Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
Amnesty is a mechanism whereby an authorized entity grants a pardon for alleged past offenses, thus restoring any previously curtailed rights and privileges or preserving those that might have otherwise been restricted. The authority may be motivated by outright compassion, a desire to use clemency powers to be seen as merciful, a determination in light of new evidence that the accused was not actually guilty, or some strategic calculation that the benefits of granting amnesty outweigh the costs.
Like inaction, this transitional justice option may be morally and legally problematic because providing amnesty to suspected atrocity perpetrators prevents any official punitive accounting for their actions. However, the authority may grant amnesty only after a period of public humiliation and shaming, perhaps by forcing the accused to admit their alleged crimes in detail. Such tactics can serve as an alternative punishment for suspected atrocity perpetrators. This penalty, however, may not meet the moral or legal threshold of what constitutes appropriate punishment for particular crimes.17 Amnesty may be granted posthumously, even though the subject is obviously unaware of the official exoneration for crimes he was accused or even convicted of committing.
There are two general amnesty options: conditional and unconditional. The former combines carrots and sticks; an official pardon is granted in exchange for truthful testimony. In this case, the transitional justice authority reserves the right to prosecute and, therefore, punish the suspected atrocity perpetrator if his testimony is judged to be incomplete or inaccurate.18 This option could have the benefit of holding accountable uncooperative suspected atrocity perpetrators or enhancing their cooperation by threatening prosecution. Conditional amnesty is somewhat less morally problematic than the unconditional version, because, through the former, at least suspected atrocity perpetrators may be prosecuted and then punished if they resist requests for information about their alleged crimes. Such a system was most famously established in South Africa in 1995 as the Truth and Reconciliation Commission.19
Unconditional amnesty is a general exoneration granted to suspected atrocity perpetrators not based on any requirements, such as the breadth or accuracy of testimony. (Some have equated doing nothing about suspected atrocity perpetrators with unconditional amnesty. Political scientists Jack Snyder and Leslie Vinjamuri have deemed inaction a “de facto amnesty.”20 Doing nothing can also be understood as an “implicit unconditional amnesty,” as distinguished from an explicit official grant of amnesty.) El Salvador established an explicit unconditional amnesty with its 1991 Commission on the Truth, and the USG was the most generous financial contributor (supplying 40 percent of its total budget). Another example of explicit unconditional amnesty occurred after World War I, when the Allied Powers, including the United States, signed the 1923 Treaty of Lausanne with Turkey, which contained a “Declaration of Amnesty” for crimes committed between 1914 and 1922, including the Turkish massacre (often characterized as a “genocide”21) of Armenians.22 More recently, the Algerian government has pursued an official policy of forgetting (although, crucially, not necessarily forgiving), rather than confronting, the past.23
Some states beyond South Africa and El Salvador have instituted truth commissions domestically. For example, at least three such commissions have been established in the United States. A truth and reconciliation commission operated from 2004 to 2006 in Greensboro, North Carolina, to address the events of November 3, 1979, when a group of extremists murdered and injured civilians in a racially mixed gathering of political activists and labor organizers. The State of Illinois established the Torture Inquiry and Relief Commission in 2009 to investigate allegations of police torture. Most recently, the governor of Maine and the state’s five tribal chiefs jointly authorized what became known as the Maine Wabanaki-State Child Welfare Truth and Reconciliation Commission, which, from 2013 to 2015, investigated the removal of Wabanaki children from their communities and then published a report that included findings and recommendations.24
Other truth commissions have been suggested, including within the United States. In 2009, the then-chairman of the U.S. Senate Committee on the Judiciary, Patrick Leahy, proposed the creation of a truth commission to investigate various controversial measures taken by the Bush, Jr. administration, including its treatment and torture of terrorism suspects.25 Five years later, the deans of Yale and Harvard law schools jointly advocated drawing lessons from the use of foreign truth commissions in addressing police violence in the United States.26 Even more recently, a New York Times columnist suggested that an “American Truth and Reconciliation” commission would be the ideal forum for a “national conversation on race.”27 Since the mid-1990s, a proposal to create a permanent international truth commission to supplement the ICC has also materialized.28
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