Post-Conflict Accountability and the Demands of Justice: Can Conditional Amnesties Take the Place of Criminal Prosecutions?

Abstract

When justice campaigners formulate aims and expectations for post-conflict justice, criminal prosecutions of the persons responsible for human rights violations and for politically motivated crimes are often given pride of place. Criminal trials in the aftermath of violent conflict and political suppression are intended to hold individuals accountable for horrific injuries they inflicted on their fellow citizens. And often enough, trials do succeed in this ambition, at least in respect of the (often comparatively few) accused brought before the courts. Against this background, it is easy to lose sight of the fact that postconflict trials are not ends-in-themselves. The end in question is accountability – and this provides the starting point for asking whether credible alternative accountability mechanisms exist and when, if ever, such mechanisms ought to be preferred to criminal prosecutions. One alternative to prosecution, it has been argued, is the transitional amnesty implemented by the South African Truth and Reconciliation Commission between 1996 and 2001. This amnesty was available to political activists and to members of the apartheid state’s security forces, provided that an individual amnesty application was submitted within a limited period and upon full disclosure of the salient facts concerning the commission of politically motivated crimes. After reminding the reader of the extent to which this amnesty scheme was indeed capable of meeting the main tenets of accountability, the working paper reviews the manifold ways in which the experience of amnesty continues to exert its influence in South African political life. It addresses the frustrating prosecutorial aftermath of unsuccessful amnesty applications as well as the drawn-out special pardons process under way since 2002 to deal with some of the perceived shortcomings of the initial amnesty scheme. It argues that while South Africa’s amnesty law was quite rightly hailed as a blueprint for future transitions in which accountability through criminal trials cannot be ensured, the justifications put forward for this form of amnesty need to be effectively communicated in order to avoid creating a legacy of  This paper was last revised on 12 June 2011. It is under review for publication as part of a collection of essays by Oxford Transitional Justice Research (Phil Clark et al, eds.), Critical Perspectives in Transitional Justice. I thank the editors for their kind permission to make my contribution to this collection available as a working paper.