Questions of criminal participation arise when more than one person is in some way involved in the commission of a crime. In some cases, there may be no single individual who, in his own person, fulfils all the definitional elements of the criminal offence. Even where there is one such individual, the criminal law may want to tie other persons to the commission of the offence as well, on the basis that these other persons are complicit in and therefore share responsibility for its commission. What rules and principles do – and which ones should – govern the ascription of criminal responsibility to different agents in multi-party settings is the theme of this chapter. The answer to the should-question is approached with a view to the general aims of the criminal law regarding parties to crime. These are understood to be the following: (i) to guide judges and other decision-makers towards fair responsibility-attributions for criminal norm-violations and their outcomes; (ii) to ensure that the conviction offence fairly reflects the gravamen of the accused’s criminal conduct; and (iii) to facilitate accurate reflection of different degrees of responsibility in sentencing decisions.

At a time when amnesty appears well on its way toward pariah status among transitional policy options, South Africa’s bold attempt, in the mid-to-late 1990s, to incorporate a generous domestic amnesty arrangement into an accountability process for politically motivated crimes deserves our attention. This chapter reviews the history and implementation of South Africa’s conditional amnesty law and its longer term domestic impact. It also offers an assessment of this policy option as a blueprint for an accountability mechanism to be employed in other political transitions.

A REVIEW OF SOUTH AFRICA’S CONDITIONAL AMNESTY SCHEME

South Africa’s amnesty scheme for politically motivated offenders is sometimes presented as a restrictive one in which amnesty is confined to perpetrators who acted in a morally defensible way. Such benign perceptions of the scheme are put into question by the generosity and ease with which amnesty was granted by the Amnesty Committee for atrocious deeds. In this section, I draw on the results of my empirical study of the Amnesty Committee’s decisions to argue that the practical scope of the scheme was in fact much broader than many international observers believe it to have been, and address the implications of these findings.

INTRODUCTION

When justice campaigners formulate aims and expectations for post-conflict justice, criminal prosecutions of the persons responsible for human rights violations and for politically motivated crimes are often given pride of place. Criminal trials in the aftermath of violent conflict and political suppression are intended to hold individuals accountable for the injuries they inflicted on others. And often enough, trials do succeed in this ambition, at least in respect of the (often comparatively few) accused brought before the courts. There is by now a wealth of evidence that the political context of such trials notwithstanding, accused persons can be treated fairly, evidence can be found reliably, victims and witnesses can be treated with respect and punishment can send a meaningful message about the reprehensibility of the conduct of the accused. Trials and convictions also serve as markers of the accused person's responsibility for his past conduct, confirming his culpable agency.

The quest for post-conflict accountability is also rooted in a concern for democratic consolidation. Generally speaking, it is feared that, unless successor regimes make credible attempts to bring to justice those responsible for past atrocities (or at the very least those responsible for the policy decisions that led to their organised commission by lower-level perpetrators), the resulting legitimacy deficit will undermine respect for the rule of law and the political authority of the newly created (or reformed) democratic institutions, sometimes with fatal consequences for longer-term stability. Although the empirical evidence supporting these assumptions is inconclusive, worries of this kind provide a strong impetus for the ongoing international campaign against impunity. These efforts include calls on peace negotiators, supra-national institutions and third states to block, to the extent possible, attempts by affected states to allow the perpetrators of past atrocities to be shielded from prosecution and punishment by national amnesty laws. There is also considerable support for the view that domestic amnesties for international crimes constitute evidence of unwillingness on the part of the amnesty-granting state to prosecute those protected by these laws, triggering the prosecutorial competence of the ICC under the complementarity rule. Moreover, there is sometimes good reason to be suspicious of the good faith of some who mobilise against the political legitimacy of trials and advocate or even demand alternatives to them. It is not rare for such calls to originate from persons who have most to gain from leniency, and/or from their political friends.

Justice and Reconciliation in Post-Apartheid South Africa takes stock of the transitional processes which have been under way in South Africa since the early 1990s to transform the country into a stable and just society – a transformation which is still ongoing. The epithet ‘post-apartheid’ hints at a specific period of South African history, designating both a beginning and – though perhaps less obviously so – an expected ending. The start of this period can, roughly, be connected with the irreversible decision to dismantle apartheid as a form of social and political organisation, taken by the National Party government in early 1990 and manifested in the release of Nelson Mandela and the unbanning of the ANC and other political organisations. When on 2 February 1990 the then state president, F.W. de Klerk, announced his government's intention to free the best-known leader of its most prominent political foe and to commence negotiations with hitherto outlawed opposition groups regarding South Africa's constitutional future, the ending of the old order became official policy. To be sure, this was neither fully a beginning nor truly an end: it followed on several years of behind-the-scenes contact between leading figures in the apartheid government and Mandela, as well as exiled ANC leaders; and more years of negotiations were to ensue in which the government tried its hardest to minimise the extent of change.

INTRODUCTION

Every transition to democracy is a morally hazardous undertaking. This is due to the standing risk that the construction of a new society might result in the conscription of the individuals that are to be its members. This danger is particularly acute when, as in South Africa, the transition takes place in a context marked by wide-ranging and long-standing injustices. A variety of factors may make it impossible to address these through the standard mechanisms of corrective justice: criminal prosecutions might not be practically feasible and/or might threaten the possibility of a transition, while compensation and restitution might flounder on the difficulty of proving the causal link between current circumstances and events distant in time and space. Yet, if the victims of such injustices are left without ‘a moral response, one that is more specific than the hope of building a better democracy’, then, as Amy Gutmann and Dennis Thompson have insisted, ‘the new democracy will be morally flawed from its inception’. For then the victims of the past are turned into victims of the new. They are made to pay the price for a democracy in which others may hope to enjoy freedom from the sufferings they have already experienced. In so far as their specific moral interests remain unaddressed, the victims of historical injustice would be no more than conscripted members of the new democracy.

INTRODUCTION

‘I'm not guilty – De Klerk’ is the striking headline of a front page article published in the wake of the only trial thus far of a former National Party minister for apartheid-era crimes. The former minister is Adriaan Vlok; his portfolio was ‘law and order’ in the final phase of apartheid's unravelling, when the security police increasingly resorted to clandestine attacks on prominent anti-apartheid figures to stem the ever-rising tide of resistance against the government. Vlok was charged in August 2007 for his role in the attempted poisoning in 1989 of the Reverend Frank Chikane, then secretary general of the South African Council of Churches. The case ended with a plea bargain under which Vlok received a suspended sentence of ten years' imprisonment. Vlok later insisted that there was little evidence to link him to the crime: he pleaded guilty, he claimed, because he did not want to leave his former operatives out in the cold. F.W. de Klerk, who took over from P.W. Botha as state president in 1989, still maintains that he was never personally aware of any policy that authorised the extra-legal killing of political activists. The arresting headline neatly sums up a litany of denials of any personal responsibility, for apartheid and the means by which it was secured, that De Klerk has been issuing since 1994 – along with claims that outrageous acts of the sort Vlok was charged with, were committed by a few ‘bad apples’ among the security forces.