4 roche - truth commission amnesties and the international criminal cour4 t

doi:10.1093/bjc/azi038 BRIT. J. CRIMINOL. (2005) 45, 565581Advance Access publication 3 May 2005

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The Author 2005. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: [email protected]

TRUTH COMMISSION AMNESTIES AND THE INTERNATIONAL CRIMINAL COURT

DECLAN ROCHE*

Truth commissions and the new International Criminal Court (ICC) appear to be very differentmechanisms for dealing with human rights abuses: the primary purpose of a truth commission is tocompile an accurate record of what happened, whereas the ICC is designed to punish individualperpetrators. This article considers how these two institutions will interact, and, more specifically,how the ICC Prosecutor will deal with perpetrators who have been granted amnesties by a truthcommission in return for divulging their crimes. The ICC Statute, which contains the powers of theCourt and the Prosecutor, fails to provide the ICC Prosecutor with any clear guidance on thisquestion. On one interpretation it supports a prosecutorial policy that completely ignores amnesties,but on another, it supports the Prosecutor who decides to work cooperatively with those truth com-missions that are able to demonstrate their legitimacy. Under a cooperative approach the Prosecutorwould delay bringing any prosecutions until a truth commission has completed its work and thenprosecute individuals from the pool who had not been granted amnesties. Such an approach couldbolster the legitimacy of the ICC, by providing a principled basis for the exercise of prosecutorialdiscretion, and assist truth commissions, by encouraging more perpetrators of serious crimes toapply for amnesties, and, in the process, divulge their secrets.

Introduction

Many view the creation of the permanent International Criminal Court (ICC) as asignificant step forward in the struggle against impunity. However, numerous questionssurround the new Court and the role it will play in dealing with systematic and large-scale human rights abuses. One of the thorniest is what the Court will do when the per-petrator of a crime within its jurisdiction claims the protection of an amnesty granted bya national truth commission. The question has not arisen to date, as international courtsand truth commissions have operated either in different jurisdictions, or with cleardemarcation in the same one, but the extensive jurisdiction of the ICC and the surge inpopularity of truth commissions since South Africas successful Truth and Reconcilia-tion Commission (SATRC) ensure that it is bound to arise before long.

Part I of this article describes briefly the emergence of both international criminal tribu-nals and truth commissions. After centuries of impunity, the creation in 1998 of the ICC hasprovided a permanent international tribunal for the prosecution of human rights abusers.Truth commissionsalso an innovation of the late 20th centuryaddress the past in a dif-ferent manner, by attempting to compile a truthful record of the abuses. Potential for con-flict between the two arises when truth commissions, following the South African model,grant individuals amnesties from prosecution in order to persuade them to participate in

* Law Department, London School of Economics, UK, and Research School of Social Sciences, Australian National University. Email:[email protected]. Thanks to my friends and colleagues at the London School of Economics, where I presented earlier drafts of thisarticle to criminology and law seminars, John Braithwaite, Peter Cane, Lucia Zedner, and to the editors of this special edition of the BJCfor their comments and encouragement.

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the commission. Part II examines the ICC Statute to determine how the Court might dealwith such a situation. On one interpretation, a truth commission amnesty is no bar to ICCprosecution. There is no provision within the Statute expressly preventing the investigation,prosecution or conviction of an individual on the grounds of a truth commission amnesty;on the contrary, much of the Statute refers to the importance of prosecuting offenders.However, the Statute leaves open the possibility that the ICC prosecutor could decide tocooperate with a national truth commission, first by delaying investigations until a truthcommission completed its work, and then by selecting individuals for prosecution fromamong those who did not obtain an amnesty from the commission. This sort of cooperativeapproach could enhance the effectiveness and legitimacy of both institutions: the ICCwould have a principled basis on which to allocate its scarce prosecutorial resources, whileperpetrators would have a stronger incentive to apply for amnesty from a national truthcommission. For the ICC Prosecutor and Court to adopt this approach, however, they wouldneed to be persuaded that truth commissions do more than simply provide amnesties tocriminals. Part III shows how truth commissions and trials share a number of aims in com-mon, and outlines advocates claim that truth commissions do more to achieve them. Buttruth commissions, like trials, vary widely in quality and not all of them are entitled to inter-national recognition. Part IV suggests criteria that could be used by the Prosecutor and Pre-trial Chamber to determine whether or not to cooperate with a particular truth commission.

Part I

The establishment of a permanent international tribunal was proposed on a number ofoccasions during the 20th century, both before, and then again after, the Nurembergand Tokyo Trials at the end of the Second World War (Cassese 2003: 1316). But it wasnot until the 1990s, when ad hoc International Tribunals were established to deal withatrocities committed in Rwanda and the former Yugoslavia, that the campaign to estab-lish a permanent tribunal gathered momentum, culminating in an international confer-ence in Rome in 1998 that adopted a statute to establish a permanent Court responsiblefor bringing to justice the perpetrators of war crimes, genocide and other crimes againsthumanity. The Rome Statute of the ICC (the ICC Statute) entered into force on 1 July2002, 60 days after receiving ratification by the requisite 60th state, and the Court, basedin the Hague, is due to hear its first case sometime in 2005 or 2006. Notwithstanding thefact that the Court still lacks the support of a number of countriesincluding, mostnotably, the United Statesits establishment is regarded by many as a significant step inthe development of international criminal law (e.g. Alvarez 2003; Broomhall 2003: 1).As the Statute Preamble declares, states affirm in signing the treaty that the most ser-ious crimes of concern to the international community as a whole must not go unpun-ished and that their effective prosecution must be ensured by taking measures at thenational level and by enhancing international cooperation.

While international criminal law lay dormant for almost 40 years following the trialsat the end of the Second World War, states developed their own processes for addressingstate and mass crime. In a number of countries, these processes took the form of atruth commission. Independent bodies established in order to establish the truth, givevictims a voice and make recommendations for addressing the past, truth commissionswere first used in Latin-America to examine human rights abuses committed by militarydictators in Argentina, Chile, El Salvador and Guatemala (Hayner 2001). But it was the


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South Africas SATRC, held following the countrys first democratic elections in 1994,and chaired by the charismatic former Archbishop and Nobel Prize winner, DesmondTutu, that brought truth commissions to worldwide attention. Upon election, one ofthe first acts of Nelson Mandelas government was to pass the Promotion of National Unityand Reconciliation Act (1995) that established the SATRC. Over the next six years, theCommissions work was done by three main committees: a Human Rights ViolationCommittee, responsible for collecting evidence from victims; an Amnesty Committee,responsible for handing out amnesties to individuals who made full, public confessions topolitical crimes; and a Reparation and Rehabilitation Committee, charged with makingrecommendations to the President about matters such as victim reparation and institu-tional reform. In 1998, the commission issued a five-volume report (and then a furtherreport in 2001 upon the conclusion of its amnesty hearings). Along with NelsonMandela himself, the SATRC is credited with making a key contribution to SouthAfricas successful transition to a peaceful, democratic state, and, as a result, is nowwidely considered a model for other countries attempting a similar transition.

Part II

To determine how the ICC and truth commissions will interact, we must examine theICC Statute, as it sets out the powers and jurisdiction of the Court. On some matters,the Statute is specific and detailed, and leaves little scope for interpretation. Forexample, the Courts prospective jurisdiction (Article 11) means that the Court will notjudge directly the SATRC. However, it is far less clear from the Statute how the Courtwill deal with a truth commission relating to crimes committed after July 2002, whenthe ICC Statute entered into force. None of the Statutes 128 articles contains any refer-ence to the topics of truth commissions or amnesties, despite the fact that more than20 truth commissions had been held at the time at which the ICC Statute was drafted(Hayner 2001). According to those involved in the treaty negotiations, the question ofwhether amnesties might provide a bar to prosecution had been raised briefly, but wasthen promptly dropped when it became clear that there was no agreement about howamnesties should be dealt with (Dugard 2002: 700). The lack of specific guidancemeans that the Prosecutor and the Court will have to interpret the provisions of theStatute to decide how to deal with truth commissions.

The issue will first arise when the Prosecutor is asked to investigate and prosecute acase that has already been, or is about to be, dealt with by a truth commission. UnderArticle 53(1) of the ICC Statute, in deciding whether to commence an investigation,the Prosecutor shall consider whether:

(a) the information available to the Prosecutor provides a reasonable basis tobelieve that a crime within the jurisdiction of the Court has been or is beingcommitted;

(b) the case is or would be admissible under Article 17; and (c) taking into account the gravity of the crime and the interests of victims, there are

nonetheless substantial reasons to believe that an investigation would not servethe interests of justice.

Paragraph (a) requires the Prosecutor to consider whether the crimes involved genocide,crimes against humanity, war crimes or the crime of aggression, and whether they were

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committed by a citizen of a Member State, or in the territory of a Member State (Article 5).The existence of a truth commission would be relevant to paragraphs (b) and (c): aparty seeking to ensure an amnesty granted by a truth commission is upheld is likely toargue that the Prosecutor should exercise its discretion not to investigate, either on thegrounds that that the case is inadmissible under Article 17, or because prosecutionwould not be in the interests of justice.

The Article 17 test for admissibility is based on the fundamental principle that theCourts purpose is to complement, not supplant, national proceedings. Whereas earlier inter-national tribunals for Rwanda and the former Yugoslavia were established with primacyover national proceedings, the drafters of the ICC Statute were determined that nationalproceedings should have primacy over a permanent Court (Holmes 2002). This principle,expressed explicitly both in the Statutes Preamble and first Article, underlies the Article17(1) test, which makes a case inadmissible unless the state is unwilling or unable to genu-inely to carry out the investigation or prosecution. At first glance, this test suggests that acase dealt with by a truth commission will nevertheless remain admissible before the ICC:even if a truth commission is considered an investigation, it could not be said to constitute aformal prosecution. However, this test should be read in light of Article 17(2), which con-tains the matters the Court shall consider in determining unwillingness in a particular case:

(a) the proceedings were or are being undertaken or the national decision wasmade for the purpose of shielding the person concerned from criminal respon-sibility for crimes within the jurisdiction of the Court referred to in Article 5;

(b) there has been an unjustified delay in the proceedings which, in the circum-stances, is inconsistent with an intent to bring the person concerned to justice;

(c) the proceedings were not or are being conducted independently or impartially,and they were or are being conducted in a manner which, in the circumstances,is inconsistent with an intent to bring the person concerned to justice.

Truth commission advocates could argue that it is clear from this list of matters that theICC was not intended to intervene in cases that have been dealt with by a South African-style truth commission; such truth commissions are not undertaken for the purpose ofshielding people from criminal responsibility, but in order to promote a restorativeconception of justice, which emphasizes the importance of uncovering the truth,promoting victim reparation and reconciliation (SATRC 1998). The ICC was establishedto allow the prosecution and punishment of wrongdoers who continue to wield poweror otherwise simply take advantage of a lawless state, not to gainsay the decisions ofdemocratic states such as South Africa, where the victims of a authoritarian regimeinherit power and decide that their prosecutorial resources are best used prosecutingthose individuals who choose not to apply for amnesty from a truth commission, orwho are unable to satisfy commissions conditions for the grant of amnesty.

Even if the Prosecutor rejects this argument and decides that a case dealt with by atruth commission is admissible, it could still be argued that investigating and prosecut-ing such a case would not be in the interests of justice. Article 53 does not define theinterests of justice but requires taking into account the gravity of the crime and theinterests of the victim (for discussion, see Turone 2002: 1173). A state could argue thatthe interests of justice should be interpreted in a broad sense to include the concep-tion of justice pursued by a truth commission. After all, post-conflict societies face a dif-ficult challenge in deciding how to deal with the past in a way that does not jeopardize


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the future: peace is fragile, resources are limited, and steps taken to pursue one laudablegoal may hinder the accomplishment of another. States establishing a truth commis-sion may well elect to trade off some retributive justice (at least in relation to thoseoffenders who apply for and are granted amnesty) against the promotion of the othervaluable objectives of uncovering the truth, assisting victims and promoting reconcilia-tion and reconstruction.

Though these will be matters for the Prosecutor to determine in the first instance, itis the Court that will have the final say. Under Article 19(1), the ICC can determine theadmissibility of a case in accordance with Article 17 and, under Article 53, the Courtspre-trial chamber has the power to review the Prosecutors decision not to investigateor prosecute a case. For either of these arguments (relating to admissibility and inter-ests of justice) to succeed with the Prosecutor or with the Court, a state will need to beable to demonstrate that a truth commission based on the SATRC model is more thanjust a way of protecting the guilty from prosecution. One way to do this is to show thattruth commissions pursue a restorative conception of justice that involves revealing thetruth, repairing victims harm and promoting reconciliation. Advocates of truth com-missions argue that when it comes to achieving these aims, truth commissionsare potentially as least as effective as courts, if not more so. Part III outlines thesearguments.

Part III

Recording the truth

Victims families demand to know what happened to their loved ones. Receiving thisinformation can help ease their suffering and allow them to grieve for their dead. TheInter-American Court and Commission on Human Rights has recently recognized aright to truth, which implies a duty on states to discover the fate of missing persons, tolocate their remains and to inform the relatives.1 In many cases, of course, familiesknow all too well what happened to their loved ones; in these circumstances, demandsfor truth are not so much calls for missing information as for official public acknowl-edgment both of what has happened and its wrongfulness (Cohen 1995). Acknowledg-ment of this sort can help vindicate and show respect for those who suffered.Revelations of truth can also carry longer-term benefits. The creation of a publicrecord of a countrys wrongdoing can provide a valuable opportunity to reshape acountrys collective memory, by both encouraging private and public reflection on thepast and by leaving a permanent record which can be relied upon by generations offuture historians (Osiel 2000). As well as easing victims suffering, an accurate record ofpast atrocities may also deter future wrongdoing.

As a mechanism for telling truth and shaping a countrys collective memory, trialshave some natural advantages over truth commissions. Not only do they establish a ver-sion of contested events (Ignatieff 1997: 184), but the dramaturgical character of a trialis said by some to aid the process of truth-telling and shaping collective memory (e.g.Osiel 2000). To have its desired impact, the truth must be presented in a dramatic andcompelling fashion, and, in some sense, the criminal trial appears to have all the necessary

1 See Trujillo Oroza Reparations, Inter-Am Ct HR (Ser C), No 92, 115 translation in Mendez and Mariezcurrena (2003: 242).

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ingredients for an absorbing drama: an individual whose freedom is at stake, thesolemnity and formality of the court room, the battle between opposing lawyers andthe suspenseful climax in the handing down of a verdict can all combine to produce acompelling history of the past.

However, the perceived strengths of a trial as a truth-telling mechanism are, paradox-ically, also its primary weaknesses. Though a trials focus on individual culpability canmake for a more dramatic history, it does not necessarily make for a comprehensiveand accurate one, since the structure, rules and practices of a trial are concentratedupon the much narrower purpose of deciding whether a defendant is guilty or inno-cent.2 This binary logic pervades every aspect of a courts work (Osiel 2000: 125). Onlythose witnesses whose testimony bears upon the question of a defendants guilt will becalled upon to give evidence, and their testimony will be restricted to that fact and thatfact alone. Moreover, courts work by reducing the indeterminacy and muddle of every-day life into bleak choices between innocence or guilt, truth or falsehood, this or thataccount (Rock 1991). As Osiel (2000: 129) notes, the criminal law sets up a bright linebetween the parties, labelling one as victim, the other as wrongdoer. A process thatselects and filters information on this basis is poorly suited to the task of capturing thecomplexities, nuances and ambiguity of the larger historical picture. This is why somewriters argue that the Nuremberg trials, which created a top-down view of Nazism thatneglected the bureaucratic machine and social infrastructure required to support andenforce Nazi policies, failed to leave a significant influence on Germanys collectivememory (e.g. Bloxham 2001). It has been suggested that the tension between writinghistory and allocating individual responsibility can be eased by relaxing the rules ofevidence in a trial to allow a wider range of historical material to be admitted. This hasbeen attempted in a number of cases, including the French trial of Nazi Klaus Barbie in1987, where the prosecutor and defence were allowedin Osiels (2000: 97, 296)wordsto paint with a broader brush and, more recently, in the judgments of theInternational Criminal Tribunal for the Former Yugoslavia (ICTY).3 But critics arguethat the tension is irresolvable, and that attempts to use trials to write history producebad history and unfair trials (Cohen 1995; Arendt 1963).

By contrast, truth commissions, freed from the need to minimize the risk of unfairconvictions, can concentrate on building up a more complete picture of events thataccommodates peoples conflicting perspectives. Unlike courts, truth commissions donot pretend that there exists one objective discoverable truth about the past. They imposefar fewer restrictions, not just about who can speak, but how they can speak and whatthey can speak about. The design of truth commissions has been influenced by therestorative justice principle that processes for dealing with the aftermath of a conflictshould accommodate all those affected by the conflict: offenders, victims, their respec-tive families and supporters, and the wider community (Roche 2003: 302). In SouthAfrica, over 22,000 victims gave statements to the SATRC.

Truth commissions attempt to convey the diffuse nature of culpability in a repressiveregime (SATRC 1998, Vol. 1(5): 130). Whereas courts are restricted to considering legalresponsibility, truth commissions can consider broader questions of complicity and

2 Some writers also query whether the courts technical, formal procedures are conducive to the creation of dramatic narratives. 3 See, e.g. the ICTY judgment, Prosecutor v Radislav Krstic, ICTY, 2 August 2001, available online at: http://www.un.org/icty/

krstic/TrialC1/judgement/index.htm. For further examples, see Treitel (1997: 75).


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moral responsibility. So, for example, in South Africa, the SATRC was not just interestedin the police officer who tortured ANC activists, but also in the doctor who failed torecord the victims injuries, the judge who uncritically accepted the victims confessionand the banker who provided finance for covert operations. One way in which the SATRCdid this was by holding hearings to consider the complicity of specific groups within soci-ety, such as the church, the media, the judiciary and business (SATRC 1998, Vol. 4).

Granting amnesties was the most controversial aspect of the SATRCs work, but itsadvocates maintain that the power to grant amnesties is crucial to a commissions suc-cess. A complete record of the past requires the testimony not just of victims, but also ofoffenders. When regimes such as that of the National Party in South Africa or the milit-ary junta in Argentina arrest, torture and kill citizens, before disposing of their bodiesso as to ensure that they are never found, it is only the perpetrators themselves who canprovide the information sought by victims families.4 The prospect of an amnesty inreturn for a full confession can persuade some perpetrators to divulge their secrets.When the SATRC realized the importance of this aspect of its work, it established aninvestigation unit to identify secret burial sites, conduct exhumations and dignifiedreburials, and the testimony of offenders was crucial to the success of this unit (SATRC1998, Vol. 2(6): 54354). Moreover, even when survivors already know what happenedto their family members, an offenders testimony remains invaluable. Perpetrators ofcrimes maintain their own parallel truths about events, in which they are the victimsand never the perpetrators (Silber and Little 1997: 391). For example, many militaryand police personnel who kill and torture the opponents of authoritarian regimes seethemselves as engaged in counter-terrorism. It might be unrealistic to expect perpetra-tors to relinquish these beliefs, given that it is these very beliefs that allow them to makesense of their lives and justify their behaviour to themselves, but these accounts stillhave value, as they allow us to begin to understand the cognitive processes by which theunthinkable becomes justifiable. Moreover, by ensuring that such accounts are publiclyaired and scrutinized, we reduce the likelihood that they will be inherited as truth byfuture generations. Ignatieff (1997: 173) suggests that All that a truth commission canachieve is to reduce the number of lies that can be circulated unchallenged in publicdiscourse. Or, as Slovo (2002: 7) puts it, the TRC gradually peeled away apartheidsthin veneer of civilization.

Victim reparation

Crime causes physical, material, emotional and psychological damage. Repairing thisharm is often difficult, and sometimes impossible; no two victims needs are exactlyalike, the needs of a single victim can change considerably over time and, in the con-text of serious crime, the harm may be irreparable. Given sufficient time and resources,reparation might be a realistic ambition for minor assaults and property offences, butefforts to repair the harm caused by the most serious crimes encounter the intractableproblem that nothing can ever bring back the dead or even fully ameliorate the psycho-logical pain of survivors (Hamber 2002). Nevertheless, victims want to be acknowledged

4 It is common for people in this situation to say that not knowing the fate of a loved one is much harder to endure than confir-mation of his or her death. Argentine writer, Mathilde Mellibovsky, puts it this way: I do not image hell as beds with shackles wherethe condemned must lie, but rather as a couple of easy chairs in which one can sit comfortably and wait for the postman to bringnewswhich will never come (Hamber 2002: 40).

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and treated respectfully and fairly, and many also want to participate in their cases andto receive restoration, both of a material and an emotional nature (Strang 2003: 823).

War crimes trials are said to help repair victims harm. A criminal trial, as Osiel(2000: 67) describes it, is a congenial public opportunity for collective mourning ofthe victims of administrative massacre. It provides a ritual that is helpful for familymembers and a sympathetic public in coming to terms with melancholia in even themost traumatic cases. But a criminal trial is not primarily concerned with a victimsloss. A sentencing hearing is more so, but it is mainly interested in a victims physicalinjuries and material losses, when, for many victims, the most serious losses are emo-tional or psychologicalthe loss of dignity, happiness, confidence, security, personalpower and sense of self-worth. As Doreen McBarnet (1998: 8) put it, If victims feel thatno-one cares about their suffering, it is in part because institutionally nobody does.Given this it is hardly surprising that victims consistently report feeling dissatisfied withtheir treatment in court (Strang 2003). In response to stinging criticism, court proc-esseslike other parts of the criminal justice systemhave been made more victim-friendly. Certainly, the parties responsible for drafting the Rome Statute were mindfulof the need to design processes sensitive to victims needs. A number of the provisionsrelating to the bringing of cases, the collection of evidence and the courts sentencingpowers show consideration of victims interests (Jorda and Hemptinne 2002). However,many insist that a trial, even in some modified state, remains an inherently unsuitableforum for pursuing reparation.

A truth commission delivers the less formal process that research has consistentlyshown victims want (Strang 2003). In South Africa, the Gross Violations of HumanRights Committee travelled around the country, collecting statements from victims,both in written form and then laterfrom some victimsin the form of oral testimonyat nationally televised public hearings. The Commission calculated that victims wouldbenefit from the opportunity to tell their stories, and the SATRCs final report (1998,Vol. 5: 352) gives special prominence to those individuals who claimed they benefitedfrom such a process, including the man who announced: I feel that what has beenmaking me sick all the time is the fact that I couldnt tell my story. But now it feels likeI got my sight back by coming here and telling you the story. The SATRC also providedother forms of assistance such as the re-burials mentioned earlier, and made wide-rangingrecommendations to the government, ranging from individual financial reparation tosymbolic gestures (such as the renaming of street signs and creation of memorials) tohealth care, housing and education policies, as well as a series of recommendationsaimed as institutional reform.

Despite these efforts, the SATRCs treatment of apartheid victims has attracted con-siderable criticism. Not enough thought was given to the question of how to supportvictims once they had made a statement or testified, or indeed how to support the vic-tims who did not wish to participate in a truth commission (Hamber 2002: 50). Only asmall minority of victims were given the opportunity to talk about their experiences ina public hearing. The rest had to be content with having their statements taken, codedand entered in a databasea process that, despite the best efforts of Commission staff,became increasingly bureaucratic and impersonal (Hamber 2002; Wilson 2001; Hamberand Wilson 2002). Moreover, for those few who did have the opportunity to testify inpublic, there was a tendency to expect victims to conform to one of a number of idealtypes, most notably the forgiving victim. As a result, many victims needs went unmet.


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Many, for example, said they wished to confront their attackers in order to challengethem about their actions and to demand an explanation, but the Commission facili-tated very little of this sort of mediation (Wilson 2001: 155). Victims seeking materialreparation were also left disillusioned by Mbekis government, which failed to followthe Commissions recommendation that 22,000 victims each receive between R15,000and 23,000 every year for six years, and instead made a small one-off payment (Hamber2002: 48).

Reconciliation

In the aftermath of a period of violence, reconciliation is critical to the constructionand maintenance of peace. Reconciliation in this context does not mean that victimsmust forgive their wrongdoers, or that victims and offenders must enjoy friendly rela-tions, but it does require that hostilities be defused and that citizens find a way ofpeacefully coexisting. There is a clear link here with the goals of truth and reparation:victims are unlikely to allow the past to settle unless they receive the truth, and someform of reparation.5 But reconciliation requires more than truth and reparation. It alsorequires that offenders be treated fairly. The punitive terms of the Versailles treaty atthe end of the First World War are widely considered to have contributed to the outbreakof the Second World War. Early in his political career, Hitler generated much of hissupport by exploiting the bitterness and resentment of Germans who regarded thetreaty as unfair and punitive (Kershaw 2001: 122). This sort of historical evidence isconsistent with the results of Tylers (1990) social psychological research which demon-strates that perceptions of unfair treatment can have a direct effect on an individualsfuture career in lawbreaking. Further, reconciliation requires wide-ranging structuraland institutional transformation (SATRC 1998, Vol. 1(5): 110). As the SATRC reportobserves, today, gross socio-economic inequality between South Africans is the mostvisible legacy of a regime that systematically denied non-white South Africans access toresources and opportunities (SATRC 1998: 109).

While reconciliation on such a scale is clearly beyond any one institution, trials arethought to assist, by uncovering truth and promoting victim reparation in a way that isfair to alleged wrongdoers. It is also thought that trials assist by helping re-establish therule of the law, a precondition for economic and social development after a period oflawlessness. Many, however, argue that trials are more divisive than they are reconcilia-tory. One of the most common complaints against war trials is that they merely repres-ent victors justice. Of course, the creation of a permanent, genuinely internationaltribunal is designed to meet these concerns, but there is always a risk that any foreigncourtregardless of how international its compositionwill lack legitimacy in the eyesof the local communities it judges.

A truth commission attempts to assist in the process of reconciliation by creating afuller picture of the pastone that accommodates the perspectives of offenders andvictims alike, and provides victims with opportunities to vent their anger and receive

5 So, for example, Glenny (1996: 81) argues that one of the cardinal errors committed by Croatian President, Franjo Tudman,upon winning Croatias first post-Communist, multi-party elections in 1990, was to fail to apologize for, or even acknowledge, themass slaughter of Serbians by the Croatian Ustasha during the Second World War. Glenny argues that a gesture of reconciliationby Tudman for the wrongs committed by the wartime Independent State of Croatia against the Serbs in Croatia . . . might have cre-ated a very different atmosphere when negotiations between the HDZ and Serb representatives took place in the summer of 1990.

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acknowledgement. By granting amnesties rather than handing out prison sentences,truth commissions also reduce the likelihood that they will provoke offenders and theircommunities into resuming hostilities in the future. However, the effort to placate onepart of the population clearly risks antagonizing another, namely the families of thevictims of those murderers and torturers who walk free. Certainly, the SATRC antago-nized many victims, some of whom challenged (unsuccessfully) the constitutional legal-ity of the Commissions amnesties (SATRC 1998, Vol. 1(7)). Nevertheless, the SouthAfrican experience suggests that amnesties can help to provide a lasting peace providedthey are administered on a conditional basis, and in a clear and transparent manner.

A truth commission may also contribute to the broader process of reconstruction, bothby modelling democratic ideals of transparency, inclusiveness and accountability(SATRC 1998, Vol. 1(5): 1089) and by making recommendations aimed at preventingfuture violations. The SATRC Reparation and Rehabilitation Committee made a series ofrecommendations aimed at repairing the harm done to society as a whole by apartheidpolicies. The legislation establishing the SATRC, The Promotion of National Unity andReconciliation Act (1995), required the Commission to make recommendations for insti-tutional, administrative and legislative reform that would assist in creating a stable andfair society and in promoting national unity and reconciliation. Its recommendationswere wide-ranging, bearing upon areas as diverse as health, education, the legal system,business and the environment.

Part IV

Regardless of whether offenders choose to cooperate, truth commissions can assist victimsby providing them with a forum in which they can be acknowledged and describe theirexperiences. Nevertheless, without the participation of offenders, commissions are limitedin the truth they can uncover, and, in turn, the extent to which they can repair victimsharm and promote reconciliation. This is why the ICCs ruling on truth commissions is crit-ical. In South Africa, many of the worst human rights abusers did not bother to apply foramnesty, calculating that they were unlikely to be prosecuted anyway; the majority ofamnesty applicants were black South Africans who had already been imprisoned. The valueof an amnesty would be eroded further if the ICC Prosecutor decided that perpetratorsremained susceptible to international prosecution even when they had received an amnestyfrom a truth commission. In fact, perpetrators would have an extra incentive not to applyfor an amnesty, knowing that any admission they made in the process could become thebasis of an ICC prosecution. If, however, the ICC Prosecutor were to adopt a cooperativeapproach, and select cases to prosecute from the group of individuals who have failed toapply for amnesty, or those whose amnesty applications have been rejected, amnestieswould become more valuable and more offenders would be inclined to apply for one.

One of the biggest concerns about the ICC is that choices about investigations andprosecutions will be politically motivated. Some observers have suggested that the wayto guard against this risk is to limit the discretion of the Prosecutor but prosecutionswill inevitably be selective; there are too many atrocities and too few prosecutorialresources for it to be otherwise. However, the Prosecutor can reduce criticism abouthow this discretion is exercised, by selecting cases with the cooperation of states,according to transparent criteria. Certainly, this sort of approach is much more likelyto enhance the legitimacy of the Prosecutor than plea-bargainingthe tactic commonly


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used by prosecutors, including the ICTY Prosecutor (Simons 2003), to cope with scarceresources.

Under a variation of this cooperative approach, the ICC Prosecutor may agree to abide bya general policy of respecting truth commission amnesties, but insist on the right to prose-cute a small number of the most serious cases. This sort of approach would be consistentwith Article 53, which indicates that the gravity of an offence is a factor to be taken accountin determining whether investigation and prosecution are in the interests of justice. Oncethese cases were identified, the truth commission could assist the ICC by passing on anyevidence it collected about them in the course of its own work. In these cases, a perpetra-tors cooperation before a truth commission would not sway the ICC Prosecutor from prose-cuting, but could be a mitigating factor taken into account by the ICC Judges in sentencing.

If the ICC Prosecutor and Court decided to adopt some sort of cooperative approachwith states that establish truth commissions, the ICC Prosecutor would need to satisfyitself that a state had established, or was going to establish, a truth commission that pro-moted truth, reparation and reconciliation, rather than just a show commission inten-ded simply to shield wrongdoers from prosecution. The ICC Statute does not provideany guidance in how to go about this; nor is there any generally agreed set of principlesfor judging truth commissions to which the ICC Prosecutor could refer. What isneeded, perhaps, is a dialogue among governments, non-governmental organizations(NGOs), victims groups and others to devise pre-conditions for the internationalrecognition of truth commissions. These could then be published by the ICC Prosecu-tor in an interpretive statement outlining prosecutorial practice, or included in theRules of Procedure and Evidence (Broomhall 2003: 102). If a Prosecutor is asked toinvestigate before a truth commission has concluded its work, the Prosecutor could sus-pend the investigation until the truth commission has finished (using the power underArticle 18). The final section of this article aims to contribute to such a dialogue by sug-gesting five elements that a legitimate truth commission should possess: that victimssupport its establishment; that amnesties are granted conditionally; that widespreadparticipation is encouraged; that efforts are made to assist victims; and that the truthcommission contributes to a wider process of reconstruction.

i) Support for establishing a truth commission

The ICC would need to satisfy itself that a truth commission has widespread supportwithin its own country. A legitimate truth commission is not foisted upon a countryspopulation by ruling elites. Ideally, truth commissions should be supported by an Act of ademocratically elected Parliament, or a national plebiscite or referendum. But any suchrequirement must be imposed with some flexibility, taking into consideration the tenseand fragile contexts in which decisions about truth commissions are typically made. In par-ticular, the possibility of establishing a truth commission might well first be raised in thecourse of secret negotiations between the old regime and the new, incoming one. This wasthe case in South Africa, where amnesty protection was a key aspect of secret negotiationsbetween the ANC and National Party government (Wilson 2001: 7). To insist on trans-parent, nationwide decision-making at all points in the process could thwart the successfulnegotiation of a peaceful handover of power. Instead, leaders should be allowed to formu-late proposals in private negotiations and then submit themwith the backing of keyleaders and interest groupsfor public debate and approval.

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In countries such as Rwanda, where the wrongdoers outnumber their victims, major-ity support for a truth commission would be an inadequate requirement, since it wouldsimply allow wrongdoers to outvote their victims. One way to guard against this risk is toinsist that truth commissions have the support of the majority of victims, but bearing inmind it is impractical to ascertain the views of all victims, and victims views are likely tofluctuate over time (e.g. the strong support for the SATRC among black and colouredSouth Africans, which exceeded that among the white population (Graybill 2002: 22),fell away as they became disillusioned by the Commissions failure to improve their liv-ing conditions). But neither these nor other practical problems are fatal to the basicprinciple that a truth commission should have widespread support among victims.

ii) Conditional amnesties

The conditions under which amnesties are granted are critical to their acceptability. Ifa truth commission or its government grants blanket amnesties, the recipients willremain susceptible to ICC prosecution (Gavron 2002; Dugard 2002). Several interna-tional treaties and customary law make it clear that blanket amnesties granted to awhole class of perpetrators are illegal. A state would only be able to raise an argumentthat the ICC should be barred from prosecution in cases where a truth commissiongrants amnesties on an individual basis in accordance with strict, transparent criteria.On this basis the ICC would be entitled, indeed expected, to intervene in a countrywhich followed the example of Chile, where Pinochet granted blanket amnesties tohimself and his fellow generals, but would respects SATRC-style truth commissionsthat grant amnesties only to those individuals who make full confessions in publichearings and demonstrate that their crimes were politically motivated.6

Some observers of the SATRC amnesty hearings argued that the conditions forgranting amnesty did not go far enough. In particular, some felt that amnestyapplicants should have also been required to express remorse for their crimes. Formany victims, the much vaunted truth of amnesty hearings was often the truth ofunrepentant serial murderers who still felt that their war was a just one (Wilson2001: 25). Galling as this was, any attempt to force more respectful testimony isbound to backfire. Acts of apology, like those of forgiveness, only have meaningwhen they are not coerced. As it was, observers of the amnesty hearings consideredthat some applicants feigned remorse in order to improve their chances of success;insisting on remorse would only exacerbate this problem. There is also the diffi-culty that some offenders may be simply unable to convey feelings of regret orremorse, as their professional background and training have taught them to feel,or at least convey, no emotion. As Jonathan Glover (1999: 3435) observes, forthose who commit atrocities, their hardness is a defence against the horror ofwhat they are doing.

6 Of 7,100 applications for amnesty, 850 were successful. See the SATRC website at: http://www.doj.gov.za/trc/amntrans/index.htm. In negotiations between the ANC and the National Party, the National Party initially wanted a blanket amnesty, butwhen the ANC refused this, accepted individual amnesties, to be granted only after individual application (Slovo 2002: 8).


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iii) Inclusive participation

The most basic principle of restorative justice, that those affected by an incident ofwrongdoing should have an opportunity to participate in its resolution, implies thattruth commissions must provide opportunities for mass participation. This is ademanding requirement: the very nature of mass violence is that many thousands ofpeople are directly harmed and thousands more indirectly affected by a regimes bru-tality. Providing opportunities for large numbers of victims and offenders to participatein a truth commission requires not only considerable resources but careful design,preparation and administration. In South Africa, some Commission staff pressuredCommissioners to provide individual mediation, but logistical and resource constraintsmeant that reconciliation instead took an abstract, collective form, with only limitednumbers of hand-selected victims given the opportunity to appear before public hear-ings (Wilson 2001: 107). As a result, many victims were left disappointed and disillu-sioned, feeling that their treatment was perfunctory and impersonal (Wilson 2001).

Truth commissions could relieve their burden by delegating some of their powers toother bodies responsible for reporting back to the main commission. For example,South Africa has a long tradition of local justicesuch as township courtswhichcould have been deployed to provide mediation in individual cases, but, instead, theSATRC (1998, Vol. 5(8): 327) recommended the disbanding of these informal institu-tions, concluding that they were irrevocably compromised by their previous role intownship violence (Roche 2002: 51920). Such objections were understandable, butwhen no local processes were provided in their place, a wide gulf emerged betweenthe SATRC rhetoric of reconciliation and the lived experiences of individual victims(Wilson 2001).

Reviving battered traditions of justice is perhaps the most important, and difficult,task a truth commission can tackle. One of the most insidious consequences of war is itscapacity to erase collective memories of how to resolve conflicts peacefully, and toreplace them with a shared inclination for swift and often violent forms of vengeance.7

In some communities, it may be possible to deploy existing indigenous forms of justice,but where these forms do not exist or have become corrupted, the state can help createnew ones. Even though the SATRC did little to nurture local justice, the enterprisingapproach of one of the companies that testified before the Commission illustrates howmini-truth commissions could be used to complement a commissions work. Prior toappearing before the commission, the companya large South African sugar busi-nessundertook an internal review of the companys conduct during the apartheidregime. A racially mixed group of about 20 senior company executives met eight timesover several months to prepare a company statement which the company then pre-sented to the truth commission.8 Future truth commissions could build on thisapproach, encouraging businesses as well as churches, schools, unions and localcommunities to conduct their own internal reviews and then report back to the

7 Snodgrass Godoy (2002: 646) describes this problem in Guatemala, where villagers who suffered under a bloody, repressive andviolent regime now employ the sorts of techniques previously employed against them by their oppressors. In many mountain vil-lages, lynchings have become commonplace (between 1996 and 2001, the United Nations Mission to Guatemala has documented421 separate instances) as villagers attempt to bring order to their lives. She suggests that these violated networks of communitycohesion, trust and meaning may be the wars most lasting legacy in Guatemala.

8 SATRC Business Sector Hearing Transcript, Johannesburg, 13 November 1997, available online at: http://www.doj.gov.za/trc/special/business/busin3.htm.

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Commission. Restorative justice principles and values could be incorporated in thedesign of these processes; for the sugar business, this would have meant broadeningparticipation beyond senior executives to include administrative staff, factory floorworkers and other staff members affected by apartheid policies.9

iv) Victim assistance

Truth commissions should also be expected to take positive steps to attempt to repairvictims harm. Interviews with victims reveal that financial reparation is often lessimportant to them than emotional restoration (Strang 2003), which is promoted byacknowledging victims suffering and giving them an opportunity to speak and, if theywish, confront their perpetrators. Symbolic acts of reparation, such as the re-burials,monuments, museums and other physical markers of past violence and repression(Hamber 2002) can also help ease victims pain and suffering. However, thoughimportant, these acts are no substitute for more practical forms of reparation. Inter-views with apartheid victims reveal that one of the most common reasons victims cameforward to the SATRC was the expectation that financial reparation would follow (Hayner2001). The importance of financial reparation is also illustrated by the recent decisionof apartheid victims to commence litigation in the United States against multi-nationalcompanies (BBC 2003). Of course, victims may be uncomfortable with accepting whatthey see as blood money, and a countrys physical and financial resources will ulti-mately place constraints on what can be done, but a state should at least be able to showthat it is taking the task of financial reparation seriously.

One way of doing this is to insist that offenders themselves make reparations. ASATRC commissioner complained that offenders were quick to ask for forgiveness butslow to offer to make amends (SATRC 1998). Commissioner Dr Mapule Ramashala,referring to the amnesty applications received by the commission in relation to theBisho massacre, where the Ciskei Defence Force opened fire on a protest march, kill-ing 30 people, said It stops with, I am sorry. None of them has (also) said: As a dem-onstration, perhaps of how sorry I am, this is what I would like to do. None of themhave done that. In restorative justice programmes dealing with less serious crimes,offenders are almost always expected to make amends, even if reparation usually takes amore symbolic than compensatory role. Making amends becomes much more difficultfor perpetrators who have committed more serious and more numerous crimes, but,even so, truth commissions could do much more to encourage individual reparation,for example by requiring police officers who torture to pay a proportion of their futuresalary to a victims fund. Forcing leaders to give up their wealth will be difficult, but theICC could assist by threatening uncooperative leaders with prosecution if they fail to do so.

Victim reparation should begin with asking victims what they actually want. If victimsare not consulted, decisions are less likely to actually assist them, even if they are madein their name with the best of intentions. The SATRC Commissioners believed (or per-haps hoped) that it was enough simply to give victims the opportunity to reveal the ter-rible things they had endured, that this would provide a cathartic experience, not onlyfor the victim, but for the country as a whole. Revealing is healing read the banner

9 Priscilla Hayner (2001: 1925) describes local justice processes, using Curandeiros, or traditional healers, in Mozambique thatcould be used to support a truth commission.


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hanging in the public halls in which victims hearings were conducted. But, as Hamberand Wilson (2002: 37) point out, remembering, in itself, is not necessarily a directlyredemptive and liberating practice, and is only one of many possible routes to symbolicclosure for survivors. The establishment of a truth commission in itself is not enoughto meet the psychological needs of individualsthey may be necessary first stepstoward individual psychological healing but they are generally not sufficient in them-selves. If truth commissions are to help repair victims harm, they must not attempt toforce forgiveness. This was a lesson Tutu learnt when victims reacted angrily to his ask-ing at the conclusion of their testimony whether they were ready to forgive (Wilson2001: 119). As Minow (1998) cautions: Forgiveness is a power held by the victimized,not a right to be claimed. The ability to dispense, but also to withhold, forgiveness is anennobling capacity and part of the dignity to be reclaimed by those who survive thewrongdoing. Even an individual survivor who chooses to forgive cannot, properly, for-give in the name of other victims. To expect survivors to forgive is to heap yet anotherburden on them. This a common failing of restorative justice programmes generallythe goal should be to create institutional spaces where victims can forgive and offend-ers apologize, but where neither is obliged, or even asked, to do so.

v) Wider reform

To repair victims harm and promote reconciliation, a truth commission should beonly one part of a wider programme of reform. A state that establishes a truth commis-sion without any accompanying reforms raises doubts about its commitment to theprocess of reparation and reconciliation. Clearly, the ICC Prosecutor does not have theexpertise or resources to undertake a comprehensive audit of a countrys reformprocess, but the ICC Statute entitles the ICC Prosecutor to seek the cooperation andinformation from organs of the United Nations, intergovernmental organizations,NGOS or other reliable sources (Articles 15(2) and 54(3)). Thus, the ICC Prosecutorcould refer to reports of various UN bodies (such as the Commission on HumanRights, the Human Rights Committee, or Development Program), regional commis-sions (such as the Council of Europe or the Inter-American Commission), and reputableNGOs (such as Amnesty) before deciding whether to investigate and prosecute. Inother words, instead trying to gauge national reform itself, the ICC would become, inPeter Graboskys (1995) words, a meta-monitor, monitoring the monitoring done byother institutions.

Conclusion

Despite appearances to the contrary, truth commissions and the ICC need not conflict.On the contrary, they could instead adopt a cooperative approach to the worst humanrights abuses under which the ICC would work with states to prosecute perpetratorswho fail to satisfy the conditions for the granting of a truth commission amnesty. Suchan approach could enhance the legitimacy and effectiveness of both institutions: ICCsupport would enable truth commissions to hold out a more credible threat of prosecu-tion to those who refuse to confess and to make amends for their crimes, while theCourts own legitimacy may be enhanced by its demonstrating a willingness to supportstates efforts to address human rights abuses.

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