Article 5:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Subsequent Development

  1. Subsequent International Instruments
  2. Rape and Other Forms of Sexual Violence
  3. Amnesty and Truth Commissions (1)
  4. Amnesty and Truth Commissions (2)

Amnesty and Truth Commissions

In recent times, the question of whether to prosecute perpetrators who have committed atrocities, such as torture, in states which are in a period of transition from a repressive past to a democratic future has become an important issue for the international human rights community. Most people agree that leaders who organize mass murder and torture should be brought to justice. But, as human rights advocates such as Reed Brody of Human Rights Watch point out, recent practice in transitional situations has shown that effective trials are far and few between, and more often leaders and perpetrators are granted amnesties in exchange for telling the truth about their crimes. Brody points, for example, to the cases of Augusto Pinochet, Idi Amin, Ferdinand Marcos, Anastasio Somoza, and Mengistu Haile Mariam.

Reed Brody
There is a debate between fighters against impunity and those people looking into transitional justice. You are an example of a person from the first group. How would you respond to arguments from people in the other group?
The reasons for this are often pragmatic and reflect the prevailing political realities in many transitional societies: tyrants are offered a way out to induce them to hand over power without making their people suffer further. The courts are often so corrupted that a fair trial is impossible and statutory limitations may exist to block prosecutions. And because it is impossible to prosecute all perpetrators in criminal regimes, it is further argued that selective prosecutions can create injustice.

Reed Brody
What do you think of the argument of Jack Snyder - that you need to deal with the devil in order to get him out of power?
It is for these and related reasons that some human rights advocates have begun to turn to other mechanisms and processes, such as Truth and Reconciliation Commissions, as an alternative to prosecutions. These bodies were first established in places like Argentina and Chile where deniable disappearances made truth the first order of the day. But it was South Africa's Truth and Reconciliation Commission ("TRC") that set the standard for future commissions.

The South African TRC was established in the wake of the fall of apartheid in the early 1990's as a means by which the country could attempt to deal with its dark past of repression, racial discriminationm and gross human rights violations. At that time South Africa faced the most difficult moral question facing transitional regimes: can one sacrifice the pursuit of justice as usually understood for the sake of promoting other social purposes such as reconciliation? The TRC was South Africa's response to this question and represented an explicit political compromise between the broad amnesty that apartheid leaders sought and the prosecutions proposed by the ANC, which would have antagonized any hope of peaceful transition. The ingenious solution was to keep the prosecution option open (and some prosecutions were conducted) but to grant individual amnesties for those who came forward and told the truth about their crimes--in public and on TV.

Reference

Reed Brody, "The End of Impunity" available at http://www.hrw.org/campaigns/chile/dispatches.html

<<previous page next page>>

Peter Danchin, Columbia University