03 July 2008

Comment by Dr Clinton Fernandes on Clemency Issue

1. There is one category of crimes in which amnesties may be given freely by the state. That is where the state itself is the victim e.g. the crimes of treason or sedition. Beyond that, there are real problems, sometimes impossibilities.

2. However, clemencies/amnesties can sometimes be a way to further the cause of peace.

a. For instance, Sierra Leone's International Truth and Reconciliation Commission said in respect of the Lome Peace Agreement that it was "unable to declare that it considers amnesty too high a price to pay for the delivery of peace to Sierra Leone, under the circumstances that prevailed in July 1999. It is true that the Lome Agreement did not immediately return the country to peacetime. Yet it provided the framework for a process that pacified the combatants and, five years later, has returned Sierra Leoneans to a context in which they need not fear daily violence and atrocity."

But it must be understood that this amnesty was a temporary measure. Charles Taylor (the individual so amnestied) did not enjoy this amnesty as a right in perpetuity. Rather, the state granted him a temporary privilege, and a subsequent government could revoke this privilege. His amnesty was a step on the road to justice, not a barrier to justice.

b. Another example comes from South Africa, where the South African Truth and Reconciliation Commission granted an amnesty to those who applied for it, provided they told the whole truth and provided the amnesty was in respect of a political crime.

But there were clear rules for the granting of amnesties. A well-staffed Amnesty Committee supervised the process, and thorough investigations were conducted by independent investigators prior to each decision.

3. There are many categories of amnesties.

a. There are "blanket amnesties", which are totally illegitimate because they have "an extraordinarily broad scope", "deny the judiciary the potential to prosecute", and "render actual prosecution impossible for crimes that are generally regarded as requiring prosecution under customary international law". See William W. Burke-White, "Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation", Harvard International Law Journal, Vol 42, No 2, Summer 2001.

b. There are "Internationally legitimized, partial immunities". If such amnesties are to meet international obligations, "the adjucatory body cannot include genocide, war crimes, crimes against humanity and torture".

c. There are "locally legitimized, partial immunities". These amnesties are "more restrictive in scope" and are "more likely to comply with" international obligations.

d. Finally, there is "Constitutional immunity", which is legitimate. This requires a considered, impartial process in which the most serious crimes are excluded from amnesty considerations.

4. Amnesties that are granted in an arbitrary, non-transparent process, and which do not take the above considerations into account, serve only to discourage respect for the government of the day, discourage respect for the rule of law, encourage private acts of revenge and vigilanteeism, and provide an incentive for the commission of future human rights abuses.

Just consider what happened to countries that - despite initial resistance and difficulties - prosecuted alleged offenders after World War II. And consider the state of affairs in countries that have yet to do so.

5. Legitimacy is what any elected government in East Timor requires - regardless of which party or parties actually form the government. (We in the Australian Coalition for Transitional Justice in East Timor are not picking sides on this, I assure you.)

In order to win legitimacy, a government must fulfil an obligation it owes to all its citizens to defend them in case they become victims. You cannot win the trust of your citizens if you don't protect them.

Dr Clinton Fernandes
Senior Lecturer Politics Program
University of New South Wales
Defence Force Academy

Posted by VOET with the consent of Dr. Fernandes. Original comment from East Timor Action Network Email List 02/07/08

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