No, a Truth and Reconciliation Commission Wouldn’t Work

by Kevin Jon Heller

Salon.com has an article today about the Obama administration and torture that floats the horrifying possibility — all too real, I’m sure — that Bush will issue a blanket pardon for “anyone who participated in, had knowledge of, or received information about Bush’s interrogation program during the so-called war on terror.”  I’m not going to waste precious pixels responding to that possibility; Jonathan Turley said it all when he told the Salon reporter that such a pardon “would allow a president to engage in massive illegality and generally pardon the world for any involvement in unlawful activity.”  I’m more interested in one law professor’s rationale for favoring a blanket pardon — that it would make it easier for a truth and reconciliation commission (TRC) to function effectively:

There are, in fact, some constitutional scholars who believe a pardon might actually facilitate more complete participation in a fact-finding commission, by removing the threat of looming liability. “Holding people accountable is certainly nice, but in terms of healing the country and moving forward, so is actually getting a clear picture of what happened and letting the public make an informed decision,” said Kermit Roosevelt at the University of Pennsylvania Law School. “If we had a pardon followed by something like a truth and reconciliation commission, that might not be such a bad outcome.”

I have the utmost respect for Professor Roosevelt, but this statement completely misunderstands the nature of a TRC.  Perpetrators have an incentive to tell the truth about their crimes only if the alternative is criminal prosecution; if you pardon them for their crimes in advance, they have no incentive to testify. It’s a seemingly obvious point: why would government officials admit to being complicit in torture if they had nothing to gain by doing so?  Out of their demonstrated sense of civic duty?

Indeed, as I pointed out a few months ago, perpetrators of serious crimes are unlikely to testify before a TRC even if they face prosecution for not doing so. South Africa’s vaunted TRC conditioned amnesty on truthful testimony, yet “almost no high-ranking officials of the apartheid government came forward to ask for amnesty.”  The reason why isn’t a mystery: of the 5,000 perpetrators who were either denied amnesty by the TRC or refused to cooperate with it, fewer than ten were ever actually prosecuted.

The bottom line is that there is only one way to make a TRC work: condition amnesty on testifying — and prosecute those who refuse.  All of them.

http://opiniojuris.org/2008/11/19/no-a-truth-and-reconciliation-commission-wouldnt-work/

7 Responses

  1. Kevin- Factual question: did the SA TRC have the kind of subpoena power available to the U.S. Congress? Couldn’t a U.S. “TRC” be established as a congressional entity with full subpoena power?  My understanding in the U.S. example is that the blanket presidential pardon removes any ground for a pardoned witness to invoke the 5th amendment privilege.  It’s not that U.S. officials and other witnesses will have incentive to testify, but rather that there would be a strong disincentive (jail for contempt) if they refuse to testify. 

  2. I think everyone just needs to relax on this stuff — the time to post-mortem the Bush gang is when they are finally out of office.

    I’m all for a commission to investigate the crimes, and not in any hurry for prosecutions, but there’s absolutely no need to be talking about reconciliation, and pardons are irrelevant — the crimes in question are unpardonable. Indeed, I believe that any attempt to pardon such crimes is arguably a crime in and of itself.

    What power did Saddam Hussein have to pardon himself or his subordinates for his crimes?

    The same as Adolf Hitler or any other war criminal: none whatever. George Bush is no exception.

  3. I don’t think that non-U.S. nationals who were subjected to war crimes by Americans would really care about “healing the country,” as Professor Hall claims that a TRC would serve.  Moreover, TRCs are problematic under international law.  International law requires full restitution, which includes the “satisfaction” (in the legal sense) of criminal prosecution.

  4. Peggy,

    No — the stick was the (illusory) threat of prosecution.  I am all for creating a commission (or better yet, appointing a special prosecutor) that would have the authority to force suspects to testify. But that isn’t a TRC (not much reconciliation).  Moreover, it would still be foolish to pardon suspects in advance, because then the only stick would be the possibility of contempt proceedings.  And we all know how effective Congress has been with those…


  5. The issue of amnesty could become one of the most contentious as more people call for criminal accountability for the Bush administration’s human rights violations, like torture, during its war on terror.  Certainly, the issues raised by resorting to amnesty/pardon have greatly shaped the transitional justice movement, and until now, led to a heavy deference to truth commissions in the face of insurmountable obstacles to achieving  criminal justice. However,  this trend may be changing. Specifically, the Peruvian transitional justice experience offered a new approach of including criminal justice as part of its formula for local reconciliation. To do so, the Peruvian Truth and Reconciliation Commission relied heavily on the Inter-American Court of Human Rights’ 2001  Barrios Altos decision, in which it held that Peru’s amnesty had no  legal effect. As a consequence, Peru’s truth commission process very much intended to set the stage for concurrent and subsequent criminal prosecutions.  Now criminal trials are currently underway against perpetrators of human rights violations, including the former head of state Alberto Fujimori, (see: http://www.fujimoriontrial.org) who masterminded one of this world’s most suspect wars on terror during his time as president (1990-2000). So the question is: will  international precedent influence the U.S. approach, or can we expect to stay the course and ignore this normative framework?

  6. While I am sure that this is not Professor Roosevelt’s motivation, his call to brush over, rather than prosecute, some of the worst crimes of the Bush administration seems particularly ironic, given his grandfather’s role in arranging the overthrow of Iran’s only democratically elected government.

    The idea that a TRC is a preferable option to prosecution is premised on the notion that “moving on” is the best way to deal with some of the darkest and most irresponsible chapters of our own history. Perhaps if Professor Roosevelt’s grandfather had been subject to prosecution, along with those that gave him his orders, “regime change” might not have seemed like such a consequence-free option to the current administration. “Healing” the country is not the only purpose behind attempts to hold those who abuse power accountable. Eliminating impunity and helping to prevent repetition are, in many respects, far more important, and unlikely to be well-served by a TRC.

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  1. […] the next president, blogged about the need provide accountability for torture.  I noticed that in her comments on a recent post on Opinio Juris, she wrote that “[t]he issue of amnesty could become one of the most contentious” in […]