Amnesty

Garnering considerable controversy has, however, been the issue of amnesty. Unlike the South African TRC, the Solomon Islands TRC does not have the power to grant amnesties in exchange for truth. The TRC Act 2008 (Article 20(b)) declares that neither the disclosure of facts or statements made to the TRC nor the ‘findings or recommendations of the Commission’ shall ‘be construed as...qualifying or entitling any person to any amnesty or further amnesty except amnesty or immunity granted in terms of the Amnesty Acts 2000 or 2001.’ The Amnesty Acts of 2000 and 2001 were the result of provisions included in the 2000 Townsville Peace Agreement (TPA), which attempted to bring the Solomon Islands conflict to an end. The TPA included a general amnesty for ‘[m]embers, leaders and other civilian advisors associated’ with the warring parties, and any Police, military and prison service officers ‘who participated in military operations during the course of the ethnic crisis’ (2000: 2.3.2.ii(b)). The amnesty, formally instituted by the Solomon Islands Government Amnesty Acts of 2000 and 2001, provided immunity from prosecution for criminal acts perpetrated in connection with the Tensions, including ‘killing in combat conditions or in connection with the armed conflict’ (2000: 2.3.2.ii(b)). Controversially, the amnesty law included immunity from prosecution for murder but ‘did not apply to any criminal acts done in violation of international humanitarian laws, [or] human rights violations or abuses’ (Amnesty Act 2001: 3.5). However, as precisely what constituted a human rights violation was never specified, the limitations of this amnesty remain unclear.

In 2003, after the TPA had failed to halt the violence, Prime Minister, Sir Allan Kemakeza appealed to the Solomon Islands’ regional neighbours for assistance to quell his country’s increasing insecurity and instability. On 24 July 2003, the Australian-led Regional Assistance Mission to the Solomon Islands (RAMSI) arrived in Honiara, bringing with it a wide-reaching mandate to restore public safety and security and reform the ‘machinery of government,’ economic governance, and law and order (‘What is RaMsI’; Morgan and McLeod 2006: 418). With its strong law and order mandate, RAMSI set about removing weapons from the streets and arresting those suspected of involvement in Tensions-related crimes. Ignoring the terms of the SIG Amnesty Acts, RAMSI officials argued that they could not reliably adjudicate who ought to qualify for amnesty and determined that ‘all allegations of criminal behaviour would be investigated’ (Watson 2005: 31). By the end of 2003, just five months after arriving in the Solomon Islands, RAMSI had arrested 1340 individuals, including almost all of the militia leaders (Kabutaulaka 2005). What became known as the ‘Tensions Trials’ began in 2005 with several high-profile figures sentenced to life imprisonment for murder. Although many defendants appealed to the Amnesty Act, the vast majority were denied: the TRC Report notes just one case in which the two co-defendants from Malaita were granted amnesty for abducting a man from Guadalcanal suspected of involvement with a militant group (TRC Report 2012: 328).

Both the failure of RAMSI to honour the Amnesty Acts and the TRC’s lack of a mandate to award amnesties proved particularly controversial at the commission’s public hearings. As the TRC Act states, although witness statements are ‘inadmissible against the person in any action, suit, or proceeding,’ and ‘facts or information disclosed or statements made’ cannot be considered ‘admissible evidence in any processing before a court of law,’ the TRC was authorised to recommend criminal proceedings (2008: 7, 5(1) & 20(f)). At the outset this provision thus left open the possibility that, on the basis of evidence heard, the Commission would refer a new set of cases to the High Court for prosecution. For perpetrators of crimes committed during the Tensions, this lack of immunity proved especially problematic.

More than half the ex-combatants from Malaita who testified before the TRC explicitly raised the issue of amnesty, in contrast to the sole Guadalcanal combatant who did so. Criticising the Australian government for its interference in Solomon Island affairs and assumption that its ‘boomerang aid’ had brought peace, Lionel Lapu from Guadalcanal argued that the Amnesty Act ‘belongs to... Solomon Islanders’ and is ‘the very act and agreement that brokered peace and harmony to our nation’ (TRC Report 2012: 1118). For Malaitan militants who spoke the promise of amnesty had been central to their agreement to sign the TPA and RAMSI’s failure to uphold the amnesty a cause of ongoing tension. Andrew Fioga thus argued that the TPA:

.was an Agreement which became something like a Constitution of the land; all our hopes were there. Somehow after the TPA, what expected there did not eventuate. We thought amnesty was granted to us; because of that Agreement, all of us signed. We signed this because we thought we were going to be granted amnesty. We fulfilled all those conditions that we were required under the TPA. When the intervention came in, this did not work, we thought this was the Constitution of the land. These were gazetted Acts of the Parliament but they were ignored by the intervention force. This landed us behind bars. When we were behind bars, we tried our best to come out. Why did we have to sign and yet we are put behind bars; where is our amnesty? Our rights have been deprived. (TRC Report 2012: 1128)7

Similarly, Robert Spencer recalled:

When we went to sign the TPA, we were very happy, over happy, all the hard work was over, every sleepless night that we spent out on the boundaries, mosquitoes fed on us until they were satisfied. No, all happiness was turned around; everyone who signed the Agreement went behind bars.. What about the amnesty, was it not passed by Parliament? (TRC Report 2012: 1153)

The ‘point,’ as Nick Oxley added in his testimony, was that ‘we need amnesty for some of our boys who are still in prison’ (TRC Report 2012: 1160). For most of the Malaitan ex-combatants who testified, this failure to uphold the amnesty outlined in the TPA continues to be a significant stumbling block for the achievement of reconciliation in the Solomon Islands. For them, the expectation appears to be that state-level forgiveness is a prerequisite for reconciliation.

 
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