In recent times, transitional justice practice has increasingly seen truth commissions tasked with administering accountability programmes, distinct from, and in addition to, their traditional truth-seeking role. Such accountability schemes typically take the form of granting or recommending amnesty for those who disclose involvement in past crimes or facilitate reintegration on the basis of similar disclosures. Self-incriminating disclosures made in the course of traditional truth commission proceedings generally attract a robust set of legal safeguards. However, the protections within transitional accountability schemes administered by truth commissions tend to be less stringent. This article explores this anomaly, focusing particularly on the extent to which the privilege against self-incrimination is protected within truth commission-administered accountability programmes. It considers the programmes operated to date, and the levels of protection afforded, and demonstrates a lack of consistent practice in the safeguarding of individual rights within these programmes. It examines international legal standards on the privilege against self-incrimination and questions whether the procedures operated by accountability programmes can be reconciled with international norms in order to protect those who make self-incriminating disclosures within accountability initiatives. The article argues that a failure to ensure individual rights against self-incrimination risks compromising the efficacy of the programmes themselves and the contribution that they can make to long-term peace and reconciliation in transitional states.

In the early 1990s, two former members of the Afghan secret service applied for a residence permit in the Netherlands. Their request was denied on the basis of the exclusion clause of Article 1F(a) of the Vienna Convention Relating to the Status of Refugees. There were serious reasons for suspecting that the men had committed war crimes during the Afghan civil war of 1979–92. In 2000, the immigration authorities transmitted the files of the two men to the public prosecution office, which initiated prosecutions in 2003. At the trial, defence counsel raised various preliminary challenges. They argued that the case should be declared inadmissible since relying on the immigration files would violate the nemo tenetur principle and the right against self-incrimination enshrined in Article 6 of the European Convention on Human Rights. Furthermore, the court had no universal jurisdiction over violations of Common Article 3 of the Geneva Conventions since there was no international rule mandating a right to universal jurisdiction over war crimes committed in non-international armed conflicts. The Hague District Court dismissed the defence challenges and eventually convicted the Afghan nationals to 9 and 12 years' imprisonment. The Hague Appeal Court endorsed most of the findings of the District Court and confirmed the convictions and sentences. The reasoning underlying the decisions, both at first instance and at appeal, raise questions particularly with regard to universal jurisdiction. In this article the defence arguments are explored and the reasoning of the courts is analysed.

An unlimited right of non-self-incrimination of witnesses before international criminal tribunals exists only during the pre-trial investigation (Article 55 ICC Statute); during trial the right is not unlimited, as the witness can be compelled to answer any question, either on the basis of an ex ante assurance of non-use of the evidence against him/her coupled with an assurance of confidentiality (ICC Rule 74(3)(c)) or on the basis of a guarantee of non-use without an explicit assurance to that effect (ICTY/ICTR Rules 90(F)). It is doubtful whether these rules are compatible with the principle nemo tenetur se ipsum accusare since this principle protects not only the accused but also the witness from a criminal prosecution which is based on her own statements.

A federal grand jury investigating possible criminal violations of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961 — 1968 (1982)) (RICO) by former Philippine President Ferdinand Marcos and his wife issued subpoenas requiring the Márcoses to provide handwriting and voice exemplars and fingerprints, and to sign forms authorizing the release of confidential banking records. The Márcoses refused to comply with the subpoenas and were held in civil contempt. On appeal, the U.S. Court of Appeals for the Second Circuit (per Cardamone, J.) affirmed the contempt order and held that (1) the current Government of the Philippines had effectively waived whatever head-of-state immunity the Márcoses might have otherwise enjoyed; (2) United States law governed the Márcoses’ privilege against self-incrimination, rather than the arguably broader provisions of Philippine law; and (3) the trial court had the authority to enforce the grand jury’s order requiring the Márcoses to waive foreign financial secrecy laws.