Conditional Amnesty Research Articles

The Facade of Justice: Transitionless Transitional Justice of Ethiopia

The Ethiopian government has committed to a transitional justice process to address gross human rights violations through investigation, prosecution, truth-finding and revelation, reconciliation, conditional amnesty, reparation, and institutional reforms. Despite these efforts and international support, this mechanism will unlikely resolve Ethiopia's political and security issues. The government's lack of intent to cease ongoing conflicts and its continued human rights violations hinder effective participation in implementing the transitional justice process. Furthermore, the involvement of non-state and foreign actors, which are beyond the state’s authority, in gross human rights violations undermines accountability. Victims and witnesses in conflict zones face significant barriers to participation due to the government's limited reach and fear of retribution. Gross human rights violations by the government and the Ethiopian National Defense Force raise doubts about the accountability of civil and military leaders through a government-controlled transitional justice mechanism. To address these challenges, the current government should relinquish power to a transitional government to mitigate undue influence on the justice process, cease hostilities, and hold officials accountable. If the government resists establishing a transitional government, a hybrid court with foreign judges and prosecutors should handle high-profile cases, while domestic courts, with strict measures to ensure impartiality and independence, should address other cases.

Has the Ability of Truth Commissions to Recommend Amnesty Been Effective in Enhancing Perpetrator Cooperation?

This article examines the amnesty powers granted to a variety of truth commissions (TC). It considers whether the process by which TCs are able to recommend for perpetrators who cooperate with TCs (and usually provide truth) has ensured that such individuals come forward and cooperate with these institutions. This is decisive, as TCs everywhere experience difficulties in obtaining perpetrator cooperation and testimony. Crucially, unlike the South African TC, which had the power to directly grant amnesty, later TCs have only been able to recommend, to their governments, that amnesty be granted to specific persons who meet criteria laid out in the specific TC’s legal mandate. The article therefore examines the efficacy of TC amnesty powers in South Africa, Grenada, Indonesia, the Democratic Republic of the Congo (DRC), Nepal, Timor-Leste/Indonesia, Liberia, Kenya, South Korea, and Timor-Leste. All these institutions had different provisions as to when, and for what reasons they could make a recommendation that amnesty be given (besides the South African TC which could directly grant amnesty). This article touches on some of the problems that may occur during such processes that need careful attention to ensure that perpetrators enter such conditional amnesty processes, and tell the truth once they do. The lessons learnt from the various TC amnesty processes are brought to the fore to determine what future TCs ought to bear in mind should it be decided to use conditional amnesty methods.

AMNESTY AND RETRIBUTION

AbstractThis paper addresses the relationship between amnesty granted to perpetrators of serious human rights abuses and retributivism. It rebuts arguments advanced by Dan Markel and Lucy Allais in support of their claim that the granting of conditional amnesty—amnesty in exchange for perpetrators’ confessing to, and disclosing the details of, their wrongdoing—by the South African Truth and Reconciliation Commission (TRC) was consistent with retributivism. Markel contends that conditional amnesty was perfectly in line with recipients’ desert, while Allais submits that the TRC secured as much retribution as was possible in the circumstances of South Africa’s democratic transition. The argument of the paper is that while retributivists have good reasons to view conditional amnesty as justified, the reasons provided by Markel and Allais are not among them.

How Conditional Amnesties Can Assist Transitional Societies in Delivering on the Right to the Truth

This article explores how conditional amnesties can assist post-conflict societies to recover truth. It examines how such amnesties can be used optimally to achieve the best results as part of transitional justice mechanisms. Thus, a central question is to see how amnesties can be used for truth recovery purposes. For that reason, the status and role of amnesties, and whether such amnesties can be used to learn more about the past and assist in truth recovery is explored. The article explores what amnesties are, how prevalent they are and how amnesties can be used optimally to achieve the best results. An issue that is also explored is whether amnesties are needed for perpetrators to participate in transitional justice mechanisms. The argument that is made, in this regard, is that amnesty is absolutely necessary to persuade perpetrators to testify. If they do not have such legal protection, perpetrators fear the legal consequences that may result if they admit to crimes for which they have not been charged. Another question that is examined concerns whether amnesties, and specifically conditional amnesties, pass international law muster. This article therefore investigates the continual and extensive use of amnesty to determine whether a conditional amnesty violates international law. The article suggests how a conditional amnesty process could be structured and what difficulties such a process should avoid if perpetrators are to enter such a process.

Migration and justice: a reply to my critics

In this response to six critics, I begin by clarifying the sense in which my approach to the issue of immigration is ‘realistic’. I also explain why a realistic approach must place immigration in a nation-state context, although without treating it as primarily reparative for historic injustice. I suggest that it is implausible to regard global equality of opportunity, as opposed to global sufficiency, as setting limits to national self-determination. I then defend my use of the distinction between refugees and economic migrants to frame the discussion of immigration against the charge that all migrants are potentially vulnerable to the decisions of admitting states, since these may determine the fate of their life-projects. And I also defend the claim that, in the case of refugees, justice requires only that each state should discharge its fair share of the burden of admitting them; doing more than this would require popular consent. Finally, I consider the case of irregular migrants, and explain in what sense they have taken unfair advantage of other potential migrants; I defend offering a conditional amnesty to people in this category.

The Legal Framework of Transitional Justice

The Legal Framework of Transitional Justice

Watching a Bargain Unravel? A Panel Study of Victims' Attitudes about Transitional Justice in Cape Town, South Africa

1 Despite the extended nature of many transitional justice processes, collection of relevant longitudinal primary data, especially at an individual level, is rarely observed as a means of assessing the impact of formal measures. This article reports on a panel survey conducted in 2002-2003 and 2008 with 153 victims of apartheid-era violations from Cape Town, South Africa. During the interval between the two waves of the survey, both undertaken after the Truth and Reconciliation Commission (TRC) completed its work, government policies concerning reparations, prosecutions and pardons undermined the compromises that were central to the TRC process and integral to the democratic transition. The data analysis shows that approval of the unique conditional amnesty offered by the TRC was at first surprisingly high, with many respondents acknowledging its practical rationale, but it fell dramatically by 2008. This decline in support is associated with an increased sense of the unfairness of amnesty and dissatisfaction with the extent of truth recovery. Knowledge of and attitudes about prosecutions and pardons do not appear to be contributing factors, though the results indicate a greater desire for accountability, even at the risk of instability. The findings emphasize the need for rigorous, ongoing evaluation of transitional justice processes to appreciate properly the complex and dynamic nature of individual attitudes and the influence of emergent events.

New development: Faith, community organizing and migration—the case of ‘regularization’

When civil society organizations pool their muscle, it is amazing what they can achieve. The London Citizens ‘Strangers into Citizens’ campaign has put the idea of a conditional amnesty for illegal immigrants on the political table—and won powerful backers, including the Mayor of London and the Catholic Church.

What Conditional Amnesty Is Not

My purpose in this paper is to assess the plausibility of three claims asserted by Wilhelm Verwoerd in his book Equity, Mercy, Forgiveness: Interpreting Amnesty within the South African Truth and Reconciliation Commission (2007) in support of the granting of amnesty by the South African Truth and Reconciliation Commission. Amnesty in this context refers to conditional amnesty: immunity from prosecution and punishment, conditional upon the full disclosure by perpetrators of the details of their wrongdoing, extended to individuals who had committed gross human rights violations between 1 May 1960 and 10 May 1994. Verwoerd rehearses several arguments that have previously been advanced in support of conditional amnesty, but his original contribution consists in asserting three claims concerning its moral status. These are that the granting of amnesty: (1) satisfies the demands of equity; (2) constitutes an act of mercy; and (3) amounts to forgiveness of perpetrators. I seek to show that, considered separately, each of these claims is false and that, asserted together, they are inconsistent.

'They have built a legal system without punishment': reflections on the use of amnesty in the South African transition

The conditional amnesty process administered by the Truth and Reconciliation Commission was an innovative feature of the transition to democracy in South Africa, yet it remains relatively under-analysed in comparison with other aspects of the TRC’s work. Moreover, although the South African TRC has inspired a new generation of truth commissions in Africa and around the world, the amnesty process has never been repeated. This paper examines the context of the use of amnesty in South Africa and offers some critical reflections on the South African amnesty process, particularly in the context of the rise of international criminal law and the creation of the International Criminal Court. Noting that the demand for ‘amnesties for peace’ has not diminished, it argues that, although the South African amnesty process was in some respects flawed both in its conception and implementation, it merits consideration by other countries in transition and offers valuable lessons for the development of international legal policy.

The complementary and conflicting relationship between the Special Court for Sierra Leone and the Truth and Reconciliation Commission

Societies emerging from political turmoil and civil unrest associated with gross violations of human rights and humanitarian law face the crucial question of how to deal with these atrocities and put the past in its place. Since the 1980s, this problem has been a major preoccupation of international law and scholarship. The traditional responses include outside intervention in such states pursuant to Chapter VII powers under the United Nations Charter, grants of conditional amnesty to perpetrators of war crimes and crimes against humanity, grants of some form of unconditional amnesty, and prosecution of perpetrators.Nowhere is this question more pressing than in Sierra Leone, which recently emerged from a ten-year civil war characterized by systematic, serious and widespread violations of human rights and international humanitarian law. The Government of Sierra Leone had to make a choice between these four traditional strategies for dealing with these pervasive human rights violations.

South Africa's Truth and Reconciliation Process and International Humanitarian Law

Since its establishment in 1995, the South African Truth and Reconciliation Commission has captured the attention of an international community preoccupied with the problem of dealing with crimes of the past in divided societies. While the creation of a permanent international criminal court to punish those guilty of atrocities constituting international crimes has been the first priority, the international community has, albeit grudgingly, accepted that there may be circumstances in which amnesty and reconciliation hold out more hope for troubled societies than punishment. This realisation has led to the search for an acceptable alternative to punishment that does not result in absolute amnesty for those guilty of gross human rights abuses. The South African model, of conditional amnesty accompanied by the uncovering of the past, appears to offer such an alternative. This factor, together with the relief over the fact that apartheid has at last been laid to rest, accounts for the interest shown in the South African experience.The present note will not attempt to describe and analyse the South African precedent in detail. Instead it will provide an overview of the history, establishment and work of the South African Truth and Reconciliation Commission (TRC); examine the significance of the Report of the TRC for international humanitarian law; and consider the status of amnesty under contemporary international law in the context of the South African experience.

Coping with Illegal Immigrants

The annual net flow of illegal immigrants into the US is around 500,000/year which has increased tenfold over the last 15 years; these people, unprotected by US law, are targets of exploitation. Unless a restrictive policy is put into practice for illegal and legal immigrants the flow will accelerate, creating domestic pressures. A package proposed by a Presidential Task Force in 1982 proposed: 1) there be better border patrols and stricter laws regarding hiring of illegals, 2) issuing a counterfeit-resistant social security card, 3) conditional amnesty for some illegal immigrants already in the US, 4) a small increase in the number of legal immigrants allowed into the US from Mexico, and 5) a limited guest worker program. These ideas differed in some respects from those of an earlier Select Committee on Immigration. Guest worker programs in other countries are described. In July 1982 President Reagan faced 3 policy options: 1) he could ignore his Task Force's ideas and use a large guest worker program, legalizing and continuing the inflow of cheap labor; 2) he could adopt the recommendations and get a new, tougher policy initiated; or 3) he could allow the issue to abort itself. He adopted the 3rd option, a policy package with little internal force which he will not pursue vigorously. Any serious effort to achieve a more serious immigration policy must include 4 elements: 1) a tough set of employer sanctions, 2) a foolproof worker identification card system, 3) better border control, and 4) an amnesty program. These 4 measures are interrelated; if 1 fails, the policy ceases to achieve its goals. This 4-point program would have the advantage of maintaining a short-term "safety-valve" for those countries which are the sources of illegal migration.