Beyond the Courts? The Complex Relationship of Trials and Amnesties

Abstract

Since its inception, the central dilemmas of transitional justice have often been framed in stark dichotomies, encapsulated most notably in the phrase: ‘peace versus justice’. This phrase has been widely used to describe the extent to which elites in states undergoing transitions from mass violence may face political, military, and economic pressures to compromise justice in order to obtain peace. Where amnesty laws have been enacted as part of negotiated peace deals they are often perceived as embodying such compromises as they can serve to shield the signatories of peace agreements and their supporters from criminal prosecutions. Although in a small number of cases, such amnesty or immunity agreements may be granted provisionally, more commonly, they are intended to create a permanent barrier to the pursuit of trials for past crimes, where such trials would arguably risk destabilising the fragile political transition. As a result, amnesty laws to shield offenders from criminal sanctions are commonly viewed as the antithesis of trials. At first blush, this perception of amnesty laws as a once-only political pact to close the door on the past is understandable. However, as this paper will argue, closer inspection reveals that transitional states rarely face a binary choice between amnesty and justice, but rather may undergo a continual process of re-negotiation of the balance between impunity and accountability as the transition evolves. Indeed, during political transitions countries rarely follow a linear path towards justice. Instead, the salience of calls for amnesty or trials often wax and wane depending on the changing political circumstances and the relevance of practical concerns such as the passage of time, the degradation of evidence and the mortality of victims, witnesses and perpetrators. This paper will explore some of these relationships by focusing on how trials and amnesties have been sequenced within transitional states. Drawing upon fieldwork conducted by the author in Argentina, Bosnia-Herzegovina, Uganda, South Africa and Uruguay, together with the experiences of amnesties in Cambodia, Sierra Leone and Timor-Leste, the paper will detail how trials have been launched in the shadow of pre-existing amnesties, and conversely, how demands for amnesty may continue or reignite following prosecutions by national or international courts. In this way, the paper seeks to highlight that neither trials nor amnesty laws definitively close the door on the past and instead many societies continue to revisit and adapt their processes in response to changing political contexts. In some contexts, this may result in highly complex sequencing arrangements. By exploring these complexities, this paper will highlight two key findings: firstly, that even where trials are pursued, demands for amnesty or immunity may continue to be made. Although in some cases, these demands may seek to undermine transitional justice agendas, in other instances, they could seek to respond to the problems faced by over-burdened criminal justice institutions by incentivising offender testimony or encouraging offender participation in alternative accountability mechanisms. The second finding is that the more egregious forms of amnesty that offer unconditional impunity for serious human rights violations may not be fully sustainable in the longer-term, and may instead face judicial challenges to narrow their scope or invalidate them entirely. The implications of these two findings point towards the development of more nuanced approaches to amnesty laws that incorporate elements of accountability and may even coexist with some form of criminal prosecutions. The final section of this paper will explore how such coexistence can be written into the text of the amnesty laws.