Vand J Trans L
(1994), 498.
89
M Ratner and J Abrams,
Accountability for Human Rights Atrocities in International Law,
1997, Oxford:
OUP, p 196.
International Criminal Law
412
a bar to subsequent prosecution by other national or international judicial bodies.
90
Both the Inter-American Commission of Human Rights and the UN Human Rights
Committee have found particular Latin American amnesties incompatible with the
victims’ right to an effective remedy, which includes a right to an impartial judicial
investigation in order to establish the facts and identify the perpetrators. The two
bodies did not, however, recommend that the imposition of criminal punishment
was required of States parties under the Inter-American Convention on Human
Rights and the International Covenant on Civil and Political Rights respectively.
91
At the same time, it should not be forgotten that the Security Council approved the
Governors’ Island Agreement in Haiti, which provided a broad amnesty.
92
Let us examine the most significant Truth Commission of the last decade, the
South African Truth and Reconciliation Commission (TRC).
93
It was set up in 1993
on the basis of the 1993 interim Constitution and the Promotion of National Unity
and Reconciliation Act, No 34 of 1995, and comprised of three branches: a Committee
on Human Rights Violations (HRV), a Committee on Amnesty and a Committee on
Reparation and Rehabilitation (R & R). The mandate of the HRV Committee has
been to investigate human rights abuses that took place between 1960 and 1994,
based on statements made to the TRC. Its aim is to establish the identity and fate of
victims, the nature of the crimes suffered and whether the violations were the result
of deliberate planning by the prior regimes or any other organisation, group or
individual. Victims are then referred to the R & R Committee, which considers
requests for reparation only in regard to those formally declared victims by the TRC
or their relatives and dependants. The primary purpose of the Amnesty Committee
is to ascertain whether or not applications for amnesty are in respect of human rights
violations that were committed within the ambit prescribed by the 1995 Act, that is,
whether they relate to omissions or offences associated with political objectives and
committed between 1960 and 1994, in the course of the struggle for internal self-
determination. An amnesty is granted only in those cases where the culprit makes a
full disclosure of all the relevant facts. Therefore, in cases where an offence was
committed for purely private motives, no amnesty will be granted.
The internationalised domestic tribunals examined in the present chapter, except
for the Lockerbie Tribunal, have been established alongside Truth Commissions.
Their operation is problematic because: (a) the boundaries between the two
institutions are not clearly delineated; (b) similarly problematic and ambiguous is
the application of the rule
ne bis in idem
(that is, that one cannot be tried twice for the
90
D Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’,
100 Y
ale LJ (
1991), 2537; M Scharf, ‘Swapping Amnesty for Peace: Was There a Duty to Prosecute
International Crimes in Haiti?’, 31
Texas ILJ
(1996), 1; the South African Supreme Court in
Azanian
Peoples Organisation v President of the Republic of South Africa
(1996) 4 SA 671, wrongly held that
international human rights law does not compel domestic criminal prosecution of human rights
abuses. Summarised in 91
AJIL
(1997), 360.
91
J Gavron, ‘Amnesties in the Light of Development in International Law and the Establishment of
the International Criminal Court’, 51
ICLQ
(2002), 91, pp 94–99.
92
Ibid,
p 106.
93
See generally P Parker, ‘The Politics of Indemnities: Truth Telling and Reconciliation in South Africa’,
17 HRLJ (1996), 1.
Chapter 15: Internationalised Domestic Criminal Tribunals
413
same offence) in both domestic and international law; and (c) where truth
commissions grant blanket amnesties, or amnesties excusing serious international
offences, neither the UN nor most individuals
94
will be inclined to recognise or respect
them in their respective legal systems. Where the UN is involved in the interim
administration of a war-torn nation, the Truth Commission does not supersede the
jurisdiction of criminal tribunals, but supplements them.
95
The same is not true for
Cambodia, however, where the status of amnesties granted prior to the creation of
the Extraordinary Chambers remains uncertain.
As even the most conciliatory commissions involve some kind of punitive judicial
mechanisms, Truth Commissions are generally able to serve the purposes of both
restorative and retributive criminal justice. To the extent they are not used as platforms
for granting sweeping amnesties they are a welcome supplement to the international
criminal justice system.
94
As far as subsequent claims in tort are concerned.
95
UNTAET/REG/2001/10 (13 July 2001), on the establishment of a Commission for Reception, Truth
and Reconciliation in East Timor.
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