Commissioning justice Truth commissions and criminal justice 5 SUMMARY States should recognize that “retributive” justice and “restorative” justice (i.e. criminal justice and truth-seeking mechanisms) do not exclude, but supplement each other. In recent years, a debate has flourished on the possibility to “deal with” crimes under international law using non-judicial mechanisms of accountability, such as truth commissions. Based on the distinction between “retributive” justice and “restorative” justice, some have contended that countries have a choice in deciding “what kind of justice” they may pursue: that they may decide not to conduct criminal investigations and prosecutions of crimes such as genocide, crimes against humanity and war crimes and rather concentrate on truth-seeking and community reconciliation processes. The establishment of truth commissions (commissions of inquiry tasked with the investigation of patterns of past crimes) has often been considered as an alternative to the investigation and prosecution of crimes under international law before national courts. The paper analyses the practice with respect to criminal prosecutions and amnesty of the 40 truth commissions established around the world between 1974 and 2010. It concludes that:
The practice of truth commissions rejects the granting of amnesty for crimes under international law in connection with truth-seeking processes. The practice of the majority of truth commissions rejects the supposed legality of “conditional” amnesty, when such amnesty covers crimes under international law: of the 40 truth commissions examined in this paper, only three were given the power to recommend or grant amnesty (or immunity) for crimes under international law.
The practice of truth commissions allows the granting of amnesty in connection with truth-seeking processes only when the amnesty excludes crimes under international law. Of the 40 truth commissions examined in this paper, five were allowed to recommend or grant amnesty (or immunity) with the express exclusion of crimes under international law.
The practice of truth commissions strongly supports the prosecution of crimes under international law. The practice of the majority of truth commissions is firmly in favour of investigations and prosecutions of all crimes under international law: more than half of the 38 truth commissions with relevant practice examined in this paper recommended and/or actively contributed to the prosecution of all crimes under international law. Although there may be different forms of accountability, there is only one kind of justice: the one based on the respect, protection and Index: POL 30/004/2010 Amnesty International April 2010