Recently, the Prime Minister of the United Kingdom, David Cameron, publicly made a statement calling for the removal of Syrian President, al-Assad from power. In his statement, Cameron said the he would favor employment of the full force of international law against Assad, but he also gave a contradictory statement that implied that Assad could be granted amnesty in exchange for removing himself from power in Syria. This is the nexus between reconciliation and criminal justice.
The effectiveness of a Truth and Reconciliation Commission (TRC) is severely reduced without the granting of amnesty to those who participate. If what is said at a TRC can be used against a person in a court system, there is little that truthful revelation would result. Especially in regards to the admission to crimes punishable by law, an individual is only likely to admit to these crimes if they can guarantee that they will not be punished for the admission of such acts. Conditional amnesty was one of the cornerstones of the South African TRC.
On the other hand, if the establishment of a TRC requires the granting of amnesty then how are the perpetrators of crimes brought to justice? Should they not be punished for the criminal acts that they have committed, whether by domestic court or under international criminal law? Doesn't the punishment of crimes act as a deterrent for the prevention of future crimes? The trial of criminals plays an important role in the establishment of a sense of justice in a post-conflict society. It clearly identifies, through court proceedings, the perpetrators of criminal activity and sentences them accordingly. This prosecution of criminals can provide a sense of closure, as well as a sense of security, as those who were engaged in criminal activity are being punished and have been removed from society.
There is, thus, an inherent contradiction between TRCs and international criminal proceedings. Both have an important role to play in the post-conflict transition - TRCs establishing truth and providing the foundations for reconciliation and criminal trials providing a sense of justice and removing criminals from society - however, a person cannot be simultaneously granted amnesty and face criminal activity. Therefore, the question is by which criteria should someone be allowed to be granted amnesty? How should those people be determined? And should the Head of the State and the face behind be allowed to be granted amnesty? There are a lot of politics involved here. Some would argue putting the Head of the State on trial could further destabilize the conflict, and that this person may have an important role to play in post-conflict reconstruction. The counter argument is lustration - the removal of all those perpetrators of criminal activity from the system and starting fresh. In order for transition justice to be successful, there need to be some sort of balance between the implementation of TRCs and criminal prosecution. However, what this balance is remains ambiguous, and my very well be dependent on the society in which these processes are taking place.