The ongoing truth and reconciliation process in Seychelles provides a window into a contested area of the international law of transitional justice: amnesties. The Truth, Reconciliation, and National Unity Commission of Seychelles (TRNUC) has the power to grant amnesties in specific circumstances, and what effects those grants of amnesty will have and how they will be received will offer clues about the status of amnesties in international law.
In the past, the power of truth commissions to grant or recommend amnesty has been so contentious that it has jeopardized international support for such commissions, support which is needed in many contexts to effectively achieve truth and reconciliation. The international community has demonstrated skepticism toward amnesty, though (as discussed below) despite the rhetoric, there is no clear basis in international law to oppose amnesty. Often a necessary feature of the peace mediation and transitional justice process(es), conditional amnesties have been used consistently and strategically by states in post-conflict or post-transition settings for decades. This article explores the contested history and present of amnesties through the illustrative case of the TRNUC, which is poised to start amnesty proceedings later this year.
A Brief History of Transitional Justice in Seychelles
The Truth, Reconciliation and National Unity Commission of Seychelles (TRNUC) recently entered the third and final year of its mandate to investigate and make recommendations on claims of human rights violations committed during or in relation to the coup d’état of 1977. Formed in 2018 with a mandate from 2019 through 2022, the TRNUC was established to provide clarity about the period of one-party rule (1977-1993) and the human rights abuses that occurred under authoritarian president Albert René, who took power in the coup d’état following the country’s independence from British colonial rule in 1976.
The one-party state officially lasted from the coup in 1977 until 1993, when the current constitution establishing a multiparty democracy entered into effect. However, the Commission has already received evidence that the impacts of the one-party state – including some ongoing human rights violations by officials such as President René, who remained in power after 1993 – lasted much longer. René stepped down in 2004 (after being president for 27 years), but his party maintained control of the government until recently. It was not until 2016 that the opposition achieved a majority in the National Assembly, and not until October 2020 that an opposition candidate finally won the presidency, the first such transfer of power in the 44 years since independence.
Investigations are ongoing under the TRNUC’s mandate in hundreds of cases, covering alleged human rights violations from wrongful denial of the right to employment and unjustified acquisition of property or business, to enforced disappearances and murder. The determinations being drafted on each admissible complaint are expected to be completed in time for the Final Report to be handed over to the Government in August 2022. Personally, I have been fortunate to work with the Commission as one of 20-30 external actors supporting the TRNUC from outside the Seychelles: my ongoing role has involved advising the Chairperson and broader Commission on various legal and human rights issues, including amnesty; managing the other international consultants and interns on their respective projects; and assisting in capacity-building among international stakeholders.
As is common among truth and reconciliation mechanisms, part of Seychelles’ truth-seeking process includes an amnesty-for-truth procedure, whereby pursuant to the Act that established it, the TRNUC may grant an amnesty upon the full and frank disclosure by the applicant of all facts regarding the event in question and a statement of sincere apology to the victim(s). While the Commission has not yet used this power, it has a few dozen amnesty proceedings expected to begin later this year. But what does “amnesty” mean in this context?
What is “Amnesty” in the Truth and Reconciliation Context?
Numerous definitions of “amnesty” abound in legal and academic literature, but it must be recognized up front that the term itself is unfortunate. “Amnesty” implies a link to amnesia, or a sense of forgetting and forgiving. While forgiveness remains a potentially sought-after aspect of reconciliation, the perception of forgetting is both regrettable and misleading, as most modern truth commission-based amnesties, including those permitted by the TRNUC Act, require a full disclosure of the applicant’s role in the events in question. A proper amnesty process, therefore, does not encourage the public to forget injustices, but rather amplifies complementary truth-seeking processes.
Put simply, an amnesty is a legal bar against civil and/or criminal liability for actions that occurred in the past. It is very much like a pardon, the main distinctions being that pardons apply exclusively after conviction and lift criminal penalties, but do not expunge the conviction itself, whereas amnesty can apply at any time, pre- or post-judgment, and also nullifies legal liability absolutely. Similar to a pardon, an amnesty is an extraordinary remedy which should only be used sparingly, on a case-by-case basis, and never unconditionally or for entire groups of perpetrators (known as “blanket amnesties”).
Highly controversial, amnesties in transitional justice environments have been seen as embodying the tension between the goal of peace and the ideal of justice. By removing the prospect of prosecuting the applicant, who, as an inherent aspect of their testimony, confesses to having committed certain crimes, amnesty is seen as a fundamental failure of the state to prosecute and punish offenders and provide society with the retribution it craves. This is felt particularly intensely in the transitional justice context, which necessarily entails “justice” during or after a country’s “transition” from one political or social system to another. Indeed, it is understandable for the public – and particularly those who believe they are owed reparations for past abuses – to feel that amnesty is a miscarriage of justice and an obstacle to reconciliation.
However, as many have pointed out, it is precisely in these transitional contexts where the state is least likely to be able to prosecute offenders, given the often-turbulent political change, the need to maintain a likely-fragile peace agreement, the lack of resources or infrastructure to hold trials, and many other potential factors. In Seychelles, the courts were seen as politically influenced and ineffective even after the return of multiparty democracy in 1993. Now, the tourism-dependent country has struggled financially during the COVID-19 pandemic, which has further contributed to case backlogs and a lack of resourcing throughout all sectors. In such a context, amnesty can actually support the state’s duty to investigate, as the popular truth-for-amnesty procedure is a core mechanism – and sometimes the only mechanism – by which certain facts and stories are unearthed.
This dynamic illustrates that in order to have a meaningful transition toward lasting peace, a measure of strategic amnesty might be necessary. It is important to remember that amnesty does not signify an absence of accountability, and it may leave open compelling methods of pursuing justice, such as alternative sanctions, reparations, plea agreements, or non-judicial or community-based forms of accountability.
International Law on Amnesty
Notwithstanding one’s position as to the moral or political justifications of amnesty, the legality of the practice under international law, where one might expect to find either prohibition or vindication of amnesty, is surprisingly ambiguous.
States have consistently declined to prohibit or even recognize amnesties in treaties, other than the Additional Protocol II to the Geneva Conventions, which requires States parties to “endeavour to grant the broadest possible amnesty” at the end of non-international armed conflicts. Some do see an implicit prohibition of amnesty stemming from the duty of the state to investigate and aut dedere aut judicare (“either extradite or prosecute”), in treaties such as the Genocide Convention (art. 4), Geneva Conventions (Convention IV, art. 146), Convention against Torture (art. 7), and Convention on Enforced Disappearance (art. 11). Yet none of these treaties dictate that all perpetrators must be prosecuted in a traditional court setting, let alone specify sentencing requirements, and a few even recognize the discretion of national authorities in deciding whether to prosecute – evidence of flexibility on the part of States parties in applying certain amnesties.
The fact that amnesty has not been codified into international law one way or the other is echoed in the similarly murky status of customary international law on this issue. As has been discussed at length, including by the Special Rapporteur on crimes against humanity, there is insufficient state practice, let alone opinio juris, to suggest the existence of a binding rule prohibiting amnesty even for Rome Statute crimes. The hundreds of amnesties granted since World War II show that notwithstanding the above treaty commitments, States will continue to entertain the idea of amnesty where they deem it to be necessary.
The various intergovernmental and regional human rights systems similarly cannot agree on the (im)permissibility of amnesty. The U.N. and European Union, as well as nongovernmental organizations (NGOs) such as the International Committee of the Red Cross, maintain a policy of opposing amnesty for Rome Statute crimes and gross violations of human rights, including in the context of peace negotiations. Though these players have not all adopted clear policies toward amnesties for other crimes, there seems to be a general distaste for amnesty, perhaps stemming from the suggestion of the early Princeton Principles on Universal Jurisdiction that amnesty is largely inconsistent with states’ obligations to provide accountability for serious crimes under international law – though even this source dealt only with the Rome Statute crimes and torture, piracy, and slavery, and did not mention the permissibility of amnesties for other, lesser crimes. On the other hand, the African Union considers amnesties to be permissibly “used for a wide range of purposes, particularly as part of political transitions and before criminal processes commence,” even emphasizing certain positive objectives of amnesties in the post-conflict period. The African Commission on Human and People’s Rights similarly notes that although “human rights advocates are often predisposed to reject the use of amnesties in [transitional justice], it is clear that in at least some cases amnesty, particularly qualified or conditional amnesty, may be necessary in pursuing [transitional justice] objectives.”
Amnesty as a Practical Barrier
It is perhaps in part due to this contentious backdrop that it is unusual for a truth commission to have the power to grant amnesty; many have had the power to recommend amnesty, but only two have had the power to actually bar civil and criminal liability based on the testimony received. The Seychelles TRNUC is just the second, after the paradigmatic but controversial South African Truth and Reconciliation Commission, empowered to grant amnesty for the human rights violations under its mandate.
Naturally, this has imperiled the TRNUC’s search for international support, which it has undertaken since the beginning – when only half of its budget was approved by the national government, a tradition that has continued each year to date – in order to make achievement of its mandate more attainable. Transitional justice scholarship has increasingly grappled with the extent to which truth commissions are creatures of politics – from appointments of commissioners to budgeting to inter-agency cooperation – and as such must not only rely on the domestic government (from which they must also be independent and impartial) but also operate within the sphere of international relations. This is even more true for the many (read: virtually all) truth commissions that are under-resourced and under-supported domestically.
The road to securing additional monetary and technical assistance can be bumpy for those truth commissions with the need and the drive to look for it, and it has been all but unachievable for the TRNUC, particularly in the context of prospective amnesty proceedings. In Seychelles, the diplomatic community has refused time and again to offer a modicum of assistance even for the aspects of the TRNUC’s work relating to truth-seeking and victim support, which is most of its mandate.
As a legal consultant, I was tasked with gaining technical support and funding for the Commission, to no avail: some of the embassy representatives, Foreign Ministries, and U.N. agencies were cordial but refused to lead the charge, seeing their involvement as meddling in the sovereign affairs of another State; some simply never returned my calls or emails; and some took specific issue with the TRNUC’s amnesty power when they eventually declined to even make a statement in support of the victims that have come before the Commission.
The Commission’s amnesty power has hindered attempts to gain international support, despite the international community’s involvement in helping to develop guidelines for the amnesty process. One actor in particular, the U.S. State Department, helped us to craft detailed Amnesty Guidelines which establish a number of preconditions and conditions that are to be built into any grant of amnesty; contain procedures for notifying the public, conducting public hearings, and sharing truth with the nation; and further delineate the requirements for petitioning for amnesty, including protecting victims’ rights and due process rights of perpetrators. Further, the TRNUC Act stipulates that a grant of “amnesty shall not affect any order by the Commission for remedies, reparations or rehabilitation,” and the Guidelines contemplate several ways in which amnesties granted by the TRNUC would contribute to reparations and reparative justice. As such, the Guidelines complement the requirements in the TRNUC Act by honing the Commission’s amnesty power and increasing the prospects that any grant(s) of amnesty it makes will be seen as legitimate. But even this was not good enough: the U.S. Office of Global Criminal Justice, which had been helpful in the beginning, refused to engage further when we did not try to pursue a controversial legislative amendment removing the TRNUC’s power to grant amnesty for unlawful killing, torture, and enforced disappearance – the violations under its mandate that amount to gross violations of human rights.
One More Year
The timing or sequencing of amnesty within the broader transitional justice process is important. In this respect, it is notable that the TRNUC is in its final year, with yet many investigations ongoing: there are more “truths” still to be revealed, and the Commission, and by extension the broader population, could stand to gain much from the facts that may be unearthed in the amnesty hearings it holds. These hearings will be crucial in achieving its mandate in tandem with many parallel priorities, such as creating a full public record of the evidence it receives in hearings, currently being archived on YouTube; conducting research and preparing the scores of background chapters that will constitute its Final Report; and drafting determinations in the more than 360 admissible cases of alleged human rights violations, which will also constitute a volume of its Final Report.
A strategic mixture of truth processes, selective prosecutions (which the TRNUC will undoubtedly recommend as part of its Final Report), and amnesties could therefore complement one another by allowing fuller investigations, revealing or at least preserving fuller truths, and eventually resulting in more wholesome conciliative and reparative effects for both victims and perpetrators throughout the islands. As the Commission hurries to complete its mandate on time, amnesties may provide a key tool to reconcile and achieve the Commission’s lofty mission.