Transitional amnesty in South Africa /
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| Author / Creator: | Du Bois-Pedain, Antje. |
|---|---|
| Imprint: | Cambridge ; New York : Cambridge University Press, 2007. |
| Description: | xxvi, 391 p. ; 23 cm. |
| Language: | English |
| Subject: | |
| Format: | Print Book |
| URL for this record: | http://pi.lib.uchicago.edu/1001/cat/bib/6830531 |
Table of Contents:
- 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
- 1. 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
- 2. 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
- 3. 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
- 4. 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
- 5. 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
- (a). Cross-examination and the dangers of accomplice evidence
- (b). 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
- 6. 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
- 7. 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?
- 8. 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
- 9. Conclusion
- Feasibility
- Legality
- Morality
- Concluding remarks
- Bibliography
- Index
