|No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.|
Amnesty and Truth Commissions
The question that human rights advocates such as Brody are now grappling with is whether sophisticated amnesties for acts that constitute fundamental violations of human rights are legal or legitimate under international legal principles. For example, surely it is the case that amnesty for acts of genocide would be precluded under the international law principle of jus cogens? And for states which are party to the ICCPR, what does Article 2 require and would amnesties violate this provision? Is the 1996 decision of the South African Constitutional Court in Azanian Peoples Organization v. President of the Republic of South Africa, which held that amnesties for acts associated with political objectives are in accordance with the new Constitution, itself in accordance with the requirements of international law?
Answers are slowly beginning to emerge to these questions. For example, the UN Human Rights Committee recently concluded that Uruguay's amnesty law was incompatible with its obligations under the ICCPR. Brody has also noted that the South African TRC did not deal with the crime of apartheid itself, including the massive displacements that it caused and the effects of its unjust pass system, and only addressed those excesses that were already illegal under apartheid laws.
For Brody, the human rights movement now faces a "South Africa" problem: amnesty + truth versus prosecutions. On the one hand, it is suggested that the South African experiment with its TRC is not necessarily exportable to other situations, which may lack the charisma of a Nelson Mandela or Bishop Tutu. At the same time, it is argued that prosecutions are increasingly politically possible. Criminal prosecutions have the ability to establish individual responsibility rather than collective assignment of guilt, and they can dissipate the call for revenge by providing retribution for victims. This, it is said, fosters reconciliation in itself. Trials are also said to be capable of establishing a fully reliable record of atrocities for future generations.
On the other hand, TRCs--provided they are independent, well resourced, have subpoena power, hold open meetings, are able to name the accused publicly and provide adequate reparations to victims--have the unique ability to uncover hidden abuses and lift the veil of denial. They can help a fractured country come to grips with its past and they can provide a platform for victims and assist in structural reforms. Thus, in the opinion of jurists such as Antonio Cassese, TRCs plus amnesties are needed in nations making the transition from terror to democracy and are to be preferred when the country is fragile and may not survive destabilizing and politically charged trials.
Following UN-sponsored efforts in transitional states such as Sierra Leone and East Timor, some human rights advocates today are suggesting that this is not an either/or equation and that truth commissions and prosecutions may be mutually reinforcing. For example, in Argentina and Chad the facts compiled by TRCs were later used by prosecutors.
Reed Brody, "The End of Impunity" available at http://www.hrw.org/campaigns/chile/dispatches.html
Peter Danchin, Columbia University