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doi:10.

1093/bjc/azi038

BRIT. J. CRIMINOL. (2005) 45, 565581


Advance Access publication 3 May 2005

TRUTH COMMISSION AMNESTIES AND THE INTERNATIONAL


CRIMINAL COURT
D E C L A N R O CH E *
Truth commissions and the new International Criminal Court (ICC) appear to be very different
mechanisms for dealing with human rights abuses: the primary purpose of a truth commission is to
compile an accurate record of what happened, whereas the ICC is designed to punish individual
perpetrators. 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 truth
commission in return for divulging their crimes. The ICC Statute, which contains the powers of the
Court and the Prosecutor, fails to provide the ICC Prosecutor with any clear guidance on this
question. 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 commissions that are able to demonstrate their legitimacy. Under a cooperative approach the Prosecutor
would delay bringing any prosecutions until a truth commission has completed its work and then
prosecute individuals from the pool who had not been granted amnesties. Such an approach could
bolster the legitimacy of the ICC, by providing a principled basis for the exercise of prosecutorial
discretion, and assist truth commissions, by encouraging more perpetrators of serious crimes to
apply for amnesties, and, in the process, divulge their secrets.
Introduction
Many view the creation of the permanent International Criminal Court (ICC) as a
significant step forward in the struggle against impunity. However, numerous questions
surround the new Court and the role it will play in dealing with systematic and largescale human rights abuses. One of the thorniest is what the Court will do when the perpetrator of a crime within its jurisdiction claims the protection of an amnesty granted by
a national truth commission. The question has not arisen to date, as international courts
and truth commissions have operated either in different jurisdictions, or with clear
demarcation in the same one, but the extensive jurisdiction of the ICC and the surge in
popularity of truth commissions since South Africas successful Truth and Reconciliation Commission (SATRC) ensure that it is bound to arise before long.
Part I of this article describes briefly the emergence of both international criminal tribunals and truth commissions. After centuries of impunity, the creation in 1998 of the ICC has
provided a permanent international tribunal for the prosecution of human rights abusers.
Truth commissionsalso an innovation of the late 20th centuryaddress the past in a different manner, by attempting to compile a truthful record of the abuses. Potential for conflict 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:
d.roche@lse.ac.uk. Thanks to my friends and colleagues at the London School of Economics, where I presented earlier drafts of this
article to criminology and law seminars, John Braithwaite, Peter Cane, Lucia Zedner, and to the editors of this special edition of the BJC
for their comments and encouragement.

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The Author 2005. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD).
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the commission. Part II examines the ICC Statute to determine how the Court might deal
with such a situation. On one interpretation, a truth commission amnesty is no bar to ICC
prosecution. 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 to
cooperate with a national truth commission, first by delaying investigations until a truth
commission completed its work, and then by selecting individuals for prosecution from
among those who did not obtain an amnesty from the commission. This sort of cooperative
approach could enhance the effectiveness and legitimacy of both institutions: the ICC
would have a principled basis on which to allocate its scarce prosecutorial resources, while
perpetrators would have a stronger incentive to apply for amnesty from a national truth
commission. For the ICC Prosecutor and Court to adopt this approach, however, they would
need to be persuaded that truth commissions do more than simply provide amnesties to
criminals. Part III shows how truth commissions and trials share a number of aims in common, and outlines advocates claim that truth commissions do more to achieve them. But
truth commissions, like trials, vary widely in quality and not all of them are entitled to international recognition. Part IV suggests criteria that could be used by the Prosecutor and Pretrial 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 of
occasions during the 20th century, both before, and then again after, the Nuremberg
and Tokyo Trials at the end of the Second World War (Cassese 2003: 1316). But it was
not until the 1990s, when ad hoc International Tribunals were established to deal with
atrocities committed in Rwanda and the former Yugoslavia, that the campaign to establish a permanent tribunal gathered momentum, culminating in an international conference in Rome in 1998 that adopted a statute to establish a permanent Court responsible
for bringing to justice the perpetrators of war crimes, genocide and other crimes against
humanity. The Rome Statute of the ICC (the ICC Statute) entered into force on 1 July
2002, 60 days after receiving ratification by the requisite 60th state, and the Court, based
in the Hague, is due to hear its first case sometime in 2005 or 2006. Notwithstanding the
fact that the Court still lacks the support of a number of countriesincluding, most
notably, the United Statesits establishment is regarded by many as a significant step in
the 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 serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the
national level and by enhancing international cooperation.
While international criminal law lay dormant for almost 40 years following the trials
at the end of the Second World War, states developed their own processes for addressing
state and mass crime. In a number of countries, these processes took the form of a
truth commission. Independent bodies established in order to establish the truth, give
victims a voice and make recommendations for addressing the past, truth commissions
were first used in Latin-America to examine human rights abuses committed by military
dictators in Argentina, Chile, El Salvador and Guatemala (Hayner 2001). But it was the
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TRUTH COMMISSION AMNESTIES AND THE INTERNATIONAL CRIMINAL COURT

South Africas SATRC, held following the countrys first democratic elections in 1994,
and chaired by the charismatic former Archbishop and Nobel Prize winner, Desmond
Tutu, that brought truth commissions to worldwide attention. Upon election, one of
the first acts of Nelson Mandelas government was to pass the Promotion of National Unity
and Reconciliation Act (1995) that established the SATRC. Over the next six years, the
Commissions work was done by three main committees: a Human Rights Violation
Committee, responsible for collecting evidence from victims; an Amnesty Committee,
responsible for handing out amnesties to individuals who made full, public confessions to
political crimes; and a Reparation and Rehabilitation Committee, charged with making
recommendations to the President about matters such as victim reparation and institutional reform. In 1998, the commission issued a five-volume report (and then a further
report in 2001 upon the conclusion of its amnesty hearings). Along with Nelson
Mandela himself, the SATRC is credited with making a key contribution to South
Africas successful transition to a peaceful, democratic state, and, as a result, is now
widely 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 the
ICC 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. For
example, the Courts prospective jurisdiction (Article 11) means that the Court will not
judge directly the SATRC. However, it is far less clear from the Statute how the Court
will deal with a truth commission relating to crimes committed after July 2002, when
the ICC Statute entered into force. None of the Statutes 128 articles contains any reference to the topics of truth commissions or amnesties, despite the fact that more than
20 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 of
whether amnesties might provide a bar to prosecution had been raised briefly, but was
then promptly dropped when it became clear that there was no agreement about how
amnesties should be dealt with (Dugard 2002: 700). The lack of specific guidance
means that the Prosecutor and the Court will have to interpret the provisions of the
Statute to decide how to deal with truth commissions.
The issue will first arise when the Prosecutor is asked to investigate and prosecute a
case that has already been, or is about to be, dealt with by a truth commission. Under
Article 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 to
believe that a crime within the jurisdiction of the Court has been or is being
committed;
(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 serve
the 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): a
party seeking to ensure an amnesty granted by a truth commission is upheld is likely to
argue that the Prosecutor should exercise its discretion not to investigate, either on the
grounds that that the case is inadmissible under Article 17, or because prosecution
would not be in the interests of justice.
The Article 17 test for admissibility is based on the fundamental principle that the
Courts purpose is to complement, not supplant, national proceedings. Whereas earlier international tribunals for Rwanda and the former Yugoslavia were established with primacy
over national proceedings, the drafters of the ICC Statute were determined that national
proceedings should have primacy over a permanent Court (Holmes 2002). This principle,
expressed explicitly both in the Statutes Preamble and first Article, underlies the Article
17(1) test, which makes a case inadmissible unless the state is unwilling or unable to genuinely to carry out the investigation or prosecution. At first glance, this test suggests that a
case 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 a
formal prosecution. However, this test should be read in light of Article 17(2), which contains 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 was
made for the purpose of shielding the person concerned from criminal responsibility 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 circumstances, 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 the
ICC was not intended to intervene in cases that have been dealt with by a South Africanstyle truth commission; such truth commissions are not undertaken for the purpose of
shielding people from criminal responsibility, but in order to promote a restorative
conception of justice, which emphasizes the importance of uncovering the truth,
promoting victim reparation and reconciliation (SATRC 1998). The ICC was established
to allow the prosecution and punishment of wrongdoers who continue to wield power
or otherwise simply take advantage of a lawless state, not to gainsay the decisions of
democratic states such as South Africa, where the victims of a authoritarian regime
inherit power and decide that their prosecutorial resources are best used prosecuting
those individuals who choose not to apply for amnesty from a truth commission, or
who 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 a
truth commission is admissible, it could still be argued that investigating and prosecuting such a case would not be in the interests of justice. Article 53 does not define the
interests of justice but requires taking into account the gravity of the crime and the
interests of the victim (for discussion, see Turone 2002: 1173). A state could argue that
the interests of justice should be interpreted in a broad sense to include the conception of justice pursued by a truth commission. After all, post-conflict societies face a difficult 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 laudable
goal may hinder the accomplishment of another. States establishing a truth commission may well elect to trade off some retributive justice (at least in relation to those
offenders who apply for and are granted amnesty) against the promotion of the other
valuable objectives of uncovering the truth, assisting victims and promoting reconciliation and reconstruction.
Though these will be matters for the Prosecutor to determine in the first instance, it
is the Court that will have the final say. Under Article 19(1), the ICC can determine the
admissibility of a case in accordance with Article 17 and, under Article 53, the Courts
pre-trial chamber has the power to review the Prosecutors decision not to investigate
or prosecute a case. For either of these arguments (relating to admissibility and interests of justice) to succeed with the Prosecutor or with the Court, a state will need to be
able to demonstrate that a truth commission based on the SATRC model is more than
just a way of protecting the guilty from prosecution. One way to do this is to show that
truth commissions pursue a restorative conception of justice that involves revealing the
truth, repairing victims harm and promoting reconciliation. Advocates of truth commissions argue that when it comes to achieving these aims, truth commissions
are potentially as least as effective as courts, if not more so. Part III outlines these
arguments.
Part III
Recording the truth
Victims families demand to know what happened to their loved ones. Receiving this
information can help ease their suffering and allow them to grieve for their dead. The
Inter-American Court and Commission on Human Rights has recently recognized a
right to truth, which implies a duty on states to discover the fate of missing persons, to
locate their remains and to inform the relatives.1 In many cases, of course, families
know all too well what happened to their loved ones; in these circumstances, demands
for truth are not so much calls for missing information as for official public acknowledgment both of what has happened and its wrongfulness (Cohen 1995). Acknowledgment 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 public
record of a countrys wrongdoing can provide a valuable opportunity to reshape a
countrys collective memory, by both encouraging private and public reflection on the
past and by leaving a permanent record which can be relied upon by generations of
future historians (Osiel 2000). As well as easing victims suffering, an accurate record of
past atrocities may also deter future wrongdoing.
As a mechanism for telling truth and shaping a countrys collective memory, trials
have some natural advantages over truth commissions. Not only do they establish a version of contested events (Ignatieff 1997: 184), but the dramaturgical character of a trial
is 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 and
compelling 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, the


solemnity and formality of the court room, the battle between opposing lawyers and
the suspenseful climax in the handing down of a verdict can all combine to produce a
compelling history of the past.
However, the perceived strengths of a trial as a truth-telling mechanism are, paradoxically, also its primary weaknesses. Though a trials focus on individual culpability can
make for a more dramatic history, it does not necessarily make for a comprehensive
and accurate one, since the structure, rules and practices of a trial are concentrated
upon the much narrower purpose of deciding whether a defendant is guilty or innocent.2 This binary logic pervades every aspect of a courts work (Osiel 2000: 125). Only
those witnesses whose testimony bears upon the question of a defendants guilt will be
called upon to give evidence, and their testimony will be restricted to that fact and that
fact alone. Moreover, courts work by reducing the indeterminacy and muddle of everyday life into bleak choices between innocence or guilt, truth or falsehood, this or that
account (Rock 1991). As Osiel (2000: 129) notes, the criminal law sets up a bright line
between the parties, labelling one as victim, the other as wrongdoer. A process that
selects and filters information on this basis is poorly suited to the task of capturing the
complexities, nuances and ambiguity of the larger historical picture. This is why some
writers argue that the Nuremberg trials, which created a top-down view of Nazism that
neglected the bureaucratic machine and social infrastructure required to support and
enforce Nazi policies, failed to leave a significant influence on Germanys collective
memory (e.g. Bloxham 2001). It has been suggested that the tension between writing
history and allocating individual responsibility can be eased by relaxing the rules of
evidence in a trial to allow a wider range of historical material to be admitted. This has
been attempted in a number of cases, including the French trial of Nazi Klaus Barbie in
1987, where the prosecutor and defence were allowedin Osiels (2000: 97, 296)
wordsto paint with a broader brush and, more recently, in the judgments of the
International Criminal Tribunal for the Former Yugoslavia (ICTY).3 But critics argue
that the tension is irresolvable, and that attempts to use trials to write history produce
bad history and unfair trials (Cohen 1995; Arendt 1963).
By contrast, truth commissions, freed from the need to minimize the risk of unfair
convictions, can concentrate on building up a more complete picture of events that
accommodates peoples conflicting perspectives. Unlike courts, truth commissions do
not pretend that there exists one objective discoverable truth about the past. They impose
far fewer restrictions, not just about who can speak, but how they can speak and what
they can speak about. The design of truth commissions has been influenced by the
restorative justice principle that processes for dealing with the aftermath of a conflict
should accommodate all those affected by the conflict: offenders, victims, their respective families and supporters, and the wider community (Roche 2003: 302). In South
Africa, over 22,000 victims gave statements to the SATRC.
Truth commissions attempt to convey the diffuse nature of culpability in a repressive
regime (SATRC 1998, Vol. 1(5): 130). Whereas courts are restricted to considering legal
responsibility, 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.
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).
3

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moral responsibility. So, for example, in South Africa, the SATRC was not just interested
in the police officer who tortured ANC activists, but also in the doctor who failed to
record the victims injuries, the judge who uncritically accepted the victims confession
and the banker who provided finance for covert operations. One way in which the SATRC
did this was by holding hearings to consider the complicity of specific groups within society, 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 its
advocates maintain that the power to grant amnesties is crucial to a commissions success. A complete record of the past requires the testimony not just of victims, but also of
offenders. When regimes such as that of the National Party in South Africa or the military junta in Argentina arrest, torture and kill citizens, before disposing of their bodies
so as to ensure that they are never found, it is only the perpetrators themselves who can
provide the information sought by victims families.4 The prospect of an amnesty in
return 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 an
investigation unit to identify secret burial sites, conduct exhumations and dignified
reburials, and the testimony of offenders was crucial to the success of this unit (SATRC
1998, Vol. 2(6): 54354). Moreover, even when survivors already know what happened
to their family members, an offenders testimony remains invaluable. Perpetrators of
crimes maintain their own parallel truths about events, in which they are the victims
and never the perpetrators (Silber and Little 1997: 391). For example, many military
and police personnel who kill and torture the opponents of authoritarian regimes see
themselves as engaged in counter-terrorism. It might be unrealistic to expect perpetrators to relinquish these beliefs, given that it is these very beliefs that allow them to make
sense of their lives and justify their behaviour to themselves, but these accounts still
have value, as they allow us to begin to understand the cognitive processes by which the
unthinkable becomes justifiable. Moreover, by ensuring that such accounts are publicly
aired and scrutinized, we reduce the likelihood that they will be inherited as truth by
future generations. Ignatieff (1997: 173) suggests that All that a truth commission can
achieve is to reduce the number of lies that can be circulated unchallenged in public
discourse. Or, as Slovo (2002: 7) puts it, the TRC gradually peeled away apartheids
thin veneer of civilization.
Victim reparation
Crime causes physical, material, emotional and psychological damage. Repairing this
harm is often difficult, and sometimes impossible; no two victims needs are exactly
alike, the needs of a single victim can change considerably over time and, in the context 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, but
efforts to repair the harm caused by the most serious crimes encounter the intractable
problem that nothing can ever bring back the dead or even fully ameliorate the psychological 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 confirmation of his or her death. Argentine writer, Mathilde Mellibovsky, puts it this way: I do not image hell as beds with shackles where
the condemned must lie, but rather as a couple of easy chairs in which one can sit comfortably and wait for the postman to bring
newswhich will never come (Hamber 2002: 40).

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and treated respectfully and fairly, and many also want to participate in their cases and
to 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 of
the victims of administrative massacre. It provides a ritual that is helpful for family
members and a sympathetic public in coming to terms with melancholia in even the
most traumatic cases. But a criminal trial is not primarily concerned with a victims
loss. A sentencing hearing is more so, but it is mainly interested in a victims physical
injuries and material losses, when, for many victims, the most serious losses are emotional or psychologicalthe loss of dignity, happiness, confidence, security, personal
power and sense of self-worth. As Doreen McBarnet (1998: 8) put it, If victims feel that
no-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 with
their treatment in court (Strang 2003). In response to stinging criticism, court processeslike other parts of the criminal justice systemhave been made more victimfriendly. Certainly, the parties responsible for drafting the Rome Statute were mindful
of the need to design processes sensitive to victims needs. A number of the provisions
relating to the bringing of cases, the collection of evidence and the courts sentencing
powers show consideration of victims interests (Jorda and Hemptinne 2002). However,
many insist that a trial, even in some modified state, remains an inherently unsuitable
forum for pursuing reparation.
A truth commission delivers the less formal process that research has consistently
shown victims want (Strang 2003). In South Africa, the Gross Violations of Human
Rights Committee travelled around the country, collecting statements from victims,
both in written form and then laterfrom some victimsin the form of oral testimony
at nationally televised public hearings. The Commission calculated that victims would
benefit 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 benefited
from such a process, including the man who announced: I feel that what has been
making me sick all the time is the fact that I couldnt tell my story. But now it feels like
I got my sight back by coming here and telling you the story. The SATRC also provided
other forms of assistance such as the re-burials mentioned earlier, and made wide-ranging
recommendations to the government, ranging from individual financial reparation to
symbolic gestures (such as the renaming of street signs and creation of memorials) to
health care, housing and education policies, as well as a series of recommendations
aimed as institutional reform.
Despite these efforts, the SATRCs treatment of apartheid victims has attracted considerable criticism. Not enough thought was given to the question of how to support
victims once they had made a statement or testified, or indeed how to support the victims who did not wish to participate in a truth commission (Hamber 2002: 50). Only a
small minority of victims were given the opportunity to talk about their experiences in
a public hearing. The rest had to be content with having their statements taken, coded
and entered in a databasea process that, despite the best efforts of Commission staff,
became increasingly bureaucratic and impersonal (Hamber 2002; Wilson 2001; Hamber
and Wilson 2002). Moreover, for those few who did have the opportunity to testify in
public, there was a tendency to expect victims to conform to one of a number of ideal
types, 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 challenge
them about their actions and to demand an explanation, but the Commission facilitated very little of this sort of mediation (Wilson 2001: 155). Victims seeking material
reparation were also left disillusioned by Mbekis government, which failed to follow
the Commissions recommendation that 22,000 victims each receive between R15,000
and 23,000 every year for six years, and instead made a small one-off payment (Hamber
2002: 48).
Reconciliation
In the aftermath of a period of violence, reconciliation is critical to the construction
and maintenance of peace. Reconciliation in this context does not mean that victims
must forgive their wrongdoers, or that victims and offenders must enjoy friendly relations, but it does require that hostilities be defused and that citizens find a way of
peacefully 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 some
form of reparation.5 But reconciliation requires more than truth and reparation. It also
requires that offenders be treated fairly. The punitive terms of the Versailles treaty at
the end of the First World War are widely considered to have contributed to the outbreak
of the Second World War. Early in his political career, Hitler generated much of his
support by exploiting the bitterness and resentment of Germans who regarded the
treaty as unfair and punitive (Kershaw 2001: 122). This sort of historical evidence is
consistent with the results of Tylers (1990) social psychological research which demonstrates that perceptions of unfair treatment can have a direct effect on an individuals
future career in lawbreaking. Further, reconciliation requires wide-ranging structural
and institutional transformation (SATRC 1998, Vol. 1(5): 110). As the SATRC report
observes, today, gross socio-economic inequality between South Africans is the most
visible legacy of a regime that systematically denied non-white South Africans access to
resources and opportunities (SATRC 1998: 109).
While reconciliation on such a scale is clearly beyond any one institution, trials are
thought to assist, by uncovering truth and promoting victim reparation in a way that is
fair to alleged wrongdoers. It is also thought that trials assist by helping re-establish the
rule of the law, a precondition for economic and social development after a period of
lawlessness. Many, however, argue that trials are more divisive than they are reconciliatory. One of the most common complaints against war trials is that they merely represent victors justice. Of course, the creation of a permanent, genuinely international
tribunal is designed to meet these concerns, but there is always a risk that any foreign
courtregardless of how international its compositionwill lack legitimacy in the eyes
of the local communities it judges.
A truth commission attempts to assist in the process of reconciliation by creating a
fuller picture of the pastone that accommodates the perspectives of offenders and
victims 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, the
mass slaughter of Serbians by the Croatian Ustasha during the Second World War. Glenny argues that a gesture of reconciliation
by Tudman for the wrongs committed by the wartime Independent State of Croatia against the Serbs in Croatia . . . might have created 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 their
communities into resuming hostilities in the future. However, the effort to placate one
part of the population clearly risks antagonizing another, namely the families of the
victims of those murderers and torturers who walk free. Certainly, the SATRC antagonized many victims, some of whom challenged (unsuccessfully) the constitutional legality of the Commissions amnesties (SATRC 1998, Vol. 1(7)). Nevertheless, the South
African experience suggests that amnesties can help to provide a lasting peace provided
they 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, both
by modelling democratic ideals of transparency, inclusiveness and accountability
(SATRC 1998, Vol. 1(5): 1089) and by making recommendations aimed at preventing
future violations. The SATRC Reparation and Rehabilitation Committee made a series of
recommendations aimed at repairing the harm done to society as a whole by apartheid
policies. The legislation establishing the SATRC, The Promotion of National Unity and
Reconciliation Act (1995), required the Commission to make recommendations for institutional, administrative and legislative reform that would assist in creating a stable and
fair society and in promoting national unity and reconciliation. Its recommendations
were 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 victims
by providing them with a forum in which they can be acknowledged and describe their
experiences. Nevertheless, without the participation of offenders, commissions are limited
in the truth they can uncover, and, in turn, the extent to which they can repair victims
harm and promote reconciliation. This is why the ICCs ruling on truth commissions is critical. In South Africa, many of the worst human rights abusers did not bother to apply for
amnesty, calculating that they were unlikely to be prosecuted anyway; the majority of
amnesty applicants were black South Africans who had already been imprisoned. The value
of an amnesty would be eroded further if the ICC Prosecutor decided that perpetrators
remained susceptible to international prosecution even when they had received an amnesty
from a truth commission. In fact, perpetrators would have an extra incentive not to apply
for an amnesty, knowing that any admission they made in the process could become the
basis of an ICC prosecution. If, however, the ICC Prosecutor were to adopt a cooperative
approach, and select cases to prosecute from the group of individuals who have failed to
apply for amnesty, or those whose amnesty applications have been rejected, amnesties
would 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 and
prosecutions will be politically motivated. Some observers have suggested that the way
to guard against this risk is to limit the discretion of the Prosecutor but prosecutions
will inevitably be selective; there are too many atrocities and too few prosecutorial
resources for it to be otherwise. However, the Prosecutor can reduce criticism about
how this discretion is exercised, by selecting cases with the cooperation of states,
according to transparent criteria. Certainly, this sort of approach is much more likely
to 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 scarce
resources.
Under a variation of this cooperative approach, the ICC Prosecutor may agree to abide by
a general policy of respecting truth commission amnesties, but insist on the right to prosecute a small number of the most serious cases. This sort of approach would be consistent
with Article 53, which indicates that the gravity of an offence is a factor to be taken account
in determining whether investigation and prosecution are in the interests of justice. Once
these cases were identified, the truth commission could assist the ICC by passing on any
evidence it collected about them in the course of its own work. In these cases, a perpetrators cooperation before a truth commission would not sway the ICC Prosecutor from prosecuting, 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 approach
with states that establish truth commissions, the ICC Prosecutor would need to satisfy
itself that a state had established, or was going to establish, a truth commission that promoted truth, reparation and reconciliation, rather than just a show commission intended simply to shield wrongdoers from prosecution. The ICC Statute does not provide
any guidance in how to go about this; nor is there any generally agreed set of principles
for judging truth commissions to which the ICC Prosecutor could refer. What is
needed, perhaps, is a dialogue among governments, non-governmental organizations
(NGOs), victims groups and others to devise pre-conditions for the international
recognition of truth commissions. These could then be published by the ICC Prosecutor in an interpretive statement outlining prosecutorial practice, or included in the
Rules of Procedure and Evidence (Broomhall 2003: 102). If a Prosecutor is asked to
investigate before a truth commission has concluded its work, the Prosecutor could suspend the investigation until the truth commission has finished (using the power under
Article 18). The final section of this article aims to contribute to such a dialogue by suggesting five elements that a legitimate truth commission should possess: that victims
support its establishment; that amnesties are granted conditionally; that widespread
participation is encouraged; that efforts are made to assist victims; and that the truth
commission 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 support
within its own country. A legitimate truth commission is not foisted upon a countrys
population by ruling elites. Ideally, truth commissions should be supported by an Act of a
democratically elected Parliament, or a national plebiscite or referendum. But any such
requirement must be imposed with some flexibility, taking into consideration the tense
and fragile contexts in which decisions about truth commissions are typically made. In particular, the possibility of establishing a truth commission might well first be raised in the
course of secret negotiations between the old regime and the new, incoming one. This was
the case in South Africa, where amnesty protection was a key aspect of secret negotiations
between the ANC and National Party government (Wilson 2001: 7). To insist on transparent, nationwide decision-making at all points in the process could thwart the successful
negotiation of a peaceful handover of power. Instead, leaders should be allowed to formulate proposals in private negotiations and then submit themwith the backing of key
leaders and interest groupsfor public debate and approval.
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In countries such as Rwanda, where the wrongdoers outnumber their victims, majority support for a truth commission would be an inadequate requirement, since it would
simply allow wrongdoers to outvote their victims. One way to guard against this risk is to
insist that truth commissions have the support of the majority of victims, but bearing in
mind it is impractical to ascertain the views of all victims, and victims views are likely to
fluctuate over time (e.g. the strong support for the SATRC among black and coloured
South Africans, which exceeded that among the white population (Graybill 2002: 22),
fell away as they became disillusioned by the Commissions failure to improve their living conditions). But neither these nor other practical problems are fatal to the basic
principle 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. If
a truth commission or its government grants blanket amnesties, the recipients will
remain susceptible to ICC prosecution (Gavron 2002; Dugard 2002). Several international treaties and customary law make it clear that blanket amnesties granted to a
whole class of perpetrators are illegal. A state would only be able to raise an argument
that the ICC should be barred from prosecution in cases where a truth commission
grants 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 country
which followed the example of Chile, where Pinochet granted blanket amnesties to
himself and his fellow generals, but would respects SATRC-style truth commissions
that grant amnesties only to those individuals who make full confessions in public
hearings and demonstrate that their crimes were politically motivated.6
Some observers of the SATRC amnesty hearings argued that the conditions for
granting amnesty did not go far enough. In particular, some felt that amnesty
applicants should have also been required to express remorse for their crimes. For
many victims, the much vaunted truth of amnesty hearings was often the truth of
unrepentant serial murderers who still felt that their war was a just one (Wilson
2001: 25). Galling as this was, any attempt to force more respectful testimony is
bound to backfire. Acts of apology, like those of forgiveness, only have meaning
when they are not coerced. As it was, observers of the amnesty hearings considered
that some applicants feigned remorse in order to improve their chances of success;
insisting on remorse would only exacerbate this problem. There is also the difficulty that some offenders may be simply unable to convey feelings of regret or
remorse, as their professional background and training have taught them to feel,
or at least convey, no emotion. As Jonathan Glover (1999: 3435) observes, for
those who commit atrocities, their hardness is a defence against the horror of
what 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, but
when 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 of
wrongdoing should have an opportunity to participate in its resolution, implies that
truth commissions must provide opportunities for mass participation. This is a
demanding requirement: the very nature of mass violence is that many thousands of
people are directly harmed and thousands more indirectly affected by a regimes brutality. Providing opportunities for large numbers of victims and offenders to participate
in a truth commission requires not only considerable resources but careful design,
preparation and administration. In South Africa, some Commission staff pressured
Commissioners to provide individual mediation, but logistical and resource constraints
meant that reconciliation instead took an abstract, collective form, with only limited
numbers of hand-selected victims given the opportunity to appear before public hearings (Wilson 2001: 107). As a result, many victims were left disappointed and disillusioned, feeling that their treatment was perfunctory and impersonal (Wilson 2001).
Truth commissions could relieve their burden by delegating some of their powers to
other bodies responsible for reporting back to the main commission. For example,
South Africa has a long tradition of local justicesuch as township courtswhich
could have been deployed to provide mediation in individual cases, but, instead, the
SATRC (1998, Vol. 5(8): 327) recommended the disbanding of these informal institutions, concluding that they were irrevocably compromised by their previous role in
township violence (Roche 2002: 51920). Such objections were understandable, but
when no local processes were provided in their place, a wide gulf emerged between
the 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 its
capacity to erase collective memories of how to resolve conflicts peacefully, and to
replace 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 create
new ones. Even though the SATRC did little to nurture local justice, the enterprising
approach of one of the companies that testified before the Commission illustrates how
mini-truth commissions could be used to complement a commissions work. Prior to
appearing before the commission, the companya large South African sugar businessundertook an internal review of the companys conduct during the apartheid
regime. A racially mixed group of about 20 senior company executives met eight times
over several months to prepare a company statement which the company then presented to the truth commission.8 Future truth commissions could build on this
approach, encouraging businesses as well as churches, schools, unions and local
communities 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 and
violent regime now employ the sorts of techniques previously employed against them by their oppressors. In many mountain villages, lynchings have become commonplace (between 1996 and 2001, the United Nations Mission to Guatemala has documented
421 separate instances) as villagers attempt to bring order to their lives. She suggests that these violated networks of community
cohesion, 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 the


design of these processes; for the sugar business, this would have meant broadening
participation beyond senior executives to include administrative staff, factory floor
workers 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 repair
victims harm. Interviews with victims reveal that financial reparation is often less
important to them than emotional restoration (Strang 2003), which is promoted by
acknowledging victims suffering and giving them an opportunity to speak and, if they
wish, 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, though
important, these acts are no substitute for more practical forms of reparation. Interviews with apartheid victims reveal that one of the most common reasons victims came
forward to the SATRC was the expectation that financial reparation would follow (Hayner
2001). The importance of financial reparation is also illustrated by the recent decision
of apartheid victims to commence litigation in the United States against multi-national
companies (BBC 2003). Of course, victims may be uncomfortable with accepting what
they see as blood money, and a countrys physical and financial resources will ultimately place constraints on what can be done, but a state should at least be able to show
that it is taking the task of financial reparation seriously.
One way of doing this is to insist that offenders themselves make reparations. A
SATRC commissioner complained that offenders were quick to ask for forgiveness but
slow to offer to make amends (SATRC 1998). Commissioner Dr Mapule Ramashala,
referring to the amnesty applications received by the commission in relation to the
Bisho massacre, where the Ciskei Defence Force opened fire on a protest march, killing 30 people, said It stops with, I am sorry. None of them has (also) said: As a demonstration, perhaps of how sorry I am, this is what I would like to do. None of them
have done that. In restorative justice programmes dealing with less serious crimes,
offenders are almost always expected to make amends, even if reparation usually takes a
more symbolic than compensatory role. Making amends becomes much more difficult
for 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 future
salary to a victims fund. Forcing leaders to give up their wealth will be difficult, but the
ICC 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 victims
are not consulted, decisions are less likely to actually assist them, even if they are made
in their name with the best of intentions. The SATRC Commissioners believed (or perhaps hoped) that it was enough simply to give victims the opportunity to reveal the terrible things they had endured, that this would provide a cathartic experience, not only
for 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 that
could be used to support a truth commission.

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hanging in the public halls in which victims hearings were conducted. But, as Hamber
and Wilson (2002: 37) point out, remembering, in itself, is not necessarily a directly
redemptive and liberating practice, and is only one of many possible routes to symbolic
closure for survivors. The establishment of a truth commission in itself is not enough
to meet the psychological needs of individualsthey may be necessary first steps
toward individual psychological healing but they are generally not sufficient in themselves. If truth commissions are to help repair victims harm, they must not attempt to
force forgiveness. This was a lesson Tutu learnt when victims reacted angrily to his asking at the conclusion of their testimony whether they were ready to forgive (Wilson
2001: 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 an
ennobling capacity and part of the dignity to be reclaimed by those who survive the
wrongdoing. Even an individual survivor who chooses to forgive cannot, properly, forgive in the name of other victims. To expect survivors to forgive is to heap yet another
burden on them. This a common failing of restorative justice programmes generally
the goal should be to create institutional spaces where victims can forgive and offenders 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 be
only one part of a wider programme of reform. A state that establishes a truth commission without any accompanying reforms raises doubts about its commitment to the
process of reparation and reconciliation. Clearly, the ICC Prosecutor does not have the
expertise or resources to undertake a comprehensive audit of a countrys reform
process, but the ICC Statute entitles the ICC Prosecutor to seek the cooperation and
information from organs of the United Nations, intergovernmental organizations,
NGOS or other reliable sources (Articles 15(2) and 54(3)). Thus, the ICC Prosecutor
could refer to reports of various UN bodies (such as the Commission on Human
Rights, the Human Rights Committee, or Development Program), regional commissions (such as the Council of Europe or the Inter-American Commission), and reputable
NGOs (such as Amnesty) before deciding whether to investigate and prosecute. In
other words, instead trying to gauge national reform itself, the ICC would become, in
Peter Graboskys (1995) words, a meta-monitor, monitoring the monitoring done by
other 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 human
rights abuses under which the ICC would work with states to prosecute perpetrators
who fail to satisfy the conditions for the granting of a truth commission amnesty. Such
an approach could enhance the legitimacy and effectiveness of both institutions: ICC
support would enable truth commissions to hold out a more credible threat of prosecution to those who refuse to confess and to make amends for their crimes, while the
Courts own legitimacy may be enhanced by its demonstrating a willingness to support
states efforts to address human rights abuses.
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