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Case Study Jurisdictions

South Africa
The question of indemnity and amnesty played a pivotal role in the transition from apartheid to democracy in South Africa in the early 1990s. The innovative approach that was eventually adopted enabled the Amnesty Committee of the South African Truth and Reconciliation Commission (TRC) to grant amnesty to perpetrators who testified before the Amnesty Committee and who complied with specific conditions. This was the most contentious aspect of the TRC’s work. Although this amnesty shares some common features with amnesties elsewhere, through the TRC’s work it came to be portrayed not simply as a necessary compromise between political elites, but (as expressed by prominent advocates such as Archbishop Tutu) as a virtuous act that promoted truth recovery and a restorative approach to past crimes. This approach was argued to foster reconciliation and resonate with indigenous cultural traditions such as ubuntu and the construction of a common history. The TRC also involved consultations, hearings for victim testimony and the granting of symbolic and monetary compensation, albeit much delayed. Thus, the South African experience may be viewed as a modern and ambitious attempt to utilise amnesty as part of the broader process of national reconstruction and healing. However, following the completion of the TRC’s work debates over how to deal with the commission’s ‘unfinished business’ have continued with new Prosecution Guidelines for apartheid-era crimes being adopted in 2005 and a new pardons process for ‘political’ offenders who remain in prison being introduced in 2007.
Background paper and Bibliography: Background paper (22 Oct 2009)

The 2000 Amnesty Act in Uganda is a political compromise that aims to end the violence that has been ravaging northern Uganda for two decades, most recently through the brutality of the conflict between the Lord’s Resistance Army (LRA) and the Ugandan government. The government enacted the amnesty following lobbying from community and religious leaders from the conflict-affected regions. It is fairly broad in scope as it covers all insurgency-related crimes committed by current and former insurgents from a variety of groups, not just the LRA, but it does not apply to state actors. Furthermore, despite an amendment to the original legislation to enable the government to exclude the leaders of the Lord’s Resistance Army (LRA), this exclusion was never implemented and the government intermittently continued to make public statements saying that it is willing to grant amnesty to the LRA leaders in exchange for peace. Although this broad amnesty initially attracted little international attention, it has become more contentious following the issuing of arrest warrants for five leaders of the LRA by the International Criminal Court in 2005. In recent years, the debate has centred on the relative impacts of the indictments and the amnesty laws on the delicate Juba peace process and the tensions between local and international justice and consequently, provides a valuable case study for exploring broader tensions between peace and justice.
South Africa Bibliography and Bibliography : Background paper (22 Oct 2009)

Uruguay’s transition had two contrasting, but coexisting amnesty processes. The first amnesty in March 1985 was introduced following the handover from dictatorial rule to civilian politicians and provided for the release and reintegration of political prisoners, including left-wing guerrillas. This amnesty, however, excluded state agents and following its enactment, the courts were flooded with complaints against the military for torture and disappearances. The army reacted angrily and pressured the government to grant them an amnesty. This resulted in the enactment of the Ley de Caducidad in December 1986 which shielded state agents from criminal prosecutions for serious human rights violations, including torture, extrajudicial killings and disappearances. Thus, the juxtaposition between the two amnesties is a perfect site to explore power relations between a still-powerful military and a cautious civilian administration. Civil society responded strongly to the 1986 amnesty and collected signatures on a petition to trigger a referendum to overturn the law. The process generated an unprecedented public conversation on the question of impunity but when the vote was duly held in 1989, but the population voted narrowly to uphold the law, which foreclosed the possibility of investigations and prosecutions for several years. However, in 2000 President Jorge Batlle signalled that the time for amnesia had now passed and that investigations should occur through the Commission for Peace which was established to clarify the fate of Uruguayans who were disappeared. Subsequently, the current government has sought to reinterpret the amnesty law to exclude disappearances, economic crimes, crimes committed outside Uruguay and crimes committed by civilians or military leaders. This reinterpretation has led to the reopening of several dictatorship-era cases and currently a second civil society campaign to force another referendum is ongoing.
Background paper and Bibliography : Uruguay Bibliography (22 Oct 2009)

At the dying days of their dictatorial rule, the military junta in Argentina enacted a self-amnesty law in 1983. This law was, however, annulled by Congress following the return to democracy, and instead, the newly elected government created a National Commission on the Disappearance of Persons to investigate the fates of the thousands of individuals who disappeared during military rule. Furthermore, the government enacted legislation to permit the prosecution of nine junta leaders, five of whom were convicted. As the demands for justice spread downwards to affect the lower ranks of the armed forces, sectors of the military reacted angrily and staged military uprisings which resulted in the government passing two amnesty-style laws, which gave incremental impunity to the military, and eventually pardons were granted to those who had been convicted. The combined effect of the amnesty laws and pardons presented a considerable legal obstacle to the prosecution of individuals who had perpetrated human rights violations, but Argentine civil society continued to bring legal challenges against the amnesty laws. In addition, they used innovative approaches to pressure for truth and accountability, including truth trials (in which legal proceedings were undertaken solely to investigate the crimes as convictions were barred by the amnesties) and escraches, which are noisy public protests which seek to alert communities to former torturers living within their midst. This pressure culminated in the amnesty laws being derogated from by the Chamber of Deputies on 24 March 1998, and subsequently annulled by the Senate on 21 August 2003, which was upheld by the Supreme Court in 2005. Subsequently, hundreds of cases have been reopened and a few convictions have been issued, but the process has faced considerable delays. Although victims’ groups have long opposed the possibility of any ‘compromises’ with their former oppressors, as time passes debates are now beginning on the need to implement plea bargains to discover the truth of the disappearances, and to instigate case selection criteria to speed up the delayed legal proceedings, particularly given the advanced ages of many of the victims and offenders.
Uganda Bibliography and Bibliography : Argentina Bibliography (21 Oct 2009)

The experience of amnesty laws within Bosnia-Herzegovina differs from the examples outlined above as the substantial international invention while the conflict was ongoing resulted in the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY). Furthermore, although Article VI of Annex 7 of the United States-brokered 1995 Dayton Accord required the two entities that comprise post-Dayton Bosnia-Herzegovina, the Bosnian Federation and Republika Srpska, to enact amnesty laws to facilitate the return of displaced persons and refugees, the amnesties were required to exclude crimes within the jurisdiction of the ICTY, including grave breaches of the Geneva Conventions, genocide and crimes against humanity. The exclusion of these crimes from the amnesty has led many human rights activists to proclaim the Dayton Accords a ‘success’ despite the clear political instability that remains within Bosnia-Herzegovina. However, despite the substantial international involvement in prosecutions at the international and domestic levels, it appears little trust-building has occurred between the previously warring factions and the political stability of the state still appears fragile. This instability has resulted in calls for the transitional justice agenda to be expanded beyond formal prosecutions to encompass more restorative elements. Bosnia-Herzegovina Bibliography (22 Oct 2009).  Working paper 3 - Bosnia