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Transitional Amnesty in South Africa

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ISBN-10: 0521878292

ISBN-13: 9780521878296

Edition: 2007

Authors: Antje Du Bois-Pedain

List price: $122.99
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Description:

After the transition to democracy in 1994, South Africa reached out to perpetrators of violence from all conflicting parties by giving amnesty to those who fully disclosed their politically motivated crimes. This volume provides the first comprehensive analysis of South Africa's amnesty scheme in its practical and normative dimensions. Through empirical analysis of over 1,000 amnesty decisions made by the Amnesty Committee of the Truth and Reconciliation Commission, the study measures the scheme against its stated goals of truth recovery, victim empowerment and perpetrator accountability. It also explores normative questions raised by the absence of punishment. Highlighting the distinctive…    
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Book details

List price: $122.99
Copyright year: 2007
Publisher: Cambridge University Press
Publication date: 12/20/2007
Binding: Hardcover
Pages: 420
Size: 6.25" wide x 9.00" long x 1.25" tall
Weight: 1.738
Language: English

List of cited Amnesty Committee hearing transcripts
Frequently cited Amnesty Committee decisions
List of abbreviations
List of abbreviated cases
List of figures
Preface
Introduction
Note on linguistic usage, especially of the terms perpetrator and victim
Note on citation of sources
The TRC-based Amnesty Scheme: Background and Overview
The amnesty provisions of the TRC Act
Preconditions and effect of amnesty
The history and interpretation of the amnesty provisions
The constitutional challenge to the amnesty provisions
The work of the Amnesty Committee
The examination of amnesty applications
The influence of previous indemnity legislation on application numbers
Judicial review of amnesty decisions
After the TRC: pardons, prosecutions and rumours of further amnesties
The Practice of the Committee When Making Decisions
Methodology of the study
Information base
Relevant criteria
Indicative value of an application's outcome in respect of these factors
Calculation of success rates
Recorded information
Findings in relation to applicants and incidents
The applicants and their deeds
Implications of the quantitative findings for the representativity of amnesty applications
Hierarchical status of applicants within their organisation
Applicants' mandates: orders, discretion and spontaneous (re-)action
Outcome of amnesty applications
Reasons given for the success of applications
Reasons given for the failure of applications
The Committee's Interpretation of the Political Offence Requirement
The purposive nature of the political offence
Assessment from an ex-ante perspective
Responsibility for human rights violations
The applicant's political mandate
The personal mandate
The general mandate
Reasonable belief in the existence of a mandate
The significance of orders
The multiple functions of orders
The 'foot-soldier privilege'
Orders in the amnesty process: privileging 'crimes of obedience'?
The Committee's approach to factors affecting the gravity of the offence
The application of the proportionality principle
International law concepts in the amnesty decisions
The Committee's approach to the gravity of the deed: an evaluation
Explaining the Committee's pragmatic approach to the political offence requirement
Conclusion
The Concept of Full Disclosure
The object and scope of full disclosure
The truth-maximising view
The restrictive approach
The Committee's middle way
Relevant facts
The 'relevancy threshold' for details
The consequences of non-disclosure of a relevant fact
The legal standard for the finding that full disclosure has been made
Evidential burden and 'benchmark' for full disclosure
The legal test
The time and manner of disclosure
The assessment of the evidence
Admissible evidence and the 'hierarchy' of evidential sources
Applicant's version unchallenged
Relevant conflicting evidence
Full disclosure: an assessment
Truth Recovery in the Amnesty Process
Procedural practice affecting the scope of the enquiry
The investigative objectives of the amnesty process
The organisation of the process
Getting witnesses to testify: legal powers and Committee practice
Role and rights of implicated persons
Privileged information
Discovery and documentation of truth in the amnesty process
The discovery function: evidence used
Cross-examination and the dangers of accomplice evidence
The use of hearsay evidence
The documentation function: findings made
Summary
Available evidence and findings: individual amnesties and criminal trials compared
The amnesty process and different dimensions of truth
Victim Empowerment in the Amnesty Process
Victim participation in the amnesty process
The power of dialogue: the victims of Jeffrey Theodore Benzien
The price of engagement: the victims of Robert McBride
The struggle for forgiveness: the mother of Lindi-Ann Fourie
The amnesty process and victims' needs
Opportunities for victims: criminal trials and amnesty proceedings compared
Conclusion
Perpetrator Accountability in the Amnesty Process
The notion of accountability
The amnesty process as a call to account
The retributivist challenge: no accountability without sanctions?
Restorative justice to the rescue?
The place of apology and forgiveness
Conditional amnesty for political crime: a new justice script?
Conditional Amnesty and International Law
Prescriptive international standards which restrict sovereign grants of amnesty
Humanitarian law
Crimes against humanity
General human rights law
Human rights treaties addressing specific violations
Do duties to prosecute rule out conditional amnesties?
The relevance of international law duties to prosecute for the South African amnesty scheme
Invocations of international law in the South African transition
After South Africa: conditional amnesty in future transitions
Conclusion
Feasibility
Legality
Morality
Concluding remarks
Bibliography
Index