Academic journal article The George Washington International Law Review

Using a Conditional Amnesty and Truth and Reconciliation Commission as a Transitional Justice Mechanism in Syria

Academic journal article The George Washington International Law Review

Using a Conditional Amnesty and Truth and Reconciliation Commission as a Transitional Justice Mechanism in Syria

Article excerpt

I. INTRODUCTION

In March 2011, citizens of the southern Syrian city of Deraa protested the arrest and torture of local teenagers who had painted revolutionary slogans on the wall of a local school. 1 In response to the protest, government forces of Bashar Al-Assad's Baath regime 2 opened fire on the crowd, killing many in attendance.3 This initial demonstration spurred many such more, both in Deraa and other cities around the country, including Aleppo, Hama, Homs, and the capital, Damascus.4 Subsequently, this initial uprising developed into a civil war that has left more than 191,000 Syrians dead,5 more than two million people displaced, and thousands more injured, detained, or disappeared.6

The civil war has forced Syria to consider how to find justice for the victims of atrocity and restore peace and stability to a country besieged by turmoil. In this regard, Syria is not alone. Indeed, the country joins the more than 250 intrastate conflicts that have occurred since the beginning of the twentieth century, which by the year 2000 resulted in the deaths of between 75 and 170 million people.7 As was true in each prior atrocity, each person aggrieved by the Syrian conflict deserves justice.8

Of the various methods that a country such as Syria may implement in its attempt to find stability and justice,9 the act of passing an amnesty law remains the most controversial.10 Grown out of the ability to grant collective clemency, the term "amnesty" refers to "legal measures adopted by states that have the effect of prospectively barring criminal prosecutions against certain individuals accused of committing human rights violations."11 Advocates for amnesties believe such laws are essential to halting the violence within a state and that without a promise of clemency made to those committing injustices during the period of atrocity, violence will only continue.12 Critics of amnesties dispute this notion, arguing that such laws encourage impunity and violate international law.13

However, amnesties are not uniform in nature and, depending on their construction, do not always violate international law.14 Amnesty laws that are designed to shield only particular crimes- rather than all crimes indiscriminately-and which are implemented with a truth and reconciliation commission do not violate either customary or codified international law. Implementing such a law with a conjoined truth and reconciliation commission ensures that the state remains consistent with its legal obligations of investigating crimes and holding perpetrators accountable, while also assisting a society forgive factions for their past abuses, reconcile, and ultimately move forward.15 The use of a conditional amnesty with a joint truth and reconciliation commission was employed with great success in post-apartheid South Africa;16 the same mechanism should be used as a model to assist Syria emerge from conflict.

Part II of this Note will survey the various mechanisms a state may employ to provide justice to victims and transition to peace, with a focus on South Africa's amnesty law. Part III will argue that if a state follows the South African amnesty law model, amnesty laws are not a violation of any settled international legal norm, based either on a treaty or on customary international law. Part IV will then provide further evidence as to why a conditional amnesty and truth commission would be compatible with the Syrian civil war by emphasizing specific characteristics that make particular types of conflicts like Syria's more suitable for the implementation of the South African style amnesties. Although undoubtedly this decision must be left to Syrians themselves, this Note will propose how a conditional amnesty law and truth and reconciliation commission could help resolve this period of conflict and provide justice and resolution.

II. TRANSITIONAL JUSTICE MECHANISMS

Transitional justice refers to the "set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. …

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