CHAPTER 1 INTRODUCTION AND PROBLEM STATEMENT
1.2 Statement of the problem
1.2.3 The issue of amnesties granted by foreign countries
personae of a foreign State official arise before a South African court? If this immunity should be granted, which, apart from the head of State, ministers of foreign affairs and diplomats, are the other foreign State officials who are entitled to this immunity? Should this immunity also be granted when those officials are in South Africa on private visits?
in question. Amnesty International,82 for example, argues that national amnesties or similar measures of impunity for crimes under international law are contrary to international law and that they cannot bind the ICC or the courts of other States. This human rights organisation says that States Parties should neither take such measures nor recognise them when they have been taken by other States.83 At the other end of the spectrum, some argue that amnesties may “contribute to the achievement of peace and justice in a society in transition more effectively than mandatory prosecution”,84 and that, for that reason, national amnesties for international crimes should receive some international recognition.85 This argument is borne out in the South Africa’s own experience. South Africa resorted to amnesties in order to facilitate the transition from apartheid to the new constitutional era. As a matter of fact, the amnesties were negotiated by the Apartheid regime and were granted by the subsequent regime as a means to facilitate the transition process and achieve enduring peace. As Varushka86 says, the process was a balancing exercise between a “painful past and a peaceful future”.
The need for balancing the requirements of retributive justice and the imperatives of peace and reconciliation was also judicially endorsed by the Constitutional Court which, in AZAPO v President of the Republic of South Africa,87 noted that the amnesties in South Africa were a crucial component of the negotiated settlement itself, without which the Constitution would not have come into being. The Court reasoned as follows:
[b]ut for a mechanism providing for amnesty, the “historic bridge” itself might never have been erected. For a successfully negotiated transition, the terms of the transition required not only the agreement of those victimized by abuse but also those threatened by the transition to a
“democratic society based on freedom and equality”. If the Constitution kept alive the prospect of continuous retaliation and revenge, the agreement of those threatened by its implementation might never have been forthcoming, and if it had, the bridge itself would have remained wobbly and insecure, threatened by fear from some and anger from others. It was for this reason that
82 Amnesty International “The International Criminal Court: Checklist for Effective Implementation”
6-7.
83 Amnesty International “The International Criminal Court: Checklist for Effective Implementation”
6-7.
84 Dugard 1999 Leiden Journal of International Law 1002.
85 Stigen The Principle of Complementarity 463-464; Trumbull 2007 Berkeley Journal of International Law 319 and Lubbe Successive and Additional Measures 32.
86 Varushka The Truth and Reconciliation Commission 1.
87 AZAPO v President of the Republic of South Africa 1996 4 SA 671 (CC).
those who negotiated the Constitution made a deliberate choice, preferring understanding over vengeance, reparation over retaliation, ubuntu over victimisation.88
However, unlike the TRC’s amnesties, amnesties may also be used by regime dignitaries in order to shield themselves from criminal liability without promoting any legitimate political or social ends. For example, authoritarian governments who are on the verge of decline and whose members are concerned that they will be held accountable for human rights abuses that occurred during their reign often pass amnesty laws shortly before leaving office in an effort to prevent prosecution in the future.89 A classical example of a self-awarded amnesty is the amnesty that Chilean president Augusto Pinochet passed by Decree 2191 of 1978 covering crimes committed during Pinochet’s first five years of power, namely 1973 to 1977. The amnesty was passed by the Parliament in 1978 to prevent the prosecution of individuals implicated in a number of criminal acts committed between 11 September 1973 and 10 March 1978.
This was the period of the state of siege during which systematic and widespread human rights violations, including torture, "disappearance" and extrajudicial executions were committed by the Chilean security forces.90 For all purposes, the amnesty law was a legal manoeuvre by the military government to protect its members against future prosecutions for these crimes.91
Amnesties may also be granted in order to mark anniversaries, national holidays or elections;92 or to simply avoid overcrowding in prisons.93 If these kinds of amnesties are granted to perpetrators of international crimes there is clearly a need for the ICC to step in and try the persons concerned. Since the ICC may not have the means to try all the persons involved, however, a question arises as to whether South African courts, acting under the principle of complementarity, are able to bring their contribution to the fight against impunity by exercising their universal jurisdiction over the persons who have been granted such amnesties in foreign countries. More specifically, the question is
88 1996 4 SA 685. In the light of this view, the Constitutional Court held that the amnesty was justified and, therefore, not unconstitutional (1996 4 SA 698).
89 King 2010 George Washington International Law Review 583.
90 Amnesty International “Chile: Legal brief” 1.
91 Amnesty International “Chile: Legal brief” 2.
92 ESC “Study on Amnesty Laws and their Role in the Safeguard and Promotion of Human Rights”
9.
93 ESC “Study on Amnesty Laws and their Role in the Safeguard and Promotion of Human Rights”
8. See also O’Shea Amnesty 6.
whether the international law principle of “sovereign equality” allows courts of one State to disregard an amnesty law of another “sovereign”?