CHAPTER 4 AMNESTY
4.2 Policy arguments in favour of foreign amnesties
4.2.3 Amnesty for regime change
Achieving a better society may require a process of transition from one type of government to another, which may only be possible with the consent of the officials of the former regime.1071 The granting of amnesty for the crimes committed by the agents of the oppressive government, rather than prosecution, may be the only peaceful means
1066 Mallinder “Uruguay’s Evolving Experience of Amnesty” 1.
1067 O’Shea Amnesty 63.
1068 Mallinder “Uruguay’s Evolving Experience of Amnesty” 43; citing Eduardo C “Fears of Coup Grow in Uruguay as Military demands total Amnesty” The Times (20 Nov 1986).
1069 O’Shea Amnesty 50.
1070 Orentlicher 1991 Yale Law Journal 2541. See also at 2548 where the author says that no governments should “press prosecutions to the point of provoking their own collapse”. See also and Naqvi 2003 International Review of the Red Cross 624.
1071 O’Shea Amnesty 24.
of securing such consent.1072 The threat of prosecution might cause the perpetrators to cling to power, possibly resulting in more bloodshed.1073 The South African TRC amnesties and the 1993 UN-brokered amnesty in Haiti feature prominently in this category.
4.2.3.1 South Africa
Before 1994, South Africa was ruled on the basis of racial discrimination under the Apartheid system of government. The unbanning of the African National Congress (ANC) in 1990, the release from prison of Nelson Mandela and other political prisoners, and the lifting of the state of emergency paved the way for a negotiated peace settlement between the apartheid regime and those who opposed it.1074 The negotiations resulted in the establishment of a date for the country’s first democratic elections and for an interim constitution to be enacted.1075
A major obstacle to finalizing the interim constitution and the holding of the elections was the question of accountability of those guilty of gross human rights violations during the years of apartheid.1076 Many of the members of the security forces had committed crimes during the apartheid era and were afraid that without an amnesty clause in the interim constitution, they risked ending their lives in prison. They thus demanded that an amnesty clause be included in the interim constitution. On the other hand, the representatives of the liberation movements believed that there should be accountability for past crimes, along the lines of the Nürnberg trials.1077 This posed a major threat to stability in the country.1078 Many believe that, if not addressed, the issue of amnesty
1072 Dugard International Law 192; Rakate The Duty to Prosecute and the Status of Amnesties 40- 41 and Orentlicher 1991 Yale Law Journal 2547.
1073 Stigen The Principle of Complementarity 422.
1074 Bubenzer Post-TRC Prosecutions 8.
1075 Encyclopædia Britannica Date Unknown
http://www.britannica.com/EBchecked/topic/607421/Truth-and-Reconciliation-Commission- South-Africa-TRC
1076 Bubenzer Post-TRC Prosecutions 11.
1077 Bubenzer Post-TRC Prosecutions 12 and Encyclopædia Britannica Date Unknown http://www.britannica.com/EBchecked/topic/607421/Truth-and-Reconciliation-Commission- South-Africa-TRC
1078 Trumbull 2007 Berkeley Journal of International Law 322 and Rakate The Duty to Prosecute and the Status of Amnesties 288 & 303.
could have impeded the whole transition process and would have ended in bloodshed.1079
Intense political consultations ensued, resulting in the inclusion of the amnesty clause in the Interim Constitution,1080 which was confirmed in the 1996 final Constitution,1081 and was given effect by the Promotion of National Unit and Reconciliation Act 34 of 1995.
Under this Act, the Truth and Reconciliation Commission1082 could grant amnesty for any crime committed with a political motive between 1 March 1960 (the month of the so- called “Sharpeville massacre”)1083 and 10 May 1994.1084 The Commission received more than 7,000 amnesty applications and granted 1,500 amnesties.1085
1079 Trumbull 2007 Berkeley Journal of International Law 322 and Rakate The Duty to Prosecute and the Status of Amnesties 288 & 303.
1080 The Postamble to the Interim Constitution (National Unit and Reconciliation) provided that: “In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed”.
1081 Section 22 (Transitional arrangements) of the Constitution: “(I) Notwithstanding the other provisions of the new Constitution and despite the repeal of the previous Constitution, all the provisions relating to amnesty contained in the previous Constitution under the heading
“National Unity and Reconciliation” are deemed to be part of the new Constitution for the purposes of the Promotion of National Unity and Reconciliation Act, 1995 (Act 34 of 1995), as amended, including for the purposes of its validity”.
1082 The Commission consisted of three committees: a committee on human rights violations (sections 12-15), a committee on reparations (sections 23-27) and a committee on amnesty (sections 16-22).
1083 On 21 March 1960, around 69 black protesters were shot dead by police officers. The protesters were demonstrating against pass laws which required black South Africans to carry passbooks with them any time they travelled out of their designated home areas. Although it is acknowledged the protesters were not peaceful and were attacking the police with stones, it is generally accepted that the police response was disproportionate. Today, 21 March is celebrated as a public holiday in honour of human rights and to commemorate the “Sharpeville massacre”. Nessler Date Unknown http://robbenessler.efoliomn.com/sharpevillemassacre 1084 10 May 1994 is the date on which Nelson Mandela was inaugurated as president. This is the
date that officially marks the end of Apartheid and the struggle between, on the one hand, the apartheid government and the white right-wing (the Afrikaner Weerstandsbeweging (AWB) and Afrikaner Volksfront) which opposed the elections by violent means and, on the other other hand, black groups such as the Pan Africanist Congress (PAC) and Azanian People’s Liberation Army (APLA), which had continued the “armed struggle” during the negotiation process. Truth and Reconciliation Commission of South Africa “Report” Vol I 120.
1085 Encyclopædia Britannica Date Unknown
http://www.britannica.com/EBchecked/topic/607421/Truth-and-Reconciliation-Commission- South-Africa-TRC
Without an amnesty clause in the 1993 Interim Constitution the transition would have failed.1086 The amnesty helped avoid a looming civil war, and the transfer of power was accomplished with little bloodshed.1087 Bishop Desmund Tutu was once quoted as saying that without the amnesty clause in the post-apartheid constitution, the
“reasonably peaceful transition from repression to democracy would instead have become a bloodbath”.1088
The South African experience thus makes evident the fact that in exceptional cases the granting of amnesties may be the wisest course of action to take. The ANC leadership chose negotiation over bloodshed and, accepted amnesty for their former oppressors rather than punishment.1089
4.2.3.2 Haiti
Another illustration of an amnesty law being used to facilitate a change in government is the 1993 UN-mediated agreement in Haiti, which granted full amnesty to members of General Cedras’ military regime, accused of having committed serious crimes in Haiti from 1991 to 1994.1090 The amnesty was granted to the General and his men in exchange for their acquiescence to the return to power of the democratically elected President Bertrand Aristide whom they had ousted in 1991.1091 The Security Council hailed the Agreement as “the only valid framework for resolving the crisis in Haiti”,1092 and President Bill Clinton commented that the amnesty deal was necessary to avert
"massive bloodshed" and "extended occupation" by the military regime.1093
1086 Trumbull 2007 Berkeley Journal of International Law 322, Rakate The Duty to Prosecute and the Status of Amnesties 288, Scharf 1999 Cornell International Law Journal 510; O’Shea Amnesty 295, Varushka The Truth and Reconciliation Commission 1 and Dugard “Possible Conflicts with Truth Commissions” 694.
1087 Trumbull 2007 Berkeley Journal of International Law 314 and Scharf 1999 Cornell International Law Journal 510.
1088 Trumbull 2007 Berkeley Journal of International Law 322.
1089 O’Shea Amnesty 295.
1090 The agreements reached in the UN-mediated process include the New York Pact of 16 July 1993 (Annex to the Report of the Secretary-General on the Situation in Haiti 13 Aug 1993 (S/26297)).
1091 Bassiouni 2000 University of Colorado Law Review 416.
1092 Statement of the President of the Security Council at the 48th Session UN Doc S/INF/49 (1993) 26. See also Scharf 1996 Texas International Law Journal 1-42.
1093 President Bill Clinton Remarks at White House Press Conference (19 September 1994), cited by Trumbull 2007 Berkeley Journal of International Law 315.
The lesson that can be learnt from the Haitian experience is that, unless the international community is willing to use force to remove a rogue regime, the consent of the senior leaders of that regime is necessary to peacefully put in place a responsible and democratic government. To secure the consent of those leaders, amnesty may play an indispensable role.
Despite the obvious role that amnesties may play in peace building and transitional democracies, however, amnesties may encourage future perpetrators of human rights and thereby threaten human rights. It thus appears that, from another policy point of view, a need for discouraging amnesties and insisting on prosecutions also exists. This point is discussed in the next section.