Practice Relating to Rule 159. Amnesty
South Africa’s Promotion of National Unity and Reconciliation Act (1995) provides that one of the functions of the Truth and Reconciliation Commission is to:
facilitate and promote the granting of amnesty in respect of acts associated with political objectives, by receiving from persons desiring to make a full disclosure of all the relevant facts, applications for the granting of amnesty in respect of such acts, and transmitting such applications to the Committee on Amnesty for its decision, and by publishing decisions granting amnesty, in the Gazette.
In the Azapo case in 1996 in which the appellants challenged the constitutionality of the Promotion of National Unity and Reconciliation Act of 1995, which granted amnesties from personal criminal and civil liability for the covered unlawful activities, a South African Court stated:
It is however, unnecessary, in our judgment, to consider further the applicability of the jus cogens to the interpretation of the Constitution. That is because there is an exception to the peremptory rule prohibiting an amnesty in relation to crimes against humanity contained in Additional Protocol II.
In our judgment this subarticle [Article 6(5) of the 1977 Additional Protocol II] indicates that there is no peremptory rule of international law which prohibits the granting of the broadest possible amnesty in the case of conflicts of the kind which existed in South Africa prior to the firm “cut-off date” referred to in the post-amble to the Constitution.
In the same case in 1996, South Africa’s Constitutional Court was asked to decide upon the constitutionality of a provision of the Promotion of National Unity and Reconciliation Act of 1995 according to which amnesty can be granted to persons prepared to make “full disclosure of all the relevant facts relating to acts associated with a political objective”. The Azanian People’s Organisation argued that the State was obliged by international law to prosecute those responsible for gross human rights violations and that the relevant provision authorizing amnesty for such offenders constituted a breach of international law including Article 49 of the 1949 Geneva Convention I, Article 50 of the 1949 Geneva Convention II, Article 129 of the 1949 Geneva Convention III and Article 146 of the 1949 Geneva Convention IV. In considering this argument, the Court stated that it was “doubtful whether the Geneva Conventions of 1949 read with the relevant Protocols thereto apply at all to the situation in which this country found itself during the years of the conflict”. The Court referred to Article 6(5) of the 1977 Additional Protocol II and stated that in situations of internal armed conflict, “there is no obligation on the part of a contracting state to ensure the prosecution of those who might have performed acts of violence or other acts which would ordinarily be characterised as serious invasions of human rights”. In conclusion, the Court held that the wording of the provision in question did not violate the South African Constitution.