Amnesty, truth, and reconciliation: Reflections on the South African amnesty process

Truth v. Justice: The Morality of Truth Commissions

Volumn , Issue , 2010, Pages 170-188

  Slye, Ronald C ^a  

^a SEATTLE UNIVERSITY   (United States)

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EID: 84890698138     PISSN: None     EISSN: None     Source Type: Book    
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References (43)

1. I thank the United States Institute of Peace for providing the funding for my research on amnesties for human rights abuses, out of which this article derives, and the participants of the World Peace Foundation conference on the South African Truth and Reconciliation Commission, held in Somerset West, May 1998.
2. For a more detailed discussion of what such a minimal definition of reconciliation might look like, see the discussion of a minimally decent society in the chapter by Rajeev Bhargava in this volume.
3. I have been examining amnesties granted throughout history in connection with a forthcoming book on the moral and legal legitimacy of amnesties for human rights violations, which will provide a more detailed description of the types of amnesties that have been used.
4. In fact, amnesties granted under one regime have been annulled by successor regimes. This was the case in Argentina, where an amnesty law passed by the military regime shortly before giving up power was reversed by the new democratically elected legislature.
5. See Amnesty International, "Argentina: The Military Juntas and Human Rights," in Neil Kritz (ed.), Transitional Justice (Washington, D.C., 1995), II, 332.
6. For a nuanced discussion of the moral and legal issues raised by the Argentine "self-amnesty law,".
7. see Carlos Nino, Radical Evil on Trial (New Haven, 1996), 64-65.
8. Although some of the arguments made for and against criminal trials also apply to civil trials, there are important differences. I limit myself here to a comparison with criminal trials.
9. Nino, Radical Evil, 146.
10. To be fair to Nino in particular, I should note that he was writing before the creation of the South African TRC. Nino compared criminal trials to commissions like those set up in Argentina and Chile, where the accused were not required to, and did not, participate.
11. Nino, Radical Evil, 146.
12. This does not mean, of course, that there may be no pressure on an individual to apply for amnesty. The pressure to apply is directly related to the risk of being subject to a criminal or civil action, which in turn depends in part on the quality of the evidence available to the state and victims, and to the resources available to the state and victims to bring such an action.
13. An example of the last assertion is, "Yes, I killed that person, but I was acting in self-defense."
14. TRC Act, section 20. There are other requirements that an applicant must have met in order to be eligible for amnesty-for example, that the act be committed within a particular period of time-but they do not have the same effect on an applicant's testimony as the three mentioned in the text.
15. The definition of an "act associated with a political objective" is formalistic. The definition looks at the nature of the act and at the authority of the individual committing the act. The amnesty committee downplayed the requirements concerning the nature of the act-for example, the gravity of the act and its proportionality to the objective pursued-and focused more on the authority of the individual; for example, was the person a member or supporter of a publicly known political organization, or was the person ordered to commit the act in question by an authorized member of such an organization? For these requirements, see TRC Act at sections 20(2) and 20(3).
16. Government security force members who killed a diamond dealer who had cheated them later claimed that the killing and cover-up were political. Antjie Krog, Country of My Skull (Johannesburg, 1998), 63.
17. The test that the amnesty committee used to determine whether an act was political is a test based on the "Norgaard Principles"-principles developed by Carl Aage Norgaard, a Danish lawyer and former president of the European Commission on Human Rights, for the United Nations in the context of the Namibian transition.
18. See "The Norgaard Principles," in Alex Boraine and Janet Levy (eds.), The Healing of a Nation? (Cape Town, 1995), 156-160.
19. For example, see the opposition of the Ribeiro family to the amnesty application of their parent's killers, in which the Ribeiro's children argue that because their parents were not supporters of the ANC, their killing was not political, but rather an (apolitical) attempt by the state to terrorize a community. See Stephane Bothma, "Policemen Have Shown No Remorse-Ribeiro," Business Day (4 March 1997): 2.
20. This was discussed extensively during the public hearings on the amnesty application of the killers of Amy Biehl, a student from the United States. See the transcript of the Amy Biehl hearing held in Cape Town on 8-9 July 1997 (on file with the author and with the offices of the TRC).
21. Whether acts with such mixed motives should be eligible for amnesty, or indeed whether the political nature of an act should play such a central role in determining eligibility for amnesty, are important questions that are beyond the scope of this chapter.
22. Trials may also be effective when the punishment at the other end is severe. Approximately 2,000 individuals in custody in Rwanda confessed to the crime of genocide after the execution of some of those already convicted. Those confessing hoped to take advantage of a provision of the Rwandan law that provided for reduced sentences for confessions.
23. See "2,000 Rwandans Confess to Avoid Death Penalty," New York Times, 16 May 1998, A4.
24. Of course, it is by no means clear how accurate these confessions in fact were, and the use of such means to elicit information raises a number of other issues of human rights beyond the scope of this chapter.
25. See South African Truth and Reconciliation Commission, Final Report (Cape Town, 1998), V, chap. 3, 112-113.
26. Upon the completion of the amnesty process, the commissioners will reconvene to determine whether information revealed in the post-Report amnesty hearings warrants an addendum or other modification of the Final Report.
27. Charles Maier, who has examined these issues far more thoroughly than I, raises this empirical question in his chapter in this volume.
28. Law manifests its preference for finality in such legal doctrines as estoppel, res ipsa loquitur, and stare decisis.
29. The assertion that law is more likely to get it right than history, or that the passage of time lessens our confidence in our judgments given the consequences, is questionable. One need only compare the cases of Plessy v. Ferguson, 163 U.S. 537 (1896), and Brown v.
30. Board of Education, 349 U.S. 483 (1954) concerning apartheid in the United States, and the two Korematsu decisions concerning the internment of Japanese-Americans during World War II (Korematsu v. United States, 323 U.S. 214 [1944], and Korematsu v.
31. United States, 584 F. Supp. 1406 [N.D. Cal. 1984]) to see how the judgment of law can be radically distorted by the prejudices of its era.
32. The general preference of law for finality is not clearly shared by the law of international human rights, which suggests that certain crimes like genocide and other crimes against humanity are not subject to any statute of limitations. See, for example, the Convention on the Non-Applicability of Statutory Limitations toWar Crimes and Crimes Against Humanity, 660 U.N.T.S. 195, reprinted in 8 I.L.M. 168 (1969).
33. Some of this information might otherwise have become available in contemporaneous trials, and then later in memoirs, deathbed confessions, and posthumous revelations. The latter three means in particular are obviously subject to distortion by the passage of time.
34. See, e.g., Joseph Goldstein, "Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice," Yale Law Journal LXIX (1960): 544, note 4.
35. In those cases where they do not accept such responsibility, applicants may be denied amnesty. For example, in their application, the killers of Steve Biko continued to insist that Biko's death was an accident for which they could not be held responsible. They were denied amnesty, and thus were exposed to future legal action by the state and the Biko family.
36. Other things that look like punishment occurred in, or as a result of, the amnesty hearings. Thus the hearings were extremely traumatic to the perpetrators and their families, in some cases resulting in the onset or exacerbation of post-traumatic stress syndrome, or in the applicant being ostracized by family, friends, colleagues, and former superiors. Such hearings were usually infinitely more traumatic to survivors, their families, and friends. I have discussed briefly the issue of accountability and punishment in Slye, "Justice and Amnesty," in Charles Villa-Vicencio and Wilhelm Verwoerd (eds.), Looking Back, Thinking Forward: Reflections on the South African Truth and Reconciliation Commission (Cape Town, 1999), 171-180.
37. There is no statutory requirement that amnesty applicants express remorse or sorrow for the consequences of their actions. Of course, some applicants may make a strategic decision to include some indication of remorse or forgiveness with the hope of affecting a committee member's decision. There are, however, also examples of acts of reconciliation between amnesty applicants and their victims that occur outside of the amnesty hearing room, and at least initially outside of the public eye.
38. Vlakplas is the name of a farm outside Pretoria that was the headquarters of the most publicly notorious state-sponsored death squad in South Africa. See Eugene de Kock, A Long Night's Damage (Saxonwood, South Africa, 1998), 105-113.
39. Michael Ignatieff, "Articles of Faith," Index on Censorship V (1996): 113.
40. The report noted that thirty-four states plus the District of Colombia had implemented at least one general tax amnesty since 1983; seven states had implemented two such amnesties; and one had implemented three. The committee also looked at the experience of tax amnesties in other countries, noting that Ireland has had five such amnesties in the last six years, and that Italy has had over a dozen tax amnesties. Report JCS-2-98, 105th Cong., 2d sess. (30 January 1998).
41. For example, in ancient and medieval China amnesties were promulgated upon the accession of a new emperor as a signal of rebirth and renewal. Amnesties were also granted each spring for similar reasons. The practice of promulgating amnesties upon the accession of a new leader is still practiced in many Asian countries, and was practiced for centuries by some of the European monarchies. See Robert McKnight, The Quality of Mercy: Amnesties and Traditional Chinese Justice (Honolulu, 1981).
42. Thus, we have the foreign criminal trials involving Argentinean and Chilean defendants in Italy and Spain (most notoriously against the former Chilean dictator Augusto Pinochet Ugarte), the attempts to prosecute the former Argentinean military leader Jorge Rafael Videla for child abduction committed during his reign from 1976 to 1983, and the largely symbolic repeal of the Argentinean laws that created a de facto amnesty for the military.
43. We do not yet know how the amnesty committee and the commission will assess the effectiveness of the amnesty process. The discussion of amnesty in the Final Report made public in October 1998 is deliberately minimal, noting the fact that it would be premature to make any conclusions while the process is ongoing. See Final Report, V, chap. 3.