final project
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 1 24-JUL-15 14:43
NOTE
USING A CONDITIONAL AMNESTY AND TRUTH AND RECONCILIATION COMMISSION AS A TRANSITIONAL
JUSTICE MECHANISM IN SYRIA
Grace Fiddler*
I. INTRODUCTION
In March 2011, citizens of the southern Syrian city of Deraa pro- tested the arrest and torture of local teenagers who had painted revolutionary slogans on the wall of a local school. 1 In response to the protest, government forces of Bashar Al-Assad’s Baath regime 2 opened fire on the crowd, killing many in attendance.3 This initial demonstration spurred many such more, both in Deraa and other cities around the country, including Aleppo, Hama, Homs, and the capital, Damascus.4 Subsequently, this initial uprising developed into a civil war that has left more than 191,000 Syrians dead,5 more than two million people displaced, and thousands more injured, detained, or disappeared.6
The civil war has forced Syria to consider how to find justice for the victims of atrocity and restore peace and stability to a country besieged by turmoil. In this regard, Syria is not alone. Indeed, the country joins the more than 250 intrastate conflicts that have occurred since the beginning of the twentieth century, which by the year 2000 resulted in the deaths of between 75 and 170 million
* J.D. 2015, The George Washington University Law School; B.A. 2011, University of Minnesota-Twin Cities.
1. Syria: Story of the Conflict—Protests, BBC NEWS (Sept. 3, 2013), http://www .bbc.co.uk/news/world-middle-east-19331551.
2. The Baath party has controlled Syria since 1963. Syria Profile—Overview, BBC NEWS (Feb. 11, 2015), http://www.bbc.co.uk/news/world-middle-east-14703856. Bashar Al-Assad, Syria’s current leader, has ruled since 2000. Profile: Syria’s Bashar Al-Assad, BBC NEWS (Mar. 10, 2005), http://news.bbc.co.uk/2/hi/middle_east/2579331.stm.
3. Syria: Story of the Conflict—Protests, supra note 1. R 4. Id. 5. Nick Cumming-Bruce, Death Toll in Syria Estimated at 191,000, N.Y. TIMES (Aug. 22,
2014), http://www.nytimes.com/2014/08/23/world/middleeast/un-raises-estimate-of- dead-in-syrian-conflict-to-191000.html.
6. PAUL SEILS, INT’L CTR. FOR TRANSITIONAL JUSTICE, TOWARD A TRANSITIONAL JUSTICE STRATEGY FOR SYRIA (2013), available at http://ictj.org/sites/default/files/ICTJ-Syria-Analy- sis-2013.pdf.
893
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 2 24-JUL-15 14:43
894 The Geo. Wash. Int’l L. Rev. [Vol. 47
people.7 As was true in each prior atrocity, each person aggrieved by the Syrian conflict deserves justice.8
Of the various methods that a country such as Syria may imple- ment in its attempt to find stability and justice,9 the act of passing an amnesty law remains the most controversial.10 Grown out of the ability to grant collective clemency, the term “amnesty” refers to “legal measures adopted by states that have the effect of prospec- tively barring criminal prosecutions against certain individuals accused of committing human rights violations.”11 Advocates for amnesties believe such laws are essential to halting the violence within a state and that without a promise of clemency made to those committing injustices during the period of atrocity, violence will only continue.12 Critics of amnesties dispute this notion, argu- ing that such laws encourage impunity and violate international law.13
However, amnesties are not uniform in nature and, depending on their construction, do not always violate international law.14 Amnesty laws that are designed to shield only particular crimes— rather than all crimes indiscriminately—and which are imple- mented with a truth and reconciliation commission do not violate either customary or codified international law. Implementing such a law with a conjoined truth and reconciliation commission ensures that the state remains consistent with its legal obligations of investigating crimes and holding perpetrators accountable,
7. Cherif Bassiouni, Combating Impunity for International Crimes, 71 U. COLO. L. REV. 409, 409 (Spring 2000).
8. Syrians, other countries, and international organizations each have their own beliefs regarding how to best accomplish this goal of dispensing justice to victims and initi- ating a peaceful resolution to the civil war. See What Role Might Transitional Justice Play in a Post-Conflict Syria?, INT’L CTR. FOR TRANSITIONAL JUST. (Oct. 2, 2013), http://ictj.org/news/ what-role-might-transitional-justice-play-post-conflict-syria.
9. See infra Part II. 10. Lisa J. Laplante, Outlawing Amnesty: The Return of Criminal Justice in Transitional
Justice Schemes, 49 VA. J. INT’L L. 915, 917–18 (2009). Laplante discusses the alternatives to trials that were used in second half of the twentieth century.
11. See Francesca Lessa & Leigh A. Payne, Introduction to AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVES 1, 3–4 (Francesca Lessa & Leigh Payne eds., 2012).
12. See Carlos S. Nino, The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina, 100 YALE L.J. 2619, 2639 (1991). Nino describes how “the factual context may frustrate a government’s effort to promote the prosecution of persons respon- sible for human rights abuses, except at the risk of provoking further violence and a return to non-democratic rule.” Id.
13. See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Viola- tions of a Prior Regime, 100 YALE L.J. 2537, 2542–44 (1991).
14. See infra Part III.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 3 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 895
while also assisting a society forgive factions for their past abuses, reconcile, and ultimately move forward.15 The use of a conditional amnesty with a joint truth and reconciliation commission was employed with great success in post-apartheid South Africa;16 the same mechanism should be used as a model to assist Syria emerge from conflict.
Part II of this Note will survey the various mechanisms a state may employ to provide justice to victims and transition to peace, with a focus on South Africa’s amnesty law. Part III will argue that if a state follows the South African amnesty law model, amnesty laws are not a violation of any settled international legal norm, based either on a treaty or on customary international law. Part IV will then provide further evidence as to why a conditional amnesty and truth commission would be compatible with the Syrian civil war by emphasizing specific characteristics that make particular types of conflicts like Syria’s more suitable for the implementation of the South African style amnesties. Although undoubtedly this decision must be left to Syrians themselves, this Note will propose how a conditional amnesty law and truth and reconciliation com- mission could help resolve this period of conflict and provide jus- tice and resolution.
II. TRANSITIONAL JUSTICE MECHANISMS
Transitional justice refers to the “set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses.”17 Such mechanisms frequently overlap and may be utilized by a state simultaneously.18 This Part begins with an examination of formal trials and then proceeds to consider other mechanisms available to
15. See infra Part III; see also Tricia D. Olsen et al., Conclusion: Amnesty in the Age of Accountability, in AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVES, supra note 11, at 336, 343 (describing how scholars advocat- R ing for this approach believe “truth commissions acknowledge, condemn, and deter vio- lence more effectively than trials, and they do so without jeopardizing democracy and the rule of law”).
16. See infra Part II.D.1; Charles P. Trumbull IV, Giving Amnesties a Second Chance, 25 BERKELEY J. INT’L L. 283, 292 (2007).
17. See What is Transitional Justice?, INT’L CTR. FOR TRANSITIONAL JUSTICE, https://www .ictj.org/about/transitional-justice (last visited Jan. 9, 2014).
18. For example, South Africa utilized a truth and reconciliation commission, repara- tions program, conditional amnesty, and criminal prosecutions in The Promotion of National Unity and Reconciliation Act. Promotion of National Unity and Reconciliation Act 34 of 1995, 1995 (1) JSRSA 2-385 (S. Afr.) [hereinafter Act 34 of 1995].
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 4 24-JUL-15 14:43
896 The Geo. Wash. Int’l L. Rev. [Vol. 47
states in post-conflict situations.19 The Part concludes with a review of different types of amnesties, with a focus on South Africa’s con- ditional amnesty.
A. Criminal Prosecutions
Traditionally, formal trials have been used to restore justice and hold perpetrators accountable post-atrocity.20 In the twentieth century, domestic prosecutions became of interest to the interna- tional community and evolved into a method for global society to play a role in restoring justice after a period of conflict.21 Doing so was based on the belief that while an act may have been committed within a state’s own territory, the horrific nature of the crime made the criminal “an enemy of all mankind,” bestowing upon the global community a duty to ensure that such a crime did not go unpun- ished.22 The Nuremberg Trials were one of the earliest and most infamous occasions of international justice and the proceedings were a vehicle to hold Nazi perpetrators accountable for their actions during the Second World War.23 Such international trials have become increasingly more popular, evidenced by the estab- lishment of the International Criminal Court (ICC),24 the Interna- tional Criminal Tribunal for the Former Yugoslavia (ICTY),25 the International Criminal Tribunal for Rwanda (ICTR),26 and the emergence of hybrid domestic and international courts, such as the Extraordinary Chambers in the Courts of Cambodia (ECCC).27
B. Reparations Programs
Reparations programs are established to assist victims in restor- ing their lives after suffering through a period of atrocity.28 The programs focus on victims’ futures in order to redress the past.29
19. Trumbull, supra note 16, at 310. R 20. Laplante, supra note 10, at 918. R 21. See Orentlicher, supra note 13, at 2555–57. R 22. See id. 23. See id. 24. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S.
90. 25. See About the ICTY, UNITED NATIONS INT’L CRIMINAL TRIBUNAL FOR THE FORMER
YUGOSLAVIA, http://www.icty.org/sections/AbouttheICTY (last visited Jan. 9, 2014). 26. See About the ICTR, INT’L CRIMINAL TRIBUNAL FOR RWANDA, http://www.unictr.org/
en/tribunal (last visited Jan. 9, 2014). 27. See The Extraordinary Chambers in the Courts of Cambodia, CTR. FOR JUST. & ACCOUNT-
ABILITY, http://www.cja.org/section.php?id=454%22 (last visited Oct. 19, 2014). 28. See Reparations, INT’L CTR. FOR TRANSITIONAL JUST., http://www.ictj.org/our-work/
transitional-justice-issues/reparations (last visited Jan. 30, 2014). 29. Id.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 5 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 897
To accomplish this goal, reparations programs may provide victims with financial compensation or ensure access to education or social services.30 Countries such as Chile, Morocco, Sierra Leone, and South Africa have implemented such reparations programs, in con- junction with other transitional justice mechanisms.31
C. Truth and Reconciliation Commissions
Truth and reconciliation commissions are truth-seeking mea- sures that attempt to create a historical record of past atrocities to ensure an accurate portrayal of them in the future.32 Commissions also provide victims the opportunity to participate in the truth and reconciliation process by allowing them to voice their own recollec- tion of the past atrocity and, if they so desire, confront their own perpetrators.33 Commissions investigate the conflict by interview- ing victims, protecting evidence, compiling archives, and publish- ing state information to produce reports and recommendations.34 As of 2011, at least forty truth commissions had been established around the world.35 Truth commissions frequently coincide with other transitional mechanisms, such as in South Africa, where a commission was used with a conditional amnesty and reparations program.36
D. Amnesty Laws
The term “amnesty” derives from the ancient Greek word amnes- tia, meaning forgetfulness or oblivion.37 Although all amnesty laws share the common element of granting clemency to an individual who has committed a past wrong, the laws differ in scope and man- ner of implementation.38 Past laws have opted to shield state actors, non-state actors, or a combination of the two groups.39 The amnesty may be implemented by those responsible for the human rights violations the amnesty is designed to shield, such as in
30. Id. 31. Id. 32. See Truth and Memory, INT’L CTR. FOR TRANSITIONAL JUST., http://www.ictj.org/our-
work/transitional-justice-issues/truth-and-memory (last visited Jan. 30, 2014). 33. See id. 34. See id. 35. See id. 36. See infra Part II.D.1. 37. See Lessa & Payne, supra note 11, at 3. R 38. See id. at 4. 39. See id.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 6 24-JUL-15 14:43
898 The Geo. Wash. Int’l L. Rev. [Vol. 47
Argentina.40 Or, the law may be a blanket amnesty, prohibiting prosecutions and investigations of all crimes committed during a specified time period, such as in El Salvador.41 Finally, the law may come in the form of a conditional amnesty, choosing to restrict the prosecution to only certain perpetrators after they have satisfied particular mandatory conditions—such as participating in a truth and reconciliation process—as in South Africa.42
1. Case Study: South Africa’s Conditional Amnesty and Truth and Reconciliation Commission
From 1948 to 1990, South Africa engaged in systemic racial dis- crimination, or apartheid.43 The apartheid policy constituted a crime against humanity44 and clearly violated the Universal Decla- ration of Human Rights, which South Africa had abstained from signing.45 Despite the status of apartheid, when the policy termi- nated in 1990 and negotiations began between the National Party and the opposition groups, the United Nations left it to South Africa to consider the best manner to deal with its horrific past and move forward as a united country.46 Ultimately, South Africa chose to implement a conditional amnesty accompanied by a truth and reconciliation commission.47
The Interim South African Constitution established the intent of the new government to focus on reconciliation.48 Specifically, the
40. Argentina’s first amnesty law was passed by the military government for the pur- pose of protecting the government’s own officials. See Law of National Pacification, Law No. 22.924, Sept. 22, 1983, [1983-B] A.L.J.A. 1681 (Arg.). However, many other amnesty laws were passed subsequently, which have since been repealed. For more information about Argentina’s history of amnesty laws, see Par Engstrom & Gabriel Pereira, From Amnesty to Accountability: The Ebb and Flow in the Search for Justice in Argentina, in AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPEC- TIVES, supra note 11, at 97, 99. R
41. Legislative Decree No. 486, 318(56) Diario Oficial, Mar. 22, 1993. For more infor- mation about the Salvadoran amnesty law, see Emily Braid & Naomi Roht-Arriaza, De Facto and De Jure Amnesty Laws: The Central American Case, in AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVES, supra note 11, at R 182, 196–98.
42. S. AFR. (INTERIM) CONST., 1993. For more information about the South African amnesty, see infra Part II.D.1; Antje du Bois-Pedain, Accountability Through Conditional Amnesty: The Case of South Africa, in AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVES, supra note 11, at 238, 239. R
43. John Dugard, Reconciliation and Justice: The South African Experience, 8 TRANSNAT’L L. & CONTEMP. PROBS. 277, 278 (1998).
44. Trumbull, supra note 16, at 293. R 45. See Dugard, supra note 43, at 278. R 46. Id. at 278–79. 47. Id. at 279. 48. S. AFR. (INTERIM) CONST., 1993.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 7 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 899
constitution’s postamble called for “a need for understanding, but not of vengeance,”49 and established that “amnesty shall be granted in respect of acts, omissions, and offences associated with political objectives and committed in the course of conflicts of the past.”50 The South African government established The Truth and Recon- ciliation Commission Act (TRCA)—which was comprised to enact regulations to bring these goals to fruition.51 The work of the TRCA was completed through the use of its four separate divi- sions—The Truth and Reconciliation Commission,52 The Commit- tee on Human Rights Violations,53 The Committee on Amnesty,54 and The Committee on Reparation and Rehabilitation.55
The goals of the TRCA were to establish “as complete a picture as possible of the causes, nature and extent of the gross violations of human rights” committed during the period of time established by the government; to facilitate “the granting of amnesty to per- sons who make full disclosure of all the relevant facts relating to acts associated with a political objective and comply with the requirements of this Act”; to establish and make known “the fate or whereabouts of victims,” restore “the human and civil dignity of such victims by granting them an opportunity to relate their own accounts of the violations of which they are the victims,” and rec- ommend “reparation measures in respect of them”; and lastly, to compile a report “as comprehensive . . . as possible.”56 These objectives unambiguously declare that amnesty was granted only with full participation in the truth-telling process. While some per- petrators were shielded from prosecution under the TRCA if they satisfied all requirements and their crime was of a type that permit- ted amnesty, as discussed below—victims of their crimes were not left without a method of which to receive justice, as truth-telling and reparations programs were provided.
The TRCA required specific elements before granting amnesty to a perpetrator.57 In particular, perpetrators needed to apply for amnesty and participate in the truth-telling process established by
49. Id. epilogue. 50. Id. 51. See The Promotion of National Unity and Reconciliation Act. Promotion of
National Unity and Reconciliation Act 34 of 1995, pmbl., 1995 (1) JSRSA 2-385 (S. Afr.) [hereinafter Act 34 of 1995].
52. Id. ch. 2. 53. Id. ch. 3. 54. Id. ch. 4. 55. Id. ch. 5. 56. Id. ch. 2(3)(1). 57. Id. ch. 4.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 8 24-JUL-15 14:43
900 The Geo. Wash. Int’l L. Rev. [Vol. 47
the commission.58 Additionally, amnesty applied to acts only “asso- ciated with a political objective,”59 as determined by motive, con- text, legal and factual nature, object or objective of the act, whether it was committed in execution of an order or whether a relationship between the act and the political objective pursued could be identified.60 Consequently, acts committed for personal gain or out of personal malice or spite, or acts that were dispropor- tionate to the political objective the perpetrator had pursued would be denied amnesty.61 In the event an amnesty application was denied, criminal or civil proceedings could commence against the perpetrators.62 However, these proceedings could not use the disclosure made through the TRCA process against the perpetra- tors in court.63 The Amnesty Committee encouraged perpetrators to come forward and confess to past crimes by warning them that if they did not, they would live their lives “with fear of being hunted down or fingered by the evidence of a former colleague.”64 In total, approximately eight thousand persons applied for amnesty.65
Moreover, the Amnesty Committee would inform the victims if their perpetrator applied for amnesty.66 Victims were encouraged to participate in the truth-telling procedure if they so desired.67 Victims were also provided assistance by other bodies of the TRCA, such as the Committee on Reparation and Rehabilitation,68 a body that possessed the authority to establish an investigating unit to fur- ther examine the past crimes committed.69
Ultimately, the South African model struck a balance between two factions with different objectives—one group that wanted a full account of atrocities, justice for victims, and punishment for apartheid leaders, and another that wanted unconditional amnesty for all perpetrators during the previous years of conflict.70 As a
58. Id. ch. 4(2)(1). 59. Id. ch. 4(20)(2). 60. Id. ch. 4(20)(3). 61. Id. 62. Id. ch. 4(21). 63. Carrie J. Niebur Eisnaugle, An International “Truth Commission”: Utilizing Restorative
Justice as an Alternative to Retribution, 36 VAND. J. TRANSNAT’L L. 209, 227 (2003). 64. Id. 65. Id. 66. Act 34 of 1995, ch. 4(19)(4). 67. Id. 68. See id. ch. 5. 69. See id. ch. 6. 70. Gwen K. Young, All the Truth and as Much Justice as Possible, 9 U.C. DAVIS J. INT’L L.
& POL’Y 209, 222–23 (2003).
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 9 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 901
result, the TRCA gave amnesty to select perpetrators while simulta- neously providing justice to victims and helping society reconcile.
III. THE LEGALITY OF AMNESTY LAWS
To determine whether international law places a prohibition on the use of amnesties, an analysis of both treaty-based law and cus- tomary international law is necessary. Section A will demonstrate that although some treaties have established particular restrictions to implementing amnesties, there is no absolute bar against estab- lishing amnesty laws as long as they are conditional and investigate crimes. Section B will similarly conclude that customary interna- tional law does not restrict states from imposing a conditional amnesty with investigative procedures.
A. Conditional Amnesties with Truth Commissions Are Not Prohibited by Codified International Law.
Passing an amnesty law in Syria, or any other country, would be impermissible under international law if the state were a party to a treaty that prohibited such implementation.71 Although some trea- ties do not specifically state that formal prosecutions are required, such as the International Convention on Civil and Political Rights (ICCPR),72 critics argue amnesties are barred because they do not qualify as proper “remedies” permitted by the treaty.73 Critics of amnesties also argue that while there may be no explicit bar to their implementation within a treaty, an express requirement to formally prosecute will invalidate the application of amnesties.74 The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention),75 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
71. 1969 Vienna Convention on the Law of Treaties art. 27, opened for signature May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT] (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”).
72. International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
73. See Orentlicher, supra note 13, at 2568–71. R 74. Young, supra note 70, at 225–27. R 75. Article 6 of the Genocide Convention states: Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
Convention on the Prevention and Punishment of the Crime of Genocide art. 6, adopted Dec. 9, 1958, 78 U.N.T.S. 277 [hereinafter Genocide Convention].
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 10 24-JUL-15 14:43
902 The Geo. Wash. Int’l L. Rev. [Vol. 47
Punishment (Torture Convention),76 and the Geneva Conven- tions77 all contain such prosecution provisions. Furthermore, opponents of amnesty laws also contend that even without specific language used in treaties requiring remedies or prosecutions, trials still remain necessary because they are part of a state’s duty to use due diligence to protect their citizens and investigate crimes.78 Yet, none of these arguments constitute a concrete bar from imple- menting all forms of amnesties.
1. The International Convention on Civil and Political Rights
The ICCPR, ratified by Syria in 1969,79 requires states to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.”80 However, the ICCPR does not state what constitutes an “effective remedy.”81 As such, there is controversy over whether the phrase is limited to formal prosecutions or if other mechanisms of justice such as truth com- missions or non-traditional trials also qualify.82 Nevertheless, prior amnesties, such as those of South Africa, have gained support from
76. Article 4 of the Torture Convention states: Each state party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. . . . Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Pun- ishment art. 4, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter Torture Convention].
77. See Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Con- vention III]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. For a further discussion of the Geneva Conventions, see Trumbull, supra note 16, at 288. R
78. See Laplante, supra note 10, at 937–38. R 79. Status of International Convention on Civil and Political Rights, UNITED NATIONS
TREATY COLLECTION, https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no =iv-4&chapter=4 (last visited Feb. 14, 2014).
80. ICCPR, supra note 72, art. 2(3). R 81. See Mark Freeman & Max Pensky, The Amnesty Controversy in International Law, in
AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVES, supra note 11, at 42, 48–49. R
82. See Young, supra note 70, at 240–41. An example of such an informal trial system R is the traditional tribal methods of forgiveness implemented by the Acholi people of Uganda. See Marc Lacey, Atrocity Victims in Uganda Choose to Forgive, N.Y. TIMES (Apr. 18, 2005), http://www.nytimes.com/2005/04/18/international/africa/18uganda.html. Another example of traditional trials is the Gacaca trials implemented in Rwanda. See Back- ground Information on the Justice and Reconciliation Process in Rwanda, OUTREACH PROGRAMME
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 11 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 903
the international community and the United Nations as being use- ful mechanisms for justice and reconciliation, rather than con- demned for not providing an effective remedy under the ICCPR.83 This analysis suggests that amnesty laws that prohibit prosecuting certain perpetrators—but allow other forms of transitional justice to investigate crimes and support victims—are still valid under the ICCPR and that such a strategy may be implemented in Syria with- out violating the convention.
2. The Convention on the Prevention and Punishment of the Crime of Genocide
The Genocide Convention, of which Syria has been a party since 1955,84 states that all acts of genocide, whether interstate or intra- state, require formal prosecutions.85 The prosecution may be con- ducted either by a competent tribunal of the state in the territory of which the act was committed or by an international tribunal.86 This language, therefore, implicitly asserts that an attempt to par- don the crime of genocide, such as through the act of amnesty, would be a violation of international law.
Nonetheless, the Genocide Convention is not an impediment to a conditional amnesty and truth and reconciliation commission. Rather, the Genocide Convention only dictates a bar against grant- ing amnesty to those who had committed acts of genocide. The convention would not bar granting amnesty to pardon other non- genocidal crimes.
In order for a tribunal to find genocide, the perpetrator must have had “the specific intent to commit genocide”87 against a national, ethnic, racial, or religious group,88 and the act must have been “directed at members of one of the four groups explicitly identified in the convention.”89 The crime of genocide includes:
ON RWANDA GENOCIDE & UNITED NATIONS, http://www.un.org/en/preventgenocide/ rwanda/about/bgjustice.shtml (last visited Mar. 16, 2014).
83. Trumbull, supra note 16, at 293, 295. R 84. Status of Convention on the Prevention and Punishment of the Crime of Genocide, UNITED
NATIONS TREATY COLLECTION, https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no= IV-1&chapter=4 (last visited Feb. 14, 2014).
85. Genocide Convention, supra note 75, art. 4. Article 4 states that persons commit- R ting genocide or other acts so specified “shall be punished,” regardless of where the act occurs and the nationality of the victim or perpetrator. Id.
86. Id. art. 6. 87. Id. art. 2. 88. Id. 89. Trumbell, supra note 16, at 289. R
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 12 24-JUL-15 14:43
904 The Geo. Wash. Int’l L. Rev. [Vol. 47
[K]illing members of the group, causing seriously bodily harm or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, or forcibly transfer- ring children of the group to another group.90
Any amnesty that attempts to shield an act of genocide where the actor had the specific intent to commit such genocide would thus be prohibited by the Genocide Convention. However, in reality, this situation rarely arises.91 When it has, perpetrators have been prosecuted in manners required by the Convention—rather than shielded by an amnesty law—as are exemplified by international tribunals for the former Yugoslavia and for Rwanda.92
While the Syrian Civil War has raised serious human rights con- cerns, it has not been labeled as genocide.93 Should the conflict or particular acts within it be found to be acts of genocide, no amnesty could bar prosecutions against the perpetrators who com- mitted those crimes.
3. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
The Torture Convention, ratified by Syria in 2004,94 treats inter- state and intrastate violations equally.95 If a torturer is found
90. Genocide Convention, supra note 75, art. 2. R 91. Trumbell, supra note 16, at 288. R 92. See S.C. Res. 808, U.N. Doc. S/Res/808 (Feb. 22, 1993) (describing how the Inter-
national Criminal Tribunal for the Former Yugoslavia (ICTY) was established to prosecute those who committed acts of genocide and other serious violations of international humanitarian law in former Yugoslavia); S.C. Res. 955, U.N. Doc. S/Res/955 (Nov. 8, 1994) (describing how the International Criminal Tribunal for Rwanda was established to prosecute those who committed acts of genocide in Rwanda).
93. Although international organizations have expressed concern over the severity of human rights abuses, there have been only calls for investigation, rather than labeling the conflict as genocide. See Press Release, Office of Genocide Prevention and the Responsibil- ity to Protect, Statement by the Special Advisers on the Prevention of Genocide, Mr. Adama Dieng, and on the Responsibility to Protect, Ms. Jennifer Welsh, on the Alleged Use of Chemical Weapons in Syria, U.N. Press Release (Aug. 22, 2013), available at https://www .un.org/en/preventgenocide/adviser/pdf/Syria23August2013.pdf. Additionally, U.S. Sec- retary of State John Kerry does not use the term genocide when discussing the Syrian civil war. See Interview by Andrea Mitchell, MSNBC, with John Kerry, Sec’y of State, Washing- ton, D.C. (Feb. 26, 2014), available at http://www.state.gov/secretary/remarks/2014/02/ 222588.htm.
94. Status on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treat- ment or Punishment, UNITED NATIONS TREATY COLLECTION, https://treaties.un.org/Pages/ ViewDetails.aspx?mtdsg_no=IV-9&chapter=4 (last visited Feb. 16, 2014).
95. Torture Convention, supra note 76, art. 2(2). Article 2(2) states that “no excep- R tional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Id.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 13 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 905
within a state’s jurisdiction, that state must either extradite the per- petrator to face prosecution outside of their territory or “submit him to its competent authorities for the purpose of prosecution.”96 The Torture Convention’s “prosecute or extradite” provision has been interpreted as ambiguous and perhaps requiring “less than an absolute obligation” on part of the state to formally prosecute.97 Rather than requiring the state to submit the torturer to a formal prosecution, the phrase implicitly allows states “the decision whether to prosecute alleged torturers to the prosecutorial authori- ties.”98 For instance, the language of the Torture Convention’s “extradite or prosecute” provision differs from the language of other conventions that include similar conditions. In other con- ventions, the language is more forceful and concrete and imposes a clear obligation on the state to formally prosecute the torturer if it chooses not to extradite.99 For example, the Genocide Conven- tion clearly states that if a person is not extradited by the state in whose territory he or she has been found, the person “shall be tried by a competent tribunal of the state in the territory of which the act was committed.”100 The Torture Convention does not speak with this same degree of specificity. This ambiguity suggests that a state may punish the crime of torture as it sees fit. Thus, a mechanism that dispensed justice for victims by means other than formal prosecutions—yet that still fulfilled the same purpose prose- cutions were intended to provide by the convention—may be permitted.
Another limitation to the scope of the Torture Convention is the definition of “torture.”101 The convention encompasses only acts of torture that are committed or instigated by a person in an offi- cial capacity or those to which an official consented or acqui-
96. Id. art. 7(1). 97. Freeman & Pensky, supra note 81, at 47. R 98. Id.; LOUISE MALLINDER, AMNESTY, HUMAN RIGHTS, AND POLITICAL TRANSITIONS:
BRIDGING THE PEACE AND JUSTICE DIVIDE 150–51 (2008). 99. Freeman & Pensky, supra note 81, at 47. R
100. Genocide Convention, supra note 75, art. 6. R 101. Torture Convention, supra note 76, art. 1, defines torture as follows: R
[A]ny act by which severe pain or suffering, whether physical or mental, is inten- tionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third per- son has committed or is suspected of having committed, or intimidating or coerc- ing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Id.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 14 24-JUL-15 14:43
906 The Geo. Wash. Int’l L. Rev. [Vol. 47
esced.102 Therefore, acts committed by rebel forces—or by any person not considered as an official of the state—are not covered by the convention.
At best, the language of the Torture Convention is ambiguous. However, even if opponents of amnesties were correct that its “extradite or prosecute provision” does indeed require formal prosecutions,103 this still would not prohibit a qualified amnesty with joint truth and reconciliation commission. Rather, it would suggest only that torture is a crime for which perpetrators may not be granted amnesty. The convention would not impede an amnesty barring prosecutions for other crimes to move forward.
4. The Geneva Conventions
The four original Geneva Conventions codify “international rules regarding the treatment of prisoners of war and civilians dur- ing international armed conflict.”104 They impose an absolute duty on state signatories, including Syria,105 to prosecute individuals who commit “grave breaches” under the conventions.106 “Grave breaches” are enumerated in the four Geneva Conventions and consist of “willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering of serious injury to body or health, and extensive destruction and appropria- tion of property, not justified by military necessity and carried out unlawfully and wantonly.”107 Conduct that may also rise to the level of a grave breach include “compelling a prisoner of war to serve in the force of a hostile power, of willfully depriving a pris- oner of war of the rights of fair trial and regular trial prescribed in this Convention.”108 However, as these “grave breaches” apply only to international armed conflict, they rarely obstruct amnesty imple- mentation, which generally shield prosecutions for violations that
102. Trumbull, supra note 16, at 289. R 103. Orentlicher, supra note 13, at 2566–67. R 104. See Trumbull, supra note 16, at 288. R 105. See Syrian Arab Republic, INT’L COMM. OF RED CROSS, http://www.icrc.org/applic/
ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=SY (last visited Feb. 16, 2014).
106. See Geneva Convention I, supra note 77, art. 50; Geneva Convention II, supra note R 77, art. 51; Geneva Convention III, supra note 77, art. 130; Geneva Convention IV, supra R note 77, art. 147. R
107. See Geneva Convention I, supra note 77, art. 50; Geneva Convention II, supra note R 77, art. 51. R
108. See Geneva Convention III, supra note 77, art. 130; Geneva Convention IV, supra R note 77, art. 147. R
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 15 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 907
occur within a single state.109 Thus, qualified amnesties that do not shield the prosecution of crimes committed during international armed conflicts are permissible.
5. Geneva Protocol II
The 1977 Geneva Protocol II, which Syria has neither signed nor ratified,110 regulates the protection of victims of intrastate armed conflicts.111 Protocol II takes a very different stance than the four original Geneva Conventions regarding the duty to prosecute. Rather than restricting the implementation of amnesties, Protocol II encourages them. For example, Article 6(5) states, “at the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons relat- ing to the armed conflict, whether they are interned or detained.”112 This provision clearly grants states permission to implement amnesties for a non-international conflict. Protocol II does not merely list amnesty as one of a multitude of options a state may select. Rather, the language used in Protocol II urges the application of the broadest possible amnesty. A clear declaration that amnesty laws may be implemented upon conclusion of a state’s internal conflict demonstrates that treaty-based international law does not prohibit the use of all amnesties in every circumstance. Instead, Protocol II’s existence implies that amnesties are accept- able, at least in some scenarios.
6. A State’s Due Diligence to Prosecute
Opponents of amnesty laws also argue that even without an explicit prohibition specified within a treaty, the use of amnesties is barred by the implied duty of states to use their due diligence to investigate atrocities.113 Such a duty stems from the Inter-Ameri- can Court of Human Right’s decision in Velasquez-Rodriguez v. Hon-
109. See Trumbull, supra note 16, at 288. R 110. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, INT’L COMM. OF RED CROSS, http://www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_ NORMStatesParties&xp_treatySelected=475 (last visited Feb. 16, 2014).
111. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relat- ing to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted June 8 1977, 1125 U.N.T.S. 609, 26 I.L.M 568 (1987); S. TREATY DOC. NO. 100-2 (1987).
112. See id. art. 6(5). 113. See Orentlicher, supra note 13, at 2540; Laplante, supra note 10, at 937–39. R
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 16 24-JUL-15 14:43
908 The Geo. Wash. Int’l L. Rev. [Vol. 47
duras.114 The Velasquez-Rodriguez case demonstrates that even when specific treaties do not require prosecution of certain crimes, courts may still impose upon states the duty to prosecute these crimes.115 In Velasquez-Rodriguez, the court found Honduras to be liable for violating the American Convention of Human Rights by contributing to the disappearance of the victim, even though the treaty does not use the term “disappearance.”116 The court also found that even if Honduras had not been complicit in the crime, the government still would have been liable for the victim’s disap- pearance.117 Honduras’ liability stemmed from its duty as a sover- eign to use its due diligence to “prevent, investigate, and punish any violation of the rights recognized in the Convention and, moreover, if possible attempt to restore the right violated and pro- vide compensation as warranted for damages resulting from the violation.”118 Yet, in this list of state responsibilities, the court did not specifically declare that a state must prosecute a perpetrator. Instead, the court bestowed upon the state the duties to prevent future crimes, investigate crimes committed, compensate victims, and “punish” perpetrators—using a word that does not necessarily imply formal prosecutions.119
Moreover, the Velasquez-Rodriguez court explained that “[t]he objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparations of damages resulting from the acts of the states responsible.”120 While formal prosecu- tions may be considered one of many means by which justice may be provided to victims of intrastate violence, the court’s passage demonstrates that prosecuting the perpetrator is not, nor should it be, the end goal itself. Implementing alternatives to prosecutions could satisfy the requirements of compensating victims and investi- gating crimes without prosecutions. Ultimately, the Velasquez-Rodri- guez court did not require Honduras to prosecute those that were responsible for the disappearance of Velasquez-Rodriguez; it required only that Honduras pay reparations to his family.121 This
114. Velasquez-Rodriguez v. Honduras, Judgment, Inter-Am. Ct. H.R. (Ser. C) No. 4, ¶ 166 (July 29, 1988).
115. See Laplante, supra note 10, at 937–39. R 116. Velasquez-Rodriguez, ¶¶ 173–80. 117. See id. ¶ 172. 118. See id. ¶ 166. 119. See id. 120. Id. ¶ 134. 121. See id. ¶ 194.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 17 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 909
decision lends further support to the proposition that the court did not intend for “due diligence” to be synonymous with “prose- cution” and that its holding leaves room for amnesties to be estab- lished in states as long as they are combined with methods to investigate crimes and assist victims.
B. Conditional Amnesties with Truth Commission Mechanisms Are Not Prohibited by Customary International Law.
States can be bound by certain norms—even ones that they have not expressly agreed upon via treaty—if that norm has become a rule of customary international law.122 Once this occurs, a state will be bound by that norm, unless the state persistently objected to the norm while it was emerging.123 Customary international law norms result “from a general and consistent practice of states fol- lowed by them from a sense of legal obligation (opinio juris).”124 Thus, even if Syria were not a signatory to a treaty that required formal prosecutions or barred amnesties, if such a treaty had become a norm of customary international law, Syria would be pro- hibited from implementing an amnesty.125
If customary international law prohibits amnesty laws, there must be both a near universal state practice against implementing amnesties and evidence that states have declined their implementa- tion out of a sense of legal obligation.126 However, proving either such a near universal state practice against amnesty laws or its rela- tionship to the states’ sense of legal obligation is difficult.
1. There Is Insufficient Evidence to Prove a Uniform State Practice Against Implementing Amnesties.
The present and historical use of amnesty laws demonstrates that states use them far too frequently to find a customary international
122. VCLT, supra note 71, arts. 34–37 (precluding a rule set forth in a treaty from R becoming binding upon a third-party state as a customary rule of international law, recog- nized as such).
123. See INT’L LAW ASS’N, LONDON CONFERENCE (2000): STATEMENT OF PRINCIPLES APPLI- CABLE TO THE FORMATION OF GENERAL CUSTOMARY INTERNATIONAL LAW art. 15 (2000) [hereinafter STATEMENT OF PRINCIPLES].
124. Restatement (Third) of Foreign Relations Law § 102 (1986). 125. See VCLT, supra note 71, art. 38. R 126. When applying the Restatement (Third) of Foreign Relations Law, § 102 to the
issue of determining whether amnesties are against customary international law, these fac- tors would have to exist.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 18 24-JUL-15 14:43
910 The Geo. Wash. Int’l L. Rev. [Vol. 47
law norm against their implementation.127 Additionally, given the myriad of states that have chosen to implement amnesties, there is a lack of evidence that these states are mere persistent objectors to an established norm, which would allow a customary norm of inter- national law to exist, except for within those states that protested its establishment.128 Between 1945 and 2011, 537 amnesties were granted in 129 countries.129 Of 537 amnesties, 398 were granted after 1979.130 These statistics, from the Amnesty Law Database, shed some light on questions concerning the state use of amnes- ties. The amnesties considered were all employed during periods of “political crises including civil unrest, military coups, interna- tional or internal conflict, [and] authoritarian government[s].”131 By looking at amnesties across a wide range of time, it was estab- lished that the use of amnesty laws has—while ebbed and flowed depending on world events—generally remained constant over the past thirty years.132
2. There Is Insufficient Evidence to Prove that States Have Declined to Implement Amnesties Due to Opinio Juris.
In the past decade, there has been a growing trend among states to repeal the amnesty laws they had formerly chosen to imple- ment.133 Countries such as Uruguay, Peru, and Argentina have repealed their amnesties, due to actions taken by either their own domestic court system or the Inter-American Court of Human Rights.134 In other countries where amnesty laws remain intact, such as Spain, there has been fervent call for repeal.135 This pat- tern may demonstrate a changing attitude regarding amnesty laws, perhaps suggesting that a new norm against amnesties is emerging. Alternatively, this trend may suggest that the legal obligation a state
127. See Louise Mallinder, Amnesties’ Challenge to the Accountability Norm?, in AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPEC- TIVES, supra note 11, at 69, 70–71. R
128. Even if this were the case, if a multitude of states all object to a norm, it could evidence that there actually is no established norm at all due to insufficient state practice. See STATEMENT OF PRINCIPLES, supra note 123, art. 12. R
129. See Mallinder, supra note 127, at 79. R 130. Id. 131. Id. at 77. 132. Id. at 79–80. 133. See Tim Padgett, Sins of the Past: Will All of Latin America Find Justice for Cold War
Atrocities?, TIME (Nov. 3, 2011), http://world.time.com/2011/11/03/sins-of-the-cold-war- when-will-all-of-latin-america-find-justice.
134. See id. 135. See Spain: End Amnesty for Franco Era Atrocities, HUM. RTS. WATCH (Mar. 10, 2010),
http://www.hrw.org/news/2010/03/19/spain-end-amnesty-franco-era-atrocities.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 19 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 911
owes to its own citizens has changed due to the expansion of the field of human rights law.136
Nonetheless, these arguments do not prevail. As noted above, the state practice to implement amnesties has continued despite the changing views in the field of human rights law.137 Even the argument that the perception of amnesties solely within the region of Latin America has shifted would be difficult to substantiate. Although particular countries have repealed amnesty laws, amnes- ties remain intact elsewhere, such as in Guatemala and Brazil.138 New amnesties are also in the process of emerging, as Colombia is currently working to establish an amnesty law to reincorporate guerrilla forces back into society.139
There are reasons aside from a sense of pure legal obligation why states might choose to repeal their amnesty laws. For example, an amnesty law may no longer be necessary within the country. Amnesties provide a secure method of transition for countries in periods of strife, particularly when the threat of prosecuting either side in a conflict is too risky or impractical.140 Once sufficient time has lapsed and political climate has settled, an amnesty may no longer be necessary to ensure peace within the region.141 Addi- tionally, countries may be repealing these laws not truly out of a sense of legal obligation but rather for the sake of appearances because they feel strong-armed by international organizations and regional courts. Regional courts have declared particular amnes- ties contrary to state obligations, as evidenced by the Inter-Ameri- can Court of Human Right’s decision regarding the Peruvian amnesty.142 Accordingly, it would be logical for a state to attempt to distance itself from using a mechanism that has been questioned by a high court.
136. See Kathryn Sikkink, The Age of Accountability, in AMNESTY IN THE AGE OF HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND INTERNATIONAL PERSPECTIVES, supra note 11, at R 19, 20.
137. See Mallinder, supra note 127, at 70–71. R 138. See Padgett, supra note 133; Brazil Urged to Scrap Amnesty Law that Protects Rights R
Abusers, AMNESTY INT’L (Aug. 26, 2011), http://amnesty.org/en/for-media/press-releases/ brazil-urged-scrap-amnesty-law-protects-rights-abusers-2011-08-26; Trumbull, supra note 16, R at 297.
139. See Trumbull, supra note 16, at 335. R 140. In fact, “the chief argument against a general rule requiring prosecutions is that
fragile democracies may not be able to survive the destabilizing effects of politically charged trials.” Orentlicher, supra note 13, at 2544. R
141. See id. 142. Barrios Altos v. Peru, Merits, Judgment, 2002 Inter-Am. Ct. H.R. (ser. C) No. 75,
§ X, ¶ 4 (Mar. 14, 2001). This decision has been interpreted to apply narrowly to self- amnesties. See Laplante, supra note 10, at 964. R
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 20 24-JUL-15 14:43
912 The Geo. Wash. Int’l L. Rev. [Vol. 47
International organizations have also been ambiguous in their stance on amnesties, as exemplified by the U.N. position on Sierra Leone. Kofi Annan, the then U.N. Secretary General, stated the following on Sierra Leone’s amnesty law:
While recognizing that amnesty is an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict, the United Nations has con- sistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity, or other serious violations of interna- tional humanitarian law.143
Understandably, statements that simultaneously recognize amnes- ties as a legal concept and condemn them can be puzzling. States may desire to avoid amnesty implementation not out of a legal obli- gation to prosecute but to avoid getting embroiled in a chaotic area of international law.
IV. SPECIFIC FACTORS SUPPORTING A CONDITIONAL AMNESTY IN SYRIA
As Richard Goldstone, a Justice of the Constitutional Court of South Africa, stated, “certainly, there is no simple solution capable of addressing the complexities and subtleties inherent in a range of different factual situations. The peculiar history, politics, and social structure of a society will always inform the appropriate approach to this question in any given context.”144 The realities of a state’s particular conflict must always be considered to determine whether a conditional amnesty along with a truth commission would be an adequate resolution.
The South African conditional amnesty model would translate effectively to the Syrian context given the degree of violence com- mitted by both pro- and anti-government forces, the practical real- ity of prosecuting each perpetrator in Syria, the time length of formal trials, and the history and culture of repression within Syria. As demonstrated below, each of these factors supports the conclu- sion that the implementation of the South African model would be beneficial to the Syrian community.
143. U.N. Secretary-General, Report of the Secretary General on the Establishment of a Special Court for Sierra Leone, ¶ 22, U.N. Doc. S/2000/915 (Oct. 4, 2000).
144. Laplante, supra note 10, at 927. R
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 21 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 913
A. Violent Acts Committed by Both Pro- and Anti-Government Forces
An important element to the Syrian conflict that supports the creation of an amnesty law and truth and reconciliation commis- sion is the degree of violence committed by both pro- and anti- government forces.145 This “equal violence” factor was a vital char- acteristic of South Africa’s conflict and it led to the country’s deci- sion to implement a conditional amnesty and truth and reconciliation commission.146 As the apartheid system came to its end, the leaders of the transition characterized South African soci- ety as being in a “stalemate,” as both factions of society had com- mitted acts of violence against each other.147 Due to societal tensions that persisted at the time, largely as a result of such vio- lence, the transition leaders believed that without implementing a conditional amnesty and a truth and reconciliation commission, society would have been overwhelmed by a “bloodbath.”148 This imperative factor—that violence has been committed by many opposing factions, to the harm of many groups of people—should also be considered in the Syrian context.
The violence in Syria has escalated rapidly since it began in 2011. Non-governmental organizations such as Human Rights Watch and Amnesty International have gathered evidence of atrocities com- mitted both by the Syrian government and the anti-government rebels, a force that includes the largest anti-government group, the Free Syrian Army, and other smaller factions.149 Pro-government forces are responsible for carrying out extrajudicial killings, exces- sive use of force, enforced disappearances, and indiscriminate attacks against civilians, in addition to other crimes.150 The most well-known—and arguably the most horrific—aspect of violence came in August 2013, when chemical weapons killed hundreds of civilians in the suburbs of Damascus.151 Although both sides deny
145. See Annual Report: Syria 2013, AMNESTY INT’L (May 29, 2013), http://www.amnesty- usa.org/research/reports/annual-report-syria-2013; Syria: Executions, Hostage Takings by Rebels, HUM. RTS. WATCH (Oct. 11, 2013), http://www.hrw.org/news/2013/10/10/syria- executions-hostage-taking-rebels.
146. 1 DESMOND TUTU ET AL., TRUTH AND RECONCILIATION COMMISSION OF SOUTH AFRICA REPORT 5 (1998).
147. See id. 148. See id. 149. See Annual Report: Syria 2013, supra note 145; Syria: Executions, Hostage Takings R
by Rebels, supra note 145. R 150. See Annual Report: Syria 2013, supra note 145. R 151. See Somini Sengupta & Rick Gladstone, Chemical Arms Used Repeatedly in Syria, U.N.
Says, N.Y. TIMES (Dec. 12, 2013), http://www.nytimes.com/2013/12/13/world/middle east/un-confirms-repeated-chemical-arms-use-in-syria.html.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 22 24-JUL-15 14:43
914 The Geo. Wash. Int’l L. Rev. [Vol. 47
being responsible for the chemical attack, the vast majority of sources and evidence attribute the carnage to the government’s forces.152 However, as mentioned above, the Syrian rebels also have blood on their hands. Opposition forces have also been found responsible for torturing and killing pro-government forces after conducting makeshift “courts,” targeting pro-government journalists, abducting civilians for ransom, and using weapons indiscriminately.153 As in South Africa, evidence of mass violence and human rights abuse committed by both opposing factions sug- gests that an amnesty would be beneficial to the Syrian situation.
B. Volume of Crimes Committed
While formal prosecutions may be beneficial when discussing how to seek justice against top officials, such as Bashar Al-Assad,154 not everyone who has committed a crime will be prosecuted, espe- cially given the sheer volume of crimes committed during the course of a conflict.155 When speaking about potential Syrian pros- ecutions, David Tolbert, president of the International Center for Transitional Justice has stated as follows:
We need to recognize that not everyone who committed a viola- tion will be prosecuted, given the massive crimes involved. Moreover, despite the importance of prosecuting those most responsible for the most serious crimes, such trials are not nec- essarily the best vehicle to address social and historical aspects underlying patterns of repression and crime.156
152. See Somini Sengupta, Report Detail Could Further Implicate Syria in Chemical Attack, Analysts Say, N.Y. TIMES (Dec. 18, 2013), http://www.nytimes.com/2013/12/19/world/ middleeast/experts-intrigued-by-tidbit-in-syrian-chemical-arms-report.html.
153. See Annual Report: Syria 2013, supra note 145. R 154. It is important to clarify that domestic amnesty laws imposed are not defenses at
an international level. Should the International Criminal Court (ICC) decide to prosecute Al-Assad, an amnesty law would not deter prosecutions against the leaders from going for- ward. Even if these were to occur, implementing an amnesty law and a truth commission would nonetheless be important. These mechanisms would ensure victims a process to cope with their atrocity at the ground level that would encourage more direct participation from the victims. The two forms of justice do not need to be mutually exclusive. See Laplante, supra note 10, at 969–70. Also of note, the ICC’s Rome Statute states that the R ICC prosecutor has the discretion not to prosecute criminals, if such prosecution “is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of the victims and the age of infirmity of the alleged perpetrator, and his or her role in the alleged crime.” Thus, if an amnesty law, while prohibiting prose- cutions, was a better mechanism to serve a community, the ICC could refrain from judg- ment. See Rome Statute of the International Criminal Court, supra note 24, art. 53(2)(c). R
155. See David Tolbert, Transitional Justice Will Help Syria, But Not As a Quick Fix, INT’L CTR. FOR TRANSITIONAL JUST. (Jan. 18, 2013), http://ictj.org/news/transitional-justice-will- help-syria-not-quick-fix.
156. Id.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 23 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 915
This assertion emphasizes the practical difficulties of trying each perpetrator and raises the question of how meaningful such prose- cutions would be. A truth-telling process may be a better mecha- nism to address such underlying patterns. As Tolbert clarifies, prosecuting each perpetrator is not realistic.157 Moreover, prose- cuting even a portion of these crimes would be an extremely costly and lengthy endeavor, whether cases were brought domestically within the Syrian judicial system, internationally, or with the aid of the United Nations or the ICC.158 Domestic prosecutions can be difficult, especially in the aftermath of a civil war, due to potential distrust in the government or a breakdown of the state’s judiciary system.159 There also can be mistrust within the judicial system due to ties to the old regime and threat of corruption.160 Moreover, if the Baath governing apparatus were dismantled, there still would be issues relating to the inexperience of new judges and the new judicial system.161 Finally, while assistance from international orga- nizations, such as the United Nations, in the execution of trials may provide for consistency, the length and scope of trials would still be of concern.
By forgoing the improbable ideal of prosecuting each person who committed a criminal act during the apartheid era, South Africa proved capable of providing justice to a wider range of vic- tims than it would have otherwise. By the conclusion of the truth and reconciliation commission, the commission had taken the tes- timony of approximately twenty-one thousand victims, of which two thousand had appeared in the public hearings.162 The commission had received 7,112 applications for amnesty and granted 849 in total.163 While these statistics may seem low in comparison to the volume of crimes committed in Syria,164 they are a vast improve- ment upon international courts that generally have the capacity to
157. Id. 158. For example, solely during the years 2010–2013, the budget for the ICTY has
ranged between 250–286 billion U.S. dollars. See The Cost of Justice, UNITED NATIONS INT’L CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, http://www.icty.org/sid/325 (last visited Mar. 22, 2014).
159. Laplante, supra note 10, at 927. R 160. Id. 161. Id. 162. Truth Commission: South Africa, U.S. INST. PEACE (Dec. 5, 1995), http://www.usip
.org/publications/truth-commission-south-africa. 163. Amnesty Hearings and Decisions, TRUTH & RECONCILIATION COMM’N, http://www.jus-
tice.gov.za/trc/amntrans/index.htm (last visited Mar. 22, 2014). 164. See supra Part I for current statistics on Syrian victims.
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 24 24-JUL-15 14:43
916 The Geo. Wash. Int’l L. Rev. [Vol. 47
try an even smaller range of perpetrators.165 Implementing a con- ditional amnesty with a truth and reconciliation commission would provide justice to a broader range of victims and involve a larger sect of the Syrian population.
C. Financial Realities
While the United Nations aids with the creation of special ad hoc tribunals to prosecute perpetrators from particular conflicts, these are obviously limited by budget. To illustrate, the Special Court of Sierra Leone emerged with financial backing from the United Nations to prosecute those who committed crimes during the Sierra Leone civil war.166 However, its budget allowed for the trial of only ten individuals.167 Even though prosecuting these persons may have had significant symbolic impact, the Special Court of Sierra Leone had no plan to provide reparations or justice to the victims abused by anyone other than those ten individuals.168 A conditional amnesty establishing a truth and reconciliation com- mission would remedy this problem and permit all victims to seek justice, albeit in a less traditional, less retributive form. Of course, a widespread truth commission would not be without its own high price,169 but it may be a more meaningful method of reconciliation because it would better address the “underlying patterns of repres- sion and crime.”170
Given the volume of crimes committed during the civil war, Syria also will need to consider financial realities that accompany formal prosecutions. A conditional amnesty and a truth and reconcilia- tion commission may be less costly mechanisms that would also provide an alternative form of justice to a wider scope of the Syrian population.
165. For example, see infra Part IV.C. Tribunals with a more expensive budget, such as the ICTY, have been able to prosecute approximately 160 people. See About the ICTY, supra note 25. Although this number of prosecutions is compelling, the tribunals’ cost and lack R of truth-telling measures still illustrate that they may not be as effective as a form of justice as the method implemented by South Africa.
166. William A. Schabas, Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 11 U.C. DAVIS J. INT’L L. & POL’Y 145, 166–67 (2004).
167. Id. 168. See id. 169. Exact statistics about the cost of the South Africa’s Truth and Reconciliation Com-
mission are unavailable. However, it may be inferred through statements made in the Truth and Reconciliation Commission Final Report that formal prosecutions would have been much more costly than implementing the Truth and Reconciliation Commission. TUTU ET AL., supra note 146. R
170. See Tolbert, supra note 155. R
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 25 24-JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 917
D. Timing
Even if a small number of perpetrators could be realistically prosecuted without financial concern, there still would be wariness regarding the extreme length of international prosecutions. For example, the United Nations may consider establishing an interna- tional tribunal to prosecute Syrian criminals such as was created to remedy crimes committed in Rwanda and the former Yugoslavia.171 While these tribunals provide a method of holding perpetrators accountable through prosecution,172 there remains a strong con- cern about the length of trials. The ICTY cases began in 1993 and are not projected to conclude until 2016, twenty-three years after the ITCY commenced.173 The time lapse raises the question of how such a delay impacts the community’s ability to find justice from the prosecutions.
When writing about South Africa’s decision to forego formal prosecutions for every perpetrator, Desmond Tutu explained: “it would also have been counterproductive to devote years to hearing about events that, by their nature, arouse very strong feelings. It would have rocked the boat massively and for too long.”174 Although South Africa’s Truth and Reconciliation Commission’s work still took seven years to complete,175 this time range is far shorter than that of the work of some ad hoc tribunals.176 Like- wise, Syria must also consider this timing. The sensitivity of the matters involved suggests that, like in South Africa, a more expedi- ent method of reconciling society is necessary. Forcing a state to dedicate what could be decades to resolving such horrific events may harm a society more than it would benefit.
E. History and Culture
Another important aspect considered by South Africa in select- ing a conditional amnesty and a truth and reconciliation commis- sion was its capacity to help advance a cohesive society.177 South Africa invested not only in providing justice for the specific victims harmed during the years of apartheid but also in its communities,
171. See About the ICTY, supra note 25; About the ICTR, supra note 26. R 172. See About the ICTY, supra note 25; About the ICTR, supra note 26. R 173. See Completion Strategy, UNITED NATIONS INT’L CRIMINAL TRIBUNAL FOR FORMER
YUGOSLAVIA, http://icty.org/sid/10016 (last visited Jan. 8, 2015). 174. See TUTU ET AL., supra note 146, at 5. R 175. See Truth Commission: South Africa, supra note 162. R 176. See About the ICTY, supra note 25. R 177. See TUTU ET AL., supra note 146, at 6–8. R
\\jciprod01\productn\J\JLE\47-4\JLE404.txt unknown Seq: 26 24-JUL-15 14:43
918 The Geo. Wash. Int’l L. Rev. [Vol. 47
with the aim of making its public feel comfortable moving forward as one united people.178 It is unlikely that formal prosecutions would have had this same ambitious and grandiose effect.179
When Syrian begins examining the different methods of transi- tional justice it may implement, it should not be looking for a mechanism that will provide justice to only the specific victims harmed by acts of atrocity. Instead, like South Africa, Syria should pursue a strategy that will provide reconciliation for all of its soci- ety. The civil war has had a negative impact on each person within the country, even if he or she was not specifically subject to an act of abuse.180 Additionally, the state has a long history of enduring repression under a military regime.181 While victims of specific acts committed during the civil war must receive justice, the wider range of those adversely impacted and the history and culture of the state should also be considered. A full consideration of these factors demonstrate that—like South Africa—Syria should pursue a transitional justice strategy that has the ability to reconcile all of its society.
V. CONCLUSION
The Syrian peace talks will inevitably include a discussion of the various mechanisms that could be used to help the country end its civil war and start transition to peace. One of the options should be a conditional amnesty in conjunction with a truth and reconcili- ation commission such as was used in South Africa. If imple- mented, this mechanism would help ease the transition out of civil war and provide justice and reconciliation for the Syrian society. Implementing a conditional amnesty is permitted under interna- tional law, so long as it does not shield crimes that require formal prosecutions. Establishing such an amnesty law would not only help transition Syria out of the current civil war but also assist the country reconcile and deter future acts of widespread violence from reoccurring.
178. See id. 179. See id. at 6. 180. Syria Profile—Overview, supra note 2. R 181. Id.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.