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Last Reviewed 30 May 2012
Strategic Choices in the Design of Truth Commissions

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Design Factors >

Amnesty
 
Transitions to democracy are rarely possible without some form of amnesty for crimes and human rights violations that the previous regime has perpetrated. Unless the prior regime has suffered devastating defeat at the hands of the democratic forces, the old elite and military are usually in the position to negotiate for amnesty in return for their peaceful retreat from power. Equally, in the context of protracted armed conflict that is ended by negotiations, neither party is likely to completely forego amnesty provisions. Still, amnesties can vary with respect to their timing as well as the conditions attached to it. Whether an amnesty has been declared prior to the establishment of a commission or will be passed after it has finished its work, whether this amnesty is unconditional and effective for all ranks or conditional upon cooperation and selective - these factors provide a frame for the commission's legitimacy and effectiveness. Without some form of amnesty the commission will probably encounter widespread and serious opposition from the armed forces. With a sweeping, a priori amnesty a commission will probably be seen as a fig leaf with no punitive, and little restorative, power.

There are three components of the decision about amnesty: Whether or not to declare amnesty, when to do so, and whether or not to attach certain conditions to the granting of amnesty.

Amnesty

Amnesty has been declared in some form or another in all five countries.

Hypothetically, the basic choice is

  • To grant amnesty, or

  • Not to grant amnesty.



Timing

Amnesty can either be declared before the beginning of operations of a truth commission, or after a truth commission has concluded its work. Prior declarations of general amnesty are likely to limit the credibility of a commission's work in the eye of the public - many may feel that a commission to investigate the truth is only a 'second best' option under such circumstances, since perpetrators and victims will not find justice. Prior declarations of limited and conditional amnesty are less vulnerable to such public depreciation. Post facto declarations of general amnesty can undermine hopes of meaningful political change. Post facto declarations of limited, conditional amnesty are likely to be more acceptable, and may be necessary to ensure the continued cooperation of former regimes.

The main choice for timing amnesty is:

  • prior to the establishment of the commission or

  • after the establishment of the commission



Conditions

Amnesty can either be passed as a blanket rule - applying to all ranks and automatically for a certain period of time. Or, it can be limited to certain ranks or crimes within a period of time, conditional upon application and investigation. Generally, limited and conditional amnesty is more acceptable for human rights and victim's organizations, while it still represents a painful compromise for many. It is, on the other hand, often rejected by armed forces. The concrete form of an amnesty depends to a great deal on the extent of power of former perpetrators in the legislative and judicial process.

There are at least three forms of amnesty to be chosen from:

  • General (blanket) amnesty,

  • Limited amnesty (limited in time, limited to certain perpetrators), or

  • Conditional amnesty (conditional upon application and/ or testimony)



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