The Layers of Amnesty: Evidence from Surveys of Victims in Five African Countries
DAVID BACKER
INTRODUCTION
The last 65 years have exhibited competing currents and ongoing debate with regards to accountability for human rights violations.1 After World War II, the Nuremberg and Tokyo war crimes tribunals convened by the Allied powers, as well as parallel legal processes in a number of countries, established key precedents for the prosecution of individuals implicated in atrocities and ushered in a vibrant agenda to entrench international norms against serious abuses. Yet this impetus did not translate immediately into an expansion of accountability proceedings across the globe. The next such prosecutions were not observed until the mid-1970s, with the trials of the colonels who had ruled Greece since the 1967 coup. Some analogous cases materialized during the early stages of the third wave of democratization, most notably in Argentina and Bolivia.2 These countries remained the exceptions, however, as even similarly situated neighbors typically eschewed prosecutions. In addition, Argentina curtailed and eventually backtracked on its accountability efforts, establishing a deadline for indictments (1986), stopping the prosecution of lower-level military personnel in response to warnings of a revolt (1987), and later pardoning the five (of nine) junta members who had been convicted and imprisoned (1989). Around the same time, voters in Uruguay narrowly accepted an amnesty, which was originally adopted as part of the 1984 Naval Club Pact that paved the way for the return to civilian rule, in a 1989 national referendum influenced by the likelihood of a military coup in the event of a different outcome. Consequently, the conventional wisdom circa 1990 held that amnesty is the smart, expedient option for consolidating the gains of democratic transitions (Huntington 1991).
Over the subsequent 20 years, this understanding has been challenged and considerably weakened as a guide for policy-making and practice, as is shown by the increasing prevalence of trials, carried out by domestic and foreign courts, ad hoc international and hybrid tribunals and the new permanent International Criminal Court (Sikkink & Booth Walling 2007). Whether the recent activity signals the establishment of a prosecution norm is debatable, given the period is also marked by numerous instances of amnesty (Backer 2009). Moreover, arguments persist that this alternative can be prudent for countries emerging from periods of conflict.
A prominent justification for amnesty is that those complicit in abuses, if still powerful, will resist any public exposure of their misdeeds, let alone accountability.3 Examples exist of threats, including the two Latin American cases mentioned above,4 and actual violence. Killings linked to the pursuit of a range of transitional justice measures have occurred in countries such as Serbia (Prime Minister Zoran Đinđić, who handed over Slobodan Milosevic to the International Criminal Tribunal for the Former Yugoslavia), Guatemala (Bishop Gerardi, the head of the Recuperación de la Memoria Histórica project, two days after this independent inquiry released its findings),5 and Rwanda (dozens of witnesses from the gacaca traditional justice proceedings). A cross-national study by Snyder and Vinjamuri (2003) validates the fears of backlash, finding that prosecutions after a civil war risk renewed violence, whereas amnesty—paired with a truth commission as a palliative, if needed—engenders stability. The shadow of continuing violence absent such immunity has also loomed over negotiations to end conflicts in countries like Sudan, Uganda and Zimbabwe, heightened by the ICC’s presence and the aborted exile of ex-Liberian President Charles Taylor, currently on trial accused of fomenting Sierra Leone’s civil war.
Of course, amnesty has potential consequential drawbacks. The failure to take action against perpetrators of abuses arguably violates international obligations and reinforces a sense of impunity that undermines the rule of law (Roht-Arriaza 1990, 1995; Orentlicher 1991; Bassiouni 1996; Harper 1996). Due to the lack of accountability, individuals may feel they are exempt from restraints, while public confidence in the reach and integrity of political institutions can be diminished. In countries such as Chile and South Africa, human rights advocates and coalitions of victims have contested amnesty provisions in court, claiming they are unjust, with a degree of success leading to delayed attempts at pursuing prosecutions (Roht-Arriaza 2005).
The attitudes of victims are crucial to consider for several reasons. Given the past harms they suffered, they have a personal stake and a distinctive moral standing in discussions about amnesty that warrant assessment of where they stand. The importance of doing so is amplified by the fact that victims are often marginalized both historically and on a continuing basis as a result of their experiences, whereas transitional justice rhetoric typically emphasizes the need to accord them respect. One might expect victims to want punitive justice. In this respect, their interests could possibly diverge from those of the rest of society, for which conflict termination presumably takes precedence. Under such a scenario, amnesty effectively privileges society’s preferences over victims’ concerns. Alternatively, a degree of congruence is conceivable, in as much as victims logically benefit from and thus share the desire for peace. Yet the actual nature of their views remains poorly documented and understood, as scant primary research has been conducted on the topic, especially comparing across countries and assessing changes over time.
This brief article provides fresh insight into the perspective of victims on amnesty, using original data from surveys conducted in Ghana, Liberia, Nigeria, Sierra Leone and South Africa since 2002.6 The analysis shows that standard assumptions are inaccurate: majorities of victims approve of amnesty. These results, however, have critical nuances. The support for amnesty is closely associated with an awareness of the utility of abstaining from prosecutions. Moreover, victims feel amnesty is unfair to them, albeit they view the option as far more reasonable if it is conditional and limited. Equally significant, longitudinal data from South Africa indicates that the acceptability of amnesty to victims dissipates. These findings offer valuable guidance for those engaged in developing and evaluating the implications of transitional justice policies.
METHODOLOGY
Table 1 provides details on major aspects of the cases and data collection. All five of the countries experienced severe political violence in the past, but of diverse forms and durations.
They followed various paths in emerging from these periods of conflict over the course of the last two decades. Their approaches to amnesty and accountability also differ.7 Formal immunity exists in all of the countries except for Nigeria, where a tacit amnesty has effectively foreclosed prosecution, but the extent of the resulting legal protection is restricted everywhere but Ghana. None have prosecuted large numbers of individuals; the Special Court for Sierra Leone (SCSL) went the furthest in targeting leaders of several of the combatant groups, plus Charles Taylor.
The surveys aimed to recruit broadly representative samples of the victim populations, taking into account the patterns of violence and post-conflict measures. A focal interest was to ensure an adequate distribution among respondents in the extent of their direct participation in transitional justice processes (testified in public, gave a statement only, did neither). The main strategy was to sample randomly from contact lists,8 gathered in advance and then stratified by community and type of participation.9 This technique was complemented by cluster sampling, whereby additional candidates were located using a search algorithm, beginning at the locations of respondents recruited from the contact lists. Convenience sampling was also employed on occasion, primarily to locate victims who testified. Fieldworkers administered the survey face to face in each respondent’s preferred language, using professionally translated questionnaires.10 The data were captured using the double-entry approach with reconciliation of all discrepancies.
RESULTS
The starting point for the analysis is the normal assumption that victims want perpetrators to be held punished and therefore are inclined to reject amnesty. The survey data, however, produce contrary results: in each country, more of the respondents actually support than oppose amnesty (Figure 1).11 Then again, none of these majorities constitutes a dominant consensus, indicating that substantial segments of victims have fundamental reservations about amnesty. Another striking aspect of the results is the similarities in attitudes across the countries, despite the aforementioned differences in the nature of past violence and the implementation of amnesty and accountability, which one would have expected to produce greater cross-national variation.12
What might explain these seemingly counter-intuitive patterns? The survey data offer strong evidence that individuals harmed by violence invoke a trade-off between justice and peace and accept amnesty in the interest of tranquility. Sizeable shares of the respondents in all four of the West African countries agreed that amnesty was necessary in order to obtain peace, with the highest figures observed in the two that suffered recent civil wars, Liberia and Sierra Leone (Figure 2).13 Moreover, there are consistent statistically significant correlations between support for amnesty and the belief that it was necessary for peace. For many respondents, though, this practical stance is a grudging concession, as revealed by their impression that amnesty is unfair to victims (Figure 3). Thus, they apparently can tolerate but are not satisfied with this approach.
An additional set of questions reveals that victims’ misgivings are mitigated substantially if the individuals complicit in violations, who might be considered for amnesty, are required to perform one or more of a range of actions that are often enumerated as means of restorative and reparatory justice. Figure 4 displays the marginal effects of five distinct conditions on the extent of agreement among the survey respondents that amnesty is fair, taking into account the baseline levels reported in Figure 3. These results reveal that victims’ perceptions can be influenced in a strongly favorable manner by the terms of amnesty provisions. Of note, the variation in attitudes across the countries is greatest with respect to the prospect of compensation as a prerequisite for amnesty, which has markedly lower levels of appeal to respondents in Sierra Leone and to a lesser extent Liberia, where the degree of suffering tended to be the most severe and economic conditions clearly remain the most desperate. In the former country, offering this form of redress has a minimal impact and cannot convince even a majority of respondents to view amnesty as fair. Thus, victims do not necessarily seek material remedies, at least from the perpetrators themselves. Instead, outside of Nigeria, they are more readily swayed by requirements of truth, acknowledgement, apology and remorse.14 Meanwhile, small minorities are unwilling to accept amnesty as fair under any circumstances.
The upshot is that most victims can be persuaded to endorse amnesty as not only a necessity, but also a just resolution of their grievances. The vital stipulation is that individuals responsible for past abuses provide something concrete in return, beyond contributing to peace, and hence do not receive blanket absolution. Victims’ desire for limited immunity is also evident in their simultaneous support of pursuing accountability via domestic trials and lustration (i.e., screening individuals to determine their eligibility for public office) and to lesser extent international tribunals (data not shown).15
A final consideration is whether the bargains pertaining to amnesty—whether embedded in peace accords, negotiated pacts, constitutional reforms or statutes enabling transitional justice measures like truth commissions—remain acceptable to victims over time. The panel survey in Cape Town affords an unparalleled glimpse into how such opinions can evolve even in the space of five years. Whereas nearly 60 percent of the respondents who could be tracked expressed approval of amnesty in the first wave, the corresponding figure in the second wave fell to close to 20 percent. Meanwhile, nearly 20 percent fewer respondents believe amnesty was essential to avoid a civil war, albeit over 70 percent still express this sentiment. The share of respondents who believe the amnesty is fair to victims was sliced almost in half, to below 10 percent.
These results stand out because South Africa was the first country to implement an amnesty with conditions in the vein of those discussed above, a model that has yet to be copied. A formal application was required, which the Truth and Reconciliation Commission (TRC) evaluated with reference to explicit criteria, including full disclosure about specific acts of violence. Furthermore, amnesty applicants were often encouraged, though not compelled, by the TRC to apologize and show remorse when they appeared before public hearings as one of the last stages of the process, at which victims had the opportunity to present their views. Despite circumstances that seem promising, the respondents’ approval of amnesty declined precipitously.
Among the likely explanations is that the South African government essentially failed to follow through on the inherent promise of the innovative amnesty policy, namely that those who failed to apply or were denied would be subject to prosecution. Criminal trials have been rare. One contributing factor is that the government granted the National Prosecuting Authority the discretion not to proceed with indictments for reasons beyond the strict legal merits, invoking the criteria of the TRC’s amnesty process as well as other considerations (the personal circumstances of the accused; the degree of cooperation with the TRC process and the NPA’s investigations; the seriousness of the offense; whether the prosecution would contribute to or undermine reconciliation and nation-building; whether the prosecution would further traumatize victims). President Thabo Mbeki then instituted a special process in 2007 to consider applications for pardons, extending access to immunity to individuals who had not sought amnesty earlier, except without the stricter requirements, transparency and victim involvement mandated by the TRC.16 Although the South African courts later ruled that each of these restraints on accountability is unconstitutional, both were in place when the second wave of the survey was conducted, which may color the respondents’ attitudes about the appropriateness of amnesty in this instance.
CONCLUSION
The extension of amnesty to individuals responsible for human rights abuses is one of the most hotly contested issues in the domestic politics of countries emerging from war, repression, genocide and other periods of violence, as well as in the global arena. Surveys conducted in five African countries supply unique information concerning how victims of these violations perceive the amnesty option. Their attitudes are unexpectedly favorable and consistent across the diverse settings. The approval of amnesty, however, does not equate to a lack of desire for any form of accountability. Instead, most victims concede amnesty as a precondition for peace, but still feel this bargain is unfair to them. Yet their hesitation about this compromise can be attenuated significantly by attaching conditions. Unprecedented longitudinal research in South Africa also reveals declining levels of support for amnesty, acceptance of its necessity, and belief in its fairness over just five years since the conclusion of the TRC process. Beyond the substantive insight, this novel dissection of victims’ attitudes about amnesty yields vital lessons for policy evaluation and design in the realm of transitional justice. Care should be taken not to rely entirely on a single superficial question, asked at one point in time, since victims’ thinking is manifestly complex, contingent and dynamic. In addition, their support for amnesty can be bolstered and possibly sustained in two ways: (1) requiring in exchange restorative and reparatory actions by those complicit in past conflict, and (2) limiting the scope of immunity to permit certain forms of accountability to be pursued. The survey evidence, therefore, supplies an revealing empirical foundation at a micro level—substantiating the views of victims, a notable constituency in these settings—that greatly enriches debates traditionally dominated by the consideration of international standards and jurisprudence, macro-level assessments of stability, and case studies of policies and institutions.
David Backer is an Assistant Professor of Government at the College of William & Mary.
REFERENCES
Backer, David, 2009, “Cross-National Comparative Analysis.” In Audrey Chapman and Hugo van der Merwe eds., Assessing the Impact of Transitional Justice: Issues for Empirical Research, Washington, DC: United States Institute of Peace Press.
Bass, Gary, 2000, Staying the Hand of Vengeance: The Politics of War Crimes Tribunals, Princeton, N.J.: Princeton University Press.
Bassiouni, M. Cherif, 1996, “Searching for Peace and Achieving Justice: The Need for Accountability,” Law and Contemporary Problems 59(4): 9-28.
Gibson, James, 2002, “Truth, Justice and Reconciliation: Judging the Fairness of Amnesty in South Africa,” American Journal of Political Science 46(4): 540-556.
Gibson, James, 2004, Overcoming Apartheid: Can Truth Reconcile a Divided Nation? New York, NY: Russell Sage Foundation.
Goldman, Francisco, 2007, The Art of Political Murder: Who Killed the Bishop? New York: Grove Press.
Harper, Charles ed., 1996, Impunity—An Ethical Perspective: Six Case Studies from Latin America, Geneva: WCC Publications.
Huntington, Samuel, 1991, The Third Wave: Democratization in the Late Twentieth Century, Norman, OK: University of Oklahoma Press.
Orentlicher, Diane, 1991, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal 100: 2537-2615.
Pham, Phuong, Patrick Vinck, Eric Stover, Andrew Moss, Marieke Wierda and Richard Bailey, 2007, When the War Ends: A Population-Based Survey on Attitudes about Peace, Justice, and Social Reconstruction in Northern Uganda, Berkeley, CA: University of California, Berkeley Human Rights Center.
Roht-Arriaza, Naomi, 1990, “State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law,” California Law Review 78: 449-513.
Roht-Arriaza, Naomi ed., 1995, Impunity and Human Rights in International Law and Practice, New York: Oxford University Press.
Roht-Arriaza, Naomi, 2005, The Pinochet Effect: Transnational Justice in the Age of Human Rights, Philadelphia: University of Pennsylvania Press.
Sikkink, Kathryn and Carrie Booth Walling, 2007, “The Impact of Human Rights Trials in Latin America,” Journal of Peace Research 44(4): 427-445.
Snyder, Jack and Leslie Vinjamuri, 2003, “Trials and Errors: Principle and Pragmatism in Strategies of International Justice,” International Security 28(3): 5-44.
Teitel, Ruti, 2003, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16: 69-94.
ENDNOTES
- See Teitel (2003) for a genealogy of transitional justice since World War II. [↩]
- In addition, India unsuccessfully pursued prosecutions against Indira Gandhi and others from her government in relation to abuses committed during the 1975-1977 state of emergency. [↩]
- Trials are also criticized for being expensive (with the resources better devoted to political, economic and social development), overburdening limited infrastructure, and not deterring violence. See, for example, Bass (2000). The principle of sovereign immunity, according to which current and former heads of state are not subject to prosecution for acts committed in a leadership capacity, prevailed in practice until recent decades, but has lost favor, especially with regards to violations of international law and subversion of constitutional standards. [↩]
- On October 1, 2009, Human Rights Watch reported a death threat against Salomón Lerner Febres, the former president of the Peruvian Truth and Reconciliation Commission. [↩]
- See Goldman (2007) for an exhaustive investigative account of Bishop Gerardi’s assassination by right-wing military officers and their subsequent attempts to cover up and deflect the blame. [↩]
- The research has been supported by the Center for Afro-American and African Studies, the Department of Political Science, and the Rackham School of Graduate Studies at the University of Michigan; the National Science Foundation (INT-004436 and SES-0624278/0738854/0813616/0920929); the United States Institute of Peace (SG-140-05S); the Small Research Grant Program of the American Political Science Association; Stanford University’s Center on Democracy, Development and the Rule of Law; the College of William & Mary; Arizona State University; and the University of Notre Dame’s Kroc Institute for International Peace Studies. The ongoing studies in the four West African countries involve a collaboration with Anu Kulkarni and partnerships with the Center for Democratic Empowerment, the Ghana Center for Democratic Development, the Sierra Leone Court Monitoring Program and Sonny Onyegbula. The South African partners are the Khulumani Support Group, the Human Rights Media Center and the Centre for the Study of Violence and Reconciliation. [↩]
- In addition, when the research was initiated, the countries had either completed (Ghana, Nigeria, Sierra Leone, South Africa) or initiated (Liberia) truth commissions. [↩]
- The contact lists integrate information compiled from a variety of sources, including local human rights NGOs, former truth commission staff members and community leaders. In addition, fieldworkers were deployed prior to the survey to scope out the research sites and independently gather information. [↩]
- In Liberia, the truth commission process had commenced soon before the first wave of a planned panel survey was conducted. Consequently, the strategy for recruiting respondents aimed prospectively to ensure an adequate distribution across the categories of participation in the second wave, which awaits the verdict in the Taylor trial. This was accomplished via random sampling at a community level, with questions as part of the initial screening concerning actual or intended participation, rather than using contact lists. [↩]
- The questionnaire was translated into 17 languages and administered in 18 languages, including English. Each version of the questionnaire contained the English text with the text in a second language immediately below. [↩]
- The value for the Cape Town survey represents the share of respondents who said they either strongly approve or approve somewhat of giving amnesty to those who committed atrocities. [↩]
- General population surveys have revealed even greater support for amnesty in South Africa (69 percent) and Northern Uganda (65 percent). See Gibson (2002, 2004) and Pham, et al. (2007), respectively. [↩]
- The Cape Town survey did not include a question with this same wording. The only item that is relatively comparable asked whether the South African Truth and Reconciliation Commission (the body responsible for overseeing the conditional amnesty) was essential to avoid civil war—over 89 percent of respondents agreed. The average level agreement values reported in both Figures 2 and 3 reflect a weighting of the distribution of responses on a five-point Likert scale, assuming equal intervals between pairs of response options in sequence. [↩]
- Likewise, the survey in South Africa revealed that some victims are interested in reparations, but this desire is neither a dominant priority nor pervasive, as the other considerations are frequently cited as well. Focus groups and related anecdotal evidence also indicate that many victims are ambivalent about receiving reparations from the perpetrators themselves, as such an arrangement is viewed as putting a price on abuses and buying victims’ acceptance of their situation. In theory, compensation could more easily be viewed as acceptable redress for economic violations. Yet the results are not necessarily consistent with this argument: the shares of respondents who reported such violations are actually larger in Liberia and Sierra Leone than in Ghana and Nigeria, whereas the former exhibit lower marginal effects associated with compensation than the latter. [↩]
- Other alternatives like banishment, exile and reliance on traditional justice mechanisms are generally opposed. [↩]
- For further discussion of these policies, see Ashley McCants, 2008, “New Forms of Impunity? Amnesties, Pardons, and Prosecutions: A Case Study of South Africa,” unpublished manuscript. [↩]
