Prosecuting International Crimes in Africa - PULP - University of ...

106 Chapter 4
who bear the greatest responsibility’. 56 The Appeals Chamber held that
Norman was entitled to testify before the TRC. However, it cautioned that
Norman should be advised of the dangers of testifying before the TRC, and
that his testimony should be provided in a manner that does not endanger
or ‘influence witnesses or affect the integrity of court proceedings or
unreasonably affect co-defendants and other indictees’. 57
The TRC processes can help societies move forward from the past
trauma of conflicts. In this regard, TRC reports can assist societies to forget
about the past hatred that may have caused the war. Generally, TRCs offer
two prospects for victims of armed conflicts: truth and reconciliation.
Truth involves learning how and why the war occurred; reconciliation
entails an understanding for and forgiveness of the perpetrators who
genuinely confess in public and regret their wrongs. It is generally accepted
that TRCs can succeed in some societies – for example in South Africa
against the past injustices of apartheid. In fact, in most post-conflict
societies, transitional justice mechanisms have become a way of
recovering from the past. TRCs have always been accompanied by
amnesties. For example, transitional justice mechanisms were used in
South American countries: Bolivia, Argentina, Brazil, Chile, El Salvador,
Guatemala and Haiti. To some extent, transitional justice mechanisms
have had a good effect on these societies. In Africa, transitional justice
mechanisms have been used in many countries: Ghana, Democratic
Republic of Congo, Kenya, Liberia, Sierra Leone, Rwanda, Burundi,
Mozambique and Angola. So far, however, the most successful
transitional justice mechanisms were South Africa’s TRC and amnesty.
2.4 Amnesty for international crimes
Is amnesty suitable where persons have been charged with international
crimes? The question of amnesty 58 for international crimes is contentious.
Scholarly views are sharply divided on the issue: there are those who
support amnesty for purposes of transitional justice, 59 while others hold
the view that amnesty is not a valid defence to the prosecution of
perpetrators of international crimes. 60 The latter category holds greater
56 Prosecutor v Norman para 33.
57 Prosecutor v Norman para 41.
58
On amnesty, see G Robertson Crimes against humanity: The struggle for global justice (2003)
260-302; A O’Shea Amnesty for crime in international law and practice (2002) 1-325.
59 P Lenta ‘In defence of Azapo and restorative justice’ in W Le Roux and K Van Marle
(eds) Law, memory and the legacy of Apartheid: Ten years after AZAPO v President of South
Africa (2007) 149-182.
60
J Dugard ‘Restorative justice: International law and the South African model’ in AJ
McAdams (ed) Transitional justice and the rule of law in New Democracies (1997) 269; N
Roht-Arriaza and L Gibson ‘The developing jurisprudence on amnesty’ (1998) 20
Human Rights Quarterly 843; D Moellendorf ‘Amnesty, truth and justice: AZAPO’
(1997) 13 South African Journal on Human Rights 283; R Wilson The politics of truth and
reconciliation in South Africa: Legitimizing the post-Apartheid state (2001); N Mogale ‘Ten