Chapter 15: Internationalised Domestic Criminal Tribunals
411
15.7 NATIONAL TRUTH COMMISSIONS AND AMNESTIES
While many view the processes of criminal accountability as the only viable and
reliable mechanisms for reconstruction and reconciliation of devastated societies,
some States have come to the conclusion that the same purpose may alternatively
be served through Truth Commissions.
85
The purpose of these commissions is to
administer restorative rather than retributive justice, and their application may be
complementary to judicial proceedings, as in the case of South Africa, or the sole
mechanism of accountability, as was the case with El Salvador. Such commissions
are mechanisms used to investigate and accurately record human rights violations
in a particular country, but very often result in sweeping amnesties.
86
Investigatory
commissions of this type have been established at transitional phases in the
democratic process of various States, in which civilian governments had recently
replaced repressive regimes, with the aim of either investigating human rights abuses
of prior regimes, as was done with the panels created in Argentina and Chile, or as a
means of resolving a civil war through a political agreement, as in El Salvador. In
one instance, however, it was the Security Council that established an international
commission of inquiry, in order to investigate the violence that resulted from the
1993 coup in Burundi.
87
Although most of these commissions were established and functioned at a purely
domestic level, in every case it was evident that the involvement of international
personnel would potentially lift suspicions of impartiality. Hence, the staff serving
on the El Salvador commission were entirely foreign, as were those in Burundi,
assigned and sponsored by the UN.
88
The purposes of investigative or Truth
Commissions can vary, but in general their purpose is to create an authoritative
record, provide redress for the victims, make recommendations for reform and
establish accountability of perpetrators.
89
However, the primary purpose of most
commissions is not to identify perpetrators, but to document repression and crime.
This is best achieved only by permitting victims and culprits to come forward and
recount their personal testimony as regards their participation in particular events.
To secure such testimony, commissions are generally empowered, depending on
their mandate, to grant amnesties to those who confess their prior crimes. This process
may, and does, come into conflict with particular State obligations such as the duty
to either prosecute or extradite persons accused of serious offences, or simply to
prosecute those responsible for having committed serious international crimes. This
has been the adamant position of the UN, so irrespective of the process utilised to
grant amnesties for serious international offences, such amnesties cannot constitute
85
P Hayner, ‘Fifteen Truth Commissions 1974 to 1994: A Comparative Study’, 16
HRQ
(1994), 597.
86
See M Scharf, ‘The Case for a Permanent International Truth Commission’, 8
Duke J Intl & Comp L
(1997), 1; T Klosterman, The Feasibility and Propriety of a Truth Commission in Cambodia: Too
Little? Too Late?’, 15
Ariz J Intl & Comp L
(1998), 2.
87
SC Res 1012 (25 August 1995).
88
See T Buergenthal, ‘The United Nations Truth Commission for El-Salvador ’,27
Do'stlaringiz bilan baham: