INDEMNITY AND AMNESTY

1.1 One of the main concerns of transitional justice has been the question of why and how South Africa's TRC is unprecedented. The consensus within transitional justice is that the TRC is unprecedented because its amnesties were not issued en masse but were individualized and conditional upon public, full disclosure of crimes. This consensus is reached by way of a narrative, international in scope, which contrasts the TRC with the Latin American Truth Commissions, on the one hand, and the Nuremberg Trials, on the other. According to this narrative, the TRC is distinct both from the retributive justice dispensed at the Nuremberg Trials and from the blanket amnesties passed in Latin America during the 1970s and 1980s, because its power to offer amnesty was, on the one hand, individualized (not general) and, on the other, not exclusive of punishment (because there was the chance that, absent full disclosure, an amnesty application could fail). On this view, the TRC was unprecedented for the way it offered a sort of "third way" or "golden mean" between blanket amnesty and individualized punishment. Indeed, the TRC's "individualized, accountable amnesty process," its focus on the "concrete particular," was one of the main reasons it was able to lay claim to a paradigmatic status within the field of transitional justice. It is as though South Africa's practice of individualized amnesty were the last and best chapter in an international learning curve, the apex and the exemplar of transitional justice, the best illustration of how to conduct a transition from authoritarian rule to liberalism, the most compelling reason why the TRC should be studied as a "model" around the world.

Although this narrative quickly took hold within studies of the TRC, it rests on a set of premises that are far from unquestionable. To begin, there is good reason to doubt the narrative of the Nuremberg Trials as a simple paradigm of retributive justice. As only one small but significant part of a complicated juridical response to Nazism that cannot be understood apart from later extraditions, trials, and reparations, the executions that resulted from the Nuremberg Trials especially cannot be evaluated apart from Chancellor Konrad Adenauer's amnesties of 1949 and 1954, which together exempted from punishment close to one million former Nazis whose crimes could be said to have been committed on a "political basis." Similar combinations of execution and amnesty emerged in postwar France (where 791 collaborationists were executed for treason and close to 30,000 were exempted from severe punishments by amnesty laws passed in 1947 and 1951) and Italy (where fifty fascists were executed and many thousands more were covered by a 1946 amnesty law). In their punishment of Nazi, fascist, and collaborationist leaders and t