The Question of Amnesty: Balancing Truth and Justice

Russia, UN, US Negotiations
U.S. Secretary of State John Kerry, former United Nations Special Envoy for Syria Lakhdar Brahimi, and Russian Foreign Minister Sergey Lavrov discuss political settlement for Syria in 2013

Last week marked a major shift in Russia’s position on the Syrian conflict. In a rare show of unity, Russia joined other members of the UN Security Council in adopting Resolution 2235 to form an international investigation unit for the purpose of identifying perpetrators of chemical weapons attacks, including chlorine gas attacks. During the same week, Iran announced that it will put forth a newly revised peace plan for Syria. As historically staunch supporters of Syrian President Bashar al-Assad, Russia and Iran’s recent actions may reflect a change in attitude with regard to Assad’s culpability.

As international attention shifts toward the possibility of a political settlement, the question of whether negotiations will include an amnesty deal looms large. Justice is often sidelined during peace negotiations under the rationale that an immediate end to bloodshed takes priority over accountability. Evidence from past conflicts, however, demonstrates that barring accountability may lead to renewed conflict and instability in the long-term. The below discussion looks at a variety of ways amnesty has been used in the past, with varying results.

     1. Blanket Amnesty – No Truth, No Justice

Parties in conflict sometimes agree to blanket amnesty in order to negotiate an immediate end to violence. Under blanket amnesty, perpetrators are granted legal immunity for their crimes, which is a quick-fix that requires few government resources. Lebanon, for example, granted blanket amnesty to perpetrators who committed crimes during its 15-year-long civil war without any additional measures to address violations. While this served to end the conflict in the short term, Lebanon continued to experience violence, including the 2005 assassination of Rafik al Hariri. The United Nations established the Special Tribunal for Lebanon to address the assassination, but did not mandate the Tribunal to examine past crimes. The conflict in neighboring Syria has exacerbated the already deep sectarian tensions in Lebanese communities that stem from the unresolved grievances of the civil war and continue to threaten the country’s stability.

     2. No Amnesty – Insufficient Truth, Insufficient Justice

Some conflict states opt to avoid the issue of amnesty altogether and instead focus on prosecutions because of the political backlash amnesty could cause. Since amnesty inherently precludes justice, doing away with it might seem like a positive outcome. However, holding each and every person accountable for their actions is sometimes impossible and could lead to an impunity gap. In Iraq, for example, the post-conflict government used a combination of prosecutions and lustration, or “De-Baathification.” However, due to the large number of Baathists in the government, an arbitrary decision was made to target only high ranking officials and rehire lower-ranking officials. As a result, the system was perceived as unfair and inefficient. Without a well-thought-out plan for amnesty in place, Iraq’s transitional justice program led to haphazard and imbalanced results that gave unintentional amnesty to many suspected perpetrators.

     3. Conditional Amnesty – Balancing Truth and Justice

Conditional amnesty occurs when a country grants perpetrators of atrocities immunity on the condition that they fulfill some other requirement, such as participation in a truth commission, monetary payments to victims, or testimony to help indict another, often higher-level, perpetrator. The South African Truth and Reconciliation Commission (TRC) is considered by many to be a successful example of conditional, or “smart amnesty”. Following the fall of the brutal apartheid regime in South Africa, the government gave perpetrators the opportunity to confess their crimes to the TRC in return for the possibility of amnesty if they met certain criteria. The TRC’s final report “named and shamed” individual perpetrators and also explained the structure of apartheid institutions and security apparatus. As a restorative justice model, the TRC aimed to balance the demand for truth and justice, but ongoing violence in South Africa might indicate that the TRC was insufficient to fully address the trauma of apartheid.

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In a conflict like Syria, where widespread atrocities implicate a large number of people, blanket amnesty may seem like an appealing way to hasten an end to the conflict; however, Syrians are likely to oppose such measures and peace may be short-lived as a result. Equally problematic is a solution that only contemplates prosecutions. Syria may not have the capacity or the infrastructure to conduct transparent and fair trials for a large number of perpetrators, leading to an impunity gap that could trigger renewed violence.

Parties to a conflict often view amnesty and accountability as mutually exclusive, presenting a false choice between peace and justice. Conditional amnesty presents a balanced option, but also has its drawbacks. Citizens may be reluctant to entertain the idea of amnesty in any form. Moreover, conditional amnesty, without the credible threat of prosecutions, will essentially be seen as another form of blanket amnesty, failing to create an atmosphere of deterrence. Despite such challenges, there is a need for truth in Syria — truth about missing persons, information about high-level perpetrators, and knowledge of the institutions that allowed atrocities to occur. A well-thought-out plan for conditional amnesty could help prosecute those most culpable while also providing the space for truth-telling and reconciliation, particularly if used in combination with reparations, institutional reform, and memorialization programs.

Examples from other conflicts demonstrate that justice cannot be politicized and sidelined in favor of peace, and amnesty will not be an effective quick-fix solution to the complex problems Syrian society faces. The parties involved in negotiating a peace plan for Syria will need to keep these considerations in mind if they have a hope of achieving long-term, sustainable peace.

For more information and to provide feedback, please email SJAC at info@syriaaccountability.org.

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