Namibia and Blanket Amnesties: Challenging the Namibian Blanket Amnesties on the basis of International Law in the Namibian Courts

Author(s):  
Atilla Kisla

Amnesty laws issued by Administrator General Pienaar in 1989 and 1990 still show their effect by preventing prosecutions and investigations of situations that occurred before Namibia’s independence. Unlike South Africa, Namibia did not establish a truth-finding body such as the Truth and Reconciliation Commission. The result is a situation of silence, oblivion and impunity without any kind of accountability. On this basis, crimes such as international crimes or serious human rights violations have never been prosecuted or even investigated. As this article argues, the amnesty laws from 1989 and 1990 qualify as blanket amnesties. Up until today, Namibians as well as the members of the South African Defence Force benefit from those amnesties. Against this backdrop, the question of whether the Namibian blanket amnesties apply in relation to international crimes and grave human rights violations will be addressed. This article argues that based on international law, the application of the Namibian blanket amnesties can be challenged in a potential criminal case that deals with international crimes or grave human rights violations in the Namibian courts. Therefore, this article illustrates how international law applies in the Namibian legal system. In this context, Namibia follows a monist approach which makes it quite receptive of international law and international standards. On this basis, this article points out binding international law at the time before and after Namibia’s independence as well as examining Namibia’s binding treaty obligations which arise under the Geneva Conventions, Torture Convention and the International Covenant on Civil and Political Rights. In the next section, an examination of domestic and international jurisprudence lays the foundation for the argument that the Namibian blanket amnesties can be challenged in a Namibian court when the crimes in question constitute international crimes, such as crimes against humanity or war crimes.

Author(s):  
Mettraux Guénaël

This chapter discusses crimes against humanity under international law. Crimes against humanity were first introduced at Nuremberg as a means of criminalizing three sorts of criminality that so far had evaded the sanction of international law: atrocities committed outside the context of an armed conflict or independent of it; crimes committed against fellow nationals or nationals of allied nations; and institutionalized discriminatory violence that resulted in individuals being targeted and mistreated by a state because of their identity. Crimes against humanity seek to protect core attributes of all human beings: their dignity; their humanity; and their fundamental human rights. The notion of crimes against humanity reflects the fact that the protection of those interests and the punishment of serious violations of these interests is a matter of universal concern. It also makes it clear that the protection arising from international law does not depend on the nationality of the victim or his membership in a group, nor on his or relationship to the perpetrator. Instead, it is the sheer humanity of the victim that warrants and justifies the criminalization of such acts. And whilst the notion of genocide and crimes against humanity overlap in part in their efforts to protect these core values, unlike genocide, crimes against humanity seek to protect individuals as such, rather than groups of individuals. The chapter then looks at the relationship between crimes against humanity and other international crimes as well as the process of defining crimes against humanity.


M/C Journal ◽  
2001 ◽  
Vol 4 (1) ◽  
Author(s):  
Paul Newman ◽  
Tseen Khoo ◽  
Kathryn Goldie

The issue of a national apology to the Stolen Generations by the Federal Government has for some time been central to cultural and political debate in Australia. Responses to the Bringing them Home report-the text that generated a national audience for narratives of child removal-including the mechanics of apology, have come to substantially generate the terms of the Australian reconciliation debate. The desire for the performance of official sorrow has come to dominate arguments about racial atonement to the extent, as several of our contributors note, that more material achievements may have been neglected. This is not to endorse Prime Minister Howard's prioritisation of 'practical' reconciliation, in which the only specific policy the government is prepared to advocate is the provision of basic rights to Indigenous people, but to recognise some of the limitations of the apology focus. The continuation of deliberations about whether or not non-indigenous Australians should express sorrow has the potential to feed into a lengthy history of anxious white Australian self-definition. Reconciliation, and the sorrow which may or may not constitute it, therefore becomes the latest in an endless series of attempts to ascertain Australia's national identity - this time informed by a moral responsibility for historical wrongdoing. In his article, Jen Kwok suggests the potential for the concept of reconciliation to become safely amorphous, expressing the fear that an interest in reconciliation can be acquired for the sake of appearance. In this way, the narrative of a nation reconciled through a governmental process helps to inform ongoing constructions of whiteness. While Australia's initial ten-year period of reconciliation has officially ended, the issue of a Federal Government apology has not. Prime Minister Howard's version of an apology-the personal sorrow that never becomes official-seems part of the conservative parties' deliberate obfuscation of the importance of official recognition of indigenous concerns, in the same way that a treaty is dismissed as unnecessary. In this issue, Lynette Hughes takes the conservatives' refusal to acknowledge the need to apologise as a starting point for deliberations on the worth of the concept, with a timely focus on Pauline Hanson's unapologetic re-entry onto the centre of the political stage. If Hanson's emergence in 1996 was notable for her grouping of otherness-'Aborigines' and 'Asians'-as threat, this was a simple identification of two forms of difference, in indigeneity and non-white migration, that have been historically constructed as imperilling white Australia. Guy Ramsay takes up an historical connection between two such groups: Chinese and Indigenous peoples of North Queensland during the latter half of the nineteenth century. This community of Others was seen as a significant threat to the 'codes' and 'norms' of white behaviour, as legislation was introduced to restrict the immorality and vice necessarily attached to racial mixing. In our feature article, Peta Stephenson also analyses the reasons why the common experience of Australian racism by immigrant and Indigenous people has not forged significant bonds between the two groups. Beginning with a letter written by members of the Vietnamese community in response to the Federal Government's ongoing refusal to apologise to the Stolen Generations, Stephenson traces some of the current reasons for the lack of interaction between those theorised as Other in settler-indigene and Anglo-Ethnic conceptions. Despite, or perhaps because of, the historical proofs of the mistreatment of migrant groups, there is reason to suggest continuity in the behaviour of settler nations towards non-white peoples. Rita Wong's examination of the Canadian government's treatment of recent refugees to Canada provides similarities with Australia's own human rights record in this area. This impulse to criminalise refugee seekers is certainly one shared by both nations. The racialisation of the refugees in the media and government rhetoric implies that the persecution of Asians in Canada is not only an historical event. A further relevant international comparison to the Australian situation is evident in South Africa, where issues of reconciliation and apology for historical misdeeds have gained great societal prominence. Despite the limitations of South Africa's Truth and Reconciliation Commission, there was an intimacy to the discourses of apology made possible by the presence of 'perpetrator' and 'victim' in the same room: institutional space was provided by the Commission for the confessions of the perpetrators of human rights violations. These personal reconciliations intensify the focus on the apology to the 'victims' of human rights violations, and emphasise the personal accountability of those who perpetrated such acts. From her article on the workings of the South African Truth and Reconciliation Commission, Andie Miller's conclusion suggests that the official impulse to reconcile-a feature of both Australia's and South Africa's version of national redemption-cannot produce results that are acceptable to all elements of society. Likewise, an emphasis on personal investment in an 'apology' is apparent in the contributions of Kwok and Hughes in this issue. Even now, the reconciliation issue remains the locus of much angst and self-reflection. Having a gathering such as Australia Deliberates: Reconciliation for the 21st Century -- which was screened mid-February 2001 by the ABC -- aptly demonstrates the range of complex societal changes which need to take place. More to the point, the concept of reconciliation must move, as Jackie Huggins argues, from being a deed to becoming a plan ("Australia Deliberates"). References "Australia Deliberates: Reconciliation for the 21st Century". ABC. 17 February 2001.


Author(s):  
Ambos Kai

Principle 19 outlines the duties of States with regard to the administration of justice for victims of serious human rights violations and other international crimes. Under this Principle, States must ensure that those responsible for serious crimes under international law are prosecuted, tried and adequately punished. A state’s (criminal) justice obligations have long been recognized by regional human rights courts and international human rights bodies. While the fight against impunity is the explicit aim of the International Criminal Court (ICC) and a major goal of the United Nations, the duty to prosecute lies primarily with the domestic justice system with regional or international mechanisms being subsidiary or complementary. This chapter first provides a contextual and historical background on Principle 19 before discussing its theoretical framework and how human rights courts and treaty bodies have interpreted the duty of States to investigate and prosecute serious human rights violations.


1999 ◽  
Vol 6 (3) ◽  
pp. 303-324 ◽  
Author(s):  
Wilhelm J. Verwoerd

AbstractIn this article the 'genre' of the TRC Report is clarified in order to answer some of the criticisms of the TRC. It is argued that the TRC conceptualised its role as the promotion of restorative justice rather than retributive justice. Justice and reconciliation is served not by isolating perpetrators of gross human rights violations but by restoring human community. Different aspects of the effects of the TRC's work are considered, namely reconciliation, amnesty and forgiveness Justice-based and reconciliation-based criticisms of the TRC are answered.


2020 ◽  
Vol 2 (2) ◽  
pp. 76-85
Author(s):  
Safrin Salam ◽  
Rizki Mustika Suhartono

Indonesia is a country that has a history of gross human rights violations. However, the case has not been resolved. In addition to settlement through the court, a reconciliation pattern is highly recommended in the settlement of the case in question. But the rules on reconciliation have been canceled by the Constitutional Court. The results of the study concluded that the Settlement of cases of gross human rights violations was resolved with a pattern of reconciliation with the establishment of an independent institution (KKR). Besides that, the pattern of reconciliation can also be done in a family way. Reconciliation arrangements exist in several regions in Indonesia, namely Papua, Aceh and Palu Reconciliation patterns that exist in these rules vary, there are those who use the TRC pattern there are also those who use family reconciliation patterns.


2020 ◽  
Vol 11 (2) ◽  
pp. 125-144
Author(s):  
Bernhard Ruben Fritz Sumigar

The spirit of the drafter of the Criminal Code Bill (CCB) to fully codify all criminal provisions, including those relating to the gross violations of human rights, into a single legally binding instrument is marked with the inconsistency of its formula with the standard provided in numerous instruments under international law. In light of this situation, this article is presence to discuss legal challenges arising from the stipulation of gross violations of human rights under CCB. By using qualitative and descriptive normative methods, this article finds three fundamental problems between the provisions of CCB and the international legal framework. The problems in question are related to (i) the inaccuracy of the use of the term “Serious Crimes against Human Rights” in CCB, as well as misregulation of (ii) crimes of genocide and (iii) crimes against humanity in CCB with international law. On this basis, this article concludes that the provisions of gross human rights violations in CCB are contrary to the provisions of international law which are binding and applicable to Indonesia, and therefore, this article is prepared to provide recommendations for policymakers to reconsider the formulation of the provisions of gross human rights violations in CCB in order to be compatible with Indonesia’s international obligations to comply with the provisions of international law. AbstrakSemangat perumus Rancangan Undang-Undang KUHP (RUU KUHP) untuk melakukan kodifikasi total semua ketentuan pidana, termasuk yang berkaitan dengan pelanggaran berat HAM, ditandai dengan ketidak-konsistenan antara rumusan yang diatur dengan standar dalam sejumlah instrumen hukum internasional. Berdasarkan hal tersebut, artikel ini disusun untuk mendiskusikan tantangan hukum yang akan timbul dari pengaturan tentang pelanggaran berat HAM dalam RUU KUHP. Dengan menggunakan metode kualitatif dan deskriptif normatif, artikel ini menemukan 3 (tiga) permasalahan antara ketentuan RUU KUHP dan kerangka hukum internasional, yaitu (i) istilah “Tindak Pidana Berat terhadap HAM” yang tidak tepat (ii) kejahatan genosida, dan (iii) kejahatan terhadap kemanusiaan. Berdasarkan 6pembahasan, artikel ini menyimpulkan bahwa ketentuan pelanggaran berat HAM dalam RUU KUHP bertentangan dengan ketentuan hukum internasional yang mengikat dan berlaku bagi Indonesia. Oleh karena itu, artikel ini memberikan rekomendasi bagi pembuat kebijakan untuk merumuskan kembali ketentuan pelanggaran berat HAM dalam RUU KUHP agar sepadan dengan ketentuan hukum internasional.


1999 ◽  
Vol 12 (4) ◽  
pp. 1001-1015 ◽  
Author(s):  
John Dugard

From time immemorial amnesty has been employed as a means of promoting a political settlement and advancing reconciliation in societies that have emerged from repression. At present there is a trend in support of prosecution of those who have committed international crimes, such as torture and crimes against humanity, which excludes the possibility of amnesty. That amnesty is no longer favored is illustrated by the failure of the Rome Statute of the International Criminal Court to recognize amnesty as a defence to prosecution. While there is no place for unconditional amnesty in the contemporary international legal order an intermediate solution such as a Truth and Reconciliation Commission with power to grant amnesty after investigation, of the South African kind, may contribute to the achievement of peace and justice in a society in transition more effectively than mandatory prosecution.


2018 ◽  
Vol 7 (1) ◽  
pp. 178 ◽  
Author(s):  
Rommy Patra

<p>Efforts to resolve human rights violations in Indonesia have been failed. It raises the question of the cause of the failure and the solution that must be taken to overcome it. The factors causing the failure of the settlement of human rights violations: (1) weak substance of legislation, especially Law number 26 Of 2000 on the Human Rights Court; (2) issues of authority and institutional relationships that are not synergistic especially between Komnas HAM and the Attorney General; (3) weak political will from the Government. The solution offered in overcoming the failure of the completion of human rights violations: (1) improve the substantial weaknesses in Law number 26 Of 2000 on the Human Rights Court by replacing it through the establishment of a new Act on Human Rights Court; (2) to organize institutional relations between Komnas HAM and the Attorney General in order to be synergistic in handling cases of human rights violations; (3) to re-establish the Truth and Reconciliation Commission (KKR); (4) The ruling government must have strong political will to resolve various cases of human rights violations with the support of civil society groups.</p>


Author(s):  
Eka Januar

The birth of Qanun number 17 of 2013 concerning the Aceh Truth and Reconciliation Commission is the result of a derivative of Law number 11 of 2006 concerning the Government of Aceh (UUPA), which is a derivative of the result of the Helsinki Peace Memorandum of Understanding (MoU) between the Republic of Indonesia (RI) and the Free Aceh Movement (GAM) on August 15, 2005 in Helsinki, Finland. This paper discusses the opportunities for the Acehnese Conflict Survivors/Victims Association as Social Capital in the existence of Qanun number 17 of 2013 to settle the fulfillment of the rights of victims of human rights violations that occurred in Aceh in the period 1976-2005. This type of research is a qualitative research. The process of collecting data using the method of observation of the object of research related to the one being studied, interviews starting from listening, arranging words, and summarizing the results of the interviews without losing the substance of the information conveyed by the informants. The data analysis technique in this study used descriptive techniques using data reduction. The results of this study indicate that from its journey, especially after the Aceh Peace, SPKP-HAM Aceh was present in various issues related to human rights violations during the Aceh conflict, especially after the Aceh peace. The birth of Qanun number 17 of 2013 was a part of the SPKP-HAM advocacy with other institutions as well as Acehnese students in 2010 during the occupation of the Aceh DPR building. Furthermore, various issues regarding the fulfillment of the rights of victims of human rights violations, this organization also criticizes government policies that do not take sides with victims of conflict.


Sign in / Sign up

Export Citation Format

Share Document