Tuesday, January 17, 2023
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CommentaryAmnesty as a mode of Transitional Justice

Amnesty as a mode of Transitional Justice

The idea of justice known as “transitional justice” is connected to times of political upheaval and is defined by the use of legal means to address wrongdoing and widespread human rights violations in the past.

Amnesty is one of the legal options available to attain transitional justice. The word “amnesty” means “forgetfulness” or “oblivion,” and it refers to the expectation that both the victims themselves and the wider public will forgive or forget the past in order to move forward. It denotes protection from civil and/or criminal liability.

Amnesty may be used to stabilize a state following an armed conflict, during current conflicts, or during peace talks. Furthermore, it can be used to achieve a variety of goals, such as averting perpetual war, assisting conflict victims, or removing obstacles to a post-conflict political solution.

It is critical to understand what the phrase means and how it relates to Ethiopia’s current circumstances and the peace agreement reached between the Ethiopian government and the Tigray People’s Liberation Front (TPLF).

The Characteristics of Amnesty

Post-conflict settings necessitate the use of several transitional remedies, one of which is amnesty, which is employed as a last resort to cope with extreme circumstances and is not applicable in regular circumstances.

The old notion of amnesty is becoming obsolete. In modern usage, it is intended to aid in the discovery of the truth and the administration of justice. As a result, rather than being utilized as an instrument of impunity, its benefits as a means of truth discovery and a tool for reconciliation should be examined.

Amnesty, however, does not apply to all types of crimes, and there are some offenses for which criminals do not qualify. This is especially true in cases of crimes against humanity, such as genocide, torture, and enforced disappearance, where states are required by international law to prosecute perpetrators. Amnesty for these crimes is illegal under international law.

According to the universality principle on the exercise of criminal jurisdiction, every state has the right and obligation to bring criminals to justice in their national courts, even if the culprits are granted amnesty in their home country.

Nevertheless, in rare circumstances, if the transitional justice process is fair and the “international community” agrees it is important for a country’s future peace, amnesty for serious crimes may be appropriate.

The above-mentioned crimes are likewise not eligible for amnesty under Ethiopia’s Constitution, which says that perpetrators cannot be granted amnesty. If we adapt this to the current situation in Ethiopia, the government must always regard this clause of the constitution, which is the highest law of the country, when talking with TPLF leaders.

If the government gives amnesty to TPLF leaders suspected of genocide, crimes against humanity, torture, and other atrocities, it is violating both the country’s constitution and international law.

It will also contradict the basic goal of transitional justice, which is to create long-term peace in a country.

Under Articles 90 and 91 of the African Union Transitional Justice Policy, blanket (unconditional) amnesty is prohibited for crimes such as war crimes, crimes against humanity, and genocide, which are included in Article 4 (h) of the African Union Constitutive Act.

When employed in transitional justice, amnesties should be formulated with the participation and permission of impacted communities, especially victim groups, and should take into account the victims’ right to remedy, notably in the form of discovering the truth and receiving reparations. If the government intends to exempt TPLF leaders from prosecution, it should also examine the provisions of the African Union Transitional Justice Policy.

In other words, determining which type of amnesty should be applied to a certain problem is critical.

This is because the type of amnesty can determine whether it is lawful and legitimate, as well as whether it can help maintain peace. There are two types of amnesty based on the requirements that the culprit must meet: conditional and unconditional (blanket) amnesty.

Ethiopian amnesty law allows for these two types of amnesties. It shields people from criminal and civil liability, whether conditional or unconditional, if they are suspected of committing an offense before or after a criminal inquiry is launched or if they are being prosecuted.

An amnesty board constituted for this purpose investigates and advises whether someone is qualified for conditional or unconditional amnesty.

Blanket or Unconditional Amnesty

Under unconditional amnesty, the perpetrators will be immune from prosecution. As a result, the charge or conviction, as well as any future prosecutions, will be prohibited, with no further requirements to be met.

This form of amnesty is condemned as a politically motivated move, and it is rarely used, particularly in today’s setting, when accountability for human rights breaches and international crimes is rigorously required.

Opponents contend that it is impossible to achieve long-term peace without first ensuring justice.

In a nutshell, they claim that it is made at the expense of truth and justice, does not contribute to long-term stability, is illegal, and should never be considered since it is a sugar-coated kind of impunity.

It is also against the African Union Transitional Justice Policy, to which Ethiopia has signed on.

Conditional Amnesty

As the name implies, conditional amnesty imposes some restrictions on the individual(s) receiving amnesty. Rather than ignoring truth and justice, it attempts to strike a balance between justice on the one hand and long-term peace and stability on the other.

For a variety of reasons, evidence of a crime cannot always be gathered. In such cases, it may be required to obtain the testimony of those who perpetrated the crime or those who observed the crime’s commission in order for them to reveal who, how, when, and where the crime was committed or witnessed, as well as other details about the crimes.

As a result, one of its key purposes is to urge perpetrators to engage in the transition process and relate their stories about what happened in the past. In other words, the concept behind conditional amnesty in this instance is that if the offenders do not receive amnesty and enough legal protections, they may be unwilling to disclose the truth.

However, there are exceptional circumstances in which the criminals are willing to confess the truth without seeking amnesty in exchange.

The episode in Sierra Leone is one illustration of this.

Following the end of the Sierra Leone civil war, which lasted from 1991 to 2002, perpetrators volunteered to tell the truth without expecting any sort of impunity in exchange for their testimony, and they told the truth about what they did in the past, how they committed the crimes, and other important truths and details about the offenses.

In South Africa, following the end of the Apartheid government (1948–1994), the Truth and Reconciliation Commission was founded and given the authority to grant amnesty with the condition that all pertinent facts pertaining to the actions for which amnesty is sought be fully disclosed. Furthermore, the committee’s hearing was open to the public.

In times of conditional amnesty, truth commissions should balance the voices of victims on the one hand with the role of criminals in exposing the truth on the other. Meaning, they should not exaggerate victims’ rights because perpetrators have so many truths to tell if the procedure allows them in.

In a conflict-ridden country like Ethiopia, the most typical conditions in cases of conditional amnesty are those requiring fighters to disarm, renounce violence, and refrain from recidivism.

Conditions such as combatants disclosing the truth, contributing to reparations, or participating in alternative justice processes are vital in the interests of victims. In exchange, the perpetrators receive legal protection, career possibilities, and other government benefits.

The terms of an amnesty may reveal the state’s weak or strong bargaining leverage. If the state is in a stronger position than the rebels, it may force them to accept all or most of its terms, as in the case of the Ethiopian government’s agreement with the TPLF.

However, amnesties that come with increased obligations are more likely to be rejected, and the agreement may not protect the reputations of those involved.

Despite the foregoing, some criminals, particularly those regarded as big offenders, should be prosecuted in order to maintain the balance between justice and the right to know the truth. Because the past can’t be erased, if all offenders are given amnesty and no one is prosecuted, the intended transitional justice will be flawed, and it may lead to new atrocities instead of laying the groundwork for a lasting peace in the future.

Even in Ethiopia, the government must use extreme caution when granting amnesty to members of the TPLF or other parties who committed enormous crimes.

Self-Amnesty

It is a type of amnesty in which leaders and those with influence in repressive prior regimes grant themselves amnesty. It is inadmissible because it denies victims and the general public the right to know the truth as well as access to justice.

It is also maintained that the name “amnesty” should not be associated with it because amnesty is something that must be granted by another authority. As a result, this idea is more tied to the legality of amnesty and does not fall under the category of “kinds of amnesty.”

The case of Augusto Pinochet of Chile is a good example of self-amnesty. Pinochet gave himself amnesty for crimes he committed between 1973 and 1978 by getting a military order passed in 1978.

Amnesty was used in this case to cover up all of the crimes done during his reign, which turned out to be a legal stumbling block, making it difficult for Chilean courts to consider criminal cases against Pinochet. It made it impossible for people whose rights had been violated to get justice.

Self-amnesty is illegal under national, continental, and international law because its ultimate goal is to benefit offenders. It is also not permitted under Ethiopia’s Amnesty Law.

Who grants amnesty?

Some individuals, authorities, or organs have the authority to grant amnesty. As a result, only amnesty granted by them is legally binding. It may be awarded by the law in circumstances when the law specifies the conditions that the criminal must meet in order to qualify for amnesty.

The authority to grant amnesty may be delegated to the head of state, the head of government, or others. In some countries, the Truth and Reconciliation Commission has the power to grant amnesty with or without conditions.

Moreover, if the Ethiopian government intends to employ amnesty as a transitional justice method to address the country’s issue, it must ensure that its choice is consistent with the Ethiopian constitution, the African Union’s Transitional Justice Policy, and international law.

(Shimelash Wondale is an LLB, MA, LLM Candidate. He can be reached at [email protected])

Contributed by Shimelash Wondale

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