The Omarska Memorial Project as an Exampleof How Transitiona.docx

The Omarska Memorial Project as an Example
of How Transitional Justice Interventions Can
Produce Hidden Harms
Sebina Sivac-Bryant*
A B S T R A C T 1
This article uses the example of a failed project, whose aim was
to achieve consensus
around constructing a memorial at the former Omarska camp in
Bosnia and
Herzegovina, to illustrate some of the dangers of transitional
justice interventions
involving victims of dislocation and violence, as well as the
potential for hidden harms.
It is based on nine years of ethnographic research into a small
returnee community in
Kozarac, in the municipality of Prijedor. Well-intentioned as
the project undoubtedly
was, it had unintended consequences for the social relations of
the local community.
Like other internationally led initiatives, it can be argued that it
helped reinforce a vic-
tim-perpetrator dynamic that prevented rather than assisted
progress. Although we
cannot draw too many conclusions from one project, the issues
highlighted by this ini-
tiative have been echoed on a smaller scale in much of the
international involvement
of transitional justice scholars and activists in the town since
then.

K E Y W O R D S : Omarska camp, memorialization, victims,
returnees, Bosnia and
Herzegovina
O M A R S K A C A M P
After Bosnian Serb forces’ takeover of Prijedor on 30 April
1992 and as part of
a systematic attempt by Serb nationalists to ethnically cleanse
non-Serbs from
areas of Bosnia that were earmarked to become Greater Serbia,
camps were
established at Omarska, Keraterm and Trnopolje. Omarska camp
operated from 25
May to 21 August 1992, on the site of an iron ore mine. During
this time, more
than 3,000 Bosnian Muslims and Croats were confined,
suffering cruelty and torture,
37 women were repeatedly raped and 500–900 people are
estimated to have
perished.2
* Independent Researcher. Email: [email protected]
1 This article is based on my doctoral thesis, ‘An Ethnography
of Contested Return: Re-Making Kozarac,’
University College London, funded by the Economic and Social
Research Council, UK.
2 ‘The International Tribunal for the Former Yugoslavia
Charges 21 Serbs with Atrocities Committed Inside
and Outside the Omarska Death Camp,’ UN Doc. CC/PIO/004-E
(13 February 1995).
VC The Author (2014). Published by Oxford University Press.
All rights reserved.
For Permissions, please email [email protected]

� 170
International Journal of Transitional Justice, 2015, 9, 170–180
doi: 10.1093/ijtj/iju023
Advance Access Publication Date: 3 December 2014
Notes from the Field
Roy Gutman of Newsday magazine reported the first rumours
about the camp,3
before an ITN television crew and Guardian journalist Ed
Vulliamy visited Omarska
on 5 August.4 The resulting images of emaciated, terrified
inmates shocked the world
and led to calls for a war crimes commission, following which
the International
Criminal Tribunal for the former Yugoslavia (ICTY) was
established. The first
Hague indictee, Duško Tadić, was a local Serb from Kozarac, a
predominantly
Bosniak town near Omarska. In total, 19 individuals were
charged with the crimes
that occurred in Omarska camp. Testimonies of systematic rape
in the camp, gath-
ered by two female inmates, were instrumental in recognizing
rape as a war crime for
the first time. It is hard to exaggerate Omarska camp’s central
role, and the stories of
torture and murder that occurred there, in the traumatic memory
of events surround-
ing the ethnic cleansing of this area in 1992.
A P P R O A C H I N G M I T T A L S T E E L
In November 2004, the multinational giant Mittal Steel acquired

a majority stake in
the iron mine company Ljubija Rudnik in Prijedor, which runs
the Omarska mine.
Local returnees believed this would create an opportunity to
commemorate the site,
given the company’s commitment to corporate social
responsibility. A survivor now
living in Holland, Satko Mujagić, and several other individuals
and local organizations,
including Srcem do Mira (Through Heart to Peace) and Izvor
(Source), wrote to the
new owner of the mine asking to be allowed to create a
memorial on the site in order
to help heal the wounds of the survivors is to acknowledge what
happened.
That is why we are appealing to you to dedicate part of this
special place to
the memory of what happened there only 12 years ago. . .Your
company owns
a place with a legacy. Although you are not responsible for
what happened
there, I hope that you will look compassionately upon our
request so that the
past will never be forgotten.5
Bosniak citizens who had returned after the war to reestablish
the local commu-
nity felt strongly that a memorial to Omarska camp would be a
far more useful and
locally relevant initiative than the distant war crimes process –
‘a fantastic opportun-
ity to tackle the past,’6 as one put it. Both private and public
online discussions took
place about the possible final shape of the memorial. Much of
this discussion was

caveated by the wish not to be too ‘demanding’ or ‘insensitive’
towards the Serb
community, which held a generally antagonistic view of the
project.
T H E M E D I A T O R S : S O U L O F E U R O P E
Mittal responded by appointing a small British charity, Soul of
Europe (SoE), to take
the project forward. It consisted of a former priest, Donald
Reeves, and his colleague
3 Roy Gutman, ‘Hidden Horror,’ New York Newsday, 19 July
1992; Roy Gutman, ‘Death Camps,’ New York
Newsday, 2 August 1992.
4 Ed Vulliamy, ‘Shame of Camp Omarska,’ Guardian, 7 August
1992.
5 Optimisti 2004 Foundation, Holland, October 2004, on file
with author.
6 Personal interview, project participant, Prijedor, Bosnia and
Herzegovina, 9 June 2010.
Omarska Memorial: How TJ Can Produce Hidden Harms � 171
Peter Pelz. Their mandate was to work locally among all
communities to achieve a
solution that would create a process of mediation to ‘bring
Serbs and Bosniaks and
Croats together to agree on a proposal for a memorial.’7 SoE
had been involved in
the former Yugoslavia since 2000, mostly working with
religious leaders in Belgrade,
Serbia, and Banja Luka, the capital of Republika Srpska – the
Serb-run entity in

Bosnia and Herzegovina. In talks with Mittal, they stressed their
friendship with the
Serbian Church in Banja Luka and its leaders, who had been
brought over to
England for debates and interfaith dialogue.8
In their initial proposal, SoE stated that the mediation project
‘leaves consider-
ation of the place, the type of memorial and those who should
be remembered as a
matter for debate.’9 In essence, the project never guaranteed to
accede to the sur-
vivors’ request to commemorate the specific site of the former
camp, although this
was not fully understood by those from the community who
supported the initiative.
SoE acknowledged that the collective trauma of Kozarac10 and
its inhabitants was
something that needed to be dealt with carefully, and hoped that
by bringing to-
gether different ethnic groups to plan a memorial, they might
create the basis for a
wider process of reconciliation in Bosnia. Looking back, the set
up of the project sug-
gests that they were more interested in creating a showpiece
reconciliation project
than a memorial.
A F R A M E W O R K O F M E D I A T I O N : C R I T I C A
L Y E A S T ,
N O T C R I T I C A L M A S S
SoE’s methods and strategies aimed to create a ‘critical yeast’
as opposed to a ‘critical
mass’ – a catalyst for a solution, rather than the solution
itself.11 They began working

with a core group comprising significant members of the
communities involved, with
the idea that they would then influence their respective
communities. There were to
be three stages to this process:
1. Identify significant community members;
2. Organize round tables and workshops among the chosen
members; and
3. Begin moving towards a memorial.
Whilst there were no ‘fixed sides’ or a fixed number of
members allowed within
these talks, the reality was that mediators chose certain
individuals to negotiate whilst
others were excluded. ‘Critical yeast’ meant targeting powerful
or prominent commu-
nity members rather than approaching survivors or local
activists. On the Serb side,
they involved three Serb women from the mine’s management
team and a former
mine manager who was in charge of the mine during the time of
the camp, Ostoja
Marjanović. He acknowledged on several occasions that the
mine vehicles, for ex-
ample, had been used for carrying bodies and digging mass
graves.
7 Peter Pelz and Donald Reeves, The White House: From Fear
to a Handshake (London: O Books, 2008), 7.
8 Soul of Europe, ’A Project of Mediation: Between Serbs,
Bosniaks and Croats for a Memorial for Those
Killed in the Bosnian War in the District of Prijedor’
(unpublished document, 2005).
9 Ibid.

10 Ibid.
11 Pelz and Reeves, supra n 7 at 110.
172 � S. Sivac-Bryant
Over the course of the mediation, SoE frequently visited the
most important man
in Prijedor, Mayor Marko Pavić, ‘the godfather of the town,’12
to seek his support.
Two other men who had been interrogators in the camp were
also involved in the
talks, which Bosniak participants considered an outrage. Among
Bosniaks, there were
three Omarska survivors: Nusreta Sivac, a former judge; Rezak
Hukanović, a journal-
ist and author of a book about Omarska, The Tenth Circle of
Hell: A Memoir of Life in
the Death Camps of Bosnia; and Muharem Murselović, a local
politician. The main
interlocutor from Kozarac was Emsuda Mujagić from Srcem do
Mira. Local managers
of the project were also appointed: a young returnee, Anel
(Murselović’s nephew),
and a Serb refugee from Croatia, Zoran, who SoE hoped would
work together to
help build common purpose among the participants.
I got to know two participants from the ‘Serb side,’ both of
whom had a mixed
ethnic background. Vedran’s father was one of the only local
Serbs to publicly recog-
nize the crimes committed against Bosniaks in Prijedor. Vedran
and another young

man, Sacha, supported a memorial, but as the discussions
evolved they felt uncom-
fortable with the process. SoE notes that both soon left the
group ‘because [Vedran]
became adamant that only victims should be allowed to decide
on a memorial and
that Serbs had no right to be involved.’13 Separately, Bosniak
representatives ap-
peared to have been given the impression that the mediators’
job was primarily to
support them against what they regarded as the politics of
discrimination present in
most social and political dimensions of their lives. There
seemed to be an uncritical
acceptance that the project ought to address the grievances of
victims. After all, they
argued, it was a direct response to their request to Mittal. This
sense of ownership of
the project among a small group of Bosniak representatives later
led to a struggle
over who among the victims had the right to be involved.
Most survivors in the diaspora were not informed about the
project and only be-
came aware of it because of the online discussions and
subsequent press articles.
This lack of transparency further contributed to the victims’
sense of isolation and
marginalization.
C L O S E D - D O O R N E G O T I A T I O N S
Prior to the fieldwork, SoE mediators contacted several
individuals and institutions
in the UK to help them make contact with local activist groups.
Their main contact
among the diaspora in the UK eventually became Kemal

Pervanić, a survivor of
Omarska and author of a book chronicling his experience,
entitled The Killing Days:
My Journey through the Bosnian War. Indeed, Reeves and Pelz,
in their book about
the project, mention that Pervanić was an inspiration behind
their involvement in
the process.14 Pervanić, like other Bosnian representatives,
initially believed that their
‘hearts [were] in the right place.’15
Within weeks of contacting prominent members of the
communities, a group of
around 20 people was formed to explore common ground for a
compromise
12 Ibid., 47.
13 Ibid., 123.
14 Ibid., 19.
15 Informal interview, London, UK, 5 September 2005.
concerning future memorial plans. In order to get Serbs on
board, SoE approached
senior people from the Serb authorities in Prijedor, notably
Pavić. These intensive
small gatherings and individual meetings in 2005 were meant to
probe an idea of a
memorial for all and gauge whether there was enough goodwill
among the commun-
ities to reach a solution. Rumours and leaks from among
individuals involved in the
project eventually reached wider community members and

people were anxious
about possible Serb obstruction. However, SoE assured Emsuda
Mujagić that Pavić
was willing to let the memorial be built, although he could not
support it publicly.16
Reassured by the mayor’s apparent approval, Mujagić’s job was,
albeit implicitly ra-
ther than explicitly expressed, to garner support within her
community.
In public, Pavić’s formal response was to argue for the creation
of a state commis-
sion to deal with issues of commemoration on all sides,
asserting that he would only
consider a memorial to the camp at Omarska when similar
consideration was given
to a monument for Serb victims of the war in Sarajevo. SoE
continued meeting Pavić
in the hope of finding a compromise whilst the project group
met several times a
month to discuss plans for the memorial. Survivors were given
an opportunity to talk
about their experiences in the camp in front of Serb youth, mine
workers and occa-
sionally foreign media. They saw this as a small step forward,
reflecting that despite
the Serb participants ‘sometimes try[ing] to tell us that it is not
true that rape took
place in the camp, or reiterating that Serbs too suffered,’17 they
felt able to demon-
strate that they knew the facts about camp violence, as they had
experienced it
directly.
These discussions appeared to be more about contesting the past

than supporting
the idea of survivors creating a memorial. As Vedran put it, ‘the
crimes committed in
Prijedor are known to every citizen of the town even if it is not
openly spoken
about.’18 He saw a need for a process to create a climate in
which public debates con-
cerning the recent past could be possible. To his surprise, the
mediation process be-
came solely an exercise in pregovaranja – negotiations between
the sides – in which
he did not see a role for himself, as he regarded himself as a
Prijedorčanin (a citizen
of Prijedor) rather than as a Serb.
He eventually left the project after visiting workers at the mine,
many of whom
claimed that ‘nothing happened at Omarska’ and that ‘if there
was something, it surely
was not a camp’ but a ‘transit centre for Bosniaks who needed
protection from their ex-
tremists.’19 According to Vedran, the SoE mediators responded
by trying to equate
these views with the allegedly extreme views of local returnees
in the hamlet of
Hambarine (the site of a 1992 massacre), which they were due
to visit immediately
afterwards and where, Vedran noted, ‘too exist many
problematic, demented and
aggressive individuals.’20 He could not comprehend how
someone could compare
‘this madness [the Serb mine workers’ views] with a real human
tragedy, equating those
16 Field notes, July 2008.
17 Telephone interview, Nusreta Sivac, 10 September 2005.

18 Skype conversation, 9 June 2010.
19 Ibid.
20 Ibid.
with trauma and those with fascistic tendencies.’21 Vedran
summarized his objection
thus:
Of course we agree that the memorial is important. Only
survivors and victims
should be asked about it in the first place. No other solution is
acceptable or
moral. Consult them. Don’t ignore them. They have to say what
the memorial
looks like. It should reflect the enormity of the crimes that
happened here,
the extent of suffering at the hands of soldiers, the media and
politicians only
because they were not Serbs. We have to emphasize the human
tragedy and
avoid politics.22
The mediators responded by further locking down the process to
avoid facing such
criticism in public. SoE’s agenda became to prove that it was
possible to break through
the veil of silence23 by making victims and perpetrators talk to
each other. However,
whilst those within the SoE group played their allocated role
based on ethnicity,
Vedran’s criticism of the mediation was publicly taken up by
Izvor, a leading nongo-

vernmental organization (NGO) dealing with the missing and
their families. Izvor
felt that a larger body of survivors and families of the missing
needed to be consulted
and argued that only the victims ought to decide what kind of
memorial they wished
to build.
T H E S U R V I V O R C O M M U N I T Y
SoE assumed that Bosniaks would be sympathetic to the project
given their wartime
experiences and their wish to create a memorial at Omarska. So,
when approaching
Izvor, SoE emphasized Mittal’s position as working with Serb
partners but nonetheless
being willing to find a compromise, for example, by creating a
‘visitor’s centre’ at the
mine. With hindsight, the mediators recognize the upsetting
nature of their proposal:
Disregarding their obvious discomfort we continued with a
description of a vis-
itor’s centre at the mine, which along with being a museum
would tell its his-
tory, including its use as a concentration camp. To cap
everything we spoke
about the white house being made beautiful, mines being ugly
places and the
need to honour the deaths of the innocent, turning the place into
an oasis of
peace. As though we had not inadvertently insulted them enough
we suggested
a union of religious symbols of death and resurrection,
Christian and Bosniak
at the memorial. As an example we described the church at
Presnace outside

Banja Luka where a Catholic priest and nun had been murdered
by Serb
soldiers and which had become a shrine.24
Izvor’s Edin Ramulić responded by saying, ‘This is scandalous!
If you were not
a religious organization, I would not even talk with you and
would kick you out
21 Ibid.
23 Ibid., 43.
of here.’25 This quote was later interpreted by Reeves as
Ramulić threatening his life
and used to justify his exclusion from the process. Ramulić told
SoE that he had
never encountered an oasis of peace in a place like Omarska:
I have been to many places of suffering all over the former
Yugoslavia and
never saw an oasis of peace. Bodies cry out for justice. They are
not asking for
oases of peace! I am here to make sure they get justice. Not
vengeance, but
justice! Victims need justice more than peace. We cannot be any
part of your
proposal. Talk to the families of victims. Listen to what they
want, to what is
important to them. This initiative has to be transparent and
cannot be

imposed. Nor can there be any religious components in the
white house, and
definitely not Orthodox ones. There can be no help for the
Orthodox Church
anyway. Read my lips: those who suffered want no religious
symbols!26
Like Ramulić, others who disagreed with the SoE process
reiterated the need to
make the project as transparent as possible and to consult as
many survivors and
families of the missing as possible. However, the mediators and
some Bosniaks in the
group closed ranks, seeing any critical views as coming from
‘extremists’ or ‘spoil-
ers.’27 SoE went further by praising loyal Bosniak participants
as ‘prominent leaders
of the community’ and convinced them that ‘only they can
decide what kind of
memorial will be built.’28 But SoE never defined what was
meant by ‘they.’ This
ambiguity appeared deliberate and was reflected in the quite
different stories that
each participant group was told, privately, over the course of
the process.
Generally, Bosniak delegates interpreted the SoE process as
‘being on our side’
and helping them to achieve the memorial. Informality in the
process and a lack of
documentation did not worry them, as they were used to
operating in this way as a
marginalized group. On the other hand, those abroad were eager
to hear about the
project’s conduct and came to see its opacity as a deliberate
attempt to disregard

their views. This led to divisions, not only in terms of those
who were for or against
it but also on the question of who had the right to be involved in
the project.
O N L I N E D E B A T E : A N E W P U B L I C S P H E R E
Due to the closed-door approach to mediation, in the autumn of
2005 the debate
about the project shifted largely to online discussion,
predominantly on the
Kozarac.ba forum. Debates such as ‘Who Is in Control of a
Memorial [Process] at
Omarska?’ and a subsequent thread ‘Some Questions Regarding
a Memorial Centre
at the Site of the Former Omarska Camp’ were posed to make
those already involved
realize the responsibility they were taking on, but also as a way
of bringing together a
much larger body of survivors and others concerned and willing
to play a part in the
process. There were numerous warnings to the Bosniaks in the
SoE group not to
25 Ibid., 97.
26 Ibid., 97.
27 Soul of Europe, ‘Mediation Project: Report of the Third Visit
to Prijedor by the Soul of Europe July
18–1st August 2005’ (unpublished document, 2005).
28 Field notes, July 2008.
follow in the footsteps of the ‘Dayton principle,’ which,

according to many partici-
pants, was based on the idea of bolje išta nego ništa (better
anything than nothing)
among Bosniak delegates during the Ohio talks that ended the
war. Also, it was
stressed that the content and design of the memorial should be
carefully considered
and not rushed through.29
Six months into the process, it was revealed that there would be
a press confer-
ence in Banja Luka which would disclose the results of the
mediation so far. Not
even the Bosniak project members knew what was going to
happen there or what
might be announced. Prior to the conference, a British journalist
wrote to SoE asking
who was going to attend, what was going to be discussed and
whether it would be
open to the public. The reply was a single sentence stating that
‘legitimate individuals
on all sides’30 would be there. Eventually it came to light that
the main participants
were 14 Serbs, six Bosniaks and four Croats. As pressure from
the diaspora mounted,
SoE informed people to contact local associations and
individuals involved to find
out about the project and how they could get involved, because
after all ‘it is not our
memorial.’31 However, when those such as Pervanić, who
appeared to have inspired
the SoE to take the project on, received no reply from either the
local managers or
the British mediators, he inferred the following:
I was the first survivor with whom ‘mediators’ got in touch with

regard to this
issue [memorial]. I was quiet for some time now observing all
what was hap-
pening but in fact I knew very little. As a result, it was hard to
comment upon
it [the process]. Even several attempts to get some information
from ‘the right
place’ did not come to fruition. Moreover, my attempts to get to
some infor-
mation brought about tensions. If that happened to me, to whom
mediators
said without my support they would have not gone to Bosnia,
that I was their
inspiration for this process, what then should others expect? It
is tragic that we
had to get to this [tension] in order for some relevant
information to come
out.32
In practical terms, it appeared that young Serbs had worked
together with the sur-
vivor Hukanović on visual designs for a memorial, which
contradicted assurances
given to the Bosniaks that there would be no design work. In
their book, SoE medi-
ators explain these discussions about design as a way to ‘kindle
their own [survivors’]
imagination.’33 Eventually, on 1 December 2005, it was
announced that Mittal would
finance the building of a limited memorial. Bosniak
representatives seemed relieved
and content with their achievement. However, there was neither
documentation nor
any serious discussion about ownership or access rights to the
land on which the me-
morial would stand, nor even a solid commitment to build the

memorial, which
Pavić made clear he did not support. In the diaspora, reactions
were mixed. Most felt
emotionally exhausted and troubled by the ambiguous outcome.
29 Kozarac.ba debate, October 2005. All citations are the
author’s translation.
30 Email correspondence with journalist, 15 November 2005, on
file with the author.
31 Email from Reeves to a family member of a missing person,
18 November 2005.
32 Kozarac.ba debate, 9 December 2005.
As the online debates intensified around the conclusions of the
conference, for-
eign newspapers reported on ‘a success story of a British
clergyman in bringing for-
mer foes to agree on a memorial’34 whilst stressing the courage
of the young Serbs
who played an important role in the process. In fact, the role of
the Serbs as ‘active
and willing participants’ came out as the main focus of this
process: ‘What makes
this project unique is that the Serbs are participating actively
and willingly, thanks
largely to the intervention of a British clergyman.’35
Meanwhile, online members of
the forum called upon their Bosniak representatives to clarify
what they had actually
achieved. Eventually a report was emailed to the managers of
the online forum, stat-

ing that at the Banja Luka conference the Bosniak project
members had spoken
about their experiences in the camp and their annual visits to
Omarska since 1999.
SoE then presented a proposed memorial design based on one
small but symbolically
important building in the mine complex, the white house, and
said that Mittal would
finance its construction.
In fact, no solution had been found. By December 2005, SoE
continued to pre-
sent the participation of a few Serb youth in the project as a
sign of successful recon-
ciliation, but in reality Mittal had already accepted that the Serb
authorities’ refusal
to engage meant the process was effectively dead. In
conversation with Satko
Mujagić, the author of the first letter to Mittal, the company
said that the December
2005 conference made them realize there was no support for a
memorial from Pavić
and there were differences of opinion among the Bosniak
organizations about how
to proceed. In an email in April 2011, Mittal clarified that the
company had ‘no au-
thority to build a memorial and ArcelorMittal does not get into
political or religious
issues’ in countries where they work.
When these details were revealed on Kozarac.ba, many
survivors felt betrayed and
misled. They began to focus on the need for transparency and
wider consultation
among survivors and families of the missing, and to agree on a
set of principles that

should underpin any memorial project.
O N L I N E P E T I T I O N : M O V I N G T O W A R D S S T
R U C T U R E
After several weeks of consultation with Izvor, individuals and
organizations abroad,
a new website with a petition was launched. It outlined five key
principles and
emphasized that survivors and families of the dead and missing
should lead the de-
sign and management of the memorial project, and that all
stakeholders should ac-
knowledge the psychological and historical significance of
those buildings formerly
used for incarceration, torture and killing. It also sought to
place commemoration be-
fore reconciliation, saying that acknowledgement of the crimes
at Omarska was a
‘precondition for reconciliation,’36 and implored Mittal to
make a public commit-
ment to investigate the possibility of mass graves in the mine.
Whilst there was no of-
ficial organization behind the petition, several survivors,
including Pervanić and
Satko Mujagić, acted as liaison with other bodies. During its
construction, all Bosniak
34 Nick Hawton, ‘British Priest Persuades Enemies to Build
Horror Camp Memorial,’ The Times, 18
November 2005.
35 Ibid.
36 ‘Omarska Memorial Debate,’ 1 February 2006,
http://web.archive.org/web/20060323190659/http://
headgroups.com/display/om/Welcome (accessed 6 November

2014).
individuals in SoE’s mediation were contacted, as well as the
local project managers.
They were assured that no one wanted to take the project away
from them, but that
the diaspora wanted to be involved on the basis of clear
principles and a transparent
approach. Only Emsuda Mujagić replied. She spoke with Sivac
and others and appar-
ently agreed to uphold those principles, saying they were
exactly what they already
aspired to.
Within a month of its launch, the petition had over 1,000 former
inmates and
families as signatories, but soon afterwards Mittal decided to
halt the project and
SoE’s contract was prematurely ended. This announcement
brought back tensions
among local leaders and the diaspora, based on SoE’s analysis
that ‘more extreme
voices on all sides [had] begun to oppose the plans,’37 but also
their patently false as-
surance that the Serb authorities were ready to support a
memorial. The BBC
worked with Reeves to cover the project, reporting that it was
remarkable as it
involved all three sides, Bosniaks, Serbs and Croats, as ‘a rare
example of cross-ethnic
co-operation over such a controversial issue.’38 However, after
Mittal froze the pro-

ject, the BBC claimed that many Serbs had always been
completely against the me-
morial, whilst Bosniak activists ‘believe it should not be built
until all the victims
have been located and only then if the whole mine – which is
currently working
again – is used for the memorial.’39 The latter unattributed
claim was puzzling, as no
individual or organization (including the petition website) had
stated such a position.
Advocates of the memorial had asked only for the white house
building, which was
no longer used by the mine.
Satko Mujagić and others attempted on various occasions to
contact those
involved in the process in order to find common ground, but the
process had by that
point created divisions within the local returnee community and
between them and
the diaspora. The SoE mediation process generated emotional
turmoil for the sur-
vivors and the local community, but ultimately no result.
Finally, Mittal effectively
washed their hands of the problem by informing the survivors
that they should ap-
proach the local Serb authority first and win support before
Mittal would take the
process any further.
C O N C L U S I O N
The Omarska project was intended to be a mediation initiative
based on bringing
former enemies together to seek a solution that would suit all
parties regardless
of their asymmetrical power relations. The failure of the project

illustrates several
aspects of the social dynamics between survivor or ‘victim’
communities and well-
intentioned external players, whose intervention raises hopes
and expectations that
cannot always be fulfilled. It also demonstrates the limits and
pitfalls of an approach
based on recent thinking about the role of narratives as the main
expression of mem-
ory, and in particular the danger of appropriating survivors’
narratives without due
consideration for their psychological needs. Even the
assumption that there are two
37 Nick Hawton, ‘Bosnia War Memorial Plan Halted,’ BBC
News, 20 February 2006.
38 Ibid.
39 Ibid.
clearly delineated ‘sides’ to mediate between proved incorrect
and increased divisions
both within and between the groups involved.
The inability of the mediators to engage with a wider body of
survivors, their ig-
norance of basic postwar environmental factors and the manner
in which a selected
representative group of survivors was treated all illustrate the
way in which we need
to reevaluate how victims’ needs are addressed in practice.
Even the selected few
who gave their ‘voice’ to the SoE process, like Srcem do Mira,

Sivac and others, say
they were treated well and listened to by the foreign mediators,
but when asked what
they actually did the response was they had ‘told the story’ of
their experience in the
camp to various groups and individuals.
Of course, the specific failures of this project should not be
extrapolated to derive
conclusions about other projects, or indeed the whole field of
reconciliation or tran-
sitional justice. But, having observed the procession of
scholars, activists and NGO
that engaged with the same group of local organizations and
activists in Kozarac over
a long period of time, the patterns described here have been
evident all too fre-
quently. Rather than begin from the maxim ‘first, do no harm,’
in my experience
many of these initiatives seem blissfully unaware of the impact
they have on local dy-
namics, for better or worse. This project is a good example of
such unintended con-
sequences, as the main role of Bosniak representatives was to
recite stories of
suffering and trauma, further reinforcing a kind of performative
victimhood that is
neither healthy nor a real reflection of the maturity of the
community. These and
other hidden harms are often not worth the benefit that any one
project can bring to
the community, other than through a small stimulus to the local
economy. Finally,
the very notion of reconciliation in such a situation is
sometimes problematic, sug-
gesting staged, almost ritualistic, interventions to bring people

together to fulfil pre-
determined, usually adversarial roles that do not take into
account the day-to-day
reality of coexistence and contact – peaceful or not – that has
been going on since re-
turn began and will continue.
Copyright of International Journal of Transitional Justice is the
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jciprod01productnJJLE47-4JLE404.txt unknown Seq: 1 24-
JUL-15 14:43
NOTE
USING A CONDITIONAL AMNESTY AND TRUTH AND
RECONCILIATION COMMISSION AS A TRANSITIONAL
JUSTICE MECHANISM IN SYRIA
Grace Fiddler*
I. INTRODUCTION

In March 2011, citizens of the southern Syrian city of Deraa
pro-
tested 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
* J.D. 2015, The George Washington University Law School;
B.A. 2011, University of
Minnesota-Twin Cities.
1. Syria: Story of the Conflict—Protests, BBC NEWS (Sept. 3,
2013), http://www

.bbc.co.uk/news/world-middle-east-19331551.
2. The Baath party has controlled Syria since 1963. Syria
Profile—Overview, BBC
NEWS (Feb. 11, 2015), http://www.bbc.co.uk/news/world-
middle-east-14703856. Bashar
Al-Assad, Syria’s current leader, has ruled since 2000. Profile:
Syria’s Bashar Al-Assad, BBC
NEWS (Mar. 10, 2005),
http://news.bbc.co.uk/2/hi/middle_east/2579331.stm.
3. Syria: Story of the Conflict—Protests, supra note 1. R
4. Id.
5. Nick Cumming-Bruce, Death Toll in Syria Estimated at
191,000, N.Y. TIMES (Aug. 22,
2014),
http://www.nytimes.com/2014/08/23/world/middleeast/un-
raises-estimate-of-
dead-in-syrian-conflict-to-191000.html.
6. PAUL SEILS, INT’L CTR. FOR TRANSITIONAL JUSTICE,
TOWARD A TRANSITIONAL JUSTICE
STRATEGY FOR SYRIA (2013), available at
http://ictj.org/sites/default/files/ICTJ-Syria-Analy-
sis-2013.pdf.
893
JUL-15 14:43
894 The Geo. Wash. Int’l L. Rev. [Vol. 47

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 imple-
ment 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
prospec-
tively 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,
argu-
ing 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 imple-
mented 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,
7. Cherif Bassiouni, Combating Impunity for International
Crimes, 71 U. COLO. L. REV.
409, 409 (Spring 2000).
8. Syrians, other countries, and international organizations each
have their own
beliefs regarding how to best accomplish this goal of dispensing
justice to victims and initi-
ating a peaceful resolution to the civil war. See What Role
Might Transitional Justice Play in a
Post-Conflict Syria?, INT’L CTR. FOR TRANSITIONAL JUST.
(Oct. 2, 2013), http://ictj.org/news/
what-role-might-transitional-justice-play-post-conflict-syria.
9. See infra Part II.
10. Lisa J. Laplante, Outlawing Amnesty: The Return of
Criminal Justice in Transitional
Justice Schemes, 49 VA. J. INT’L L. 915, 917–18 (2009).
Laplante discusses the alternatives to
trials that were used in second half of the twentieth century.
11. See Francesca Lessa & Leigh A. Payne, Introduction to
AMNESTY IN THE AGE OF
HUMAN RIGHTS ACCOUNTABILITY: COMPARATIVE AND
INTERNATIONAL PERSPECTIVES 1, 3–4
(Francesca Lessa & Leigh Payne eds., 2012).
12. See Carlos S. Nino, The Duty to Punish Past Abuses of
Human Rights Put into Context:
The Case of Argentina, 100 YALE L.J. 2619, 2639 (1991).
Nino describes how “the factual
context may frustrate a government’s effort to promote the

prosecution of persons respon-
sible for human rights abuses, except at the risk of provoking
further violence and a return
to non-democratic rule.” Id.
13. See Diane F. Orentlicher, Settling Accounts: The Duty to
Prosecute Human Rights Viola-
tions of a Prior Regime, 100 YALE L.J. 2537, 2542–44 (1991).
14. See infra Part III.
JUL-15 14:43
2015] Implementing Conditional Amnesty in Syria 895
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
com-
mission could help resolve this period of conflict and provide
jus-
tice 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.”17
Such mechanisms frequently overlap and may be utilized by a
state
simultaneously.18 This Part begins with an examination of
formal
trials and then proceeds to consider other mechanisms available
to
15. See infra Part III; see also Tricia D. Olsen et al.,
Conclusion: Amnesty in the Age of
Accountability, in AMNESTY IN THE AGE OF HUMAN
RIGHTS ACCOUNTABILITY: COMPARATIVE AND

INTERNATIONAL PERSPECTIVES, supra note 11, at 336, 343
(describing how scholars advocat- R
ing for this approach believe “truth commissions acknowledge,
condemn, and deter vio-
lence more effectively than trials, and they do so without
jeopardizing democracy and the
rule of law”).
16. See infra Part II.D.1; Charles P. Trumbull IV, Giving
Amnesties a Second Chance, 25
BERKELEY J. INT’L L. 283, 292 (2007).
17. See What is Transitional Justice?, INT’L CTR. FOR
TRANSITIONAL JUSTICE, https://www
.ictj.org/about/transitional-justice (last visited Jan. 9, 2014).
18. For example, South Africa utilized a truth and reconciliation
commission, repara-
tions program, conditional amnesty, and criminal prosecutions
in The Promotion of
National Unity and Reconciliation Act. Promotion of National
Unity and Reconciliation
Act 34 of 1995, 1995 (1) JSRSA 2-385 (S. Afr.) [hereinafter Act
34 of 1995].
JUL-15 14:43
states in post-conflict situations.19 The Part concludes with a
review
of different types of amnesties, with a focus on South Africa’s
con-

ditional amnesty.
A. Criminal Prosecutions
Traditionally, formal trials have been used to restore justice and
hold perpetrators accountable post-atrocity.20 In the twentieth
century, domestic prosecutions became of interest to the
interna-
tional community and evolved into a method for global society
to
play a role in restoring justice after a period of conflict.21
Doing so
was based on the belief that while an act may have been
committed
within a state’s own territory, the horrific nature of the crime
made
the criminal “an enemy of all mankind,” bestowing upon the
global
community a duty to ensure that such a crime did not go unpun-
ished.22 The Nuremberg Trials were one of the earliest and
most
infamous occasions of international justice and the proceedings
were a vehicle to hold Nazi perpetrators accountable for their
actions during the Second World War.23 Such international
trials
have become increasingly more popular, evidenced by the estab-
lishment of the International Criminal Court (ICC),24 the
Interna-
tional Criminal Tribunal for the Former Yugoslavia (ICTY),25
the
International Criminal Tribunal for Rwanda (ICTR),26 and the
emergence of hybrid domestic and international courts, such as
the Extraordinary Chambers in the Courts of Cambodia
(ECCC).27
B. Reparations Programs

Reparations programs are established to assist victims in restor-
ing their lives after suffering through a period of atrocity.28
The
programs focus on victims’ futures in order to redress the
past.29
19. Trumbull, supra note 16, at 310. R
20. Laplante, supra note 10, at 918. R
21. See Orentlicher, supra note 13, at 2555–57. R
22. See id.
23. See id.
24. Rome Statute of the International Criminal Court, July 17,
1998, 2187 U.N.T.S.
90.
25. See About the ICTY, UNITED NATIONS INT’L
CRIMINAL TRIBUNAL FOR THE FORMER
YUGOSLAVIA, http://www.icty.org/sections/AbouttheICTY
(last visited Jan. 9, 2014).
26. See About the ICTR, INT’L CRIMINAL TRIBUNAL FOR
RWANDA, http://www.unictr.org/
en/tribunal (last visited Jan. 9, 2014).
27. See The Extraordinary Chambers in the Courts of Cambodia,
CTR. FOR JUST. & ACCOUNT-
ABILITY, http://www.cja.org/section.php?id=454%22 (last
visited Oct. 19, 2014).
28. See Reparations, INT’L CTR. FOR TRANSITIONAL JUST.,
http://www.ictj.org/our-work/
transitional-justice-issues/reparations (last visited Jan. 30,
2014).
29. Id.

JUL-15 14:43
To accomplish this goal, reparations programs may provide
victims
with financial compensation or ensure access to education or
social
services.30 Countries such as Chile, Morocco, Sierra Leone,
and
South Africa have implemented such reparations programs, in
con-
junction with other transitional justice mechanisms.31
C. Truth and Reconciliation Commissions
Truth and reconciliation commissions are truth-seeking mea-
sures that attempt to create a historical record of past atrocities
to
ensure an accurate portrayal of them in the future.32
Commissions
also provide victims the opportunity to participate in the truth
and
reconciliation process by allowing them to voice their own
recollec-
tion of the past atrocity and, if they so desire, confront their
own
perpetrators.33 Commissions investigate the conflict by
interview-
ing victims, protecting evidence, compiling archives, and
publish-
ing state information to produce reports and

recommendations.34
As of 2011, at least forty truth commissions had been
established
around the world.35 Truth commissions frequently coincide
with
other transitional mechanisms, such as in South Africa, where a
commission was used with a conditional amnesty and
reparations
program.36
D. Amnesty Laws
The term “amnesty” derives from the ancient Greek word
amnes-
tia, meaning forgetfulness or oblivion.37 Although all amnesty
laws
share the common element of granting clemency to an
individual
who has committed a past wrong, the laws differ in scope and
man-
ner of implementation.38 Past laws have opted to shield state
actors, non-state actors, or a combination of the two groups.39
The
amnesty may be implemented by those responsible for the
human
rights violations the amnesty is designed to shield, such as in
30. Id.
31. Id.
32. See Truth and Memory, INT’L CTR. FOR TRANSITIONAL
JUST., http://www.ictj.org/our-
work/transitional-justice-issues/truth-and-memory (last visited
Jan. 30, 2014).
33. See id.
34. See id.

35. See id.
36. See infra Part II.D.1.
37. See Lessa & Payne, supra note 11, at 3. R
38. See id. at 4.
39. See id.
JUL-15 14:43
Argentina.40 Or, the law may be a blanket amnesty, prohibiting
prosecutions and investigations of all crimes committed during
a
specified time period, such as in El Salvador.41 Finally, the
law may
come in the form of a conditional amnesty, choosing to restrict
the
prosecution to only certain perpetrators after they have satisfied
particular mandatory conditions—such as participating in a
truth
and reconciliation process—as in South Africa.42
1. Case Study: South Africa’s Conditional Amnesty and Truth
and Reconciliation Commission
From 1948 to 1990, South Africa engaged in systemic racial
dis-
crimination, or apartheid.43 The apartheid policy constituted a
crime against humanity44 and clearly violated the Universal
Decla-
ration of Human Rights, which South Africa had abstained from
signing.45 Despite the status of apartheid, when the policy
termi-

nated in 1990 and negotiations began between the National
Party
and the opposition groups, the United Nations left it to South
Africa to consider the best manner to deal with its horrific past
and
move forward as a united country.46 Ultimately, South Africa
chose
to implement a conditional amnesty accompanied by a truth and
reconciliation commission.47
The Interim South African Constitution established the intent of
the new government to focus on reconciliation.48 Specifically,
the
40. Argentina’s first amnesty law was passed by the military
government for the pur-
pose of protecting the government’s own officials. See Law of
National Pacification, Law
No. 22.924, Sept. 22, 1983, [1983-B] A.L.J.A. 1681 (Arg.).
However, many other amnesty
laws were passed subsequently, which have since been repealed.
For more information
about Argentina’s history of amnesty laws, see Par Engstrom &
Gabriel Pereira, From
Amnesty to Accountability: The Ebb and Flow in the Search for
Justice in Argentina, in AMNESTY IN
THE AGE OF HUMAN RIGHTS ACCOUNTABILITY:
COMPARATIVE AND INTERNATIONAL PERSPEC-
TIVES, supra note 11, at 97, 99. R
41. Legislative Decree No. 486, 318(56) Diario Oficial, Mar.
22, 1993. For more infor-
mation about the Salvadoran amnesty law, see Emily Braid &
Naomi Roht-Arriaza, De Facto
and De Jure Amnesty Laws: The Central American Case, in
AMNESTY IN THE AGE OF HUMAN

INTERNATIONAL PERSPECTIVES, supra note 11, at R
182, 196–98.
42. S. AFR. (INTERIM) CONST., 1993. For more information
about the South African
amnesty, see infra Part II.D.1; Antje du Bois-Pedain,
Accountability Through Conditional
Amnesty: The Case of South Africa, in AMNESTY IN THE
AGE OF HUMAN RIGHTS ACCOUNTABILITY:
COMPARATIVE AND INTERNATIONAL PERSPECTIVES,
supra note 11, at 238, 239. R
43. John Dugard, Reconciliation and Justice: The South African
Experience, 8 TRANSNAT’L
L. & CONTEMP. PROBS. 277, 278 (1998).
45. See Dugard, supra note 43, at 278. R
46. Id. at 278–79.
47. Id. at 279.
48. S. AFR. (INTERIM) CONST., 1993.
JUL-15 14:43
constitution’s postamble called for “a need for understanding,
but
not of vengeance,”49 and established that “amnesty shall be
granted
in respect of acts, omissions, and offences associated with
political

objectives and committed in the course of conflicts of the
past.”50
The South African government established The Truth and
Recon-
ciliation Commission Act (TRCA)—which was comprised to
enact
regulations to bring these goals to fruition.51 The work of the
TRCA was completed through the use of its four separate divi-
sions—The Truth and Reconciliation Commission,52 The
Commit-
tee on Human Rights Violations,53 The Committee on
Amnesty,54
and The Committee on Reparation and Rehabilitation.55
The goals of the TRCA were to establish “as complete a picture
as possible of the causes, nature and extent of the gross
violations
of human rights” committed during the period of time
established
by the government; to facilitate “the granting of amnesty to per-
sons who make full disclosure of all the relevant facts relating
to
acts associated with a political objective and comply with the
requirements of this Act”; to establish and make known “the
fate or
whereabouts of victims,” restore “the human and civil dignity of
such victims by granting them an opportunity to relate their own
accounts of the violations of which they are the victims,” and
rec-
ommend “reparation measures in respect of them”; and lastly, to
compile a report “as comprehensive . . . as possible.”56 These
objectives unambiguously declare that amnesty was granted
only
with full participation in the truth-telling process. While some
per-
petrators were shielded from prosecution under the TRCA if

they
satisfied all requirements and their crime was of a type that
permit-
ted amnesty, as discussed below—victims of their crimes were
not
left without a method of which to receive justice, as truth-
telling
and reparations programs were provided.
The TRCA required specific elements before granting amnesty
to a perpetrator.57 In particular, perpetrators needed to apply
for
amnesty and participate in the truth-telling process established
by
49. Id. epilogue.
50. Id.
51. See The Promotion of National Unity and Reconciliation
Act. Promotion of
National Unity and Reconciliation Act 34 of 1995, pmbl., 1995
(1) JSRSA 2-385 (S. Afr.)
[hereinafter Act 34 of 1995].
52. Id. ch. 2.
53. Id. ch. 3.
54. Id. ch. 4.
55. Id. ch. 5.
56. Id. ch. 2(3)(1).
57. Id. ch. 4.
JUL-15 14:43

the commission.58 Additionally, amnesty applied to acts only
“asso-
ciated with a political objective,”59 as determined by motive,
con-
text, legal and factual nature, object or objective of the act,
whether it was committed in execution of an order or whether a
relationship between the act and the political objective pursued
could be identified.60 Consequently, acts committed for
personal
gain or out of personal malice or spite, or acts that were
dispropor-
tionate to the political objective the perpetrator had pursued
would be denied amnesty.61 In the event an amnesty
application
was denied, criminal or civil proceedings could commence
against
the perpetrators.62 However, these proceedings could not use
the
disclosure made through the TRCA process against the perpetra-
tors in court.63 The Amnesty Committee encouraged
perpetrators
to come forward and confess to past crimes by warning them
that if
they did not, they would live their lives “with fear of being
hunted
down or fingered by the evidence of a former colleague.”64 In
total, approximately eight thousand persons applied for
amnesty.65
Moreover, the Amnesty Committee would inform the victims if
their perpetrator applied for amnesty.66 Victims were
encouraged
to participate in the truth-telling procedure if they so desired.67
Victims were also provided assistance by other bodies of the

TRCA,
such as the Committee on Reparation and Rehabilitation,68 a
body
that possessed the authority to establish an investigating unit to
fur-
ther examine the past crimes committed.69
Ultimately, the South African model struck a balance between
two factions with different objectives—one group that wanted a
full
account of atrocities, justice for victims, and punishment for
apartheid leaders, and another that wanted unconditional
amnesty
for all perpetrators during the previous years of conflict.70 As
a
58. Id. ch. 4(2)(1).
59. Id. ch. 4(20)(2).
60. Id. ch. 4(20)(3).
61. Id.
62. Id. ch. 4(21).
63. Carrie J. Niebur Eisnaugle, An International “Truth
Commission”: Utilizing Restorative
Justice as an Alternative to Retribution, 36 VAND. J.
TRANSNAT’L L. 209, 227 (2003).
64. Id.
65. Id.
66. Act 34 of 1995, ch. 4(19)(4).
67. Id.
68. See id. ch. 5.
69. See id. ch. 6.
70. Gwen K. Young, All the Truth and as Much Justice as
Possible, 9 U.C. DAVIS J. INT’L L.
& POL’Y 209, 222–23 (2003).

JUL-15 14:43
result, the TRCA gave amnesty to select perpetrators while
simulta-
neously providing justice to victims and helping society
reconcile.
III. THE LEGALITY OF AMNESTY LAWS
To determine whether international law places a prohibition on
the use of amnesties, an analysis of both treaty-based law and
cus-
tomary international law is necessary. Section A will
demonstrate
that although some treaties have established particular
restrictions
to implementing amnesties, there is no absolute bar against
estab-
lishing amnesty laws as long as they are conditional and
investigate
crimes. Section B will similarly conclude that customary
interna-
tional law does not restrict states from imposing a conditional
amnesty with investigative procedures.
A. Conditional Amnesties with Truth Commissions Are Not
Prohibited
by Codified International Law.
Passing an amnesty law in Syria, or any other country, would be

impermissible under international law if the state were a party
to a
treaty that prohibited such implementation.71 Although some
trea-
ties do not specifically state that formal prosecutions are
required,
such as the International Convention on Civil and Political
Rights
(ICCPR),72 critics argue amnesties are barred because they do
not
qualify as proper “remedies” permitted by the treaty.73 Critics
of
amnesties also argue that while there may be no explicit bar to
their implementation within a treaty, an express requirement to
formally prosecute will invalidate the application of
amnesties.74
The Convention on the Prevention and Punishment of the Crime
of Genocide (Genocide Convention),75 the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
71. 1969 Vienna Convention on the Law of Treaties art. 27,
opened for signature May 23,
1969, 1155 U.N.T.S. 331 [hereinafter VCLT] (“A party may not
invoke the provisions of its
internal law as justification for its failure to perform a treaty.”).
72. International Covenant on Civil and Political Rights,
adopted Dec. 19, 1966, 999
U.N.T.S. 171 [hereinafter ICCPR].
73. See Orentlicher, supra note 13, at 2568–71. R
74. Young, supra note 70, at 225–27. R
75. Article 6 of the Genocide Convention states:
Persons charged with genocide or any of the other acts
enumerated in article III
shall be tried by a competent tribunal of the State in the

territory of which the act
was committed, or by such international penal tribunal as may
have jurisdiction
with respect to those Contracting Parties which shall have
accepted its
jurisdiction.
Convention on the Prevention and Punishment of the Crime of
Genocide art. 6, adopted
Dec. 9, 1958, 78 U.N.T.S. 277 [hereinafter Genocide
Convention].
jciprod01productnJJLE47-4JLE404.txt unknown Seq: 10
24-JUL-15 14:43
Punishment (Torture Convention),76 and the Geneva Conven-
tions77 all contain such prosecution provisions. Furthermore,
opponents of amnesty laws also contend that even without
specific
language used in treaties requiring remedies or prosecutions,
trials
still remain necessary because they are part of a state’s duty to
use
due diligence to protect their citizens and investigate crimes.78
Yet,
none of these arguments constitute a concrete bar from imple-
menting all forms of amnesties.
1. The International Convention on Civil and Political Rights
The ICCPR, ratified by Syria in 1969,79 requires states to
“ensure

that any person whose rights or freedoms as herein recognized
are
violated shall have an effective remedy.”80 However, the
ICCPR
does not state what constitutes an “effective remedy.”81 As
such,
there is controversy over whether the phrase is limited to formal
prosecutions or if other mechanisms of justice such as truth
com-
missions or non-traditional trials also qualify.82 Nevertheless,
prior
amnesties, such as those of South Africa, have gained support
from
76. Article 4 of the Torture Convention states:
Each state party shall ensure that all acts of torture are offences
under its criminal
law. The same shall apply to an attempt to commit torture and
to an act by any
person which constitutes complicity or participation in torture. .
. . Each State
Party shall make these offences punishable by appropriate
penalties which take
into account their grave nature.
Convention against Torture and Other Cruel, Inhuman and
Degrading Treatment or Pun-
ishment art. 4, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter
Torture Convention].
77. See Convention for the Amelioration of the Condition of the
Wounded and Sick in
Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75
U.N.T.S. 31 [hereinafter
Geneva Convention I]; Convention for the Amelioration of the
Condition of Wounded,

Sick and Shipwrecked Members of Armed Forces at Sea, Aug.
12, 1949, 6 U.S.T. 3217, 75
U.N.T.S. 85 [hereinafter Geneva Convention II]; Convention
Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S.
135 [hereinafter Geneva Con-
vention III]; Convention Relative to the Protection of Civilian
Persons in Time of War,
Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter
Geneva Convention IV]. For a
further discussion of the Geneva Conventions, see Trumbull,
supra note 16, at 288. R
78. See Laplante, supra note 10, at 937–38. R
79. Status of International Convention on Civil and Political
Rights, UNITED NATIONS
TREATY COLLECTION,
https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg
_no
=iv-4&chapter=4 (last visited Feb. 14, 2014).
80. ICCPR, supra note 72, art. 2(3). R
81. See Mark Freeman & Max Pensky, The Amnesty
Controversy in International Law, in
AMNESTY IN THE AGE OF HUMAN RIGHTS
ACCOUNTABILITY: COMPARATIVE AND
INTERNATIONAL
PERSPECTIVES, supra note 11, at 42, 48–49. R
82. See Young, supra note 70, at 240–41. An example of such
an informal trial system R
is the traditional tribal methods of forgiveness implemented by
the Acholi people of
Uganda. See Marc Lacey, Atrocity Victims in Uganda Choose to

Forgive, N.Y. TIMES (Apr. 18,
2005),
http://www.nytimes.com/2005/04/18/international/africa/18ugan
da.html.
Another example of traditional trials is the Gacaca trials
implemented in Rwanda. See Back-
ground Information on the Justice and Reconciliation Process in
Rwanda, OUTREACH PROGRAMME
24-JUL-15 14:43
the international community and the United Nations as being
use-
ful mechanisms for justice and reconciliation, rather than con-
demned for not providing an effective remedy under the
ICCPR.83
This analysis suggests that amnesty laws that prohibit
prosecuting
certain perpetrators—but allow other forms of transitional
justice
to investigate crimes and support victims—are still valid under
the
ICCPR and that such a strategy may be implemented in Syria
with-
out violating the convention.
2. The Convention on the Prevention and Punishment of the
Crime of Genocide
The Genocide Convention, of which Syria has been a party
since

1955,84 states that all acts of genocide, whether interstate or
intra-
state, require formal prosecutions.85 The prosecution may be
con-
ducted either by a competent tribunal of the state in the territory
of which the act was committed or by an international
tribunal.86
This language, therefore, implicitly asserts that an attempt to
par-
don the crime of genocide, such as through the act of amnesty,
would be a violation of international law.
Nonetheless, the Genocide Convention is not an impediment to
a conditional amnesty and truth and reconciliation commission.
Rather, the Genocide Convention only dictates a bar against
grant-
ing amnesty to those who had committed acts of genocide. The
convention would not bar granting amnesty to pardon other non-
genocidal crimes.
In order for a tribunal to find genocide, the perpetrator must
have had “the specific intent to commit genocide”87 against a
national, ethnic, racial, or religious group,88 and the act must
have
been “directed at members of one of the four groups explicitly
identified in the convention.”89 The crime of genocide
includes:
ON RWANDA GENOCIDE & UNITED NATIONS,
http://www.un.org/en/preventgenocide/
rwanda/about/bgjustice.shtml (last visited Mar. 16, 2014).
83. Trumbull, supra note 16, at 293, 295. R
84. Status of Convention on the Prevention and Punishment of
the Crime of Genocide, UNITED

NATIONS TREATY COLLECTION,
https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=
IV-1&chapter=4 (last visited Feb. 14, 2014).
85. Genocide Convention, supra note 75, art. 4. Article 4 states
that persons commit- R
ting genocide or other acts so specified “shall be punished,”
regardless of where the act
occurs and the nationality of the victim or perpetrator. Id.
86. Id. art. 6.
87. Id. art. 2.
88. Id.
89. Trumbell, supra note 16, at 289. R
24-JUL-15 14:43
[K]illing members of the group, causing seriously bodily harm
or mental harm to members of the group, deliberately inflicting
on the group conditions of life calculated to bring about its
physical destruction in whole or in part, imposing measures
intended to prevent births within the group, or forcibly transfer-
ring children of the group to another group.90
Any amnesty that attempts to shield an act of genocide where
the
actor had the specific intent to commit such genocide would
thus
be prohibited by the Genocide Convention. However, in reality,
this situation rarely arises.91 When it has, perpetrators have
been

prosecuted in manners required by the Convention—rather than
shielded by an amnesty law—as are exemplified by international
tribunals for the former Yugoslavia and for Rwanda.92
While the Syrian Civil War has raised serious human rights con-
cerns, it has not been labeled as genocide.93 Should the
conflict or
particular acts within it be found to be acts of genocide, no
amnesty could bar prosecutions against the perpetrators who
com-
mitted those crimes.
3. Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
The Torture Convention, ratified by Syria in 2004,94 treats
inter-
state and intrastate violations equally.95 If a torturer is found
90. Genocide Convention, supra note 75, art. 2. R
91. Trumbell, supra note 16, at 288. R
92. See S.C. Res. 808, U.N. Doc. S/Res/808 (Feb. 22, 1993)
(describing how the Inter-
national Criminal Tribunal for the Former Yugoslavia (ICTY)
was established to prosecute
those who committed acts of genocide and other serious
violations of international
humanitarian law in former Yugoslavia); S.C. Res. 955, U.N.
Doc. S/Res/955 (Nov. 8,
1994) (describing how the International Criminal Tribunal for
Rwanda was established to
prosecute those who committed acts of genocide in Rwanda).
93. Although international organizations have expressed
concern over the severity of

human rights abuses, there have been only calls for
investigation, rather than labeling the
conflict as genocide. See Press Release, Office of Genocide
Prevention and the Responsibil-
ity to Protect, Statement by the Special Advisers on the
Prevention of Genocide, Mr.
Adama Dieng, and on the Responsibility to Protect, Ms. Jennifer
Welsh, on the Alleged Use
of Chemical Weapons in Syria, U.N. Press Release (Aug. 22,
2013), available at https://www
.un.org/en/preventgenocide/adviser/pdf/Syria23August2013.pdf.
Additionally, U.S. Sec-
retary of State John Kerry does not use the term genocide when
discussing the Syrian civil
war. See Interview by Andrea Mitchell, MSNBC, with John
Kerry, Sec’y of State, Washing-
ton, D.C. (Feb. 26, 2014), available at
http://www.state.gov/secretary/remarks/2014/02/
222588.htm.
94. Status on the Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treat-
ment or Punishment, UNITED NATIONS TREATY
COLLECTION, https://treaties.un.org/Pages/
ViewDetails.aspx?mtdsg_no=IV-9&chapter=4 (last visited Feb.
16, 2014).
95. Torture Convention, supra note 76, art. 2(2). Article 2(2)
states that “no excep- R
tional circumstances whatsoever, whether a state of war or a
threat of war, internal political
instability or any other public emergency, may be invoked as a
justification of torture.” Id.

24-JUL-15 14:43
within a state’s jurisdiction, that state must either extradite the
per-
petrator to face prosecution outside of their territory or “submit
him to its competent authorities for the purpose of
prosecution.”96
The Torture Convention’s “prosecute or extradite” provision has
been interpreted as ambiguous and perhaps requiring “less than
an absolute obligation” on part of the state to formally
prosecute.97
Rather than requiring the state to submit the torturer to a formal
prosecution, the phrase implicitly allows states “the decision
whether to prosecute alleged torturers to the prosecutorial
authori-
ties.”98 For instance, the language of the Torture Convention’s
“extradite or prosecute” provision differs from the language of
other conventions that include similar conditions. In other con-
ventions, the language is more forceful and concrete and
imposes
a clear obligation on the state to formally prosecute the torturer
if
it chooses not to extradite.99 For example, the Genocide
Conven-
tion clearly states that if a person is not extradited by the state
in
whose territory he or she has been found, the person “shall be
tried by a competent tribunal of the state in the territory of
which
the act was committed.”100 The Torture Convention does not
speak with this same degree of specificity. This ambiguity
suggests
that a state may punish the crime of torture as it sees fit. Thus,

a
mechanism that dispensed justice for victims by means other
than
formal prosecutions—yet that still fulfilled the same purpose
prose-
cutions were intended to provide by the convention—may be
permitted.
Another limitation to the scope of the Torture Convention is the
definition of “torture.”101 The convention encompasses only
acts
of torture that are committed or instigated by a person in an
offi-
cial capacity or those to which an official consented or acqui-
96. Id. art. 7(1).
97. Freeman & Pensky, supra note 81, at 47. R
98. Id.; LOUISE MALLINDER, AMNESTY, HUMAN RIGHTS,
AND POLITICAL TRANSITIONS:
BRIDGING THE PEACE AND JUSTICE DIVIDE 150–51
(2008).
99. Freeman & Pensky, supra note 81, at 47. R
100. Genocide Convention, supra note 75, art. 6. R
101. Torture Convention, supra note 76, art. 1, defines torture
as follows: R
[A]ny act by which severe pain or suffering, whether physical
or mental, is inten-
tionally inflicted on a person for such purposes as obtaining
from him or a third
person information or a confession, punishing him for an act he
or a third per-
son has committed or is suspected of having committed, or
intimidating or coerc-

ing him or a third person, or for any reason based on
discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation
of or with the
consent or acquiescence of a public official or other person
acting in an official
capacity. Id.
24-JUL-15 14:43
esced.102 Therefore, acts committed by rebel forces—or by
any
person not considered as an official of the state—are not
covered
by the convention.
At best, the language of the Torture Convention is ambiguous.
However, even if opponents of amnesties were correct that its
“extradite or prosecute provision” does indeed require formal
prosecutions,103 this still would not prohibit a qualified
amnesty
with joint truth and reconciliation commission. Rather, it would
suggest only that torture is a crime for which perpetrators may
not
be granted amnesty. The convention would not impede an
amnesty barring prosecutions for other crimes to move forward.
4. The Geneva Conventions
The four original Geneva Conventions codify “international
rules regarding the treatment of prisoners of war and civilians

dur-
ing international armed conflict.”104 They impose an absolute
duty
on state signatories, including Syria,105 to prosecute
individuals
who commit “grave breaches” under the conventions.106
“Grave
breaches” are enumerated in the four Geneva Conventions and
consist of “willful killing, torture or inhuman treatment,
including
biological experiments, willfully causing great suffering of
serious
injury to body or health, and extensive destruction and
appropria-
tion of property, not justified by military necessity and carried
out
unlawfully and wantonly.”107 Conduct that may also rise to the
level of a grave breach include “compelling a prisoner of war to
serve in the force of a hostile power, of willfully depriving a
pris-
oner of war of the rights of fair trial and regular trial prescribed
in
this Convention.”108 However, as these “grave breaches” apply
only
to international armed conflict, they rarely obstruct amnesty
imple-
mentation, which generally shield prosecutions for violations
that
103. Orentlicher, supra note 13, at 2566–67. R
104. See Trumbull, supra note 16, at 288. R
105. See Syrian Arab Republic, INT’L COMM. OF RED
CROSS, http://www.icrc.org/applic/
ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelecte

d=SY (last visited Feb. 16,
2014).
106. See Geneva Convention I, supra note 77, art. 50; Geneva
Convention II, supra note R
77, art. 51; Geneva Convention III, supra note 77, art. 130;
Geneva Convention IV, supra R
note 77, art. 147. R
107. See Geneva Convention I, supra note 77, art. 50; Geneva
Convention II, supra note R
77, art. 51. R
108. See Geneva Convention III, supra note 77, art. 130;
Geneva Convention IV, supra R
note 77, art. 147. R
24-JUL-15 14:43
occur within a single state.109 Thus, qualified amnesties that
do not
shield the prosecution of crimes committed during international
armed conflicts are permissible.
5. Geneva Protocol II
The 1977 Geneva Protocol II, which Syria has neither signed
nor
ratified,110 regulates the protection of victims of intrastate
armed
conflicts.111 Protocol II takes a very different stance than the

four
original Geneva Conventions regarding the duty to prosecute.
Rather than restricting the implementation of amnesties,
Protocol
II encourages them. For example, Article 6(5) states, “at the
end
of hostilities, the authorities in power shall endeavor to grant
the
broadest possible amnesty to persons who have participated in
the
armed conflict, or those deprived of their liberty for reasons
relat-
ing to the armed conflict, whether they are interned or
detained.”112 This provision clearly grants states permission to
implement amnesties for a non-international conflict. Protocol
II
does not merely list amnesty as one of a multitude of options a
state may select. Rather, the language used in Protocol II urges
the
application of the broadest possible amnesty. A clear
declaration that
amnesty laws may be implemented upon conclusion of a state’s
internal conflict demonstrates that treaty-based international
law
does not prohibit the use of all amnesties in every circumstance.
Instead, Protocol II’s existence implies that amnesties are
accept-
able, at least in some scenarios.
6. A State’s Due Diligence to Prosecute
Opponents of amnesty laws also argue that even without an
explicit prohibition specified within a treaty, the use of
amnesties is
barred by the implied duty of states to use their due diligence to
investigate atrocities.113 Such a duty stems from the Inter-

Ameri-
can Court of Human Right’s decision in Velasquez-Rodriguez v.
Hon-
110. Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts
(Protocol II), 8 June 1977, INT’L COMM.
OF RED CROSS,
http://www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates
=XPages_
NORMStatesParties&xp_treatySelected=475 (last visited Feb.
16, 2014).
111. See Protocol Additional to the Geneva Conventions of 12
August 1949, and Relat-
ing to the Protection of Victims of Non-International Armed
Conflicts (Protocol II),
adopted June 8 1977, 1125 U.N.T.S. 609, 26 I.L.M 568 (1987);
S. TREATY DOC. NO. 100-2
(1987).
112. See id. art. 6(5).
113. See Orentlicher, supra note 13, at 2540; Laplante, supra
note 10, at 937–39. R
24-JUL-15 14:43
duras.114 The Velasquez-Rodriguez case demonstrates that

even when
specific treaties do not require prosecution of certain crimes,
courts may still impose upon states the duty to prosecute these
crimes.115 In Velasquez-Rodriguez, the court found Honduras
to be
liable for violating the American Convention of Human Rights
by
contributing to the disappearance of the victim, even though the
treaty does not use the term “disappearance.”116 The court also
found that even if Honduras had not been complicit in the
crime,
the government still would have been liable for the victim’s
disap-
pearance.117 Honduras’ liability stemmed from its duty as a
sover-
eign to use its due diligence to “prevent, investigate, and punish
any violation of the rights recognized in the Convention and,
moreover, if possible attempt to restore the right violated and
pro-
vide compensation as warranted for damages resulting from the
violation.”118 Yet, in this list of state responsibilities, the
court did
not specifically declare that a state must prosecute a
perpetrator.
Instead, the court bestowed upon the state the duties to prevent
future crimes, investigate crimes committed, compensate
victims,
and “punish” perpetrators—using a word that does not
necessarily
imply formal prosecutions.119
Moreover, the Velasquez-Rodriguez court explained that “[t]he
objective of international human rights law is not to punish
those
individuals who are guilty of violations, but rather to protect
the

victims and to provide for the reparations of damages resulting
from the acts of the states responsible.”120 While formal
prosecu-
tions may be considered one of many means by which justice
may
be provided to victims of intrastate violence, the court’s
passage
demonstrates that prosecuting the perpetrator is not, nor should
it
be, the end goal itself. Implementing alternatives to
prosecutions
could satisfy the requirements of compensating victims and
investi-
gating crimes without prosecutions. Ultimately, the Velasquez-
Rodri-
guez court did not require Honduras to prosecute those that
were
responsible for the disappearance of Velasquez-Rodriguez; it
required only that Honduras pay reparations to his family.121
This
114. Velasquez-Rodriguez v. Honduras, Judgment, Inter-Am.
Ct. H.R. (Ser. C) No. 4, ¶
166 (July 29, 1988).
115. See Laplante, supra note 10, at 937–39. R
116. Velasquez-Rodriguez, ¶¶ 173–80.
117. See id. ¶ 172.
118. See id. ¶ 166.
119. See id.
120. Id. ¶ 134.
121. See id. ¶ 194.

24-JUL-15 14:43
decision lends further support to the proposition that the court
did not intend for “due diligence” to be synonymous with
“prose-
cution” and that its holding leaves room for amnesties to be
estab-
lished in states as long as they are combined with methods to
investigate crimes and assist victims.
B. Conditional Amnesties with Truth Commission Mechanisms
Are Not
Prohibited by Customary International Law.
States can be bound by certain norms—even ones that they have
not expressly agreed upon via treaty—if that norm has become a
rule of customary international law.122 Once this occurs, a
state
will be bound by that norm, unless the state persistently
objected to
the norm while it was emerging.123 Customary international
law
norms result “from a general and consistent practice of states
fol-
lowed by them from a sense of legal obligation (opinio
juris).”124
Thus, even if Syria were not a signatory to a treaty that required
formal prosecutions or barred amnesties, if such a treaty had
become a norm of customary international law, Syria would be
pro-
hibited from implementing an amnesty.125
If customary international law prohibits amnesty laws, there
must

be both a near universal state practice against implementing
amnesties and evidence that states have declined their
implementa-
tion out of a sense of legal obligation.126 However, proving
either
such a near universal state practice against amnesty laws or its
rela-
tionship to the states’ sense of legal obligation is difficult.
1. There Is Insufficient Evidence to Prove a Uniform State
Practice Against Implementing Amnesties.
The present and historical use of amnesty laws demonstrates
that
states use them far too frequently to find a customary
international
122. VCLT, supra note 71, arts. 34–37 (precluding a rule set
forth in a treaty from R
becoming binding upon a third-party state as a customary rule
of international law, recog-
nized as such).
123. See INT’L LAW ASS’N, LONDON CONFERENCE
(2000): STATEMENT OF PRINCIPLES APPLI-
CABLE TO THE FORMATION OF GENERAL CUSTOMARY
INTERNATIONAL LAW art. 15 (2000)
[hereinafter STATEMENT OF PRINCIPLES].
124. Restatement (Third) of Foreign Relations Law § 102
(1986).
125. See VCLT, supra note 71, art. 38. R
126. When applying the Restatement (Third) of Foreign
Relations Law, § 102 to the
issue of determining whether amnesties are against customary

international law, these fac-
tors would have to exist.
24-JUL-15 14:43
law norm against their implementation.127 Additionally, given
the
myriad of states that have chosen to implement amnesties, there
is
a lack of evidence that these states are mere persistent objectors
to
an established norm, which would allow a customary norm of
inter-
national law to exist, except for within those states that
protested
its establishment.128 Between 1945 and 2011, 537 amnesties
were
granted in 129 countries.129 Of 537 amnesties, 398 were
granted
after 1979.130 These statistics, from the Amnesty Law
Database,
shed some light on questions concerning the state use of amnes-
ties. The amnesties considered were all employed during
periods
of “political crises including civil unrest, military coups,
interna-
tional or internal conflict, [and] authoritarian
government[s].”131
By looking at amnesties across a wide range of time, it was
estab-
lished that the use of amnesty laws has—while ebbed and

flowed
depending on world events—generally remained constant over
the
past thirty years.132
2. There Is Insufficient Evidence to Prove that States Have
Declined to Implement Amnesties Due to Opinio Juris.
In the past decade, there has been a growing trend among states
to repeal the amnesty laws they had formerly chosen to imple-
ment.133 Countries such as Uruguay, Peru, and Argentina have
repealed their amnesties, due to actions taken by either their
own
domestic court system or the Inter-American Court of Human
Rights.134 In other countries where amnesty laws remain
intact,
such as Spain, there has been fervent call for repeal.135 This
pat-
tern may demonstrate a changing attitude regarding amnesty
laws,
perhaps suggesting that a new norm against amnesties is
emerging.
Alternatively, this trend may suggest that the legal obligation a
state
127. See Louise Mallinder, Amnesties’ Challenge to the
Accountability Norm?, in AMNESTY IN
THE AGE OF HUMAN RIGHTS ACCOUNTABILITY:
COMPARATIVE AND INTERNATIONAL PERSPEC-
TIVES, supra note 11, at 69, 70–71. R
128. Even if this were the case, if a multitude of states all
object to a norm, it could
evidence that there actually is no established norm at all due to
insufficient state practice.
See STATEMENT OF PRINCIPLES, supra note 123, art. 12. R

129. See Mallinder, supra note 127, at 79. R
130. Id.
131. Id. at 77.
132. Id. at 79–80.
133. See Tim Padgett, Sins of the Past: Will All of Latin
America Find Justice for Cold War
Atrocities?, TIME (Nov. 3, 2011),
http://world.time.com/2011/11/03/sins-of-the-cold-war-
when-will-all-of-latin-america-find-justice.
134. See id.
135. See Spain: End Amnesty for Franco Era Atrocities, HUM.
RTS. WATCH (Mar. 10, 2010),
http://www.hrw.org/news/2010/03/19/spain-end-amnesty-
franco-era-atrocities.
24-JUL-15 14:43
owes to its own citizens has changed due to the expansion of the
field of human rights law.136
Nonetheless, these arguments do not prevail. As noted above,
the state practice to implement amnesties has continued despite
the changing views in the field of human rights law.137 Even
the
argument that the perception of amnesties solely within the
region
of Latin America has shifted would be difficult to substantiate.

Although particular countries have repealed amnesty laws,
amnes-
ties remain intact elsewhere, such as in Guatemala and
Brazil.138
New amnesties are also in the process of emerging, as Colombia
is
currently working to establish an amnesty law to reincorporate
guerrilla forces back into society.139
There are reasons aside from a sense of pure legal obligation
why states might choose to repeal their amnesty laws. For
example,
an amnesty law may no longer be necessary within the country.
Amnesties provide a secure method of transition for countries in
periods of strife, particularly when the threat of prosecuting
either
side in a conflict is too risky or impractical.140 Once sufficient
time
has lapsed and political climate has settled, an amnesty may no
longer be necessary to ensure peace within the region.141
Addi-
tionally, countries may be repealing these laws not truly out of
a
sense of legal obligation but rather for the sake of appearances
because they feel strong-armed by international organizations
and
regional courts. Regional courts have declared particular
amnes-
ties contrary to state obligations, as evidenced by the Inter-
Ameri-
can Court of Human Right’s decision regarding the Peruvian
amnesty.142 Accordingly, it would be logical for a state to
attempt
to distance itself from using a mechanism that has been
questioned
by a high court.

136. See Kathryn Sikkink, The Age of Accountability, in
AMNESTY IN THE AGE OF HUMAN
INTERNATIONAL PERSPECTIVES, supra note 11, at R
19, 20.
137. See Mallinder, supra note 127, at 70–71. R
138. See Padgett, supra note 133; Brazil Urged to Scrap
Amnesty Law that Protects Rights R
Abusers, AMNESTY INT’L (Aug. 26, 2011),
http://amnesty.org/en/for-media/press-releases/
brazil-urged-scrap-amnesty-law-protects-rights-abusers-2011-
08-26; Trumbull, supra note 16, R
at 297.
140. In fact, “the chief argument against a general rule
requiring prosecutions is that
fragile democracies may not be able to survive the destabilizing
effects of politically
charged trials.” Orentlicher, supra note 13, at 2544. R
141. See id.
142. Barrios Altos v. Peru, Merits, Judgment, 2002 Inter-Am.
Ct. H.R. (ser. C) No. 75,
§ X, ¶ 4 (Mar. 14, 2001). This decision has been interpreted to
apply narrowly to self-
amnesties. See Laplante, supra note 10, at 964. R

24-JUL-15 14:43
International organizations have also been ambiguous in their
stance on amnesties, as exemplified by the U.N. position on
Sierra
Leone. Kofi Annan, the then U.N. Secretary General, stated the
following on Sierra Leone’s amnesty law:
While recognizing that amnesty is an accepted legal concept
and a gesture of peace and reconciliation at the end of a civil
war or an internal armed conflict, the United Nations has con-
sistently maintained the position that amnesty cannot be
granted in respect of international crimes, such as genocide,
crimes against humanity, or other serious violations of interna-
tional humanitarian law.143
Understandably, statements that simultaneously recognize
amnes-
ties as a legal concept and condemn them can be puzzling.
States
may desire to avoid amnesty implementation not out of a legal
obli-
gation to prosecute but to avoid getting embroiled in a chaotic
area of international law.
IV. SPECIFIC FACTORS SUPPORTING A CONDITIONAL
AMNESTY IN SYRIA
As Richard Goldstone, a Justice of the Constitutional Court of
South Africa, stated, “certainly, there is no simple solution
capable
of addressing the complexities and subtleties inherent in a range
of different factual situations. The peculiar history, politics,
and

social structure of a society will always inform the appropriate
approach to this question in any given context.”144 The
realities of
a state’s particular conflict must always be considered to
determine
whether a conditional amnesty along with a truth commission
would be an adequate resolution.
The South African conditional amnesty model would translate
effectively to the Syrian context given the degree of violence
com-
mitted by both pro- and anti-government forces, the practical
real-
ity of prosecuting each perpetrator in Syria, the time length of
formal trials, and the history and culture of repression within
Syria.
As demonstrated below, each of these factors supports the
conclu-
sion that the implementation of the South African model would
be
beneficial to the Syrian community.
143. U.N. Secretary-General, Report of the Secretary General
on the Establishment of a Special
Court for Sierra Leone, ¶ 22, U.N. Doc. S/2000/915 (Oct. 4,
2000).
24-JUL-15 14:43

A. Violent Acts Committed by Both Pro- and Anti-Government
Forces
An important element to the Syrian conflict that supports the
creation of an amnesty law and truth and reconciliation commis-
sion is the degree of violence committed by both pro- and anti-
government forces.145 This “equal violence” factor was a vital
char-
acteristic of South Africa’s conflict and it led to the country’s
deci-
sion to implement a conditional amnesty and truth and
reconciliation commission.146 As the apartheid system came to
its
end, the leaders of the transition characterized South African
soci-
ety as being in a “stalemate,” as both factions of society had
com-
mitted acts of violence against each other.147 Due to societal
tensions that persisted at the time, largely as a result of such
vio-
lence, the transition leaders believed that without implementing
a
conditional amnesty and a truth and reconciliation commission,
society would have been overwhelmed by a “bloodbath.”148
This
imperative factor—that violence has been committed by many
opposing factions, to the harm of many groups of people—
should
also be considered in the Syrian context.
The violence in Syria has escalated rapidly since it began in
2011.
Non-governmental organizations such as Human Rights Watch
and
Amnesty International have gathered evidence of atrocities
com-

mitted both by the Syrian government and the anti-government
rebels, a force that includes the largest anti-government group,
the
Free Syrian Army, and other smaller factions.149 Pro-
government
forces are responsible for carrying out extrajudicial killings,
exces-
sive use of force, enforced disappearances, and indiscriminate
attacks against civilians, in addition to other crimes.150 The
most
well-known—and arguably the most horrific—aspect of
violence
came in August 2013, when chemical weapons killed hundreds
of
civilians in the suburbs of Damascus.151 Although both sides
deny
145. See Annual Report: Syria 2013, AMNESTY INT’L (May
29, 2013), http://www.amnesty-
usa.org/research/reports/annual-report-syria-2013; Syria:
Executions, Hostage Takings by
Rebels, HUM. RTS. WATCH (Oct. 11, 2013),
http://www.hrw.org/news/2013/10/10/syria-
executions-hostage-taking-rebels.
146. 1 DESMOND TUTU ET AL., TRUTH AND
RECONCILIATION COMMISSION OF SOUTH
AFRICA REPORT 5 (1998).
147. See id.
148. See id.
149. See Annual Report: Syria 2013, supra note 145; Syria:
Executions, Hostage Takings R
by Rebels, supra note 145. R
150. See Annual Report: Syria 2013, supra note 145. R

151. See Somini Sengupta & Rick Gladstone, Chemical Arms
Used Repeatedly in Syria, U.N.
Says, N.Y. TIMES (Dec. 12, 2013),
http://www.nytimes.com/2013/12/13/world/middle
east/un-confirms-repeated-chemical-arms-use-in-syria.html.
24-JUL-15 14:43
being responsible for the chemical attack, the vast majority of
sources and evidence attribute the carnage to the government’s
forces.152 However, as mentioned above, the Syrian rebels also
have blood on their hands. Opposition forces have also been
found responsible for torturing and killing pro-government
forces
after conducting makeshift “courts,” targeting pro-government
journalists, abducting civilians for ransom, and using weapons
indiscriminately.153 As in South Africa, evidence of mass
violence
and human rights abuse committed by both opposing factions
sug-
gests that an amnesty would be beneficial to the Syrian
situation.
B. Volume of Crimes Committed
While formal prosecutions may be beneficial when discussing
how to seek justice against top officials, such as Bashar Al-
Assad,154
not everyone who has committed a crime will be prosecuted,
espe-

cially given the sheer volume of crimes committed during the
course of a conflict.155 When speaking about potential Syrian
pros-
ecutions, David Tolbert, president of the International Center
for
Transitional Justice has stated as follows:
We need to recognize that not everyone who committed a viola-
tion will be prosecuted, given the massive crimes involved.
Moreover, despite the importance of prosecuting those most
responsible for the most serious crimes, such trials are not nec-
essarily the best vehicle to address social and historical aspects
underlying patterns of repression and crime.156
152. See Somini Sengupta, Report Detail Could Further
Implicate Syria in Chemical Attack,
Analysts Say, N.Y. TIMES (Dec. 18, 2013),
http://www.nytimes.com/2013/12/19/world/
middleeast/experts-intrigued-by-tidbit-in-syrian-chemical-arms-
report.html.
153. See Annual Report: Syria 2013, supra note 145. R
154. It is important to clarify that domestic amnesty laws
imposed are not defenses at
an international level. Should the International Criminal Court
(ICC) decide to prosecute
Al-Assad, an amnesty law would not deter prosecutions against
the leaders from going for-
ward. Even if these were to occur, implementing an amnesty
law and a truth commission
would nonetheless be important. These mechanisms would
ensure victims a process to
cope with their atrocity at the ground level that would
encourage more direct participation
from the victims. The two forms of justice do not need to be

mutually exclusive. See
Laplante, supra note 10, at 969–70. Also of note, the ICC’s
Rome Statute states that the R
ICC prosecutor has the discretion not to prosecute criminals, if
such prosecution “is not in
the interests of justice, taking into account all the
circumstances, including the gravity of
the crime, the interests of the victims and the age of infirmity of
the alleged perpetrator,
and his or her role in the alleged crime.” Thus, if an amnesty
law, while prohibiting prose-
cutions, was a better mechanism to serve a community, the ICC
could refrain from judg-
ment. See Rome Statute of the International Criminal Court,
supra note 24, art. 53(2)(c). R
155. See David Tolbert, Transitional Justice Will Help Syria,
But Not As a Quick Fix, INT’L
CTR. FOR TRANSITIONAL JUST. (Jan. 18, 2013),
http://ictj.org/news/transitional-justice-will-
help-syria-not-quick-fix.
156. Id.
24-JUL-15 14:43
This assertion emphasizes the practical difficulties of trying
each
perpetrator and raises the question of how meaningful such
prose-
cutions would be. A truth-telling process may be a better

mecha-
nism to address such underlying patterns. As Tolbert clarifies,
prosecuting each perpetrator is not realistic.157 Moreover,
prose-
cuting even a portion of these crimes would be an extremely
costly
and lengthy endeavor, whether cases were brought domestically
within the Syrian judicial system, internationally, or with the
aid of
the United Nations or the ICC.158 Domestic prosecutions can
be
difficult, especially in the aftermath of a civil war, due to
potential
distrust in the government or a breakdown of the state’s
judiciary
system.159 There also can be mistrust within the judicial
system due
to ties to the old regime and threat of corruption.160 Moreover,
if
the Baath governing apparatus were dismantled, there still
would
be issues relating to the inexperience of new judges and the new
judicial system.161 Finally, while assistance from international
orga-
nizations, such as the United Nations, in the execution of trials
may provide for consistency, the length and scope of trials
would
still be of concern.
By forgoing the improbable ideal of prosecuting each person
who committed a criminal act during the apartheid era, South
Africa proved capable of providing justice to a wider range of
vic-
tims than it would have otherwise. By the conclusion of the
truth
and reconciliation commission, the commission had taken the

tes-
timony of approximately twenty-one thousand victims, of which
two
thousand had appeared in the public hearings.162 The
commission
had received 7,112 applications for amnesty and granted 849 in
total.163 While these statistics may seem low in comparison to
the
volume of crimes committed in Syria,164 they are a vast
improve-
ment upon international courts that generally have the capacity
to
157. Id.
158. For example, solely during the years 2010–2013, the
budget for the ICTY has
ranged between 250–286 billion U.S. dollars. See The Cost of
Justice, UNITED NATIONS INT’L
CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA,
http://www.icty.org/sid/325 (last visited
Mar. 22, 2014).
160. Id.
161. Id.
162. Truth Commission: South Africa, U.S. INST. PEACE (Dec.
5, 1995), http://www.usip
.org/publications/truth-commission-south-africa.
163. Amnesty Hearings and Decisions, TRUTH &
RECONCILIATION COMM’N, http://www.jus-
tice.gov.za/trc/amntrans/index.htm (last visited Mar. 22, 2014).
164. See supra Part I for current statistics on Syrian victims.

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