Scharf, “Letter of the Law,” 43. 47. Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948, Article 1, http://untreaty.un.org/cod/avl/ha/cppcg/cppcg.html (accessed 15 October 2010). 48. Ibid., Articles 3– 6. 49. Convention Against Torture, and Other Cruel, Inhumane or Degrading Treatment or Punishment, New York, 10 December 1984, Articles 4(1) and 4(2), http://untreaty.un.org/cod/avl/ha/cppcg/cppcg.html (accessed 15 October 2010). 50. Ibid., Articles 6(2) and 7(1). 51. Ibid., Article 7(2); Mallinder, Amnesty, Human Rights, and Political Transitions, 127–128. 52. Orentlicher, “Settling Accounts,” 2604. 53. Scharf, “Letter of the Law,” 46– 47. See also Ahcene Boulesbaa, “The Nature of the Obligations Incurred by States Under Article 2 of the UN Convention Against Torture,” Human Rights Quarterly 12 (1990): 53–93. 54. United Nations International Covenant on Civil and Political Rights (1966), Article 2(3)(a), http://www.hrweb.org /legal/cpr.html. 55. Ibid., Article 2(3)(b). 56. Basic Principles and Guidelines on the Right to a Remedy and Reparation for the Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by the General Assembly, res.60/147, 16 December 2005, http://www2.ohchr.org/english/law/remedy /htm (accessed 6 April 2011). 57. Theo van Boven, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final report submitted to the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-Fift h Session, E/CN.4 /Sub.2/1993/8 (2 July 1993), 51, http://www.unhchr.ch/Huridocda/Huridoca.nsf/0 /e1b5e2c6a294f7bec1256a5b00361173?Opendocument (accessed 6 April 2011). 58. American Convention on Human Rights, Inter-American Specialized Conference on Human Rights, 22 November 1969, Article 1(1), http://www.hrcr.org/docs /American_Convention/oashr.html (accessed 15 October 2010). 59. Inter-American Convention to Prevent and Punish Torture, 9 December 1985, Articles 1 and 6, http://www.unhcr.org /refworld /docid /3ae6b3620.html (accessed 15 October 2010); Inter-American Convention on Forced Disappearance of Persons, 28 March 1996, Article 1, available at http://www.unhcr.org /refworld /type ,MULTILATERALTREATY,OAS,3ae6b38ef,0.html; Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary, and Summary Executions, 24 May 1989, Article 18, http://www.unhcr.org /refworld /type,INTINSTRUMENT, ,3ae6b39128,0.html (accessed 15 October 2010); the Declaration on the Protection of All Persons from Enforced Disappearance, 18 December 1992, http://www.unhchr

Notes to Pages 30–34

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.ch/Huridocda/Huridoca.nsf/(Symbol)/A.RES.47.133.En?Opendocument (accessed 15 October 2010). 60. Declaration on the Protection of All Persons from Enforced Disappearance, Article 18. 61. Ireland v. United Kingdom, 25 European Court of Human Rights (ser. A), judgment, para. 239 (1978). 62. This is not to preclude the fact that there may be considerable disagreement over whether punishment was the fitting (or just) response to a given act. For example, it might be argued that in the case of amnesties to release political prisoners, amnesties often rectify unjust convictions. Nonetheless, the point holds that the amnestied individual was, at some point, deemed to have committed an act worthy of prosecution and punishment by a power able to enforce its decision. 63. Thomas Donaldson, “Kant’s Global Rationalism,” in Terry Nardin and David R. Mapel (eds.), Traditions of International Ethics (Cambridge: Cambridge University Press, 1992), 137. 64. Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. H. J. Paton (London: Routledge, 1991), 14. 65. Leslie Vinjamuri and Jack Snyder, “Advocacy and Scholarship in the Study of International War Crimes Tribunals and Transitional Justice,” Annual Review of Political Science 7 (2004): 345–362; Judith Shklar, quoted in ibid., 346. 66. Juan E. Méndez, “Accountability for Past Abuses,” Human Rights Quarterly 19, no. 2 (1997): 277. 67. David A. Crocker, “Reckoning with Past Wrongs: A Normative Framework?,” Ethics and International Affairs 13 (1999): 53. 68. Carlos S. Nino, “The Duty to Prosecute Past Abuses of Human Rights Put into Context: The Case of Argentina,” Yale Law Journal 100, no. 8 (1991): 2620. 69. Jaime Malamud-Goti, “Transitional Governments in the Breach: Why Punish State Criminals?,” Human Rights Quarterly 12, no. 1 (1990): 6. 70. Max Weber, “Politics as a Vocation,” in H. H. Gerth and C. Wright Mills (eds.), From Max Weber: Essays in Sociology (London: Routledge, 1991), 127. 71. Anthony Ellis, “Utilitarianism and International Ethics,” in Nardin and Mapel, Traditions of International Ethics, 158. 72. Gordon Graham, Eight Theories of Ethics (London: Routledge, 2004), 141. 73. George Enderle, “The Ethics of Conviction Versus the Ethics of Responsibility,” Journal of Human Values 13 (2007): 86. 74. José Zalaquett, “Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations,” Hastings Law Journal 43 (1991–1992): 1430. 75. Freeman, Necessary Evils, 8. 76. Leslie Vinjamuri, “Deterrence, Democracy, and the Pursuit of International Justice,” Ethics and International Affairs 24, no. 2 (2010): 199. 77. Ibid., 200.

224

Notes to Pages 34–43

78. Orentlicher, “Settling Accounts,” 2540. 79. Diane F. Orentlicher, “ ‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency,” International Journal of Transitional Justice 1, no. 1 (2007): 15. Orentlicher notes that some of the misinterpretations associated with her original article, in par ticu lar those that took her to be arguing in favor of an absolute “rigid and universal” obligation to prosecute human rights violations, may have been caused by the subtitle of the article. She suggests that “the scope of states’ duties” may have served her argument better. Ibid., 13. 80. M. Cherif Bassiouni, “Searching for Peace and Achieving Justice: The Need for Accountability,” Law and Contemporary Problems 59, no. 4 (1996): 23. 81. See Mallinder, Amnesty, Human Rights, and Political Transitions, Appendix; Transitional Justice Database Project, http://www.tjdbproject.com. 82. The time period selected is that in which the rise of amnesties as a popu lar transitional justice mechanism coincided with the emergence and spread of the justice cascade. 83. Orentlicher, “Settling Accounts,” 2543. 84. Mallinder, Amnesty, Human Rights, and Political Transitions, 39. 85. Ibid., 37. 86. Pensky, “Amnesty on Trial,” 6. 87. Sikkink, Justice Cascade, 36. 88. Ibid. 89. Aryeh Neier, The International Human Rights Movement: A History (Princeton, N.J.: Princeton University Press, 2012), 187. 90. Albanian Amnesty Law No. 7660 (1993), quoted in Mallinder, Amnesty, Human Rights, and Political Transitions, 65. 91. Bulgarian Law on Amnesty and Restoration of Confiscated Property and Implementing Regulations (1991), quoted in Mallinder, Amnesty, Human Rights, and Political Transitions, 65. 92. Joinet, “Study on Amnesty Laws,” 2–3. 93. Neier, International Human Rights Movement, 2, 3. 94. Jon Fraenkel and Stewart Firth, “The Enigmas of Fiji’s Good Governance Coup,” in Jon Fraenkel, Stewart Firth, and Brij V. Lal (eds.), The 2006 Military Takeover in Fiji: A Coup to End All Coups? (Canberra: ANU E Press, 2009), 4. 95. Stephanie Lawson, “Nationalism Versus Constitutionalism in Fiji,” Nations and Nationalism 10, no. 4 (2004): 519. 96. Jon Fraenkel, “Fiji’s December 2006 coup: Who, What, Where and Why?,” in Fraenkel, Firth, and Lal, The 2006 Military Takeover in Fiji, 44. 97. Lawson, “Nationalism Versus Constitutionalism,” 531. 98. Ibid. 99. As it turned out, after breaching the terms of his amnesty, Speight was arrested, charged with treason, and sentenced to death, although the sentence was com-

Notes to Pages 44–52

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muted to a life term and, on the following day, parliament abolished the death penalty, “just to make sure.” Ibid., 532. 100. Michael P. Scharf, “The Amnesty Exception to the Jurisdiction of the International Criminal Court,” Cornell International Law Journal 32 (1997): 508. 101. Leslie Vinjamuri and Aaron Boesenecker, “Peace Agreements and Accountability: Mapping Trends from 1980 to 2006” (Geneva: Centre for Humanitarian Dialogue, 2007), 9. 102. Amena Mohsin, The Chittagong Hill Tracts, Bangladesh: On the Difficult Road to Peace (Boulder, Colo.: Lynne Rienner, 2003), 127. 103. Bushra Hasina Chowdhury, Building Lasting Peace: Issues of the Implementation of the Chittagong Hill Tracts Accord (University of Illinois at Urbana–Champaign, Program in Arms Control, Disarmament, and International Security, August 2002), 25. 104. Ibid.

Chapter 2 1. O’Donnell and Schmitter, Transitions from Authoritarian Rule, 28. 2. I say “classified” because although Colombia has been classified as being democratic at that time, many would dispute just how democratic Colombia was, given its protracted state of conflict. 3. Scott Mainwaring and Frances Hagopain, “Introduction: The Third Wave of Democratization in Latin America,” in Frances Hagopain and Scott P. Mainwaring (eds.), The Third Wave of Democratization in Latin America: Advances and Setbacks (Cambridge: Cambridge University Press, 2005), 2. 4. Naomi Roht-Arriaza and Lauren Gibson, “The Developing Jurisprudence on Amnesty,” Human Rights Quarterly 20, no. 4 (1998): 847; Robert J. Quinn, “Will the Rule of Law End? Challenging Grants of Amnesty for the Human Rights Violations of a Prior Regime: Chile’s New Model,” Fordham Law Review 62 (1993–1994): 908. 5. Gwen K. Young, “Amnesty and Accountability,” University of California Davis Law Review 35, no. 2 (2001–2002), 440; Curtis A. Bradley and Jack L. Goldsmith, “Pinochet and International Human Rights Litigation,” Michigan Law Review 97, no. 7 (1999): 2129. 6. John Dugard, “Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?,” Leiden Journal of International Law 12 (1999): 1007. 7. Brian Loveman and Elizabeth Lira, “Truth, Justice, Reconciliation, and Impunity as Historical Themes: Chile, 1814–2006,” Radical History Review 97 (Winter 2007): 47. 8. Ibid., 48. 9. Chile Decree No. 2191 of April 1978. 10. Young, “Amnesty and Accountability,” 441.

226

Notes to Pages 53–54

11. Luc Huyser, “Amnesty, Truth or Prosecution?,” in Luc Reychler and Thania Paffenholz (eds.), Peacebuilding: A Fieldguide (Boulder, Colo.: Lynne Rienner, 2001), 322; Fannie Lafontaine, “No Amnesty or Statute of Limitation for Enforced Disappearances: The Sandoral Case Before the Supreme Court of Chile,” Journal of International Criminal Justice 3, no. 2 (2005): 470. 12. Freeman, Necessary Evils, 17. For example, the Cotonou Agreement, signed between the Interim Government of National Unity of Liberia, the National Patriotic Front of Liberia, and the United Liberation Movement of Liberia for Democracy in 1993, includes the following unlimited, unconditional amnesty: “The Parties hereby agree that upon the execution of this Agreement there shall be a general amnesty granted to all persons and parties involved in the Liberian civil conflict in the course of actual military engagements. Accordingly, acts committed by the Parties or by their forces while in actual combat or on authority of any of the Parties in the course of actual combat are hereby granted amnesty.” This amnesty does not place limits on the persons to whom it is applicable, the crimes to be amnestied (beyond specifying that they must have been enacted during the course of combat operations), or the time period in which amnestied crimes were committed. Liberia Cotonou Agreement, U.S. Institute of Peace, Peace Agreements Digital Collection, 25 July 1993, Section G, Article 19, http://www.usip.org/fi les/fi le/resources/collections/peace_agreements /liberia_07251993.pdf (accessed 2 August 2011). 13. Chile Decree 2191, Article 3. 14. Roht-Arriaza and Gibson, “Developing Jurisprudence on Amnesty,” 847. 15. Douglas Cassel, “Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities,” Law and Contemporary Problems 59, no. 4 (1996): 202. 16. Americas Watch, Chile in Transition: Human Rights Since the Plebiscite (New York: Human Rights Watch, 1988–1989), 73. 17. Quinn, “Will the Rule of Law End?,” 909. 18. Joan Dassin, “Preface to the New Edition,” in Joan Dassin (ed.) and Jaime Wright (trans.), Torture in Brazil: A Shocking Report on the Pervasive Use of Torture by Brazilian Military Governments, 1964–1979, Secretly Prepared by the Archdiocese of São Paulo (New York: Random House, 1998), x; Alfred C. Stepan, Rethinking Military Politics: Brazil and the Southern Cone (Princeton, N.J.: Princeton University Press, 1988), 64. 19. Guatemala Amnesty Law, 1982. 20. While the Comisión Nacional Sobre la Desaparición de Personas estimated that 9,000 people had disappeared, some human rights organizations maintain that the figure is closer to 30,000. Daniel W. Schwartz, “Rectifying Twenty-Five Years of Material Breach: Argentina and the Legacy of the ‘Dirty War’ in International Law,” Emory International Law Review 18, no. 1 (2004): 325. 21. J. Patrice McSherry, Incomplete Transition: Military Power and Democracy in Argentina (New York: St. Martin’s, 1997), 78.

Notes to Pages 54–56

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22. Sriram, Confronting Past Human Rights Violations, 107; Schwartz, “Rectifying Twenty-Five Years of Material Breach,” 321. 23. Juan E. Méndez, Truth and Partial Justice in Argentina: An Update (New York: Human Rights Watch, 1991), 5– 6. 24. Ibid., 6; Ellen L. Lutz and Kathryn Sikkink, “International Human Rights Law and Practice in Latin America,” International Organization 54, no. 3 (2000): 647– 648. 25. Sriram, Confronting Past Human Rights Violations, 108. 26. Méndez, Truth and Partial Justice in Argentina, 9. 27. Ibid., 10. 28. Louise Mallinder, “The Ongoing Quest for Truth and Justice: Enacting and Annulling Argentina’s Amnesty Laws,” Beyond Legalism: Amnesties, Transition, and Conflict Transformation, Queen’s University, Belfast Working Paper No. 5 (May 2009), 16. 29. Ley de Pacificación Nacional, 22 September 1983, Article 1. http://www1.umn .edu/humanrts/research/argentina/ley22-924.html (accessed 30 July 2013). 30. Mallinder, “Ongoing Quest for Truth and Justice,” 18. 31. Méndez, Truth and Partial Justice in Argentina, 13. 32. Quoted in McSherry, Incomplete Transition, 110. 33. Aryeh Neier, “An Overview of the Issue and Human Rights Watch Policy,” Human Rights Watch 4 (December 1989): 2, in Priscilla B. Hayner, “Fifteen Truth Commissions—1974 to 1994: A Comparative Study.” Human Rights Quarterly 16, no. 4 (1994): 614– 615. The first truth commission in Latin America was established in Bolivia. In October 1982, the Bolivian president, Hernán Siles Zuazo, established the National Commission of Inquiry into Disappearances to investigate disappearances between 1967 and 1982. After more than two years in operation, however, it was disbanded without having produced a final report. In the meantime, however, Argentina had begun its “rapid transition to democratic rule” and “looked toward Bolivia for the idea of creating a commission to investigate the violence of the seven year Argentine military regime, between 1976 and 1983.” Hayner, “Fifteen Truth Commissions,” 615. 34. Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York: Routledge, 2002), 34. 35. Schwartz, “Rectifying Twenty-Five Years of Material Breach,” 331. See Enrique Dahl and Alejandro Garro, “Argentina: National Appeals Court (Criminal Division) Judgment on Human Rights Violations by Former Military Leaders (Excerpts),” International Legal Materials 26, no. 2 (1987): 317–372; Mark Osiel, “The Making of Human Rights Policy in Argentina: The Impact of Ideas and Interests on a Legal Conflict,” Journal of Latin American Studies 18, no. 1 (1986): 135–180. 36. Schwartz, “Rectifying Twenty-Five Years of Material Breach,” 331. 37. Terence Roehrig, “Executive Leadership and the Continuing Quest for Justice in Argentina,” Human Rights Quarterly 31, no. 3 (2009): 732; Osiel, “Making of Human Rights Policy in Argentina,” 138. 38. Schwartz, “Rectifying Twenty-Five Years of Material Breach,” 332.

228

Notes to Pages 56–57

39. Roehrig, “Executive Leadership,” 732. 40. Mallinder, “Ongoing Quest for Truth and Justice,” 64. 41. Roehrig, “Executive Leadership,” 732. 42. Nora Drew Renzulli, “Comment on Judgment of Former Military Rulers for Human Rights Violations: Jorge R. Videla et alia,” New York Law School Human Rights Annual 4 (1986–1987): 834. 43. Anne Marie Latcham, “Duty to Punish: International Law and the Human Rights Policy of Argentina,” Boston University International Law Journal 7 (1989): 364–365; George C. Rogers, “Argentina’s Obligation to Prosecute Military Officials for Torture,” Columbia Human Rights Law Review 20, no. 2 (1988–1989): 261. 44. Emilio Fermin Mignone, Cynthia L. Estlund, and Samuel Issacharoff, “Dictatorship on Trial: Prosecution of Human Rights Violations in Argentina,” Yale Journal of International Law 10 (1984–1985): 119. 45. Ibid. 46. Carlos Santiago Nino, “The Human Rights Policy of the Argentine Constitutional Government: A Reply,” Yale Journal of International Law 11 (1985–1986): 221. 47. Ibid., 229–230; see Mignone, Estlund, and Issacharoff, “Dictatorship on Trial,” 148–149. 48. Nino, “Human Rights Policy,” 221. 49. Schwartz, “Rectifying Twenty-Five Years of Material Breach,” 333. 50. See, for example, Decreto 1002 (7 October 1989), Decreto 1003 (7 October 1989), Decreto 1004 (7 October 1989), Decreto 1005 (7 October 1989). Although they are closely related, amnesties can be formally distinguished from pardons in at least one important respect. While pardons “typically exempt convicted criminals from serving their sentences in whole or in part without expunging the conviction,” amnesties technically do not allow a conviction to be recorded or punishment to be exacted for past crimes. In reality, however, as retrospective devices amnesties are sometimes applied to individuals who have already received punishment, in full or in part, for a crime later amnestied. What stands cases such as these apart from instances of mere pardon is that they require, in addition to exempting the amnestied individual from further punishment, the record of a conviction to be formally expunged. That said, in practice states use “a broad range of terms—including pardon and clemency—to denote laws that fall within the definition of amnesties” and similarly use the term “amnesty” to denote acts that actually fulfi ll the terms of a pardon. For example, under the banner of “amnesty,” Algeria’s 1999 Law on Civil Harmony not only offered “exemption from prosecution” for offenses other than rape, the use of explosives in public places, and the use of explosives resulting in the death or permanent disabling of a person, but also reduced penalties for crimes including collective massacres and exemption from the death penalty in all cases. Orentlicher, “Settling Accounts,” 2543; Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools for Post- Conflict States: Amnesties (New York: United Nations,

Notes to Pages 57–62

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2009), 5; Youcef Bouandel, “Bouteflicka’s Reforms and the Question of Human Rights in Algeria,” Journal of North African Studies 7, no. 2 (2002): 29. 51. Brett, quoted in Schwartz, “Rectifying Twenty-Five Years of Material Breach,” 334. 52. Roht-Arriaza, “State Responsibility to Investigate,” 460. 53. Mallinder, Amnesty, Human Rights, and Political Transitions, 35. 54. Ibid. 55. Ibid.; Roht-Arriaza, “State Responsibility to Investigate,” 460. 56. Velásquez Rodríguez v. Honduras, Inter-American Court of Human Rights, 29 July 1988, para. 153, http://www1.umn.edu/humanrts/iachr/b_11_12d.htm (accessed 2 August 2011). 57. Geoff rey Robertson, Crimes Against Humanity (London: Penguin, 2006), 292. 58. Roht-Arriaza, “State Responsibility to Investigate,” 470. 59. Velásquez Rodríguez, para. 164. 60. Ibid., para. 174. 61. Ibid.; Paul van Zyl, “Justice Without Punishment: Guaranteeing Human Rights in Transitional Societies,” in Charles Villa-Vicencio and Wilhelm Verwoerd (eds.), Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (London: Zed Books, 2000), 48. 62. Velásquez Rodríguez, para. 134. 63. Ibid., para. 176. 64. Ibid. 65. Ibid., para. 177. 66. Ibid., para. 181. 67. Paige Arthur, “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice,” Human Rights Quarterly 31, no. 2 (2009): 349. 68. Alice H. Henkin, “State Crimes: Punishment or Pardon (Conference Report),” in Neil J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington, D.C.: U.S. Institute of Peace, 1995), 1:184. 69. Arthur, “How ‘Transitions’ Reshaped Human Rights,” 335, 349– 450. 70. Ibid., 352. 71. Henkin, “State Crimes,” 186. 72. Arthur, “How ‘Transitions’ Reshaped Human Rights,” 354. 73. Ibid. 74. Ibid., 350. 75. Zalaquett, “Balancing Ethical Imperatives and Political Constraints.” 76. Orentlicher, “ ‘Settling Accounts’ Revisited,” 12. 77. For example, Naomi Roht-Arriaza’s “State Responsibility to Investigate” appeared in the California Law Review in 1990. 78. Orentlicher, “Settling Accounts,” 2540. 79. Ibid., 2541.

230

Notes to Pages 62–66

80. Ibid., 2585. As would be expected, in the many years that have followed since Orentlicher first published “Settling Accounts,” her views have shifted somewhat. These views, expressed in “ ‘Settling Accounts’ Revisited,” are discussed in Chapter 4. 81. Nino, “Duty to Prosecute,” 2620. 82. Ibid. This position is derived from Nino’s consensual theory of punishment. See Carlos S. Nino, “A Consensual Theory of Punishment,” Philosophy and Public Affairs 12, no. 4 (1981): 297. 83. Orentlicher, “ ‘Settling Accounts’ Revisited,” 12–13. 84. Ibid., 12. 85. Ibid., 11. 86. Michael P. Scharf, “Amnesty Exception,” 509; Michael P. Scharf, “Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?,” Texas International Law Journal 31, no. 1 (1996); 9. 87. Arthur, “How ‘Transitions’ Reshaped Human Rights,” 353. 88. Malamud-Goti, “Transitional Governments in the Breach,” 5. 89. Ibid. 90. José Zalaquett, “Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints,” in State Crimes: Punishment or Pardon (Aspen, Colo.: Justice and Society Program at the Aspen Institute, 1989), 27–28. 91. Méndez, “Accountability for Past Abuses,” 255–256. 92. Malamud-Goti, “Transitional Governments in the Breach,” 256. 93. Méndez, “Accountability for Past Abuses,” 256. 94. Ibid. 95. Nino, “Duty to Prosecute,” 2619. 96. Méndez, Truth and Partial Justice in Argentina, 82. 97. Henkin, “State Crimes.” 98. Lawrence Weschler, A Miracle, a Universe: Settling Accounts with Torturers (Chicago: University of Chicago Press, 1990), 4. 99. Ibid. 100. Ibid. 101. Nagel, quoted in ibid. 102. Roht-Arriaza, “New Landscape of Transitional Justice,” 3. 103. Margaret Popkin and Naomi Roht-Arriaza, “Truth as Justice: Investigatory Commissions in Latin America,” Law and Social Inquiry 20, no. 1 (1995): 105. 104. “Agreement on the Establishment of the Commission to Clarify Past Human Rights Violations and Acts of Violence That Have Caused the Guatemalan Population to Suffer,” UN Doc. A/48/954/S/1994/751, Annex II, 23 June 1994. 105. Hayner, Unspeakable Truths, 35. 106. Zalaquett, “Balancing Ethical Imperatives and Political Constraints,” 1433. 107. Ibid. 108. Ibid.

Notes to Pages 67–71

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109. In Diane F. Orentlicher, “Shrinking the Space for Denial: The Impact of the ICTY in Serbia,” Open Society Justice Initiative, May 2008, 17. 110. Payam Akhavan, “Justice in the Hague, Peace in the Former Yugoslavia?,” Human Rights Quarterly 20 (1999): 741; W. Michael Reisman, “Institutions and Practices for Restoring and Maintaining Public Order,” Duke Journal of Comparative and International Law 6 (1995–1996): 176. 111. W. Michael Reisman, “Legal Responses to Genocide and Other Massive Violations of Human Rights,” Law and Contemporary Problems 59, no. 4 (1997): 76. 112. David Wippman, “Atrocities, Deterrence, and the Limits of International Justice,” Fordham International Law Journal 23 (1999–2000): 476. 113. Akhavan, “Justice in the Hague,” 476. 114. Henkin, “State Crimes,” 185. 115. Orentlicher, “Settling Accounts,” 2542. 116. Méndez, “Accountability for Past Abuses,” 276. 117. Ibid. 118. Kim and Sikkink, “Explaining the Deterrence Effect.” 119. Eirin Mobekk, “The Missing Ingredient: Justice in the International Intervention in Haiti,” International Relations 15 (2000): 32. 120. Scharf, “Swapping Amnesty for Peace,” 4–5, 1. 121. Ibid., 6. 122. United Nations Security Council, Resolution 940, S/RES/940, 31 July 1994, http://daccess- dds- ny.un.org/doc/UNDOC/GEN/N94/312/22/PDF/N9431222 .pdf?OpenElement (accessed 2 August 2011). 123. Scharf, “Swapping Amnesty for Peace,” 7. 124. Warren Christopher, quoted in ibid. 125. Decree of Amnesty by Haitian President Jean-Bertrand Aristide, 10 October 1994. 126. Ibid. 127. Aristide, quoted in Scharf, “Swapping Amnesty for Peace,” 17–18. 128. Clinton, quoted in ibid., 9, 18. 129. Ibid., 28. 130. Ibid., 36. 131. Ibid., 39. 132. Lisa J. Laplante, “Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes,” Virginia Journal of International Law 49, no. 4 (2009): 938–939. 133. Quoted in Robertson, Crimes Against Humanity, 306. 134. Quoted in ibid. 135. Hugo Leonardo de los Santos Mendoza et al. v. Uruguay, Inter-American Commission on Human Rights, Report No. 29/92, 2 October 1992, para. 40, http://www .unhcr.org/refworld/publisher,IACHR,CASELAW,,3ae6b6d8c,0.html (accessed 2 August 2011).

232

Notes to Pages 71–75

136. Quoted in van Zyl, “Justice Without Punishment,” 48– 49. 137. Monsignor Oscar Arnulfo Romero y Galdámez v. El Salvador, Inter-American Commission on Human Rights, Report No. 37/00, para. 119, http://www1.umn.edu /humanrts/cases/37- 00.html (accessed 2 August 2011). 138. Ibid., para. 122. 139. Cassel, “Lessons from the Americas,” 215. 140. Carmelo Soria Espinoza v. Chile, Inter-American Court of Human Rights, Report 19/03 (Compliance Agreement), 6 March 2003, Recommendation 3, http://www1 .umn.edu/humanrts/cases/19- 03.html (accessed 2 August 2011). 141. Almonacid-Arellano et al. v. Chile, Inter-American Court of Human Rights (Preliminary Objections, Merits, Reparations and Costs), 26 September 2006, para. 114, http://www.corteidh.or.cr/docs/casos/articulos/seriec_154_ing.pdf (accessed 2 August 2011). 142. Barrios Altos, para. 41. 143. Ibid., para. 42. 144. Ibid. 145. Bulacio v. Argentina, Inter-American Court of Human Rights (Judgment), 18 September 2003. 146. Fernando Felipe Basch, “The Doctrine of the Inter-American Court of Human Rights Regarding States’ Duty to Punish Human Rights Violations and Its Dangers,” American University International Law Review 23 (2007): 206. 147. Ibid., 207. 148. Ibid.; Balucio v. Argentina, Inter-American Court of Human Rights (Merits, Reparations and Costs), 18 September 2003, para. 116, http://www.corteidh.or.cr/docs /casos/articulos/seriec_100_ing.pdf (accessed 2 August 2011). 149. Laplante, “Outlawing Amnesty,” 939. 150. Christina Binder, “The Prohibition of Amnesties by the Inter-American Court of Human Rights,” German Law Journal 12, no. 5 (2011): 1222. 151. José Zalaquett, “Introduction to the English Edition of the Report of the Chilean National Commission on Truth and Reconciliation,” 1993, 6, http://www.usip.org /files/resources/collections/truth_commissions/Chile90-Report/Chile90-Report _PartI.pdf (accessed 25 May 2012). 152. Ibid. 153. Ibid., 9.

Chapter 3 1. Kadar Asmal, quoted in Wilhelm Verwoerd, “Individual or Social Justice After Apartheid? The South African Truth and Reconciliation Commission,” European Journal of Development Research 11, no. 2 (1999): 115–140. 2. Roht-Arriaza, “New Landscape of Transitional Justice,” 3.

Notes to Pages 75–79

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3. Teitel, “Transitional Justice Genealogy,” 78. 4. Hayner, Unspeakable Truths, 14. 5. Geoff Dancy, Hunjoon Kim, and Eric Wiebelhaus-Brahm, “The Turn to Truth: Trends in Truth Commission Experimentation,” Journal of Human Rights 9 (2010): 47. 6. Ibid., 48. 7. Hayner, Unspeakable Truths, 51. 8. Kathryn Sikkink and Carrie Booth Walling, “Argentina’s Contribution to Global Trends in Transitional Justice,” in Roht-Arriaza and Mariezcurrena, Transitional Justice in the Twenty-First Century, 308. 9. Mallinder, Amnesty, Human Rights, and Political Transitions, 35. 10. See Louise Mallinder, “Uruguay’s Evolving Experience of Amnesty and Civil Society’s Response,” Beyond Legalism: Amnesties, Transition, and Conflict Transformation, Queen’s University, Belfast, Working Paper No. 4 (March 2009), http://ulster .academia.edu/LouiseMallinder/Papers/92679/Uruguays_Evolving_Experience_of _Amnesty_and_Civil_Societys_Response (accessed 30 July 2013). 11. International Committee of the Red Cross, “Uruguay: Practice Relating to Rule 159. Amnesty,” http://www.icrc.org/customary-ihl/eng/docs/v2_cou_uy_rule159 (accessed 27 June 2011). 12. Ibid. 13. Hayner, Unspeakable Truths, 34. 14. Weisman, “History and Discussion of Amnesty,” 529. 15. Popkin and Roht-Arriaza, “Truth as Justice,” 86. 16. Chapultepec Agreements Between the Government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN), 1992, 1.5, http://www .votb.org/elsalvador/Reports/peaceaccords.pdf (accessed 2 August 2011). 17. El Salvador, Mexico Peace Agreement: Provisions Creating the Commission on Truth, Mexico City (27 April 1991), preamble, available at http://www.usip.org /fi les/fi le/resources/collections/commissions/El%20Salvador- Charter.pdf (accessed 30 July 2013). 18. U.S. Institute of Peace, “From Madness to Hope: The 12-Year War in El Salvador: Report on the Commission on the Truth for El Salvador,” 1993, http://www.usip .org/fi les/fi le/ElSalvador-Report.pdf (accessed 10 October 2010). 19. Aryeh Neier, “Watching Rights (United Nations Report on El Salvador),” The Nation, 256, no. 14 (12 April 1993): 475. 20. U.S. Institute of Peace, “From Madness to Hope,” 4. 21. Margaret Popkin and Nehal Bhuta, “Latin American Amnesties in Comparative Perspective: Can the Past Be Buried?,” Ethics and International Affairs 13 (1999): 100; Stephen J. Pope, “The Convergence of Forgiveness and Justice: Lessons from El Salvador,” Theological Studies, 64, no. 3 (2003): 815. 22. U.S. Institute of Peace, “From Madness to Hope,” 10; Pope, “Convergence of Forgiveness and Justice,” 815. 23. Popkin and Bhuta, “Latin American Amnesties,” 102.

234

Notes to Pages 79–82

24. Neier, “Watching Rights,” 475. 25. Ellacuria v. El Salvador, Inter-American Court of Human Rights, OEA/ser.L/V /II.106, doc. 3 rev., 1999, para. 221, http://www.cidh.oas.org/annualrep/99eng/merits /elsalvador10.488.htm (accessed 2 August 2011). 26. Thomas M. Antkowiak, “Truth as Right and Remedy in International Human Rights Experience,” Michigan Journal of International Law 23 (2001–2002): 992. 27. Ibid. 28. Velásquez Rodríguez, para. 174; Jo M. Pasqualucci, “The Whole Truth and Nothing But the Truth: Truth Commissions, Impunity and the Inter-American Human Rights System,” Boston University International Law Journal 12 (1994): 332. 29. Van Boven, Study concerning the right to restitution, IX.1 and IX.2. 30. Ibid., 134. 31. “Basic Principles and Guidelines,” IX.22. 32. Inter-American Commission on Human Rights, “Annual Report, 1985–86,” OEA/Ser.L/V/II.68, doc. 8 rev 1, 191. 33. United Nations Commission on Human Rights, Sub- Commission on Prevention of Discrimination and Protection of Minorities, “The Administration of Justice and the Human Rights of Detainees: Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), Revised Final Report Prepared by Mr Joinet Persuant to to Sub- Committee Decision”, E/CN.4/Sub.2/1997/20 /Rev.1, 2 October 1997, 17, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E .CN.4.sub.2.1997.20.Rev.1.En (accessed 30 July 2013). 34. Pasqualucci, “Whole Truth and Nothing But the Truth,” 332. 35. UN Commission on Human Rights, “Administration of Justice,” 17. 36. B. Garner and H. Black (eds.), Black’s Law Dictionary, 8th ed. (St Paul, Minn.: Thomson/West, 2006). 37. Mallinder, Amnesty, Human Rights, and Political Transitions, 4–37. 38. Robertson, Crimes Against Humanity, 305. 39. In Mallinder, Amnesty, Human Rights, and Political Transitions, 56; Alfonso Anzueto, “War Crimes Amnesty Approved, One of the Last Obstacles to Peace,” Associated Press, 18 December 1996. 40. Lusaka Protocol, Annex 6. However, what is actually at stake here is not really the relationship between amnesty and forgiveness per se. Rather, in tension is the relationship between the interpersonal practice of forgiveness and the state practice of amnesty, and the relationship between forgiveness and amnesty to forgetting the truth. On definitions of interpersonal forgiveness, see Trudy Govier, Forgiveness and Mercy (London: Routledge, 2002), viii; William Bole, Drew Christiansen, and Robert T. Hennemeyer, Forgiveness in International Politics: An Alternative Road to Peace (Washington, D.C.: U.S. Conference of Catholic Bishops, 2004), 41, 47. 41. On political forgiveness see Bole, Christiansen, and Hennemeyer, Forgiveness in International Politics, 76; Mark Amstutz, The Healing of Nations: The Promise and

Notes to Pages 82–86

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Limits of Political Forgiveness (Boulder, Colo.: Rowman & Littlefield, 2004), 80; Peter Digeser, Political Forgiveness (Ithaca, N.Y.: Cornell University Press, 2001). 42. Kenneth I. Pargament and Mark S. Rye, “Forgiveness as a Method of Religious Coping,” in E. L. Worthington, Jr. (ed.), Dimensions of Forgiveness: Psychological Research and Theological Perspectives (Philadelphia: Templeton Foundation Press, 1998), 59–78; Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1998), 238, 243. 43. Simon Wiesenthal, The Sunflower: On the Possibility and Limits of Forgiveness (New York: Shocken Books, 1998); Nigel Biggar, “Conclusion,” in Nigel Biggar (ed.), Burying the Past: Making Peace and Doing Justice After Civil Conflict (Washington, D.C.: Georgetown University Press, 2003), 315; Amstutz, Healing of Nations, 82. 44. Peter Digeser, “Forgiveness and Politics: Dirty Hands and Imperfect Procedures,” Political Theory 26 (1998): 701. 45. Donald Shriver, “Where and When in Political Life Is Justice Served by Forgiveness?,” in Biggar, Burying the Past, 30. 46. Krapp, “Amnesty,” 191. 47. Solomon Schimmel, Wounds Not Healed by Time: The Power of Repentance and Forgiveness (Oxford: Oxford University Press, 2004), 48. 48. Christopher D. Marshall, Beyond Retribution: A New Testament Vision for Justice, Crime and Punishment (Grand Rapids: Eerdmans, 2001), 273. 49. Kierkegaard, quoted in Shriver, “Where and When in Political Life,” 30. 50. Jean Bethke Elshtain, “Politics and Forgiveness,” in Biggar, Burying the Past, 48. 51. Mallinder, Amnesty, Human Rights, and Political Transitions, 14. 52. Popkin, Peace Without Justice, 153. 53. Pope, “Convergence of Forgiveness and Justice,” 818. 54. Ibid. 55. Ibid., 818, 819. 56. Ibid., 819. 57. L. Morris, “Forgiveness,” in James Dixon Douglas and N. Hillyer (eds.), The Illustrated Bible Dictionary, vol. 2 (Downers Grove, Ill.: InterVarsity Press, 1980), 521. 58. Pope, “Convergence of Forgiveness,” 820, 821. 59. Martha Doggett quoted in ibid., 823. 60. Pope, “Convergence of Forgiveness,” 824, 825. 61. Bronwyn Anne Leebaw, “The Irreconcilable Goals of Transitional Justice,” Human Rights Quarterly 30, no. 1 (2008): 100; Project on Justice in Times of Transition, “Inaugural Meeting, Salzburg, Austria” (7–10 March 1992), 1, 8, http://www.pjtt.org /assets/pdf/project _reports _pdf/EE/SALZBURG%20Report.pdf. 62. Arthur, “How ‘Transitions’ Reshaped Human Rights,” 364–367. 63. Leebaw, “Irreconcilable Goals of Transitional Justice” 100. 64. Project on Justice in Times of Transition, “Inaugural Meeting,” 3.

236

Notes to Pages 86–88

65. Ibid. 66. Ibid., 4. 67. Ibid. 68. Ibid., 5. 69. Ibid., 5, 6. 70. While Diane Orentlicher, then general counsel for the International League for Human Rights, again argued in favor of selective prosecutions on the basis of the obligation to prosecute, most of the debate centered on questions of political expediency. Project on Justice in Times of Transition, “Inaugural Meeting,” 1, 8. 71. Freeman, Necessary Evils, 58. As it was, Uruguay passed an amnesty law in 1986 “for offences committed between 1984 and 1985 by military and police personnel for political motives or in the course of discharging their functions, and for offences committed on orders received during the ‘de facto period’ when a situation of internal violence prevailed.” International Committee of the Red Cross, “Customary International Humanitarian Law: Uruguay, Practice Relating to Rule 159. Amnesty,” http://www.icrc .org/customary-ihl/eng/docs/v2_cou_uy_rule159 (accessed 2 August 2011). 72. Alex Boraine, “Introduction,” in Alex Boraine, Janet Levy, and Ronel Scheffer (eds.), Dealing with the Past: Truth and Reconciliation in South Africa, 2nd ed. (Cape Town: IDASA, 1997), xv. 73. Frederick van Slabbert, The Quest for Democracy: South Africa in Transition (Johannesburg: Penguin, 1992); André du Toit, South Africa as Another Case of Transition from Authoritarian Rule (Cape Town: IDASA, 1990); O’Donnell and Schmitter, Transitions from Authoritarian Rule; Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (New York: Cambridge University Press, 1991); Scott Mainwaring, Guillermo O’Donnell, and Samuel Valenzuela (eds.), The New Transitions in Latin America: Problems of Transitions and Consolidation (Notre Dame: University of Notre Dame Press, 1992). 74. José Zalaquett, “Keynote,” in Boraine, Levy, and Scheffer, Dealing with the Past, 11. 75. Aryeh Neier, “Keynote,” in Boraine, Levy, and Scheffer, Dealing with the Past, 3. 76. Zalaquett, “Keynote,” 10. 77. Ibid., 11. 78. Aryeh Neier, “Prosecution: Who and for What?,” in Boraine, Levy, and Scheffer, Dealing with the Past, 99; José Zalaquett, “Prosecution: Who and for What?,” in Boraine, Levy, and Scheffer, Dealing with the Past, 102. 79. Neier, “Prosecution,” 99. 80. Juan Méndez, “Prosecution: Who and for What?,” in Boraine, Levy, and Scheffer, Dealing with the Past, 92. 81. Ibid., 91. 82. Ibid. 83. Du Toit, “The South African Response,” in Boraine, Levy, and Scheffer, Dealing with the Past, 131.

Notes to Pages 89–92

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84. Dugard, “Dealing with Crimes of a Past Regime,” 1005. 85. Pumla Gobodo-Madikizela, “Remorse, Forgiveness and Rehumanization: Stories from South Africa,” Journal of Humanistic Psychology 42 (2002): 9. 86. Erik Doxtader, “Easy to Forget or Never (Again) Hard to Remember? History, Memory, and the ‘Publicity of Amnesty,’ ” in Charles Villa-Vicencio and Erik Doxtader (eds.), Provocations of Amnesty: Memory, Justice and Impunity (Trenton, N.J.: Africa World Press, 2003), 131. 87. Johannes Rantete and Hermann Giliomee, “Transition to Democracy Through Transaction? Bilateral Negotiations Between the ANC and NP in South Africa,” African Affairs 91 (1992): 515; Peter Parker, “The Politics of Indemnities, Truth Telling and Reconciliation in South Africa: Ending Apartheid Without Forgetting,” Human Rights Law Journal 17 (1996): 1. 88. Pumla Gobodo-Madikizela, “Alternatives to Revenge: Building a Vocabulary of Reconciliation Through Political Pardon,” in Villa-Vicencio and Doxtader, Provocations of Amnesty, 52. 89. Lorna McGregor, “Individual Accountability in South Africa: Cultural Optimum or Political Façade?,” American Journal of International Law 95 (2001): 34. 90. “Report of the Commission of Inquiry into Certain Allegations of Cruelty and Human Rights Abuse against ANC Prisoners and Detainees by ANC Members” (20 August 1993). 91. Justice in Perspective, “Motsuenyane Commission,” http://www.justicein perspective.org.za/index.php?option=com_content&task=view&id=34&Itemid=69 (accessed 2 August 2011). 92. Desmond Tutu, No Future Without Forgiveness (New York: Random House, 1999), 19. 93. Ibid., 20, 21. 94. Ibid., 27. 95. Ibid., 28. 96. Ibid., 30. 97. For further discussion of debates about amnesty, see Steven Friedman (ed.), The Long Journey: South Africa’s Quest for a Negotiated Settlement (Johannesburg: Ravan Press, 1993) and Kader Asmal, Louise Asmal, and Ronald Suresh Roberts, Reconciliation Through Truth: A Reckoning of Apartheid’s Criminal Governance (Cape Town: David Philip, 1996). 98. Postamble to South Africa’s Interim Constitution, Act 200 of 1993, http://www .info.gov.za/documents/constitution/93cons.htm (accessed 30 July 2013). 99. Doxtader, “Easy to Forget,” 140. 100. Constitution of the Republic of South Africa Act 200 of 1993, http://www .info.gov.za/documents/constitution/93cons.htm (accessed 30 July 2013). 101. Doxtader, “Easy to Forget,” 142–143. 102. Jeremy Sarkin-Hughes, Carrots and Sticks: The TRC and the South African Amnesty Process (Oxford: Hart, 2004), 3.

238

Notes to Pages 92–96

103. South Africa, Promotion of National Unity and Reconciliation Act 34 of 1995, available at http://www.justice.gov.za/legislation/acts/1995- 034.pdf (accessed 9 March 2011). 104. Antje du Bois-Pedain, Transitional Amnesty in South Africa (Cambridge: Cambridge University Press, 2007), 299. 105. Erik Doxtader and Charles Villa-Vicencio, “Introduction: Provocations at the End of Amnesty,” in Villa-Vicencio and Doxtader, Provocations of Amnesty, xix. 106. Dumisa Ntsebeza, “The Legacy of the TRC,” in Villa-Vicencio and Doxtader, Provocations of Amnesty, 24. 107. Alexander L. Boraine, “South Africa’s Amnesty Revisited,” in Villa-Vicencio and Doxtader, Provocations of Amnesty, 167. 108. Ibid., 170. 109. Charles Villa-Vicencio, “Introductory Remarks,” in Villa-Vicencio, Provocations of Amnesty, 6. 110. Richard Goldstone, “Justice as a Tool for Peace-Making” (Hauser Lecture, New York University, 1997). 111. Doxtader, “Easy to Forget,” 135–136; Villa-Vicencio, “Introductory Remarks,” 2. 112. Boraine, “South Africa’s Amnesty Revisited,” 165. 113. Sarkin-Hughes, Carrots and Sticks, 6, 3– 4. 114. Quoted in Mervyn E. Bennun, “Amnesty and International Law,” in VillaVicencio and Doxtader, Provocations of Amnesty, 104; Robertson, Crimes Against Humanity, 255. 115. Quoted in Bennun, “Amnesty and International Law,” 101. 116. Quoted in Boraine, “South Africa’s Amnesty Revisited,” 177. 117. Tutu, No Future Without Forgiveness. 118. Linda van de Vijver, “The Amnesty Process,” in Wilmot James and Linda van de Vijver (eds.), After the TRC: Reflections on Truth and Reconciliation in South Africa (Athens: Ohio University Press, 2000), 130–131. 119. Jonathan Klaaren and Howard Varney, “A Second Bite at the Amnesty Cherry? Constitutional and Policy Issues Around Legislation for a Second Amnesty,” in VillaVicencio and Doxtader, Provocations of Amnesty, 275. 120. Azanian Peoples Organization (AZAPO) and Others v. President of the Republic of South Africa and Others, Constitutional Court of South Africa, Case No. CCT17/96 (25 July 1996), para. 24. 121. Ibid., para. 31. 122. Ibid., para. 17. 123. Sarkin-Hughes, Carrots and Sticks, 1; for challenges to this assumption, see James L. Gibson and Amanda Gouws, “Truth and Reconciliation in South Africa: Attributions of Blame and the Struggle over Apartheid,” American Political Science Review 93, no. 3 (1999): 514; Gibson, “Truth, Justice, and Reconciliation,” 540. 124. Doxtader, “Easy to Forget,” 137.

Notes to Pages 96–100

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125. Tutu, No Future Without Forgiveness, 219. 126. Du Bois-Pedain, Transitional Amnesty in South Africa, 176. Du Bois-Pedain goes on to explain how each of these types of truth is defined. 127. Asmal, quoted in Verwoerd, “Individual or Social Justice After Apartheid?” 128. Brandon Hamber, “Does the Truth Heal? A Psychological Perspective on Political Strategies for Dealing with the Legacy of Political Violence,” in Biggar, Burying the Past, 158. 129. Ibid., 158. 130. Truth and Reconciliation Commission of South Africa Report (21 March 2003), 1:107, http://www.info.gov.za/otherdocs/2003/trc/ (accessed 2 August 2011). 131. Piers Pigou, “Degrees of Truth: Amnesty and Limitations in the Truth Recovery Project,” in Villa-Vicencio and Doxtader, Provocations of Amnesty, 219. 132. Martin Coetzee, “An Overview of the TRC Amnesty Process,” in Villa-Vicencio and Doxtader, Provocations of Amnesty, 193. 133. Tuomas Forsberg, “The Philosophy and Practice of Dealing with the Past: Some Conceptual and Normative Issues,” in Biggar, Burying the Past, 78. 134. Tutu, No Future Without Forgiveness, 31. 135. Forsberg, “Philosophy and Practice of Dealing with the Past,” 78. 136. Du Bois-Pedain, Transitional Amnesty in South Africa, 287. 137. Kalukwe Mawila, quoted in Wilhelm Verwoerd, “Toward an Answer to Criticisms of the South African Truth and Reconciliation Commission,” in Carol A. L. Prager and Trudy Govier (eds.), Dilemmas of Reconciliation: Cases and Concepts (Waterloo, Ont.: Wilfrid Laurier University Press, 2003), 264. 138. Quoted in Biggar, “Conclusion,” 315. 139. Du Bois-Pedain, Transitional Amnesty in South Africa, 233. 140. Quoted in ibid., 241. 141. Promotion of Reconciliation, Tolerance and Unity Bill, Fiji, 31 May 2005, Section 2, http://www.fijibure.com/recon.htm (accessed 26 April 2012). 142. Mosmi Bhim, “The Impact of the Promotion of Reconciliation, Tolerance and Unity Bill on the 2006 Election,” in Jon Fraenkel and Stewart Firth (eds.), From Election to Coup in Fiji: The 2006 Election and Its Aftermath (Canberra: ANU E Press, 2007), 111. 143. Ibid., 114. 144. Promotion of Reconciliation, Tolerance and Unity Bill, Section 3.1(d). 145. Human Rights Watch, “Nepal: Reject Amnesty for Serious Crimes” (23 April 2012), available at http://www.hrw.org/news/2012/04/23/nepal-reject-amnesty -serious-crimes (accessed 4 May 2012). 146. Truth, Justice and Reconciliation Commission Bill 2008, Kenya, 28 November 2008, http://www.usip. org/fi les/fi le/resources/collections/commissions/Kenya -Charter.pdf (accessed 26 April 2012). 147. Amnesty International, “Kenya: Concerns about the Truth, Justice and Reconciliation Commission Bill” (May 2008), 4, http://www.amnesty.org/en/library/asset

240

Notes to Pages 100–105

/AFR32/009/2008/en/8903d721-2667-11dd-b995-f7269e5ea55f/afr320092008eng.pdf (4 May 2012). 148. The Pre-Trial Chamber declined to confirm the charges leveled against two of the six accused. Trials are yet to commence for the remaining four individuals. 149. Amnesty International, “Kenya: Concerns,” 5. 150. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004 (Geneva, 25 January 2005), para. 617, 618, http://www.un.org/News/dh /sudan/com_inq_darfur.pdf (accessed 4 May 2012). 151. Amnesty International, “Kenya: Concerns,” 5. 152. Report of the International Commission of Inquiry on Darfur, para. 618. 153. Ibid., para. 618. 154. Mauritius, Truth and Justice Commission Act 2008, Act No. 28 of 2008, 22 August 2008, Section 14, http://www-previous.usip.org /publications/truth-commission -mauritius (accessed 30 July 2013); Chile’s National Commission on Political Imprisonment and Torture (Comisión Nacional Sobre Prisón Politica y Tortura), also known as the Valech Commission, instituted by Supreme Decree No. 1040 (26 September 2003), has determined to keep testimonies secret for fi ft y years, thus precluding their use as evidence in prosecutions; see http://www.usip. org/publications /commission-inquiry-chile-03. Ghana’s National Reconciliation Act No. 611 (11 January 2002) 15(2) states that “incriminating evidence cannot be used in criminal or civil proceedings”; see http://www.ghanareview.com /reconact.html; the Panama Truth Commission, established by Executive Decree No. 2 (18 January 2001), and “mandated to investigate human rights violations perpetrated during the military dictatorships of Generals Omar Torrijos and Manuel Noriega between 1968 and 1989 . . . was explicitly prohibited from making conclusions on legal responsibilities of individual perpetrators.” See U.S. Institute of Peace, “Truth Commission: Panama,” http://www.usip.org /resources/truth-commission-panama-truth-commission-comisi-n-de-la-verdad-de -panam (accessed 30 July 2013). 155. Report of the International Commission of Inquiry on Darfur, para. 618.

Chapter 4 1. A senior representative of the International Criminal Court Officer of the Prosecutor, quoted in Freeman, Necessary Evils, 74–75. 2. Ibid., 112–113. 3. Ibid., 113. 4. Lisa J. Laplante and Kimberley Theidon, “Transitional Justice in Times of Conflict: Colombia’s Ley de Justicia y Paz,” Michigan Journal of International Law 28 (2006–2007): 51.

Notes to Pages 106–111

241

5. Sushil Sharma, “Amnesty Offer to Nepal Rebels,” BBC News, 29 November 1999, http://new.bbc.co.uk/2/hi/south_asia/541766.stm (accessed 26 April 2012). 6. The Age, “Maoist Rebels Denounce Amnesty Offer,” 21 December 2003, http://www.theage.com.au/articles/2003/12/20/1071868704298.html (accessed 26 April 2012). 7. Comprehensive Peace Agreement Held Between Government of Nepal and Communist Party of Nepal (Maoist), http://reliefweb.int/node/219161 (accessed 30 July 2013). 8. Ibid., 5.2.7. 9. Ibid., 5.2.5. 10. Human Rights Watch, “Nepal: Cancel Pact for War time Amnesty” (2 September 2011), http://www.hrw.org/news/2011/09/02/nepal-cancel-pact-wartime-amnesty (accessed 5 May 2012). 11. Human Rights Watch, “Nepal: Reject Amnesty.” 12. Interim Report of the UN Secretary-General on the United Nations Mission in Angola, UN Doc. S/2002/1353 (2002). 13. José Doria, “Angola: A Case Study in the Challenges of Achieving Peace and the Question of Amnesty or Prosecution of War Crimes in Mixed Armed Conflicts,” Yearbook of International Humanitarian Law 5 (2002): 13. 14. Ibid. 15. W. Martin James, A Political History of the Civil War in Angola, 1974–1990 (Piscataway, N.J.: Transaction, 2011), 243. 16. C. Knudsen, A. Mundt, and I. W. Zartman, “Peace Agreements: The Case of Angola,” Reliefweb, http://reliefweb.int/node/73325 (accessed 30 July 2013). 17. Ibid. 18. Doria, “Angola,” 14. 19. Lusaka Protocol. 20. Doria, “Angola,” 17. 21. Quoted in ibid. 22. Ibid., 18. 23. “Memorandum of Understanding Addendum to the Lusaka Protocol for the Cessation of Hostilities and the Resolution of the Outstanding Military Issues Under the Lusaka Protocol,” (April 2002), 2.1, http://www.adh-geneva.ch/RULAC/pdf_state /Luenda-MOU-2002-Addendum-Lusaka-Protocol.pdf (accessed 30 July 2013). 24. Doria, “Angola,” 47. 25. A total of 125 amnesties across forty-three cases. 26. John J. Moore, “Problems with Forgiveness: Granting Amnesty under the Arias Plan in Nicaragua and El Salvador,” Stanford Law Review 43, no. 3 (1991): 735, 744. 27. Ibid., 744. 28. Quoted in ibid., 752.

242

Notes to Pages 111–114

29. Quoted in ibid. 30. Nicaraguan Cease-Fire Agreement, 23 March 1988, http://articles.latimes.com /1988- 03-24/news/mn-362_1_definitive-cease-fire (accessed 4 October 2010). 31. Ibid., 3. 32. S. Neil MacFarlane and Thomas G. Weiss, “The United Nations, Regional Organisations and Human Security: Building Theory in Central America,” Third World Quarterly 15, no. 2 (1994): 286. 33. Rose J. Spalding, “From Low-Intensity War to Low-Intensity Peace: The Nicaraguan Peace Process,” in Cynthia Arnson (ed.), Comparative Peace Processes in Latin America (Stanford, Calif.: Stanford University Press, 1999), 56. 34. Helena Cobban, Amnesty After Atrocity: Healing Nations After Genocide and War Crimes (Boulder, Colo.: Paradigm, 2007), 137. There is wide variation on the estimated number of individuals killed during the Mozambican Civil War. “Africa Watch,” in Conspicuous Destruction: War, Famine and the Reform Process in Mozambique (New York: Human Rights Watch, 1992), 203, cites the UN estimate that some 600,000 people were killed in the war or died of “war-related hunger and disease.” U.S. Aid puts the figure at closer to 900,000 or even a million. 35. Cobban, Amnesty After Atrocity, 137. 36. Andrea Bartoli, Aldo Civico, and Leone Giantimo, “Mozambique— Renamo,” in Bruce W. Dayton and Louis Kriesberg (eds.), Conflict Transformation and Peacebuilding: Moving from Violence to Sustainable Peace (Abingdon: Routledge, 2009), 149. 37. Victor Igreja, “Justice and Reconciliation in the Aftermath of Civil War in Gorongosa, Mozambique Central,” in Kai Ambos, Judith Large, and Marieke Wierda (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development (Berlin: Springer-Verlag, 2009), 427. 38. Bartoli, Civico, and Giantimo, “Mozambique—Renamo,” 149. 39. Raúl Domingos, in Cobban, Amnesty After Atrocity, 141. 40. Brazão Mazula, in ibid., 148. 41. Carolyn Nordstrom, A Different Kind of War Story (Philadelphia: University of Pennsylvania Press, 1997). 42. Quoted in Cobban, Amnesty After Atrocity, 157. 43. Quoted in ibid., 158. 44. Igreja, “Justice and Reconciliation in the Aftermath of Civil War,” 427, 423. 45. United Nations Human Rights Committee, “General Comment No. 20 replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Article 7),” 10 March 1992, available at http://www.unhchr.ch /tbs/doc .nsf /(Symbol)/6924291970754969c12563ed004c8ae5?Opendocument (accessed 15 October 2010). As Jessica Gavron points out, we must note in par ticu lar here “the qualification in ‘generally.’ ” Jessica Gavron, “Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court,” International and Comparative Law Quarterly 51, no. 1 (2002): 99.

Notes to Pages 114–117

243

46. Freeman, Necessary Evils, 44, quoted in Office of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Amnesties, 22. 47. International Committee of the Red Cross, “Customary International Humanitarian Law,” 613. See United Nations Security Council, Resolution 1120, S/RES /1120, 14 July 1997, http://daccess-dds-ny.un.org /doc/UNDOC/GEN/N97/195/04 /PDF/N9719504.pdf ?OpenElement (accessed 2 August 2011); United Nations Security Council, Resolution 1315, S/RES/1315, 14 August 2000, http://daccess-dds-ny.un.org /doc/UNDOC/GEN/N00/605/32/PDF/N0060532 .pdf ?OpenElement (accessed 2 August 2011); United Nations Commission on Human Rights, “Impunity,” Resolution 2002/79, E/2002/23, 25 April 2002, http://www.unhchr.ch/Huridocda/Huridoca .nsf/TestFrame/cd893dbd5bbd5ed7c1256bab0051565d?Opendocument (accessed 2 August 2011). 48. UN SOR, 48th Session, 3238th Meeting, para. 120, 126, UN Doc. S/INF/49 (1993). 49. Pasqualucci, “Whole Truth and Nothing But the Truth,” 345. 50. David Forsyth, Human Rights in International Relations (Cambridge: Cambridge University Pres, 2006), 97. 51. United Nation Security Council, Resolution 827, S/RES/827, 25 May 1993, http://daccess- dds- ny.un.org/doc/UNDOC/GEN/N93/306/28/IMG/N9330628 .pdf?OpenElement (accessed 2 August 2011). 52. Anthony D’Amato, “Peace vs. Accountability in Bosnia,” American Journal of International Law 88, no. 3 (July 1994): 500. 53. Bassiouni, “Searching for Peace and Achieving Justice,” 11–12. 54. Ibid., 23. 55. D’Amato, “Peace vs. Accountability in Bosnia,” 500. 56. Ibid. 57. Ibid. 58. Anonymous, “Human Rights in Peace Negotiations,” 258. 59. Ibid., 253. 60. Ibid., 257. 61. Ibid. 62. Felice D. Gaer, “UN-Anonymous: Reflections on Human Rights in Peace Negotiations,” Human Rights Quarterly 19 (1997): 1. 63. Ibid., 2. 64. Ibid., 5. 65. Richard J. Goldstone, “The International Tribunal for the Former Yugoslavia: A Case Study in Security Council Action,” Duke Journal of Comparative and International Law 5 (1995–1996): 10. 66. Goldstone, “Justice as a Tool for Peace-Making,” 486– 487. 67. Goldstone, “International Tribunal for the Former Yugoslavia,” 10. 68. Ibid.

244

Notes to Pages 117–120

69. Celina Schocken, “The Special Court for Sierra Leone: Overview and Recommendations,” Berkeley Journal of International Law 20 (2002): 436; Elizabeth M. Evenson, “Truth and Justice in Sierra Leone: Coordination Between Commission and Court,” Columbia Law Review 104, no. 3 (2004): 733. 70. Abidjan Peace Accord, Peace Agreement Between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF/SL), 30 November 1996, http://www.sierra-leone.org/abidjanaccord.html (accessed 4 October 2010). 71. Ismail Rashid, “The Lomé Peace Negotiations,” September 2000, http://www.c-r .org /our-work /accord/sierra-leone/lome-negotiations.php (accessed 4 October 2010). Article 14 of the Abidjan Accord reads, “To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF/SL in respect of anything done by them in pursuit of their objectives as members of that orga nization up to the time of the signing of this Agreement.” 72. Priscilla Hayner, Negotiating Peace in Sierra Leone: Confronting the Justice Challenge (Geneva: Centre for Humanitarian Dialogue and the International Center for Transitional Justice, December 2007), 13, http://www.hdcentre.org/fi les/Sierra%20 Leone%20Report.pdf (accessed 6 July 2011). 73. Ibid., 12, 15. 74. Ibid., 15. 75. Quoted in ibid. 76. Quoted in ibid., 18. 77. Lomé Peace Agreement, Article IX.2. 78. Ibid., Article IX.3. 79. Ibid., Article IX.1. 80. Robertson, Crimes Against Humanity, 302. 81. Ibid. 82. Hayner, Negotiating Peace in Sierra Leone, 6. 83. Freeman, Necessary Evils, 89–90. 84. Ibid., 89. 85. Kofi Annan, speech on Human Rights Day, 10 December 1999. 86. Ahmad Tejan Kabbah, statement before the Truth and Reconciliation Commission (5 August 2003), cited in William A. Schabas, “Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone,” U.C. Davis International Law and Policy Journal 11 (2004–2005): 148. 87. United Nations Secretary-General, “Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone,” S/RES/836, UN Doc. S /1999/836 (30 July 1999), para. 54, http://daccess-dds-ny.un.org/doc/UNDOC/GEN /N99/221/28/IMG/N9922128.pdf?OpenElement (accessed 2 August 2011). 88. Letter from the Permanent Representative of Sierra Leone to the United Nations to the President of the Security Council, 9 August 2000, UN Doc. S/2000/786, annex, 10 August 2000.

Notes to Pages 120–124

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89. Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, 16 January 2002, http:// www.sc-sl.org/LinkClick.aspx?fi leticket=CLk1rMQtCHg%3d&tabid=176 (accessed 21 October 2010). 90. Statute of the Special Court for Sierra Leone, http://www.sc-sl.org/LinkClick .aspx?fi leticket=uClnd1MJeEw%3d&tabid=176 (accessed 21 October 2010). 91. See Stephen J. Rapp, “The Compact Model in International Criminal Justice: The Special Court for Sierra Leone,” Drake Law Review 57 (2008): 26. 92. Simon M. Meisenberg, “Legality of Amnesties in International Humanitarian Law: The Lomé Decision of the Special Court for Sierra Leone,” International Review of the Red Cross 86, no. 856 (2004): 839. 93. Ibid., 840. 94. Ibid., 841. 95. Prosecutor v. Kallon, Special Court for Sierra Leone, Case No. 15, Para. 71, http://www.sc-sl .org /CASES/ProsecutorvsSesayKallonandGbaoRUFCase/tabid /105 /Default.aspx (accessed 2 August 2011). For a detailed discussion of the ruling of the Appeals Chamber, see Sarah Williams, “Amnesties in International Law: The Experience of the Special Court for Sierra Leone,” Human Rights Law Review 5, no. 2 (2005): 271–309. 96. Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission (Accra: GPL Press, 2004), vol. 3B, chap. 6.10–11, 361. 97. Ibid., chap. 6.12, 361. 98. Derrick Silove, “Conflict in East Timor: Genocide or Expansionist Occupation?,” Human Rights Review 1, no. 3 (2000): 64. 99. Carsten Stahn, “Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor,” American Journal of International Law 95, no. 4 (2001): 952–953. 100. Ibid., 953. 101. United Nations Security Council, Resolution 1264, S/RES/1264, 15 September 1999, para. 3, http://www.eastimorlawjournal.org/UN/SCR12641999.html (accessed 7 July 2011). 102. Ibid., para. 3. 103. Ibid., preamble. 104. United Nations Transitional Administration in East Timor (UNTAET), Regulation 2000/15 On the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Offences, 6 June 2000, para. 1.3, http://www.un.org/en/peacekeeping /missions/past/etimor/untaetR/Reg0015E.pdf (accessed 15 April 2011). 105. UNTAET Regulation 2001/10 On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, 13 July 2001, paras. 13.1 and 22.1, http://www.un.org/en/peacekeeping/missions/past/etimor/untaetR/Reg10e.pdf (accessed 15 April 2011). 106. Ibid., para. 32.1.

246

Notes to Pages 124–128

107. Ibid., para. 27.7. 108. Ibid., para. 32.1 and 1m. 109. Article 14(c)(1) of the Terms of Reference for the Commission of Truth and Friendship (East Timor/Indonesia), 10 March 2005, http://www.etan.org/et2005/march /06/10tor.htm (accessed 9 March 2011). 110. Megan Hirst, “Too Much Friendship, Too Little Truth: Monitoring Report on the Commission for Truth and Friendship in Indonesia and Timor-Leste” (International Center for Transitional Justice, January 2008), 16, http://www.ictj.org/images /content/7/7/772.pdf (accessed 20 April 2011). 111. Quoted in ibid., 28. 112. Ibid. 113. See Terms of Reference for the Commission of Truth and Friendship. 114. United Nations News Centre, “Timor-Leste: UN to Boycott Truth Panel Unless It Bars Amnesty for Gross Abuses,” 26 July 2007, http://www.un.org/apps/news/story .asp?NewsID=23340&Cr=timor&Cr1= (accessed 6 July 2011). 115. Ibid. 116. José Ramos-Horta, quoted in Geoff Thompson, “Ramos-Horta’s ‘Forgiving’ Stance Under Fire,” ABC, 31 August 2009, http://www.abc.net.au/stories/2009/08 /31/2671245.htm (accessed 19 October 2009). 117. Bishop Ximenes Belo, quoting his Nobel Peace Prize acceptance speech in “A Time for Justice” (speech to the Catholic Fund for Overseas Development, July 1997), http://www.etan.org/timor/bello797.htm (accessed 15 October 2009). 118. José Ramos-Horta, “Human Rights and Morality vs. Pragmatism and Realpolitik,” B’nai B’rith Alfred Dreyfus Anti-Defamation Unit, Human Rights Oration, Sydney, 13 December 1998, 11. 119. José Ramos-Horta, quoted in Kevin Cullen, “Nobel Laureate Refused Offer of Help from IRA,” Irish Times, 4 March 2009, http://www.irishtimes.com/newspaper /world/2009/0304/1224242231350_pf.html (accessed 15 October 2009). 120. Ramos-Horta, quoted in Cullen, “Nobel Laureate Refused Offer.” 121. Thompson, “Ramos-Horta’s ‘Forgiving’ Stance Under Fire.” 122. Lia Kent, “The Politics of Remembering and Forgetting: The People of East Timor Are Negotiating Different Conceptions of Reconciliation in Their Daily Lives,” Inside Indonesia 96 (April–June 2009), http://insideindonesia.org/content /view/1187/47/ (accessed 15 October 2009). 123. Quoted in Thompson, “Ramos-Horta’s ‘Forgiving’ Stance Under Fire.” 124. Paul van Zyl and Mark Freeman, “The Legacy of Abuse, Conference Report,” in Alice H. Henkin (ed.), The Legacy of Abuse: Confronting the Past, Facing the Future (Washington, D.C.: Aspen Institute, 2002), 3. 125. Alice H. Henkin and Norman Dorsen, “Preface,” in Henkin, Legacy of Abuse, 1. 126. Neil J. Kritz, “Where We Are and How We Got Here: An Overview of Developments in the Search for Justice and Reconciliation,” in Henkin, Legacy of Abuse, 32 and 33.

Notes to Pages 128–131

247

127. Ibid., 33. 128. Ibid. 129. van Zyl and Freeman, “Legacy of Abuse,” 5. 130. Ibid., 5. 131. Ian Martin, “Justice and Reconciliation: Responsibilities and Dilemmas of Peace-Makers and Peace-Builders,” in Henkin, Legacy of Abuse, 81 and 82. 132. Ibid., 82. 133. Ibid., 83. 134. Ibid. 135. Ibid. 136. Quoted in van Zyl and Freeman, “Legacy of Abuse,” 15. 137. David Mendeloff, “Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?,” International Studies Review 6 (2004): 363. 138. Hugh Miall, Oliver Ramsbotham, and Tom Wood house, Contemporary Conflict Resolution (Cambridge: Polity, 1999), 43. 139. Rama Mani, “Contextualizing Policy Reform: Security, the Rule of Law, and Post-confl ict Peacebuilding,” in Tor Tanke Holm and Espen Barth Eide (eds.), Peacebuilding and Police Reform (London: Frank Cass, 2000), 21; W. Andy Knight, “Evaluating Recent Trends in Peacebuilding Research,” International Relations of the Asia-Pacific 3 (2003): 247; Johan Galtung, “Three Approaches to Peace: Peacekeeping, Peacemaking, and Peacebuilding,” in Peace, War, and Defense: Essays in Peace Research (Copenhagen: Christian Ejlers, 1975), 2:282–304. 140. John Paul Lederach, Building Peace: Sustainable Reconciliation in Divided Societies (Tokyo: UNU Press, 1994), 14. 141. Roht-Arriaza, “New Landscape of Transitional Justice,” 6. 142. Human Rights Watch, “Selling Justice Short: Why Accountability Matters for Peace” (2009), http://www.hrw.org/node/84264 (accessed 5 November 2010). 143. Vinjamuri, “Deterrence, Democracy, and the Pursuit of International Justice,” 205. 144. Orentlicher, “Shrinking the Space for Denial,” 25. 145. Laurel E. Fletcher and Harvey Weinstein, “Violence and Societal Repair: Rethinking the Contribution of Justice to Reconciliation,” Human Rights Quarterly 24 (2003): 598. 146. Neil J. Kritz, “Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights,” Law and Contemporary Problems 59, no. 4 (1996): 127. 147. United Nation Security Council, Resolution 827, preamble quoted in Orentlicher, “Shrinking the Space for Denial,” 25–26. Orentlicher notes that it was similarly argued in the case of the establishment of the International Criminal Tribunal for Rwanda that “the prosecution of persons responsible for serious violations of international humanitarian law would . . . contribute to the process of national reconciliation and to the restoration and maintenance of peace.”

248

Notes to Pages 132–136

148. United Nations Security Council, Resolution 955, S/RES/955, 8 November 1994, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N95/140/97/PDF/N9514097.pdf ?OpenElement (accessed 2 August 2011), preamble in Orentlicher, “Shrinking the Space for Denial,” 26. 149. Fletcher and Weinstein, “Violence and Societal Repair,” 601. 150. James D. Meernik, Angela Nichols, and Kimi L. King. “The Impact of International Tribunals and Domestic Trials on Peace and Human Rights After Civil War,” International Studies Perspectives 11, no. 4 (2010): 309–334; on spoilers, see the landmark article by Stephen J. Stedman, “Spoiler Problems in Peace Processes,” International Security, 22, no. 2 (1997): 5–53. 151. Payam Akhavan, “Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism,” Human Rights Quarterly 31, no. 3 (August 2009): 625. 152. Akhavan, “Beyond Impunity,” 9. 153. Report of the Secretary-General, “The Rule of Law and Transitional Justice in Confl ict and Post-confl ict Societies,” S/2004/616, Summary. UN Security Council, 23 August 2004, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF /N0439529.pdf?OpenElement (accessed 6 June 2011). 154. Ibid., para. 2. 155. Ibid., para. 4, 25 & 26. 156. Ibid., para. 64(c). 157. United Nations Secretary-General, “Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice” (March 2010), 4, http://www.unrol .org/fi les/TJ_Guidance_Note_March_2010FINAL.pdf (accessed 7 July 2011). 158. Ibid. 159. Ibid., 10. 160. Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States, 9.

Chapter 5 1. A senior representative of the International Criminal Court Officer of the Prosecutor, quoted in Freeman, Necessary Evils, 74–75. 2. Lutz and Sikkink, “Justice Cascade,” 4. 3. Ibid. 4. Ibid. 5. International Law Association, Committee on International Human Rights Law and Practice, “Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses” (2000), 2, http://ila-hq.org/pdf/Human%Rights%20 Law/HumanRig.pdf (accessed 2 August 2011).

Notes to Pages 136–142

249

6. Leila Nadya Sadat, “Redefining Universal Jurisdiction,” New England Law Review 35 (2000–2001): 244. 7. M. Cherif Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice,” Virginia Journal of International Law 42 (2001–2002): 96. 8. Sikkink and Booth Walling, “Impact of Human Rights Trials,” 435. 9. Barrios Altos, para. 41. 10. Olsen, Payne, and Reiter, Transitional Justice in Balance. 11. Huntington, Third Wave, 215, 231. 12. Sikkink, Justice Cascade. 13. Kathryn Sikkink, “From Pariah State to Global Protagonist: Argentina and the Struggle for International Human Rights,” Latin American Politics and Society 50 (2008): 1; Daniel Levy, “Recursive Cosmopolization: Argentina and the Global Human Rights Regime,” British Journal of Sociology 61, no. 3 (2010): 582. 14. Consuelo et al. v. Argentina, Inter-American Court of Human Rights (1993), para. 4, http://www1.umn.edu/humanrts/cases/28-92-ARGENTINA.htm (accessed 7 July 2011). 15. Ibid., para. 50. 16. Ibid., para. 40. 17. Sikkink, “From Pariah State to Global Protagonist,” 12. 18. Levy, “Recursive Cosmopolization,” 588. 19. Sikkink, “From Pariah State to Global Protagonist,” 13. 20. Roht-Arriaza, Pinochet Effect, 105. 21. Levy, “Recursive Cosmopolization,” 588. 22. Roht-Arriaza, Pinochet Effect, 105. 23. Ibid., 110. 24. Rita Arditti, “The Grandmothers of the Plaza de Mayo and the Struggle Against Impunity in Argentina,” Meridians: Feminism, Race, Transnationalism 3, no. 1 (2002): 35. 25. Sikkink, “From Pariah State to Global Protagonist,” 12. 26. Andrew S. Brown, “Adiós Amnesty: Prosecutorial Discretion and Military Trials in Argentina,” Texas International Law Journal 37, no. 1 (2002): 208. 27. Ibid., 208–209. 28. Levy, “Recursive Cosmopolization,” 590. 29. Roht-Arriaza, Pinochet Effect, 116. 30. Sikkink, “From Pariah State to Global Protagonist,” 13–14. The inconsistency lay in the fact that individuals could be held individually criminally responsible for kidnapping but not for the more serious crime of murdering the mother, which allowed the kidnapping to take place. 31. Ibid., 14.

250

Notes to Pages 142–146

32. Naomi Roht-Arriaza, “The Pinochet Precedent and Universal Jurisdiction,” New England Law Review 35 (2000–2001): 316. 33. Naomi Roht-Arriaza, “Universal Jurisprudence: Steps Forward, Steps Back,” Leiden Journal of International Law 17 (2004): 376–377. 34. Roht-Arriaza, “Pinochet Precedent,” 314–315. 35. Daniel Rothenberg, “ ‘Let Justice Judge’: An Interview with Judge Baltasar Garzón and Analysis of His Ideas,” Human Rights Quarterly 24, no. 4 (2002): 932. 36. Roman Boed, “The Effect of a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious Human Rights Violations,” Cornell International Law Journal 33 (2000): 313; Menno T. Kamminga, “Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses,” Human Rights Quarterly 23, no. 4 (2001): 958. 37. Rothenberg, “ ‘Let Justice Judge,’ ” 930. 38. Alberto L. Zuppi, “Swinging Back and Forth between Impunity and Impeachment: The Struggle for Justice in Latin America and the International Criminal Court,” Pace International Law Review 19, no. 2 (2007): 219. 39. Luis Benavides, “Introductory Note to Supreme Court of Mexico: Decision on the Extradition of Ricardo Miguel Cavallo,” International Legal Materials 42, no. 4 (2003): 884. 40. Ibid. 41. Ibid., 885. 42. “ESMA: ‘Th is Is the Auschwitz Trial in Argentina,’ Stated One of the Survivors,” http://english.telam.com.ar/index.php?option=com_content&view=article&id = 8157:esma- qt his- is- t he- auschw itz- tria l- in- argentinaq- stated- one- of- t he -survivors&catid=34:society (accessed 11 July 2011). 43. Rothenberg, “ ‘Let Justice Judge,’ ” 936. 44. Ibid., 938. 45. Sriram, “Revolutions in Accountability,” 322. 46. Rothenberg, “ ‘Let Justice Judge,’ ” 940. 47. Sriram, “Revolutions in Accountability,” 324. 48. Rothenberg, “ ‘Let Justice Judge,’ ” 942. 49. Dugard, “Dealing with Crimes of a Past Regime,” 1007. 50. See Sriram, “Revolutions in Accountability,” 325; Rothenberg, “ ‘Let Justice Judge,’ ” 943; Roht-Arriaza, Pinochet Effect, 55–56. 51. It is worth noting that the concept of universal jurisdiction that drove the Pinochet case, as well as those involving Argentine citizens accused of human rights violations, was later significantly narrowed in its scope, thus limiting the possibility of similar cases being brought forward in the future. See Roht-Arriaza, “Pinochet Precedent”; Antonio Cassese, “Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction,” Journal of International Criminal Justice 1 (2003): 589–595.

Notes to Pages 146–150

251

52. Roht-Arriaza, “Pinochet Precedent,” 316; Lutz and Sikkink, “Justice Cascade,” 24. 53. For an account of the various facets of the anti-impunity movement in Chile, see Cath Collins, “Human Rights Trials in Chile During and After the ‘Pinochet Years,’ ” International Journal of Transitional Justice 4 (2010): 67–86. 54. Roht-Arriaza, The Pinochet Effect, 77–78. 55. Ibid., 78. 56. Ibid., 77. 57. Ibid., 82. 58. Ibid. 59. Collins, “Human Rights Trials in Chile,” 67. 60. Sikkink and Booth Walling, “Impact of Human Rights Trials,” 435. 61. Rome Statute of the International Criminal Court, as Corrected by the Procésverbaux of 10 November 1998 and 12 July 1999, Articles 6, 7, 8, and 5(1)(d), http://untreaty .un.org/cod/icc/statute/romefra.htm (accessed 11 July 2007). 62. Sadat, “Redefining Universal Jurisdiction,” 246. 63. Preamble to the Rome Statute. 64. Rome Statute, Article 17(1)(a). 65. Young, “Amnesty and Accountability,” 474. 66. In Freeman, Necessary Evils, 75. 67. Young, “Amnesty and Accountability,” 474. 68. U.S. Delegation Draft to the International Criminal Court PrepCom IV (August 1997), http://www.iccnow.org/?mod=prepcommittee4 (accessed 2 August 2011). 69. Philippe Kirsch, quoted in Freeman, Necessary Evils, 75; Darryl Robinson, “Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court,” European Journal of International Law 14 (2003): 483. 70. Anja Seibert-Fohr, “The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions,” Max Planck Yearbook of United Nations Law 7 (2004): 571. 71. Ibid., 590. 72. Young, “Amnesty and Accountability,” 470. 73. Ibid., 464, 465, 466. 74. Ibid., 467. 75. Scharf, “Amnesty Exception,” 527. 76. Manisuli Ssenyonjo, “The International Criminal Court and the Lord’s Resistance Army Leaders: Prosecution or Amnesty?” Netherlands International Law Review 56 (2007): 52–53. Far from being a one-sided affair, neither party to this conflict was innocent of committing offenses against civilians, leaving the civilian population sandwiched between two warring parties, neither of which they could ultimately trust. Adam Branch, “Uganda’s Civil War and the Politics of ICC Intervention,” Ethics

252

Notes to Pages 150–152

and International Affairs 21, no. 2 (2007): 181; Sverker Finnström, “In and Out of Culture: Fieldwork in War-torn Uganda,” Critique of Anthropology 21, no. 3 (2001): 253. 77. Zachary Lomo and Lucy Hovil, “Behind the Violence: The War in Northern Uganda” (Pretoria: Institute for Security Studies, 2004), 15. 78. Ibid., 13; Reliefweb, “Some 66,000 Children Abducted by Uganda’s LRA” (2007), www.reliefweb.int /rw/RWB.NSF/db900SID/lsgz-6ych83?OpenDocument (accessed 28 November 2007); Tim Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (London: Zed Books, 2006), 60. 79. Payam Akhavan, “The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court,” American Jounal of International Law 99 (2005): 409. 80. Quoted in Lucy Hovil and Zachary Lomo, “Whose Justice? Perceptions of Uganda’s Amnesty Act 2000: The Potential for Confl ict Resolution and Long-Term Reconciliation” (Refugee Law Project Working Paper No. 15, 2005), 9–10, http://www .refugeelawproject.org (accessed 2 February 2010). 81. Allen, Trial Justice, 76. 82. Amnesty Commission Handbook, Section 3.11, quoted in Hovil and Lomo, “Whose Justice?,” 7. 83. Hovil and Lomo, “Whose Justice?,” 7. 84. Allen, Trial Justice, 80. 85. International Criminal Court, “President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC,” ICC020040129- 49-En, The Hague, 29 January 2004, http://www.icc-cpi.int/pressrelease_details&id=16&1=en .html (28/11/2007). 86. “Referral of the Situation Concerning the Lord’s Resistance Army” (Kampala: Government of Uganda, December 2003), para. 6. 87. Luis Moreno- Ocampo, “Statement by the Chief Prosecutor on the Ugandan Arrest Warrants” (The Hague, 14 October 2005), 4. Arrest warrants were also issued for Vincent Otti (rumored to be deceased), Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen (deceased). 88. Ssenyonjo, “International Criminal Court,” 54. 89. Akhavan, “Lord’s Resistance Army Case,” 416. 90. Ssenyonjo, “International Criminal Court,” 62n22. 91. “Report on the Work of the Office of the High Commissioner for Human Rights in Uganda,” VI.62, http://www.ohchr.org/EN/Countries/AfricaRegion/Pages /UGIndex.aspx (accessed 2 August 2011). 92. Allen, Trial Justice, 86. 93. Quoted in William A. Schabas, “ ‘Complementarity in Practice’: Some Uncomplimentary Thoughts” (paper, 20th Anniversary Conference of the International Society for the Reform of Criminal Law, Vancouver, 23 June 2007), 16. 94. See M. Cherif Bassiouni, “The ICC—Quo Vadis?,” Journal of International Criminal Justice 4 (2006): 424 for an overview of the controversy; Kasaija Phillip

Notes to Pages 152–155

253

Apuuli, “Peace over Justice: The Acholi Religious Leaders Peace Initiative (ARLPI) vs. the International Criminal Court (ICC) in Northern Uganda,” Studies in Ethnicity and Nationalism 11, no. 1 (2011): 117. 95. Luis Moreno- Ocampo, “Keynote Address: Integrating the Work of the ICC into Local Justice Initiatives,” American University International Law Review 21 (2006): 500. 96. Ibid., 501. 97. Quoted in Alexander K. A. Greenawalt, “Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court,” Virginia Journal of International Law 50 (2009): 141. 98. Ibid., 142. 99. Quoted in ibid., 143. 100. Quoted in Ibid., 142. 101. Ibid. 102. Robin B. Murphy, “Establishing a Precedent in Uganda: The Legitimacy of National Amnesties Under the ICC,” bepress Legal Series Paper 1442 (2006), 1. 103. Agreement on Accountability and Reconciliation Between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement (Juba, Sudan: 29 June 2007), 5.2:5, http://www.amicc.org/ . . . /Agreement_on_Accountability_and _Reconciliation.pdf (accessed 30 July 2013). 104. Ibid., 6.1:6. 105. Ibid., 6.3:6. 106. David Smock, “Uganda/Lord’s Resistance Army Peace Negotiations” (U.S. Institute of Peace briefi ng, February 2008), http://www.usip.org/pubs/usipeacexe _briefings/2008/0204_uganda.html (accessed 31 March 2008). 107. Civil Society Organizations for Peace in Northern Uganda, “Implications of the Referendum in Southern Sudan on Peace, Security and Reconstruction Process in Northern Uganda” (Kampala, January 2011), http://www.internal-displacement.org (accessed 30 July 2013). 108. Smock, “Uganda/Lord’s Resistance Army Peace Negotiations.” 109. Statute of the Special Court for Sierra Leone. 110. For discussions of Cambodian history and, in par ticu lar, the Khmer Rouge regime and its associated genocide, see Ben Kiernan, Genocide and Resistance in Southeast Asia: Documentation, Denial, and Justice in Cambodia and East Timor (New Brunswick, N.J.: Transaction, 2007); Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia Under the Khmer Rouge, 1975–1979, 3rd ed. (New Haven, Conn.: Yale University Press, 2008); Susan E. Cook (ed.), Genocide in Cambodia and Rwanda: New Perspectives (New Brunswick, N.J.: Transaction, 2006); David P. Chandler, A History of Cambodia, 4th ed. (Boulder, Colo.: Westview, 2007); David P. Chandler, The Tragedy of Cambodian History: Politics, War and Revolution Since 1945 (New Haven, Conn.: Yale University Press, 1993); David P. Chandler, Brother Number One: A Political Biography of Pol Pot (Boulder, Colo.: Westview, 1992); David P. Chandler,

254

Notes to Pages 155–157

Facing the Cambodian Past: Selected Essays, 1971–1994 (Chiang Mai: Silkworm Books, 1998); Elizabeth Becker, When the War Was Over: Cambodia and the Khmer Rouge Revolution (New York: Public Affairs, 1998). 111. The precise number of people killed by the Khmer Rouge regime remains unclear. A conservative estimate suggests that 1.7 million people perished, while others believe that more than 2 million people, almost one-third of the population, were killed. The figure of 1.7 million is endorsed by the Cambodian Genocide Program at Yale University: see http://www.yale.edu/cgp/ (accessed 6 April 2011); John D. Ciorciari, “Introduction,” in The Khmer Rouge Tribunal (Phnom Penh: Documentation Center of Cambodia, 2006), 11–12. 112. Tom Fawthrop and Helen Jarvis, Getting Away with Genocide? Elusive Justice and the Khmer Rouge Tribunal (London: Pluto Press, 2004), 155–156. 113. Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, Article 3, http://www.eccc.gov.kh/english/cabinet/law/4/KR _Law _as _amended _27_Oct _2004 _Eng.pdf. 114. Ibid., Article 4. 115. Ibid., Article 5. 116. Ibid., Article 6. 117. Ibid., Article 7. 118. Ibid., Article 8. 119. Ibid., chap. XII, Article 40. 120. David Chandler, “Ieng Sary,” in Online Encyclopedia of Mass Violence, 3 February 2008, http://www.massviolence.org/Ieng-Sary (accessed 21 October 2010). 121. “Ieng Sary’s Limited Submissions on Jurisdiction, Filed to the Pre-trial Chamber of the Extraordinary Chambers in the Courts of Cambodia,” 6, http://docs .google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxpZW5nc2Fye WRlZmVuY2V8Z3g6NDI5OTUxNTc1MTkxNjExOA&pli=1 (accessed 30 July 2013). 122. Ibid., 2. 123. Diane F. Orentlicher, “International Criminal Law and the Cambodian Killing Fields,” ILSA Journal of International and Comparative Law 3, no. 2 (1996– 1997): 707. 124. “Ieng Sary’s Limited Submissions on Jurisdiction,” 27. 125. “Decision on Ieng Sary’s Appeal Against the Closing Order, Pre-trial Chamber of the Extraordinary Chambers in the Courts of Cambodia,” Criminal Case File No. 002/19- 09-2007-ECCC/OCIJ (PTC75) (11 April 2011), para. 201, 91, http://www.eccc.gov.kh/sites/default/fi les/documents/courtdoc/D427_1_30_EN.PDF (accessed 27 May 2011). 126. “Decision on Ieng Sary’s Appeal,” para. 201, 90–91. 127. Jack Goldsmith and Stephen D. Krasner, “The Limits of Idealism,” Daedalus 132, no. 1 (2003): 48. 128. Ibid.

Notes to Pages 158–161

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129. Ibid., 51. 130. Ibid. 131. Ibid. 132. Ibid., 54. 133. Ibid., 55. 134. Kenneth Roth, “The Court the US Doesn’t Want,” New York Review of Books 45, no. 18 (1998): 47. 135. M. Cherif Bassiouni, “The Universal Model: The International Criminal Court,” in M. Cherif Bassiouni (ed.), Post-Conflict Justice (Ardsley, N.Y.: Transnational, 2002), 820–821. 136. Jack Snyder and Leslie Vinjamuri, “Trials and Errors: Principle and Pragmatism in Strategies of International Justice,” International Security 28, no. 3 (2003–2004): 5, 6, 25. 137. Safferling, “Can Criminal Prosecution Be the Answer?,” 1483. 138. United Nations, “Annual Report of the International Criminal Tribunal for the Former Yugoslavia,” UN Doc. A/49.342; S/1994/1007, 29 August 1994, 13, http://www .un.org/en/ga/62/plenary/rwandafyr/bkg.shtml (accessed 2 August 2011). 139. Akhavan, “Beyond Impunity” 7. 140. Snyder and Vinjamuri, “Trials and Errors,” 21, 23, 43. 141. Vinjamuri and Snyder, “Advocacy and Scholarship,” 353. 142. See, for example, the Transitional Justice Database Project at the University of Wisconsin, available at http://sites.google.com/site/transitionaljusticedatabase/ (accessed 2 August 2011); Thoms, Ron, and Paris, Effects of Transitional Justice Mechanisms, 5. 143. Sikkink and Booth Walling, “Impact of Human Rights Trials,” 434. 144. Ibid., 438. 145. Ibid., 437. 146. Ibid., 440. 147. Snyder and Vinjamuri, “Trials and Errors,” 6. 148. Sikkink and Booth Walling, “Impact of Human Rights Trials,” 435. 149. Ibid., 436. 150. Ibid., 435. 151. Kim and Sikkink, “Explaining the Deterrence Effect,” 939. 152. Ibid., 958. 153. Ibid.. In contrast to Kim and Sikkink, Meernik, Nichols, and King argue that “while human rights trials and international tribunals do not exercise any negative effects, they do not appear to contribute to reducing the recurrence of civil war or improvements in human rights practices.” Meernik, Nichols, and King, “Impact of International Tribunals,” 309. 154. ICTJ, quoted in Olsen, Payne, and Reiter, Transitional Justice in Balance, 24. 155. Olsen, Payne, and Reiter, Transitional Justice in Balance, 16, 19, 21. 156. Ibid., 133–134.

256

Notes to Pages 162–165

157. Ibid., 157. 158. Ibid., 157–158. 159. Freeman, Necessary Evils. 160. Aileen Thomson, “Truth and Reconciliation in the Solomon Islands” (Human Rights Brief, Center for Human Rights and Humanitarian Law, 16 April 2010), http:// hrbrief.org /2010/04/truth-and-reconciliation-in-the-solomon-islands/ (accessed 2 May 2011); John Braithwaite, Sinclair Dinnen, Matthew Allen, Valerie Braithwaite, and Hilary Charlesworth, Pillars and Shadows: Statebuilding as Peacebuilding in Solomon Islands (Canberra: ANU E Press, 2010), 20. 161. Amnesty International Australia, “Solomon Islands Truth and Reconciliation Commission a Historic Opportunity,” 8 March 2010, http://www.amnesty.org .au/news/comments/22663/ (accessed 2 May 2011). 162. Townsville Peace Agreement, Solomon Islands, 15 October 2000, 2.3.1, http://www.commerce.gov.sb/Gov/Peace_Agreement.htm (accessed 2 August 2011). 163. Ibid., 2.3.2.ii(b). 164. Note that one of the parties to the conflict did not sign the TPA, and, as such, its members could not benefit from this amnesty provision. 165. Solomon Islands Amnesty Act, No 3 of 2001, 3.2(a)&(b), http://www.paclii .org/sb/legis/num_act/aa201111.rtf (accessed 30 July 2013). 166. Ibid., 3.3. 167. Ibid., 3.5. 168. James Watson, “A Model Pacific Solution? A Study of the Deployment of the Regional Assistance Mission to Solomon Islands,” (Land Warfare Studies Centre, Canberra, Working Paper No. 126, 2005), 13. Amnesty International, for one, alleges that war crimes were committed during the Solomon Islands conflict. see Amnesty International Report on Solomon Islands (28 May 2002), 10, http://www.refworld.org /docid/3cf4bc0f2c.html (accessed 30 July 2013). 169. In any case, very few applications for amnesty were made, and, in the end, only two amnesties were ever granted in accordance with the 2000 and 2001 acts. 170. RAMSI, “What Is RAMSI?,” http://www.ramsi.org /about /what-is-ramsi .html (accessed 2 May 2011); Michael G. Morgan and Abby McLeod, “Have We Failed Our Neighbour?,” Australian Journal of International Affairs 60, no. 3 (2006): 418. 171. Braithwaite et al., Pillars and Shadows, 3; Sinclair Dinnen, Abby McLeod, and Gordon Peake, “Police-Building in Weak States: Australian Approaches in Papua New Guinea and Solomon Islands,” Civil Wars 8, no. 2 (2006): 87–108; Michael Fullilove, “RAMSI and State Building in Solomon Islands,” Defender 23, no. 2 (2006): 33. 172. Tarcisius Tara Kabutaulaka, “Australian Foreign Policy and the RAMSI Intervention in Solomon Islands,” Contemporary Pacific 17, no. 2 (2005); Braithwaite et al., Pillars and Shadows, 55. 173. Watson, “Model Pacific Solution,” 31, 32. 174. Ibid., 31.

Notes to Pages 165–173

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175. Kenneth Hall Averre, “The Tension Trials: A Defence Lawyer’s Perspective of Post-Conflict Intervention in the Solomon Islands” (September 2008), 10, http://rspas .anu.edu.au/papers/melanesia/working_papers/08_03wp_Kenneth.pdf (accessed 10 October 2010). 176. Ibid. 177. Ibid. 178. Solomon Islands Truth and Reconciliation Commission, “Mandate of the Commission,” http://solomonislands-trc.com/about-us/mandate-of-the-commission .html (accessed 2 May 2011). 179. Solomon Islands Truth and Reconciliation Act (no. 5 of 2008), Article 20(b), http://www.paclii.org/sb/legis/num_act/tarca2008371/ (accessed 2 May 2011). 180. Ibid., Articles 7, 5(1), 20(f). 181. “Solomon Islands Government Plans Forgiveness Bill,” Solomon Star, 20 July 2009, http://lists.spc.int/pipermail/ppapd-fpocc_lists.spc.int/2009-July/000217.html (accessed 30 July 2013). 182. “Transparency Solomon Islands Criticises Proposed Bill,” Solomon Star, 27 July 2009, http://www.solomontimes.com/news/transparency-solomon-islands -criticises-proposed-bill/4260 (accessed 30 July 2013). 183. “Forgive and Forget,” 2 February 2010 184. “Forgiveness Bill Disrespectful: Wale,” Solomon Times Online, 5 November 2011, http://www.solomontimes.com/news.aspx?nxID=5670 (accessed 2 May 2011). 185. Amnesties might be the first or second mechanism. Where they were the first, the date of the second mechanism was recorded.

Chapter 6 1. Koalisi Pengungkapan Kebenaran (KPK) Coalition for Aceh Truth Recovery, “A Proposal for Remedy for Victims of Gross Human Rights Violations in Aceh” (Working Paper, 14 June 2007), 22, http://www.kontras.org/buku/buku%20aceh%20 ENG.pdf (accessed 2 August 2011). 2. Nina Schneider, “Impunity in Post-authoritarian Brazil: The Supreme Court’s Recent Verdict on the Amnesty Law,” European Review of Latin American and Caribbean Studies 90 (April 2011): 42. 3. Ibid., 43. 4. Ibid. 5. Sikkink, Justice Cascade, 158. 6. Ibid., 81. 7. Schneider, “Impunity in Post-authoritarian Brazil,” 41. 8. Ibid., 47. 9. Ibid.

258

Notes to Pages 174–178

10. Amnesty International, “Brazil Court Upholds Law That Protects Torturers” (30 April 2010), http://www.amnesty.org/en/news-and-updates/brazil-court-upholds -law-protects-torturers (accessed 9 May 2012). 11. Schneider, “Impunity in Post-authoritarian Brazil,” 49. 12. Vinjamuri and Boesenecker, “Peace Agreements and Accountability.” 13. Mallinder, Amnesty, Human Rights, and Political Transitions, 122. 14. “Chad: Peace Agreement of 7 January 2002,” Refworld, http://www.unhcr.org /refworld/country,IRBC,TCD,3df4beb010,0.html (accessed 7 May 2012). 15. Ibid. It is worth noting that neither the amnesty nor a further peace accord signed on 14 December 2003 brought an end to the conflict. Thus, in the case of Chad, both violence and impunity for human rights violations continued. 16. ICG, “Côte d’Ivoire: Can the Ouagadougou Agreement Bring Peace?” (Africa Report No. 127, 27 June 2007), 3. 17. Ouagadougou Political Agreement, Republic of Côte d’Ivoire, S/2007/144, 6.3 (March 2007). 18. Damiano Sguaitamatti, “Côte d’Ivoire, Ouagadougou Agreement,” in Unpacking the Mystery of Mediation in African Peace Processes (Zurich: Centre for Security Studies, Mediation Support Project, 2008), 37. 19. Simon A. Mason, “Mediation in African Peace Processes: Carefully Comparing Apples and Oranges,” in Unpacking the Mystery of Mediation in African Peace Processes, 11. 20. Ibid. 21. Amnesty Ordinance 2007– 457, in International Committee of the Red Cross, “Côte d’Ivoire: Practice Relating to Rule 159. Amnesty,” http://www.icrc.org /customary-ihl/eng/docs/v2_cou_ci_rule159 (accessed 8 May 2012). 22. International Committee of the Red Cross, “Côte d’Ivoire: Practice Relating to Rule 158. Prosecution of War Crimes,” http://www.icrc.org/customary-ihl/eng/docs /v2_cou_ci_rule158 (accessed 8 May 2012). 23. Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States, 9. 24. Pablo de Greiff, “Strategic Challenges of the Justice and Peace Law” (International Conference on Selection and Prioritization as a Prosecution Strategy in International Crimes Cases, 23 August 2011), http://colombia-justicia-priorizacion.ictj.org (accessed 4 May 2012). 25. José E. Arvelo, “International Law and Conflict Resolution in Colombia: Balancing Peace and Justice in the Paramilitary Demobilization Process,” Georgetown Journal of International Law 37 (2005–2006): 454. 26. Laplante and Theidon, “Transitional Justice in Times of Conflict,” 52. 27. Jemima García-Godoa and Knut Andreas O. Lid, “Transitional Justice and Victims’ Rights Before the End of a Conflict: The Unusual Case of Colombia,” Journal of Latin American Studies 42 (2010): 491, 492.

Notes to Pages 178–182

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28. Kimberly Theidon, “Transitional Subjects: The Disarmament, Demobilization and Reintegration of Former Combatants in Colombia,” International Journal of Transitional Justice 1 (2007): 68. 29. Ibid. 30. Laplante and Theidon, “Transitional Justice in Times of Conflict,” 59– 60. 31. Theidon, “Transitional Subjects,” 71. 32. Ibid., 72. 33. García-Godoa and Lid, “Transitional Justice and Victims’ Rights,” 496. 34. Ibid., 496– 497. 35. Decree no. 128 in Laplante and Theidon, “Transitional Justice in Times of Conflict,” 64. 36. Ibid., 75. 37. Center for Justice and Accountability, “Colombia: The Justice and Peace Law,” http://www.cja.org/article.php?id=863&printsafe=1 (accessed 30 July 2013). 38. Arvelo, “International Law and Conflict Resolution in Colombia,” 428. 39. Ibid., 429. 40. Laplante and Theidon, “Transitional Justice in Times of Conflict,” 64. 41. Ibid., 65. 42. Arvelo, “International Law and Conflict Resolution in Colombia,” 429. 43. Ibid., 430. 44. AUC Statement (February 2005), in ibid. 45. Arvelo, “International Law and Conflict Resolution in Colombia,” 431. 46. García-Godoa and Lid, “Transitional Justice and Victims’ Rights,” 497. 47. Uribe in Laplante and Theidon, “Transitional Justice in Times of Confl ict,” 77. 48. Arvelo, “International Law and Conflict Resolution in Colombia,” 434. 49. Ibid. 50. Quoted in ibid., 435– 436. 51. Ibid., 436. 52. Law on Justice and Peace, Article 1, in Laplante and Theidon, “Transitional Justice in Times of Conflict,” 80. 53. Law on Justice and Peace, Articles 30, 17, and 25, in Arvelo, “International Law and Conflict Resolution in Colombia,” 438, 439. 54. Arvelo, “International Law and Conflict Resolution in Colombia,” 440– 441. 55. Center for Justice and Accountability, “Colombia: The Justice and Peace Law: Ley de Justicia Y Paz” http://www.cja.org/article.php?id=863 (accessed 30 July 2013). 56. Laplante and Theidon, “Transitional Justice in Times of Conflict,” 83; Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools for PostConflict States, 9. 57. Laplante and Theidon, “Transitional Justice in Times of Conflict,” 84. 58. Ibid. 59. Ibid., 88.

260

Notes to Pages 182–186

60. Ibid., 89. 61. Ibid., 98; Mapiripán Massacre v. Colombia, Inter-American Court of Human Rights, Series C, No.122 (15 September 2005), http://www.refworld.org/docid /4f5a2b962.html (accessed 30 July 2013). 62. Ibid., 98. 63. Ibid., 104. 64. Ibid., 102. 65. Sergio Jaramillo, Yaneth Giha, and Paula Torres, “Transitional Justice and DDR : The Case of Colombia,” International Centre for Transitional Justice (2009), 32, ictj.org/sites/default/ . . . /ICTJ-DDR-Colombia-CaseStudy-2009-English.pdf (accessed 30 July 2013). 66. Laplante and Theidon, “Transitional Justice in Times of Conflict,” 99. 67. Ibid., 100–101. 68. Ibid., 100, 101. 69. Ibid., 101. 70. United Nations Charter, Chapter 1, Article 1.2, http://www.un.org/en /documents/charter/chapter1.shtml (accessed 30 July 2013). 71. International Covenant on Civil and Political Rights, Article 1; United Nations, International Covenant on Economic, Social and Cultural Rights, Article 1, http://www.humanrights.gov.au/international-covenant-economic-social-and-cultural -rights-human-rights-your-fingertips-human-rights (accessed 30 July 2013). 72. United Nations General Assembly, Resolution 1514, “Declaration on the Granting of Independence to Colonial Countries and Peoples” (14 December 1960), http://www2.ohchr.org/english/law/independence.htm (accessed 30 July 2013). 73. United Nations General Assembly, Resolution 2625, “Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations” (24 October 1970), http://untreaty.un.org/cod/avl/ha/dpilfrcscun/dpilfrcscun.html (accessed 30 July 2013). 74. Marta Iñiguez de Heredia, “The Space for Congolese Self-Determination Between Absences and Presences of the African Union and the United Nations,” African Journal of Political Science and International Relations 3, no. 1 (2009): 9. 75. In Scott P. Sheeran, “International Law, Peace Agreements and SelfDetermination: The Case of the Sudan,” International and Comparative Law Quarterly 60 (April 2011): 451– 452. 76. Quoted in ibid., 452. 77. Bougainville Peace Agreement, Arawa (30 August 2001), para. 331, http://ips .cap.anu.edu.au/ssgm/resource_documents/bougainville/PDF/BougainvillePeace Agreement29Aug01.pdf (accessed 10 October 2010). 78. Lincoln Peace Agreement, Lincoln, Christchurch (23 January 1998), para. 10(a), http://ips.cap.anu.edu.au/ssgm/resource_documents/bougainville/PDF/lincoln -agreement.pdf (accessed 10 October 2010).

Notes to Pages 186–192

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79. For a detailed discussion of the negotiations, see Kingsbury, Peace in Aceh. At this time, the government of Indonesia offered a partial counterinsurgency amnesty to GAM fighters in an attempt to ensure GAM’s continued participation in the talks. 80. ICG, “Aceh: So Far, So Good,” 2. A total of 298 detainees were released on 17 August, two days after the MoU was signed to mark Indonesia’s Independence Day, while on 30 August, Presidential Decree 22/2005 resulted in the release of 1,424 more prisoners. See Kirsten E. Schulze, “A Sensitive Mission: Monitoring Aceh’s Agreement,” in Aguswandi and Large, Reconfiguring Politics, 37. 81. Aspinall, Peace Without Justice?, 19–20. 82. ICG, “Aceh: So Far, So Good,” 3. 83. Aspinall, Peace Without Justice?, 19. 84. In Kingsbury, Peace in Aceh, 102. 85. 106. 86. Kingsbury, Peace in Aceh, p. 107. 87. MoU draft in Kingsbury, Peace in Aceh, p. 116. 88. Aspinall, Peace Without Justice?, 20. 89. Ibid.; ICG, “Aceh: So Far So Good,” 3. 90. Aspinall, Peace Without Justice?, 21. 91. ICG, “Aceh: So Far, So Good”; Aspinall, Peace Without Justice?, 5; Hamid Awaluddin, “Why Is Peace in Aceh Successful?,” in Aguswandi and Judith Large (eds.), Reconfiguring Politics: The Indonesia-Aceh Peace Process, Accord, Issue 20 (London: Conciliation Resources, 2008), 3. 92. Burke, “Peacebuilding and Rebuilding at Ground Level,” 60– 61; Martti Ahtisaari, “Delivering Peace for Aceh: An Interview with President Martti Ahtisaari,” in Aguswandi and Judith Large (eds.), Reconfiguring Politics: The Indonesia-Aceh Peace Process, Accord, Issue 20 (London: Conciliation Resources, 2008), 24. 93. Bernhard May, “The Law on the Governing of Aceh: The Way Forward or a Source of Conflicts?,” in Aguswandi and Large, Reconfiguring Politics, 42. 94. Edward Aspinall, “Elections: Consolidating Peace,” in Aguswandi and Large, Reconfiguring Politics, 47. 95. Aspinall, “Elections: Consolidating Peace,” 47. 96. ICG, “Indonesia: Deep Distrust in Aceh as Elections Approach,” Asia Briefi ng No. 90 (23 March 2009), 2–3. 97. ICG, “Indonesia: Deep Distrust in Aceh ,” 4. 98. Aspinall, “Elections: Consolidating Peace,” 46. 99. Sidney Jones, “Keeping the Peace: Security in Aceh,” in in Reconfiguring Politics, 74. 100. Faisal Hadi, “Human Rights and Justice in Aceh: the long and winding road,” in Aguswandi and Judith Large, Reconfiguring Politics, 67. 101. Hadi, “Human Rights and Justice in Aceh,” 67. 102. Schulze, “A Sensitive Mission,” 39; Fadlullah Wilmot, “Shari’ah in Aceh: Panacea or Blight?,” in Aguswandi and Large, Reconfiguring Politics, 78, 79.

262

Notes to Pages 192–200

103. Aspinall, Peace Without Justice?, 28. 104. Hadi, “Human Rights and Justice in Aceh,” 68. 105. Ibid. 106. Aspinall, Peace Without Justice?, 10. 107. Hadi, “Human Rights and Justice,” 68. 108. Aspinall, Peace Without Justice?, 8. 109. Ibid., 21. 110. Ibid. 111. Ibid., 28. 112. Hadi, “Human Rights and Justice,” 69. 113. Aspinall, Peace Without Justice?, 29. 114. Ibid. 115. Hadi, “Human Rights and Justice,” 69. 116. KPK, Proposal for Remedy, 17, 16. 117. Ibid., 32, 44. 118. Ibid., 37. 119. The Solomon Islands TRC is specifically authorized to recommend criminal proceedings. This leaves open the possibility that on the basis of the evidence heard at the TRC it will, in its final report, refer a new set of matters to the High Court for prosecution. Solomon Islands Truth and Reconciliation Act, Articles 7, 5(1), 20(f). 120. Kingsbury, Peace in Aceh, 170.

Conclusion 1. Joe Stork, quoted in Human Rights Watch, “Libya: Amend New Special Procedures Law,” 11 May 2012, http://www.hrw.org/news/2012/05/11/libya-amend-new -special-procedures-law (accessed 30 November 2012). 2. Yasmine Ryan, “The Tragic Life of a Street Vendor,” Al Jazeera, 20 January 2011, http://www.aljazeera.com/indepth/features/2011/01/201111684242518839.html (accessed 30 November 2012). 3. Ibid. 4. Rochdi Horchani, quoted in Yasmine Ryan, “How Tunisia’s Revolution Began,” Al Jazeera, 26 January 2011, http://www.aljazeera.com/indepth/features/2011/01 /2011126121815985483.html (accessed 30 November 2012). 5. Yasmine Saleh, “Mubarak to Be Tried for Murder of Protesters,” Reuters, 24 May 2011, http://www.reuters.com/article/2011/05/24/us-egypt-mubarak -idUSTRE74N3LG20110524 (accessed 30 November 2012). 6. David D. Kirkpatrick, “Political Clashes and a Vow of Appeal in Verdict on Mubarak and Aides,” New York Times, 3 June 2012, http://www.nytimes.com/2012/06/04 /world/middleeast/political- clashes-and-vow- of-appeal-in-mubarak-verdict.html (accessed 30 November 2012).

Notes to Pages 200–208

263

7. MENA, “Bill Proposes Amnesty for Mubarak-Era Political Detainees,” 18 April 2012, http://egyptindependent.com/news/bill-proposes-amnesty-mubarak-era-political -detainees (accessed 30 November 2012). 8. Ibid. 9. “Tunisia: Caretaker President Signs General Amnesty Decree-Law,” Tunisia Online News, http://allafrica.com/stories/201102211739.html (accessed 24 May 2012). 10. Jack Shenker, “Egypt Told to Give Military Leaders ‘Safe Exit’ by Western Governments,” Guardian, 27 March 2012, http://www.theguardian.co.uk/world/2012 /mar/27/egypt-scaf-safe-exit-deal (accessed 24 May 2012). 11. Ibid. 12. Ibid. 13. “Yemen: Opposition Backs GCC Plan for Saleh Resignation,” BBC News, 25 April 2011, http://www.bbc.co.uk/news/world-middle-east-13190305 (accessed 30 November 2012). 14. “Human Rights Watch Attacks Thuwar Amnesty Law,” Libya Herald, 11 May 2012, http://www.libyaherald.com/human-rights-watch-calls-for-qaddafi-law-to-be -amended/ (accessed 30 November 2012). 15. Ibid. 16. “U.N. Calls for Power Transfer in Yemen,” CBS News, 21 October 2011, http://www .cbsnews.com/8301-202_162-20124073/u.n-calls-for-power-transfer-in-yemen/ (accessed 30 November 2012). 17. “United States Defends Immunity Law for Yemeni President Saleh,” Guardian, 10 January 2012, http://www.guardian.co.uk/world/2012/jan/10/us-backs-yemen -immunity-for-saleh (accessed 24 May 2012). 18. United Nations Security Council, Resolution 2014 (21 October 2011), http://www.un.org/News/Press/docs/2011/sc10418.doc.htm (accessed 30 November 2012). 19. Ibid., para. 4. 20. Ibid. 21. Human Rights Watch quoted in “U.N. calls for power transfer”, CBS News. 22. Thalif Deen, “War Crimes Immunity for Ousted Leaders Under Fire,” IPS News, 24 January 2012, http://ipsnews.net/news.asp?idnews=106536 (accessed 24 May 2012). 23. Ibid. 24. Saleh, “Mubarak to Be Tried for Murder of Protesters.” 25. Quoted in Shenker, “Egypt Told to Give.” 26. Human Rights Watch, “Libya: Amend New Special Procedures Law.” 27. Ibid. 28. Deen, “War Crimes Immunity.” 29. Olsen, Payne, and Reiter, Transitional Justice in Balance, 144, 139. 30. Ibid., 139. 31. Ibid.

264

Notes to Pages 208–210

32. Lie, Binningsbø, and Gates, “Post-Conflict Justice,” 15, 17. 33. Olsen, Payne, and Reiter, Transitional Justice in Balance, 128. 34. Ibid., 129. 35. Paul Collier, Wars, Guns, and Votes: Democracy in Dangerous Places (London: Vintage, 2010), 6. 36. Alex J. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity, 2009), 194. 37. Paul Collier, V. L. Elliott, Håvard Hegre, Anke Hoeffler, Marta Reynal-Querol, and Nicholas Sambanis, Breaking the Conflict Trap: Civil War and Development Policy (Washington, D.C.: World Bank, 2003), 7. 38. Paul Collier, “Policy for Post-conflict Societies: Reducing the Risks of Renewed Conflict” (paper prepared for the Economics of Political Violence Conference, 18–19 March 2003, Princeton University), 2–3. 39. Paul Collier and Anke Hoeffler, “Greed and Grievance in Civil War” (World Bank Paper 28216, 2001), 2; see also Nigel Biggar, “Making Peace or Doing Justice? Must We Choose?,” in Biggar, Burying the Past, 5. 40. Jones, “Keeping the Peace,” 75.

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. Hodgson

INDE X

Abidjan Peace Accord, 117 accountability, 2, 4– 6, 10, 11, 34, 62, 77, 85, 114, 129, 166, 206, 209; individual criminal, 9, 124 Aceh, 1–2, 11, 20, 170, 186–97, 201–11; democracy, 190–91; human rights, 191–93; Human Rights Court, 2, 192; Truth and Reconciliation Commission, 2, 193–94. See also Helsinki Memorandum of Understanding Act of Free and General Pardon, Indemnity and Oblivion, 12 Ahtisaari, Martti, 1, 190 Akhavan, Payam, 158–59 Albania, 40 Alfonsín, Raúl, 55–57, 63, 85 Almonacid-Arellano et al. v. Chile, 71 American Convention on Human Rights, 30, 56, 58–59, 71, 72, 80, 139 Americas Watch, 60 Amin, Idi, 76 amnesia, 4, 5, 15, 18, 77, 78–79, 128, 206 Amnesty International, 35, 40, 61, 100, 200, 202 Angola, 26, 82, 105, 107–9, 117, 175. See also Lusaka Protocol Arab Spring, 199, 203, 204 Argentina, 18, 44, 49, 53, 54–57, 63, 64, 66, 76, 86, 137, 160; overturning amnesties, 138– 42; universal jurisdiction cases, 142– 44. See also Due Obedience Law; Full Stop Law; CONADEP Arias Plan, 104, 110–11 Aristide, Jean-Bertrand, 68– 69 Armenian genocide, 24 Aspen Institute, 51, 59– 68, 127 Aspinall, Edward, 190 Aylwin, Patricio, 53

Azanian People’s Organization (AZAPO) and Others v. President of the Republic of South Africa and Others, 94–96 Balucio v. Argentina, 72 Bangladesh, 45– 46 Barrios Altos v. Peru, 71–72, 137, 141 Bassiouni, M. Cherif, 34, 115, 153, 158, 200 Belo, Ximenes, 126 Bevir, Mark, 16 blanket amnesty, 11, 18, 52, 53, 90, 91, 93, 99, 117, 118, 128, 133, 163, 176 Bolivia, 76; National Commission of Inquiry into Disappearances, 76 Boraine, Alex, 87, 92, 127 Bosnia, 115 Bougainville, 186 Brazil, 53, 147, 171, 172–74 Bulgaria, 40 Burundi, 104 Cambodia, 8, 11, 155–57. See also Extraordinary Chambers in the Courts of Cambodia Carmelo Soria Espinoza v. Chile, 71 Cavallo, Gabriele, 141 Cavallo, Rocardo Miguel, 143– 44 Cedras, Raoul, 69 Chad, 16, 175 Chile, 3, 15, 38, 41, 49, 52–53, 66, 71, 100, 137; Decree 2191, 52; domestic cases, 146– 47; Pinochet case, 144– 46; Truth and Reconciliation Commission, 66; universal jurisdiction cases, 144– 46 Chittagong Hill Tracts, 45– 46 Christiani, Alfredo, 79, 81 circumventing amnesties, 17, 134, 136, 137, 146, 164, 194 civil confl ict, 2, 4, 18, 22

298

Index

Collier, Paul, 209 Colombia, 16, 49, 177–84, 207 complementarity, 148, 149, 152. See also International Criminal Court CONADEP, 55–56, 66, 77 consequentialist reasoning, 32–34, 157 Consuelo et al. v. Argentina, 139 Costa Rica, 49, 110 Côte d’Ivoire, 16, 176–77; Ouagadougou Peace Agreement, 176 coups d’etat, 41– 43, 54, 93 courts, 3; domestic, 3, 136; foreign, 3, 136 Covenant on Civil and Political Rights, 56, 157, 185 Covenant on Economic, Social and Cultural Rights, 185 crimes against humanity, 3, 7, 18, 24, 26, 27, 100, 105, 109, 120, 124, 125, 133, 143, 176, 194 Darfur, 100 Declaration on the Granting of Independence to Colonial Countries and Peoples, 185 De Klerk, F. W., 89, 90 democracy versus justice, 20, 63– 65, 203 deontological reasoning, 31, 33, 68, 157 deterrence, 67– 68, 88, 157, 158– 60 disappearances. See forced disappearances disguised amnesties, 19, 134, 176–77 Doxtader, Erik, 89, 93 Du Bois-Pedain, Antje, 96, 97 Due Obedience Law, 56, 57, 137, 139 Du Toit, André, 87, 88 East Timor, 11, 100, 104, 122–27, 154; Commission for Reception, Truth and Reconciliation, 122, 124; Commission for Truth and Friendship, 124; Serious Crimes Special Panels, 3, 124, 136 Egypt, 199–201, 202–3 Ellacuría v. El Salvador, 79–81 El Salvador, 3, 15, 18, 71, 77, 78–79, 110, 160; Commission on the Truth, 78–79, 81 Elshtain, Jean Bethke, 83 ethics of conviction, 32, 33, 61 ethics of responsibility, 32, 33, 61 European Convention for the Protection of Human Rights and Fundamental Freedoms, 30 European Court of Human Rights, 30–31

extrajudicial killing, 1, 23, 40, 62, 114, 137, 143 Extraordinary Chambers in the Courts of Cambodia, 3, 136, 138, 155–57, 169 Fiji, 36, 42, 99 forced disappearance, 1, 58, 59, 62, 65, 75, 106, 114, 137, 140, 142, 146 forgiveness, 79, 81–85, 88, 96–98, 126–27, 129, 150, 160, 166– 67, 206; forgiveness and justice, 83–85; forgiving and forgetting, 79, 81–83, 96, 166; political forgiveness, 82 Freeman, Mark, 34, 128 Full Stop Law, 56, 57, 60, 137, 139 Gaddafi, Muammar, 199, 203 Gaer, Felice, 116 Gallón Giraldo v. Colombia, 183 Galtung, Johan, 130–31 Garzon, Baltasar, 142, 144– 45 Geneva Conventions, 27, 69–70, 71, 120, 138, 147, 154–56, 163– 65 genocide, 3, 18, 24, 27, 100, 105, 120, 124, 133, 176, 194 Genocide Convention, 5, 29, 95 Ghana, 100 Gobodo-Madikizela, Pumla, 89 Goldman, Robert, 86 Goldsmith, Jack, 157–58, 159 Goldstone, Richard, 87, 92, 116, 152 Governors Island Agreement, 69, 114 Greece, 8, 49; amnesty, 24–25, 49; ancient, 21, 22–23 Guatemala, 53, 82, 88, 110; Historical Clarification Commission, 66 Guinea, 42 Haiti, 68–70, 114, 129 Hayner, Priscilla, 75–76, 117, 127 Helsinki Memorandum of Understanding, 1, 2 186–87, 189–94. See also Aceh Henkin, Alice, 60, 61, 65, 67, 74, 85, 127 Holocaust, 6 Honduras, 58–59, 110. See also Governors Island Agreement; Port-au-Prince Agreement Hugo Leonardo de los Santos Mendoza et al. v. Uruguay, 70 human rights community, 51 human rights movement, 40, 56, 146, 170. See also human rights community

Index Huntington, Samuel, 8, 85, 138 hybrid courts, 2, 3, 135, 154 Ignatieff, Michael, 130 immunity, 7, 22, 43, 101, 102, 124, 145 impunity, 2, 3, 11, 12, 20, 27, 33, 57, 77, 103, 104, 128, 130, 199; culture of, 128; ending impunity, 19, 58, 98–99, 114, 118, 155, 169, 171, 194; versus justice, 8. See also immunity impunity model, 6 Indonesia, 1 Institute for Democracy in South Africa, 87 Inter-American Convention on Forced Disappearance of Persons, 30 Inter-American Convention to Prevent and Punish Torture, 30 Inter-American Court of Human Rights, 3, 49, 58–59, 70–73, 79–81, 137, 169, 170, 182 International Committee of the Red Cross, 28 International Covenant on Civil and Political Rights, 30 International Criminal Court, 2, 100, 136, 137, 147–50, 157, 170, 204; on the case of Uganda, 151–54 International Criminal Tribunal for Rwanda (ICTR), 2, 120, 132, 136 International Criminal Tribunal for the Former Yugoslavia (ICTY), 2, 114–17, 120, 131, 136, 158–59 interpretive approach, 14–17 Joinet, Louis, 21, 40, 81; Joinet Report, 81 just deserts theory, 32, 33, 61, 64, 68 justice cascade, 2, 4, 12, 18, 168, 175, 195, 206 justice versus truth, 10. See also truth versus justice Kant, Immanuel, 31, 62 Karamanlis, Constantine, 25 Karphammer, Christer, 189 Kenya, 100 Kingsbury, Damien, 188 Kosovo “Panels 64,” 3, 136 Krasner, Stephen 157–58, 159 Kritz, Neil, 128, 131 legalism, 32, 34; legal absolutism, 33 Liberia, 117 Libya, 199, 201, 203, 204

299

Lie, Tove, 208, 209 Linas-Marcoussis Agreement, 176 Lomé Peace Agreement, 3, 117–22, 128, 175. See also Sierra Leone London Agreement, 7 Louis XVIII amnesty, 23 Lusaka Protocol, 26, 82, 108. See also Angola Makarezos, Nikolaos, 25 Malamud-Goti, Jaime, 60, 63– 64, 85 Mallinder, Louise, 35, 40 Mandela, Nelson, 89, 90 Mapiripán v. Colombia, 182 Martin, Ian, 129 Mauritius, 100 memory, 4, 18 Méndez, Juan, 54, 60, 64, 74, 87–88, 127 Menem, Carlos, 57 Mignone, Emilio Fermin, 56 Monsignor Oscar Arnulfo Romero y Galdámez v. El Salvador, 71 Moreno-Ocampo, Luis, 151–53 Motsuenyane Commission, 90 Mozambique, 15, 111–13 Mubarak, Hosni, 199–200, 202–3 Musevei, Yoweri, 61, 151 Nagel, Thomas, 60, 65 Neier, Aryeh, 60, 61, 63, 68, 74, 78, 79, 87–88, 93 Nepal, 100, 105–7 Nicaragua, 110–11 Nino, Carlos Santiago, 57, 60, 62, 63– 64, 74 Nuremberg Model, 7, 11, 90, 92 obligation to investigate, 59, 70, 72, 139 obligation to prosecute, 3, 29, 31, 33, 60– 65, 70–72, 134, 139, 157, 171, 172 O’Donnell, Guillermo and Philippe Schmitter, 8 Olsen, Tricia, Leigh Payne, and Andrew Reiter, 161, 167– 68, 197, 207–8 Orentlicher, Diane, 29, 34, 60, 62, 64, 67– 68, 74, 85, 153, 156 O’Shea, Andreas, 26 Ouagadougou Agreement, 176 Panama, 101 Papadopoulos, Georgios, 25

300

Index

Papua New Guinea, 186 pardons, 36, 57, 65 Paris Peace Conference, 24 Pattakos, Stylianos, 25 peace agreements, 1, 4, 18, 44, 45, 47, 103–5, 110, 117, 119, 129, 174, 175, 177, 206 peace versus justice, 9, 10, 12, 20, 126, 129, 134, 183, 203, 207 Pensky, Max, 21 Pinochet, Augusto, 38, 41, 49, 66, 90, 137, 144– 46 politically motivated crimes, 26, 40, 58, 92 political prisoners, 25, 38, 57, 76 Port-au-Prince Agreement, 69. See also Haiti Portugal, 8 pragmatism, 33, 61 prisoner release, 36 Proclamation of Pardon and Amnesty, 24 prosecute and punish versus forgive and forget, 8, 44, 67, 128 prosecutions, 3 Prosecutor v. Brima Bazzy Kamara, 121 Prosecutor v. Morris Kallon, 121 protests, 41 Prussian amnesty, 24 punishment, 10, 32, 65, 66, 68, 128 Ralito Agreements, 178–81 Ramos-Horta, José, 126–27 rebel groups, 4, 19, 21, 44, 46, 47, 104, 106, 107, 109 reconciliation, 4, 9, 46, 124, 128 regime stability, 21, 51 remedy, right to, 30, 157 reparation, 59, 76, 80, 124, 128 responsibility, 5 restorative justice, 6, 10, 11, 12, 16, 25, 77, 96, 99, 206; retributive justice, 11 retributive justice, 5, 10, 12, 25, 32, 62, 83. See also restorative justice Rettig, Raúl, 66; Rettig Report, 73 riots, 41 Robertson, Geoff rey, 82, 93, 119 Roht-Arriaza, Naomi, 93 Romero, Oscar, 78 Rwanda, 11 Sábato, Ernesto, 55 Safferling, Christoph, 158

Saleh, Ali Abdullah, 201 Sanguinetti, Julio, 57, 61, 86 Sary, Ieng, 138, 155–57 Scharf, Michael, 29, 69–70, 158 Scilingo, Adolfo, 143 selectivity, 161, 167, 177–84 self-determination, 20, 171, 184–86, 195, 199, 205 self-granted amnesty, 15, 40, 41, 49, 52, 71, 77, 145, 146 sequencing, 161, 167– 68 Sierra Leone, 3, 18, 117–22, 128, 133; Special Court, 2, 120, 136, 154; Truth and Reconciliation Commission, 118 Sikkink, Kathryn, 8, 76, 138, 147, 159, 160, 172, 210 Snyder, Jack, 158, 159, 160 Solomon Islands, 11, 100, 138, 162– 68; Truth and Reconciliation Commission, 165– 66 South Africa, 15, 18, 44, 77, 89–99, 107, 206, 207 South African Truth and Reconciliation Commission, 46, 92; Amnesty Committee, 93; AZAPO case, 94–96; forgiveness at, 96–98; South African Model, 100–102, 194 South Korea, 8, 11 Spain, 8, 86 Special Court for Sierra Leone, 2, 120, 136, 154 Speight, George, 42 Taylor, Charles, 117, 121 Teitel, Ruti, 6, 11, 75, 85 third wave, 8, 24, 49, 51, 73, 199, 204, 205 Thoms, Oskar, 13 Thucydides, 22–23 Tojeira, José Maria, 85 torture, 1, 27, 62, 65, 106, 114, 124, 173 Torture Convention, 29, 56, 69–70, 141, 156 Toyko Tribunal, 7 transitional justice, 5, 6, 11, 12; transitional justice in balance, 161– 62 Transitional Justice Database Project, 35 transitions: political, 17, 91; to democracy, 4, 5, 9, 21, 22, 41, 44, 49, 54, 60, 63, 74, 94, 105, 161, 177, 184, 205; to peace, 9, 177

Index Treaty of Lausanne, 24 Treaty of Sèvres, 24 truth, 4, 9, 11, 18, 46, 47, 65– 67; the right to, 79–81, 139, 140, 206; and reconciliation, 17, 18, 21; and accountability, 18; and healing, 47, 49, 96 truth versus justice, 10, 11, 66, 67. See also justice versus truth Tunisia, 198, 200 Turkish amnesty, 24 Tutu, Desmond, 90, 94, 96, 165 Ubuntu, 16, 97 Uganda, 137, 150–54; Commission of Inquiry into the Disappearance of People in Uganda, 76 United Nations, 3, 104, 113–14, 132–34, 207; on East Timor amnesty 125; on Sierra Leone amnesty, 118–20; on Yemen amnesty, 202 United Nations Declaration on the Protection of All Persons from Enforced Disappearance, 30 United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, 30

301

universal jurisdiction, 118, 136, 137, 142– 46, 147– 49, 158 Uruguay, 3, 8, 57–58, 70, 86; Investigative Commission, 76 Van Boven Report, 30, 80 Velásquez Rodríguez Case, 50, 58–59, 65, 70, 81 Venezuela, 49 Videla, Jorge Rafael, 54 Vienna Convention on the Law of Treaties, 121 Villa-Vicencio, Charles, 92 Vinjamuri, Leslie, 34, 158, 159, 160; and Aaron Boesenecker, 45 war crimes, 3, 7, 18, 24, 26, 27, 100, 107, 109, 120, 124, 133, 176, 194 Weber, Max, 32, 33, 61 Weschler, Lawrence, 60, 65, 74, 85, 87 Yemen, 199, 201–2, 204 Yugoslavia, 11 Zalaquett, José, 60, 61, 63, 66, 73, 74, 87–88, 127 Zimbabwe, 41

. Hodgson

AC KNOW LEDG MENTS

In large part this book is the result of three years’ research I undertook while a research fellow at the Griffith Asia Institute and Centre for Governance and Public Policy at Griffith University in Brisbane. It is the product of a truly wonderful research scheme that allowed me to spend several years away from the competing pressures of ordinary academic life to focus wholly and exclusively on research. In particular, that intellectual space allowed me to become acquainted with what was for me a new area of scholarship, transitional justice, and start to build a research profi le in that subfield. Without that opportunity, this project, along with several others, would probably still be in its infancy. For that reason, I am and will continue to be extremely thankful for my time there. I am particularly grateful for the support I received during my time at Griffith University from Michael Wesley, Pat Weller, Jason Sharman, and Andrew O’Neil. I also enjoyed being part of a vibrant scholarly community there and would like to thank my colleagues, in particular Sara Davies, Alex Bellamy, Hun Joon Kim, Juanita Elias, Luke Glanville, and Frank Smith, for their ongoing collegiality and engagement. More broadly, this book has also benefited from discussions that took place in the context of compiling a coedited volume, Transitional Justice in the Asia-Pacific (Cambridge University Press, forthcoming), with my collaborator, Hun Joon Kim, and our contributors, Kathryn Sikkink, Leigh Payne, Chandra Sriram, Edward Aspinall, Fajran Zain, Kirsten Ainley, and Lia Kent. Together, this group of scholars has taught me an immense amount about the theory and practice of transitional justice. In practical terms, much of the research conducted for this book was funded by an Australian Research Council Discovery Grant (DP 0985708). It has also benefited from the meticulous and insightful research assistance provided by Katja Cooper and Liane Harnett, both of whom are well on their way to becoming great scholars in their own rights. Thanks also go to

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Acknowledgments

Peter Agree, members of the editorial board, and, in par ticu lar, the anonymous reviewers who ushered the manuscript through the publication process, offered constructive advice on revising the work, and ultimately contributed to a far better book than I would have produced alone. Parts of this book have previously been published elsewhere: parts of the Introduction and Chapter 6 appeared in “Amnesty and Accountability: The Price of Peace in Aceh,” International Journal of Transitional Justice 6, no. 1 (2012): 1–23; the discussion of the case of Uganda in Chapter 5 is drawn from “Forgiveness, Amnesty, and Justice: The Case of the Lord’s Resistance Army in Northern Uganda,” Cooperation and Conflict 46, no. 1 (2011): 78– 95; and the discussion of the case of the Solomon Islands appeared in “Enduring Tensions: Transitional Justice in the Solomon Islands,” Pacific Review (2013), available on iFirst. My final thanks go to my new colleagues at the Australian National University and my family. With so many great scholars working on aspects of transitional justice in the Asia-Pacific at ANU, I am excited to see what sorts of collaborations the future will bring! And to Ian, Sadie, and Scarlett (who was born a year into this project and watched the early drafts of this book being written from her bouncy chair), thanks always for your love and support, for letting me write when I really need to, and for dragging me away from work when I don’t!