Download The Legality of Amnesty in Post-Conflict Peace

International Journal of Art & Humanity Science (IJAHS) e-ISSN: 2349-5235,
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The Legality of Amnesty in Post-Conflict Peace Settlements
in Africa Vis-A-Vis International
Law: Challenge and Opportunity
Nuruye Beyan Feleke (LLB, LLM.)
Lecturer at Samara University, Ethiopia
E-mail: [email protected]
ACRONYMS
ANC African National Congress
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICTR International Criminal Tribunal for Rwanda
LRA Lord’s Resistance Army
TRC Truth and Reconciliation Commission
UDHR Universal Declaration of Human Rights
RESEARCH METHDOLOGY
The Research methodology was only qualitative. The primary source materials for this research
is literature review by way of referring books, legal materials, scholarly articles on journals, laws
and other unpublished as well as official documents. To know recent and current information
that is relevant to the issue, on line /internet/ sources will also be employed. I also had access to
local newspaper, which has given me timely information and various perspectives.
ABSTRACT
Although a state’s prerogative to use amnesties dates to ancient times, the human rights
movement suddenly planted serious questions about such immunity measures legitimacy through
three main arguments: first, international law creates a state duty to investigate, prosecute, and
punish those responsible for serious violations of human rights; second, international law also
provides victims a fundamental right to justice (the “victims’ rights argument”); and third, postconflict policy recognizes that criminal justice is good for democracy and the rule of law. At the
same time as the development of human rights law, a parallel development in international
criminal law also laid inroads to undermine the validity of amnesties.However, the advanced
argument for criticism from human rights groups like Amnesty International and Human Rights
Watch over the offer of amnesties in post-conflict in Africa, amnesty is a legitimate tool of
sovereign states in defusing their own conflicts, as they see appropriate. For instance, the truth
set South Africans free, and amnesty helped facilitate the truth and the opportunity for
reconciliation and, ultimately, South Africa turned away from peacefully into democracy and
freedom. Contrary, the ICTR, holding perpetrators of the Rwandan genocide accountable, has
provoked over 10, 000 Rwandans to flee false accusations and retribution, which has been
neither conducive to sustainable peace nor to real justice.
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In general, though Amnesties can merely suppress injustices and undermine the rule of law,
including international law. However, Amnesties particularly in Africa can induce the end of
conflict and provide space for truth and authentic reconciliation to emerge without separating
former adversaries or burdening limited state resources by punishing perpetrators. Without the
incentives provided by amnesty, conflict – sometimes spanning decades – can appear intractable.
Key words; amnesty, international crimes, post-conflict
INTRODUCTION
Amnesty laws have a long history of being used as political tools to stem violent conflict or
facilitate negotiated transitions. Indeed, politicians in many states have often described amnesties
as the price that has to be paid to end violence.
Although international law does not yet explicitly prohibit the granting of amnesty for
international crimes, it is clearly moving in this direction. The U.N. now takes the position that a
grant of amnesty is the case of a jus cogenscrime is inconsistent with international law. The
statue of the International Criminal Court (ICC), adopted in Rome in 1998, makes no provision
for amnesty. Moreover, the adoption of the principle of ‘complementarity’ in the Rome Statute,
which gives both national courts and the ICC jurisdiction over war crimes, crimes against
humanity and genocide, suggests that national court will assess their permissive jurisdiction over
such crimes with more enthusiasm than in past
The paper focuses on the relationship between domestic constitutional law and public
international law with regard to the subject matter of the legality of amnesty in post-conflict
peace settlements in Africa.
Therefore, the paper will address the above and other related issues in three chapters. Chapter
one define the concept of amnesty and some other related concepts such as pardon and clemency.
It also discusses amnesty in different context. Chapter two examines a legal framework to
challenge amnesties form the point of international human rights and international criminal
instruments. Chapter three discusses the possible opportunity of amnesty in post-conflict peace
settlements in Africa. Finally, the paper will come to an end by summarizing the main point of
it.
1. DEFINITION OF AMNESTY
What is an Amnesty?
It is better to start from the definition of amnesty in order to differentiate it from other similar
concepts like pardon and clemency. The Black’s Law Dictionary define amnesty as ‘a sovereign
act of forgiveness of past acts, granted by a government by all persons (or to a certain class of
persons) who have been guilty of crime or derelict...when it is granted, both the crime and
punishment are abrogated’.1
Thus, amnesty refers to legal measures that have the effect of:
1
H.C. Black, Black’s Law dictionary, 1992, p 82 – 83.
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(a) Prospectively barring criminal prosecution and, in some cases, civil actions against certain
individuals or categories of individuals in respect of specified criminal conduct committed before
the amnesty’s adoption; or
(b) Retroactively nullifying legal liability previously established.2
It serves as a means to wipe out any record of past crimes by barring the possibility of criminal
or civil investigations, and in some cases, by erasing the criminal records of those who have
already been convicted. Though amnesty, pardon and clemency serve to remove the effects or
consequences of a completed or pending criminal conviction, they are different notions serving
different purposes.
Pardon refers to an official act that exempts a convicted criminal or criminals from serving his,
her or their sentence(s), in whole or in part, without expunging the underlying conviction.3
A lot of Scholars on jurisprudence suggests that there are two general rules by which one can
distinguish between a pardon and an amnesty. First, “amnesties normally apply to classes or
categories of persons.” Secondly, while a pardon typically serves to remit an offense, “an
amnesty may be invoked before a criminal proceeding has commenced or at virtually any stage
thereafter”4
As to the distinction between clemency, amnesty and pardon, the African Commission on
Human and Peoples’ Rights noted:
Clemency embraces the constitutional authority of the President to remit punishment
using the distinct vehicles of pardons, amnesties, commutations, reprieves, and
remissions of fines. An amnesty is granted to a group of people who commit political
offences, for example, during a civil war, during armed conflicts or during a domestic
insurrection. A pardon may lessen a defendant’s sentence or set it aside altogether. One
may be pardoned even before being formally accused or convicted. While a pardon
attempts to restore a person’s reputation, a commutation of sentence is a more limited
form of clemency. It does not remove the criminal stigma associated with the crime; it
2
The word amnesty derives from the Greek word amnestia, which is also the root of amnesia. The Greek
root connotes oblivion and forgetfulness rather than forgiveness of a crime that has already been criminally
condemned. See Diane F. Orentlicher, “Settling accounts: the duty to prosecute human rights violations of a
prior regime,” Yale Law Journal, vol. 100, No. 8 (1991), p. 2537.
3
See “Report by Mr. Louis Joinet, Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, Study on amnesty laws and their role in the safeguard and
promotion of human rights”, noting that a pardon “remits the penalty but does not expunge the conviction”
(E/CN.4/Sub.2/1985/16/Rev.1, para. 5). The approach taken here is not uniformly followed. For example, one
writer distinguishes amnesties from pardons on the basis that an “amnesty promotes peace or
reconciliation” while a pardon “provides a discretionary mechanism for sidestepping the courts.”
4
Barry, Donald D. 1994. “Amnesty under the Russian Constitution: Evolution of the Provision and Its Use in
February 1994.” Parker School Journal of East European Law 1 (4): 437-61.
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merely substitutes a milder sentence. A reprieve on its part postpones a scheduled
execution.5
The Commission regarding clemency noted that, generally “a Clemency power is used in a
situation where the President believes that the public welfare will be better served by the pardon,
or to people who have served part of their sentences and lived within the law, or a belief that a
sentence was excessive or unjust or again for personal circumstances that warrant compassion. In
all these situations, the President exercises a near absolute discretion.”6
2. AMNESTIES IN DIFFERENT CONTEXTS
Amnesties are granted under a variety of circumstances, though all are designed with the purpose
of ending violent internal conflict. Amnesties typically are executed in one of two ways.
“Blanket amnesties” cover all crimes, regardless of who committed them. “Partial amnesties,”
conversely, are more limited; they only provide immunity for certain crimes or for select groups
of perpetrators.7
De Jure Amnesties
Blanket amnesties exempt broad categories of serious human rights offenders from prosecution
and/or civil liability without the beneficiaries’ having to satisfy preconditions, including those
aimed at ensuring full disclosure of what they know about crimes covered by the amnesty, on an
individual basis.8
5
African [Banjul] Charter on Human and Peoples' Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.
5, 21 I.L.M. 58 (1982), (entered into force 21 October 1986): Art 1: “The Member States of the Organization of
African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in
this Chapter [I] and shall undertake to adopt legislative or other measures to give effect to them.”
6
Ibid
Elizabeth B. Ludwin King* Amnesties in a time of Transition availableat
8
The Amnesty Committee of South Africa’s Truth and Reconciliation Commission asserted that the
country’s “amnesty process was unique in that it provided not for blanket amnesty but for a conditional
amnesty, requiring that offences and delicts related to gross human rights violations be publicly disclosed
before amnesty could be granted.” Truth and Reconciliation Commission of South Africa, Report of the
Amnesty Committee, vol. 6, sect. 1, chap. 5, para. 1. See also Prosecutor v. Kondewa, Separate Opinion of
Justice Robertson, para. 32 (explaining that South Africa’s ConstitutionalCourt had “approved an amnesty
which was not ‘blanket’ because each person had to be considered in the circumstances of individual cases
by a Truth and Reconciliation Commission”). Some writers have defined blanket amnesties as “amnesties
that apply ‘across the board without requiring any application on the part of the beneficiary or even an
initial inquiry into the facts to determine if they fi t the law’s scope of application’.” Garth Meintjes and Juan
E. Méndez, “Reconciling amnesties with universal jurisdiction,” International Law Forum, vol. 2, No. 2
(2000), p. 76. Blanket amnesties have often been singled out for special condemnation. See, for example,
Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions
(Economic and Social Council resolution 1989/65, annex, Principle 19); Prosecutorv. Kondewa, Separate
Opinion of Justice Robertson, para. 47; Kristin Henrard, “The viability of national amnesties in view of the
increasing recognition of individual criminal responsibility at international law,” Michigan State
University—DCL Journal of International Law, vol. 8 (Fall 1999), p. 595. It does not follow, however, that
other amnesties are permissible under international law.
7
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It has the effect of preventing any questioning of any suspect, any investigation or gathering of
evidence on the events they cover. They also produce the immediate repeal of convictions and
the release of those convicted, along with the termination of pending proceedings and the release
of anyone awaiting trial.
De Facto Amnesties
In addition to de jure amnesties, some state laws, decrees or regulations constitute de facto
amnesties: while not explicitly ruling out criminal prosecution or civil remedies, a law, decree or
regulation may have the same effect as an explicit amnesty law.9
All amnesties, regardless of their scope, are usually passed in one of three contexts, these are;
self-amnesties, amnesties related to truth commissions and amnesties to end conflict.
2.1.
Self-Amnesties
As the dictatorial governments begin to decline, their members may become concerned that they
will be held accountable for human rights abuses that occurred during their reign. In an effort to
prevent prosecution for these crimes, such governments may pass an amnesty law shortly before
leaving office or in anticipation of future lawsuits.10
Such amnesties granted by
outgoinggovernments typically absolve that government for any crimes committed while it was
in power. In other words, self-amnesty is when a government in power forced to resign upon
defeat or in any situations, this government enacted a blanket amnesty law before leaving office.
The outgoing governments enacted blanket amnesties to immunize themselves from prosecution
for the horrific crimes they committed and to prevent any retributive justice from the succeeding
government.11
2.2.
Amnesties Related to Truth Commissions
It is increasingly common for countries emerging from civil war or authoritarian rule to create a
truth commission to operate during the immediate post-transition period. Truth commissionsofficially authorized, temporary, non-judicial investigative bodies can play and have played an
invaluable role so as to ensure truth is attained and in order to guarantee that there would be no
legal consequence for the atrocities committed.
One of the best known and widely respected truth commissions—South Africa’s Truth and
Reconciliation Commission. The actions taken by South Africa typically illustrate the
transitioning out of brutal regimes can use truth commissions alongside amnesties. For more than
forty years, South Africans lived under apartheid, the official government policy of segregation
and oppression.12 During the negotiations to end the apartheid regime, the South Africa
Parliament established the Truth and Reconciliation Commission (TRC) in July 1995, and
9
Rule-Of-Law Tools For Post-Conflict States Amnesties. United Nation New York and Geneva, 2009United
Nations
Publication
Sales
No.
E.09.Xiv.1Isbn
978-92-1-154187-8available
at
www.ohchr.org/Documents/Publications/Amnesties_en.pdf
10
Supra note 6Elizabeth B.
11
Ibid
12
See ZiyadMotala, The Use of the Truth Commission in South Africa as an Alternative Dispute Resolution
Mechanism Versus the International Law Obligations, 45 SANTA CLARA L. REV. 913, 915-16 (2005).
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included amnesty as an integral part of the truth-telling process13 in order to incentivize former
members of the government to participate in its truth commission.
The TRC was authorized to grant amnesty to individuals who applied for it, but only if they
made a full accounting of the relevant facts before the Amnesty Committee and were able to
prove that their actions were politically motivated.14 If an individual received amnesty, he was
not only free from criminal prosecution, but he was also exempt from civil damages. 15 In doing
so, the country’s leaders determined that truth was more vital to South Africa’s future than
punishment.16Trading truth for amnesty, and amnesty for truth, the commission was intended to
move on toward a strong democratic future.17
In the opinion of the writer the leaders of South Africa weighing the peace that may result in the
near future from such reconciliation against the justice that results from prosecution or
punishment of these individuals or groups that, it is a wise but a hard decision.
2.3. Amnesties Ending Conflict
One of the main objectives of amnesty is to end an ongoing conflict as soon as possible to attain
peace and also for reconciliation and social harmony in a society, because there are some
conflicts where peace would be impossible to achieve without an amnesty.
In these instances, it is typically the case that rebel group refuse to negotiate without the promise
of amnesty and that a continuation of hostilities will lead to the suffering of untold thousands of
people.18 Here, amnesties are employed as the means to end a conflict.
Though it is certainly preferable to end a conflict in a peaceful manner, however, this is not
always possible. When parties have little incentive to back down, sometimes the best solution is
to create one.19 Amnesty in this context, so long as it meets certain requirements can provide that
incentive, thereby acting as a means to the end of a bloody conflict.20
3. THE VALIDITY OF AMNESTIES FROM DIFFERENT BASIS
3.1. Validity On The Basis Of The Purpose Of The Amnesty
The Constitutional Court of South Africa to justify the broad amnesties granted under the
Promotion of National Unity and Reconciliation Act 34 of 1995 argued that, but for the
recognition of a limited amnesty for war crimes it will be impossible, or at least much more
13
See Promotion of National Unity and Reconciliation Act 34 of 1995 pmbl.,available at
http://www.justice.gov.za/legislation/acts/1995-034.pdf (S. Afr.).
14
See amnesty petitions to the Amnesty Committee, 849 were approved, and 5,392 were rejected. Truth &
Reconciliation
Commission,
Summary
of
AmnestyDecisions,
1.11.2000,
http://www.justice.gov.za/trc/amntrans/index.htm (last visited Sept. 30, 2010).
15
See Promotion of National Unity and Reconciliation Act, Michael Wines, Once World Cause, South Africa
Lowers Voice on Human Rights, N.Y. TIMES, Mar. 24, 2001, 21(2).
16
Ibid
17
Martha Minow, Between Vengeance And Forgiveness: Facing History After Genocide And Mass Violence
56 (1998).
18
Supra note 6 Elizabeth B.
19
Ibid
20
Ibid
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difficult, to secure peace or to initiate or further the process of reconciliation which may be in
conflict with a policy of unlimited prosecution.21
Therefore, amnesty should have very limited application and meet stringent tests for its use. A
‘but for’ test could be employed when accessing the need for impunity, that is, but for amnesty
can the conflict be brought quickly to an end?
However, the UN has shown support for amnesty agreements covering international crimes that
appear necessary to end military stand-offs.22 In recent years, however, there has been a tendency
for it to reject the possibility of amnesties for international crimes in peace agreements.23
Nonetheless, this practice does not foreclose all possibility of recognition of such amnesties, but
merely puts the legal threshold and justification requirements for the recognition of amnesties for
war crimes extremely high. In order to recognize an amnesty for crimes, a domestic or
international court would have to demonstrate that the amnesty is justified under the “but for”
test. It may be noted that such a test stands in contrast to the Security Council’s resolutions
requesting the ICC to refrain from exercising jurisdiction over nationals of non-party States to
the Rome Statute which fail to positively identify a threat to the peace to justify the nonprosecution of such nationals accused of international crimes.24
3.2 Validity Of Amnesty On The Basis Of Accountability Measures
This justification stems from the idea that there are significant nuances to the concept of justice
in transitional societies.25 A “restorative justice” approach suggests that targeted prosecution
together with a range of other accountability mechanisms fulfill a State’s duty to address
accountability and put an end to impunity.26 The conception of justice implies that a limited
21
The Promotion of National Unity and Reconciliation Act 34 of 1995 sets up a mechanism to grant a broad
amnesty for those who had committed politically motivated crimes during the apartheid regime. SeeThe
Azanian Peoples Organization (AZAPO) v. The President of the Republic of South Africa and ors., Case CCT
17/96, (South Africa), Judge Mahomed found that “but for a mechanism for amnesty, the ‘historic bridge’
[the negotiated transition to democratic rule] itself might never have been erected.”), para. 19.
22
For example, in 1993 the United Nations gave its full support to the Governors Island Agreement which
granted full amnesty to members of General Cedras’ and Brigadier General Biamby’s military regime
accused of committing crimes against humanity in Haiti from 1990-1994. The Security Council described
the Agreement as “the only valid framework for resolving the crisis in Haiti”. Statement of the President of
the Security Council, UN SCOR, 48th Sess., 329th metg., at 26, UN Doc. S/INF/49 (1993). See M. Scharf,
“Swapping amnesty for peace: Was there a duty to prosecute international crimes in Haiti?”,Texas
International Law Journal, Vol. 31, No. 1, 1996, pp. 1-42.
23
For example, although the UN endorsed the 1999 Lomé Peace Agreement ending the civil war in Sierra
Leone, which included a broad amnesty, UN Special Representative for Sierra Leone Francis Okelo made an
oral disclaimer that the amnesty does not apply to genocide, crimes against humanity, war crimes and other
serious violations of international humanitarian law. UN Doc. S/1999/836, p. 2, para. 1. See generally, C.
Stahn, “United Nations peace-building, amnesties and alternative forms of justice: A change in practice?”,
International Review of the Red Cross, Vol. 84, No. 845, 2002, p. 191.
24
Ibid
25
R. Teitel, “Transitional jurisprudence: The role of law in political transformation”, Yale Law Journal, Vol.
106. No. 7, 1997, explains that transitions imply a paradigm shift in the conception of justice: while in
normal times the law maintains law and order, in periods of political upheaval, the legal responses create a
“sui generis paradigm of transformative law”, p. 2014.
26
Amnesty for war crimes: defining the limits of international recognition Yasmin Naqviavailable at
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amnesty combined with an effective truth commission could satisfy “the essential purpose of the
right to justice”.27 Whereas in the past truth commissions have been set up as a substitute for
trials, authoritative sources have made it clear that they are insufficient in themselves to
constitute an adequate response by States to serious violations.28
However, there has been a concerted move, headed by the United Nations, towards establishing
truth commissions as a complementary mechanism for trials, together with a restricted amnesty
limited to those “least responsible” for perpetrating the least serious crimes.29 This development
can be seen in the post-conflict measures adopted in Sierra Leone30 and East Timor31 and may
well also be applied to Cambodia,32 Afghanistan33 and Iraq.34
The introduction of the gacaca35 trials in Rwanda as a way to relieve the overcrowding in jails of
those accused of participating in the 1994 genocide and awaiting trial at the ICTR also reflects
this approach of combining prosecution with other accountability measures dealing with less
serious offences.36
3.3.
Validity On The Basis Of How The Amnesty Deal Is Achieved
Where amnesties are granted through non-legitimate means, for example, through a decree of a
de facto government or a law passed by a non-democratically elected legislature, they may be
denied legal force owing to their irregular means of promulgation and may be summarily
27
J. Gavron, “Amnesties in the light of developments in international law and the establishment of the
International Criminal Court”, International and Comparative Law Quarterly, Vol. 51, Pt. 1, Jan. 2002, p. 111.
28
See, for example, GarayHermonsilla et al. v. Chile, Case 10.843, Report No. 36/96, Inter-Am, C.H.R.,
OEA/Ser.L/V/II.95 Doc. 7 rev. at 156 (1997); Inter-American Commission on Human Rights, Report No.
26/92 (El Salvador), 82nd Sess., OEA/ser. L/V/II/82 (24 September 1992); Report No. 29/92 (Uruguay), 82nd
Sess. OEA/ser. L/V/II.82, Doc. 25 (2 October 1992); Report No. 24/92 (Argentina), 82nd Sess. OEA/ser.
L/V/II.82, Doc. 24 (2 October 1992).
29
Supra note 26
30
See Truth and Reconciliation Commission Act 2000 of 22 February 2000 (Sierra Leone) and Art. XXVI of
the 1999 Lomé Peace Agreement. See also Briefing Paper on the Relationship between the Special Courtand
the Truth and Reconciliation Commission, Office of the Attorney General and Ministry of Justice Special
Court Task Force, Planning Mission 7-18 January 2002, p. 8.
31
Regulation No. 2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in
East Timor, UNTAET/REG/2001/10, 13 July 2001.
32
S. Linton, “KR trials are vital, but won’t solve everything”, Phnom Penh Post, Issue 11/26, 20 December
2002 – 2 January 2003.
33
President Karzai of Afghanistan has pledged to set up a truth commission which would seek to uncover
the atrocities committed over two decades of war and to seek accountability for perpetrators of past abuses
of human rights. See statement by Mary Robinson, United Nations High Commissioner for Human Rights,
at the opening of the 58th Session of the Commission on Human Rights, Geneva, 18 March 2002.
34
A. Boraine, “Let the UN put Saddam on trial”, International Herald Tribune, 21 April 2003.
35
Gacacais a Kinyarwanda term for the grass on which traditional village assemblies used to be held. In
practice, it means that individuals from the communities act as “people’s judges”. The law instituting the
gacacawas adopted on 12 October 2000 by the National Assembly of Transition. See L. Olson, “Mechanisms
complementing prosecution”, International Review of the Red Cross, Vol. 84, No. 845, 2002, p. 186.
36
There are approximately 120,000 individuals detained in connection with the 1994 genocide in Rwanda. It
is has been estimated that Rwandan national courts and the ICTR would need at least 100 years to try all of
them. Ibid.
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overturned.37 In Spain, for example, amnesty laws passed for political reasons by military
regimes in Chile and Argentina are not considered to be a bar to the exercise of universal
jurisdiction.38 Furthermore, amnesties which cover crimes committed by the State or its agents
allow the State to judge its own case.
This result violates the general principle of law forbidding self-judging.39 Self-proclaimed
amnesties are therefore unlikely to be considered valid under international law.40
On the other hand, amnesties negotiated by incoming and outgoing regimes to facilitate the
transition, as in the case of South Africa, or those brokered or approved by the United Nations,
are more likely to be recognized by foreign or international courts. 41 It is instructive to note, for
example, that during the apartheid regime the UN General Assembly strongly condemned
apartheid as a gross violation of human rights and a crime against humanity and called on States
to prosecute offenders under the Apartheid Convention.42 Since the proclamation of the new
Constitution containing the amnesty clause in its final section, the General Assembly has adopted
resolutions that welcome the transition to democracy and are silent on the duty to prosecute.43
3.4.
Validity On The Basis Of Who Receives An Amnesty
This basis for the validity of limited amnesties derives from the view that amnesties should be
applicable only to subordinates, and that those “most responsible” should not be able to benefit
from them.44
Where large-scale violations of the laws of war have been committed, the prosecution of all
alleged offenders is neither capable of preventing such crimes in the future, nor would it
necessarily have been effective as a deterrent.45 Furthermore, a requirement that a government
should attempt to prosecute everyone who may be criminally liable could be hugely destabilizing
for the social structure, as well as placing impossible demands on the judicial system, which is
37
Supra note 28.GarayHermonsilla et al. v. Chile “A de facto government lacks legal legitimacy (...). It is not
juridically acceptable that such a regime should be able to restrict the actions of the constitutional
government succeeding it as it tries to consolidate the democratic system, nor is it acceptable that the acts
of a de facto power should enjoy all those attributes that accrue to the legitimate acts of a de jure power.”
38
See V. Buck, “Droit espagnol”, in A. Cassese and M. Delmas-Marty (eds), Juridictionsnationales et crimes
internationaux, Presses Universitaires de France, Paris, 2002, pp. 154-155.
39
The Permanent Court of International Justice referred to the “well-known rule that no one can be judge in
his own suit” in the 1925 Frontier between Iraq and Turkey case. Art. 3, para. 2 of the Treaty of Lausanne
(frontiers between Turkey and Iraq), 1925 PCIJ (ser. B), No. 12, p. 32 (Nov. 21, 1925).
40
See Inter-American Commission on Human Rights, Report No. 133/99, Case 11,725 Carmelo Soria Espinoza
(Chile), 19 November 1999, para. 76; self-amnesty laws, are in breach of articles 8 and 25 of theConvention.
Self-amnesty laws leave victims defenceless and perpetuate impunity and are therefore clearly incompatible
with the letter and spirit of the American Convention.”
41
Supra note 26
42
UN General Assembly Res/36/13, 28 October 1981, and A/Res/37/47, 3 December 1982.
43
UN General Assembly Res/48/159, 20 December 1993.
Supra note 26
45
See, Ratner and J. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the
Nuremburg Legacy, 2nd ed., Oxford University Press, Oxford, 2001. p. 338.
44
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usually weak in transitional societies.46 It has been strongly argued by a number of commentators
that in this situation a limited programme of exemplary punishment could have a significant
deterrent effect and thereby achieve the aim justifying the general duty to punish atrocious
crimes.47
The “jurisdictional threshold” clause in Article 8 of the Rome Statute directing the ICC to focus
on war crimes committed as part of a plan or policy could also suggest that the ICC will
concentrate mostly on persons responsible for devising and implementing plans for the
commission of such crimes. This indicates that amnesties for international crimes could be
recognized for persons considered “least responsible”, whereas those in positions of authority
should not be covered.48
2. CHALLENGES OF AMNESTIES UNDER INTERNATIONAL LAW
2.1.
The Legality Of Amnesties Under International Law
Traditionally, amnesty laws were regarded as political tools that were the “exclusive and
sovereign domain of states.”49 Today, the expansion of international human rights and
humanitarian law has meant that serious international crimes have come to be viewed as in “the
interests of the world community as a whole because they threaten the peace and security of
humankind and because they shock the conscience of humanity.”50 Consequently, amnesty laws
for perpetrators of such crimes have become an issue of international concern. However, this
does not mean that all amnesty laws potentially conflict with a state’s duties under international
law as many amnesty laws are offered for domestic, rather than international offences.51
These domestic crimes can be “purely” political offences such as espionage or producing antistate propaganda, or they could be common crimes, such as theft or assault, committed with
political objectives. 52The state’s prerogative to amnesty such domestic crimes is unproblematic
under international law; however, at times it can be problematic to distinguish between
international and domestic crimes.
46
Supra note 26
See, D. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior
Regime”, p. 2601. Campbell, on the other hand, has argued that since exemplary trials mean only a small
number of trials, individual violators will know that the chances of being punished are remote, and the
deterrent value will be correspondingly low. C. Campbell, “Peace and the laws of war: The role of
international humanitarian law in the post-conflict environment”, International Review of the Red Cross,
No. 839, 2000, p. 630.
48
Supra note 26
49
see Mark Freeman, Amnesties and DDR Programs: An Integrated Approach, in Transitional Justice And
DDR Inpost-Conflict Societies (Pablo de Greiff and Ana Patel eds., Social Science Research Council,
forthcoming 2009).
50
M. CherifBassiouni, International Crimes: Jus Cogensand ObligatioErgaOmnes, 59 LAW & CONTEMP.
PROBS. 63, 68 (1996).
51
Fighting Impunity and Promoting International Justice European Initiative for Democracy and Human
Rights: Promoting Justice And The Rule Of Law Draft Global Comparison Of Amnesty Laws
Dr.LouiseMallinder
52
Ibid
47
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The complex issue of the legality of amnesties under international law for crimes (mainly for
international crimes) come into being principally when States are going through periods of
transition, often from war to peace, and of extreme political upheaval, for example, the handing
over of power from military regimes to democratic civilian governments. 53 During such turbulent
and politically sensitive times, international law needs to be able to reconcile the competing
needs of the territorial State (to move on from the past and not to upset the delicate political
process towards peace or democratic consolidation) and those of the international community (to
prosecute those accused of international crimes).54
Therefore, a proper inquiry into the legality of amnesties must begin with an examination of
whether the duty to prosecute exists; this goes hand in hand with an examination of whether the
duty to prosecute is a binding norm under international law.55 The analysis requires an
assessment of whether such a duty to prosecute exists in any of the sources of international law,
as defined by the Statute of the International Court of Justice.56
Even though a number of states have enacted amnesty law, it is unclear whether international
human rights law actually permits this course of action. To determine if an amnesty may be
offered, it is essential to first assess whether certain areas of international law prohibit it or not.
Though no area of international law explicitly requires that countries refrain from issuing
amnesties, an implied rejection of this approach can be inferred if international law requires a
duty to prosecute.57
Therefore, if a duty to prosecute suspected criminals exists under international law, then it seems
for stronger argument national amnesty law which bar prosecution such offenders are
illegitimate. Thus, let us evaluate the position of some of the major international instruments in
relation to the duty to prosecute abusers of human rights.
2.1.1. The International Covenant on Civil and Political Rights (ICCPR)
53
Yasmin NaqviAmnesty for War Crimes: Defining the Limits ofInternational Recognition available at
54
On the theory of transitional justice and how it may accommodate the peculiar needs of transitional
societies, see generally D. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations
of a Prior Regime”, The Yale Law Journal, Vol. 100, No. 8. 1991, p. 2537; D. Cassel, “Lessons from the
Americas: Guidelines for International Response to Amnesties for Atrocities”, Law and Contemporary
Problems, Vol. 59, 1996, p. 225; N. J. Kritz, (ed.), Transitional Justice, Vol. I, Institute of Peace Press,
Washington, 1995; N. Roht- Arriaza (ed.). Impunity and Human Rights in International Law and Practice,
Oxford University Press, Oxford, 1995; Teitel, op. cit. (note 2), p. 2009; J. Dugard, “Dealing with crimes of a
past regime. Is amnesty still an option?”, Leiden Journal of International Law, Vol. 12, No. 4, 1999, p. 1009; P.
Hayner, Unspeakable Truths:Confronting State Terror and Atrocity, Routledge, London, 2001; S. Ratner and
J. Abrams, Accountability forHuman Rights Atrocities in International Law: Beyond the Nuremburg Legacy,
2nd ed., Oxford University Press, Oxford, 2001.
55
Ibid
56
Statute of the International Court of Justice art. 38(1), June 26, 1945, 59 Stat. 1031, 33 U.N.T.S. 993.
57
Supar note 6 Elizabeth B.
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This legally binding convention requires States parties to ensure that victims of violations of the
Covenant “have an effective remedy” (art. 2.3 (a)).58 An amnesty that prevented victims from
seeking a civil remedy would clearly violate the Covenant.
In 2004, the UN Human Rights Committee reaffirmed the duty of States parties to;
“Ensure that individuals… have accessible and effective remedies to vindicate
[Covenant] rights” and to “make reparation to individuals whose Covenant rights
have been violated.” In its view, “the Covenant generally entails appropriate
compensation.”59
Moreover, the Human Rights Committee60 has repeatedly held that the Covenant does not
provide that private individuals have a right to demand that the State criminally prosecute
another person, it has interpreted the Covenant to require States parties to take effective steps to
investigate violations of human rights recognized as criminal and to bring to justice those who
are responsible for these violations, as well as to provide an effective remedy to the victims.
Under this convention, there is no explicit duty to prosecute perpetrators of human rights abuses.
Instead, there is an obligation of effective remedy. The phrase effective remedy does not, on its
face, require states to prosecute abusers of human rights because remedies may take in different
forms such as disciplinary and administrative remediesother than legal prosecution or
punishment.
However, when particularly serious violations of human rights occur, disciplinary and
administrative remedies do not adequately satisfy States parties’ obligations to provide adequate
and effective remedies.61 Instead, the Human Rights Committee has made clear that the State
party has a duty to investigate thoroughly alleged violations of human rights, particularly
enforced disappearances and violations of the right to life, and to criminally prosecute, try and
punish those deemed responsible for such violations.
In its general comment No. 31, the Human Rights Committee made clear that States parties’ duty
to bring violators to justice encompasses other serious violations as well:
Where [the investigations that States parties are required to undertake] reveal
violations of certain Covenant rights, States parties must ensure that those
responsible are brought to justice. As with failure to investigate, failure to bring to
justice perpetrators of such violations could in and of itself give rise to a separate
58
This right is assured “notwithstanding that the violation has been committed by persons acting in an
official capacity.”
59
General comment No. 31, para. 15–16. Furthermore, “where appropriate, reparation can involve restitution,
rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of nonrepetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of
human rights violations.”
60
Arhuacosv. Colombia, views on communication No. 612/1995, 29 July 1997 (A/52/40 (vol. II), annex VI,
sect. Q, paras. 8.2 and 8.8) and Bautista de Arellanav. Colombia, views on communication No. 563/1993, 27
October 1995 (A/51/40 (vol. II), annex VIII, sect. S, paras. 8.2 and 8.6).
61
Supar note 9Rule-Of-Law
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breach of the Covenant. These obligations arise notably in respect of those
violationsrecognized as criminal under either domestic or international law…62
Therefore, if a state must ensure the right to an effective remedy as per the interpretation of the
Human Rights Committee, it is persuasive to conclude that the due to prosecute exist within the
covenant and national amnesty laws are inconsistent with it.
2.1.2. The Genocide Convention
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide is one of the
most widely accepted human rights treaties. Article I of the Convention confirms that genocide
“is a crime under international law” which the contracting parties undertake “to punish.” Article
IV provides unequivocally that persons who commit genocide or several related acts “shall be
punished, whether they are constitutionally responsible rulers, public officials or private
individuals.”
Thus, the convention clearly indicates the duty to prosecute exists that; an amnesty for such
Crime would violate the convention. Moreover, since the principles underlying the Genocide
Convention embody customary international law, an amnesty that prevented prosecution of
genocide would violate states’ obligations.63
2.1.3. The Convention Against Torture
The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment defined torture as any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an
official capacity.
Article 4 criminalizes torture and requires its prosecution, stating as follows:
1. Each State Party shall ensure that all acts of torture are offenses under its criminal law.
The same shall apply to an attempt to commit torture and to an act by any person
which constitutes complicity or participation in torture.
2. Each State Party shall make these offenses punishable by appropriate penalties which
take into account their grave nature.
When a State party finds someone in territory under its jurisdiction who is alleged to have
committed one of these offences, that State must either extradite the suspect or submit the case to
its competent authorities for the purpose of prosecution.64
62
Supra note 29 General comment No. 31para.18
Office of the U.N. High Comm’r for Human Rights, Rule-of-Law Tools for Post-Conflict States: Amnesties
12, HR/PUB/09/01 (2009) (by Diane Orentlicher).
64
Ibid. Art 7.1
63
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Therefore, The Convention Against Torture embrace the duty to prosecute that , amnesty law
that applies to actions and people covered under by it, in addition to violating the Convention
and other human rights treaties, it also violate customary international law.65
2.2.4. Crimes Against Humanity
Although crimes against humanity are addressed in various international treaties, including the
statutes of every international and hybrid criminal tribunal established since and including the
Nuremberg Tribunal, they are not yet the subject of a treaty similar to the Genocide
Convention.66 They have, however, been recognized in the words of the preamble to the Rome
Statute of the International Criminal Court as among “the most serious crimes of concern to the
international community as a whole” which “must not go unpunished” and whose “effective
prosecution must be ensured.”
Under the Rome Statute, a crime against humanity is any of the following acts when committed
as part of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack:
Murder, extermination, enslavement, deportation or forcible transfer of population,
imprisonment or other severe deprivation of physical liberty in violation of fundamental
rules of international law, torture, rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence of comparable
gravity, persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender…, or other grounds that are universally
recognized as impermissible under international law.
Thus, an amnesty national law that exempted crimes against humanity from punishment or civil
remedies would also be inconsistent with States parties’ obligations under several comprehensive
human rights treaties that do not explicitly mention this international crime.67Therefore, an
amnesty for crimes against humanity would be inconsistent with States’ obligations under
several treaties and may be inconsistent with States’ obligations under customary international
law.
2.2.5. International Humanitarian Law
This is the body of international law governing the conduct of international and non-international
armed conflicts. The main instruments of international humanitarian law, which is also known as
"law of war" or "law of armed conflict", are the four Geneva Conventions of 1949 and their 2
Additional Protocols of 1977.
65
Under international humanitarian law, the rule prohibiting torture, cruel or inhuman treatment and
outrages upon personal dignity, in particular humiliating and degrading treatment, is “a norm of customary
international law applicable in both international and non-international armed conflicts.” See International
Committee of the Red Cross, Customary…, p. 315.
66
The 1968 Convention on the non-applicability of statutory limitations to war crimes and crimes against
humanity does, however, provide that no statutory limitation shall apply to crimes against humanity (art. I
(b)).
67
Supar note 9Rule-Of-Law
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Under the laws of war, certain violations are considered so serious as to give rise to individual
criminal responsibility, both domestically and at the international level. War crimes typically
include serious violations of the laws of war aimed at protecting persons who are not or are no
longer participating in the hostilities and of rules that restrict the means and methods of warfare.
All four Geneva Conventions dealing with international armed conflict identify certain violations
as grave breaches and require High Contracting Parties to “enact any legislation necessary to
provide effective penal sanctions for persons committing, or ordering to be committed, any of the
grave breaches” identified in the treaty. In addition, each High Contracting Party is “under the
obligation to search for persons alleged to have committed or to have ordered to be committed,
such grave breaches, and shall bring such persons, regardless of their nationality, before its own
courts. It may also, if it prefers, and in accordance with the provisions of its own legislation,
hand such persons over for trial to another High Contracting Party concerned, provided such
High Contracting Party has made out a prima facie case.’’
Therefore, an amnesty that prevented prosecution of grave breaches would be plainly
incompatible with States’ obligations under the Geneva Conventions and Additional Protocol I to
search for persons allegedly responsible for grave breaches and to ensure that they are
prosecuted.68
Although grave breaches can be committed only during international armed conflicts, 69 serious
violations of the rules of humanitarian law that apply to non-international armed conflicts are
also war crimes. Rules of humanitarian law governing non-international armed conflicts are set
forth in common article 3 of the four Geneva Conventions of 1949 and the Protocol Additional to
the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of NonInternational Armed Conflict (Protocol II). Some are also recognized under customary
international law as serious violations of the “laws and customs of war.70
Thus, an amnesty that encompassed serious violations of the laws of war governing noninternational armed conflicts would be of doubtful validity.71 However, in a major study of
customary international humanitarian law, the International Committee of the Red Cross (ICRC)
notes that “there is international case law to support the proposition that war crimes may not be
the object of an amnesty, and this applies to all war crimes.72
For that reason, amnesties that prevent prosecution of war crimes, also known as serious
violations of international humanitarian law, whether committed during international or noninternational armed conflicts, are inconsistent with States’ obligations under the widely ratified
68
Supar note 9Rule-Of-Law
Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, art. 147.
70
See International Criminal Tribunal for the former Yugoslavia, Prosecutor v. DuškoTadic, case No. IT-941-AR72, Decision of 2 October 1995, para. 134; Prosecutor v. Delalicet al., case No. IT-96-21-A, Judgement of
20 February 2001, paras. 163–173.
71
Ibid
72
International Committee of the Red Cross, Customary International Humanitarian Law, vol. I, by JeanMarie Henckaerts and Louise Doswald-Beck (Cambridge University Press, 2005), p. 613.
69
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Geneva Conventions of 1949 and their 1977 Protocols, and may also violate customary
international law.
2.3.
United Nations Principles And Policies Restricting Amnesties
United Nations bodies have condemned amnesties for war crimes; genocide; crimes against
humanity; and other gross violations of human rights, such as extrajudicial, summary or arbitrary
executions, torture and similar cruel, inhuman or degrading treatment; slavery; and enforced
disappearance, including gender-specific instances of these violations.73
The United Nations policy concerning amnesties is a corollary to the principles, which have been
affirmed repeatedly within the United Nations system, that States must (a) ensure that those
responsible for serious violations of human rights and humanitarian law are brought to justice74
and (b) assure victims an effective right to a remedy, including reparation.75
Two sets of United Nations principles distil a broad range of policies and principles in this area,
as well as recent developments in international law and practice that are summarized in the
subsection that follows.
First, the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims
of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, which were adopted by the General Assembly in 2005 76 and reflect existing
obligations under international human rights and humanitarian law, provide:
In cases of gross violations of international human rights law and serious violations of
international humanitarian law constituting crimes under international law [i.e., “war
73
Supar note 9Rule-Of-Law
The Principles of international cooperation in the detection, arrest, extradition and punishment of
persons guilty of war crimes and crimes against humanity provide that war crimes and crimes against
humanity “shall be subject to investigation and the persons against whom there is evidence that they have
committed such crimes shall be subject to… trial and, if found guilty, to punishment” (General Assembly
resolution 3074 (XXVIII)). The Principles on the Effective Prevention and Investigation of Extralegal,
Arbitrary and Summary Executions provide: “In no circumstances… shall blanket immunity from
prosecution be granted to any person allegedly involved in extralegal, arbitrary or summary executions”
(Economic and Social Council resolution 1989/65, annex, principle 19). The Declaration on the Protection of
All Persons from Enforced Disappearance provides that “persons who have or are alleged to have
committed [acts of enforced disappearance] shall not benefit from any special amnesty law or similar
measures that might have the effect of exempting them from any criminal proceedings or sanction”
(General Assembly resolution 47/133, art. 18), while the 1993 Declaration on the Elimination of Violence
against Women provides that States should “exercise due diligence to prevent, investigate and, in
accordance with national legislation, punish acts of violence against women, whether those acts are
perpetrated by the State or by private persons” (General Assembly resolution 48/104, art. 4 (c)). The Vienna
Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993, asserts
that “States should abrogate legislation leading to impunity for those responsible for grave violations of
human rights such as torture and prosecute such violations, thereby providing a fi rm basis for the rule of
law” (A/CONF.157/24 (Part I), chap. III, para. 60).
75
The Universal Declaration of Human Rights proclaims: “Everyone has the right to an effective remedy by
the competent national tribunals for acts violating the fundamental rights granted him by the constitution
or by law” (art. 8).
76
The UN General Assembly resolution 60/147.
74
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crimes”], States have the duty to investigate and, if there is sufficient evidence, the duty
to submit to prosecution the person allegedly responsible for the violations and, if found
guilty, the duty to punish her or him (Para. 4).
Principle 19 of the Updated Set of principles for the protection and promotion of human rights
through action to combat impunity, of which the United Nations Commission on Human Rights
took note with appreciation in 2005,77 affirms essentially the same norm:
States shall undertake prompt, thorough, independent and impartial investigations of
violations of human rights and international humanitarian law and take appropriate
measures in respect of the perpetrators, particularly in the area of criminal justice, by
ensuring that those responsible for serious crimes under international law are
prosecuted, tried and duly punished.
Applying this principle to amnesties, principle 24 provides:
Even when intended to establish conditions conducive to a peace agreement or to foster
national reconciliation, amnesty and other measures of clemency shall be kept within the
following bounds:78
(a) The perpetrators of serious crimes under international law may not benefit from
such measures until such time as the State has met the obligations to which principle 19
refers or the perpetrators have been tried before a court with jurisdiction—whether
international, internationalized or national—outside the State in question….
The Basic Principles and Guidelines on the Right to a Remedy and Reparation also affirm a
general duty of States to “provide effective remedies to victims, including reparation,” and
provide detailed guidelines on the nature of this obligation (Para. 3 (d)).79 The Updated Set of
principles on impunity likewise reaffirms the right of victims of human rights violations to “have
access to a readily available, prompt and effective remedy” (principle 32) and to obtain
reparation (principle 31). Accordingly, it provides: “Amnesties and other measures of clemency
shall be without effect with respect to the victims’ right to reparation…” (Principle 24 (b)).
In general, in his 2004 report on the rule of law and transitional justice in conflict and postconflict societies, the UN Secretary-General reaffirmed that “United Nations-endorsed peace
agreements cannever promise amnesties for genocide, war crimes, and crimes against humanity
or grossviolations of human rights.”80
2.4.
Regional Human Rights Conventions
The Convention on the Protection of Human Rights and Fundamental Freedoms (European
Convention),81 the American Convention on Human Rights,82 and the African (Banjul) Charter
77
UNResolution 2005/81 on impunity, para. 20.
Ibid, principle 24
79
Ibid. para 3
80
UN Secretary-General S/2004/616, para. 10. See also paragraph 32.
81
Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,
1950, 213 U.N.T.S. 222
82
Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No.
36, 1144 U.N.T.S. 123
78
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for Human and People’s Rights83 comprise a body of regional documents that govern human
rights. Although these documents only bind their signatories, the international community may
view their language and the judicial decisions interpreting them as both relevant and persuasive.
The provision of all three conventions is similar; none explicitly requires a duty to prosecute
perpetrators of human rights abuses.84 Instead, like the ICCPR, these documents require states to
ensure the protection of the rights enumerated in the conventions.85
The Inter-American Court of Human Rights particularly, in the Velasquez-Rodrıguez v.
Honduras case, although the decision of a regional body certainlyhas “significant interpretive
value” throughout the human rightsworld.86 In establishing a clear duty to prosecute human
rightsviolations, the court likewise established the corollary: that blanketamnesties, which allow
for human rights abusers to escape punishment,are illegal under the American Convention.87
In 2001, the Inter-American Court of Human Rights made this prohibition on amnesties explicit.
In Barrios Altos, the court held the following:
[A]ll amnesty provisions, provisions on prescription and the establishment of measures
designed to eliminate responsibility are inadmissible,because they are intended to
prevent the investigation and punishmentof those responsible for serious human rights
violations such as torture, extrajudicial, summary or arbitrary execution and forced
disappearance, all of them prohibited because they violate non-derogable rights
recognized by international human rights law.88
The Barrios Altoscase concerned an amnesty law enacted by Peru shortly after a government
death squad massacred fifteen people, however, the court held that the amnesty was incompatible
with the American Convention, it was invalid, and that the perpetrators could be held
accountable.89
Therefore, in general the regional human rights treaties, despite the fact that in unambiguous
manner do not provide the duty to prosecute abusers of human rights. However, for the stronger
reason the writer argue that the duty to prosecute become part of customary international law that
it can be interpreted to imply that there is a duty to prosecute within these instruments.
2.5.
International Criminal Court (ICC)
83
African Charter on Human and Peoples’ Rights, June 27, 1981, 1520 U.N.T.S. 217
Supar note 6 Elizabeth B.
85
See African Charter, supra note 52, art. 1; American Convention, supra note 51, art. 1(1); European
Convention, supra note 50, art. 1.
86
See Vel´asquez-Rodr´ıguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, 166 (July 29,
1988).
87
The language of Velasquez-Rodrıguez implies that there is no legal amnesty for any right in the
convention, but the court’s language has been interpreted to mean that only amnesties for serious crimes
under international law are prohibited. See, e.g., Gwen K. Young, Comment, Amnesty and Accountability,
35 U.C. DAVIS L. REV. 427, 457 n.134 (2002).
88
Barrios Altos v. Peru, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 75, 41 (Mar. 14, 2001)
89
Ibid
84
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Complementarity is the essentially principle that the ICC’s universal jurisdiction is subsidiary to
those of appropriate national courts.90 This treaty made it clear that the ICC will be the ultimate
arbiter of complementarity, after hearing all competing claims to jurisdiction. The ICC is also
empowered to decide what weight, if any, to give to domestic amnesties or to domestic
prosecutions for the same offenses. The general principle of complementarity is informed by the
rule on admissibility set forth in Article 12.
The ICC is required to defer to domestic jurisdiction unless the respective national court is
unwilling or unable to prosecute the potential defendant.91
In general, one of the main objectives of the ICC is to end impunity in regards to serious
human rights violations as outlined in the Rome statute. Though the ICC does not
expressly convey that amnesties are not permissible, international law obligations ensure
that the ICC can never permit amnesties to enable them to not prosecute perpetrators. 92
The creation of international tribunals to try perpetrators of heinous crimes and the drive to
establish a permanent International Criminal Court (ICC) represent a turn from blanket amnesties
and de facto impunity toward policies of holding leaders and public officials accountable for
their actions.93
In conclusion, over the last few decades, with the emergence of an international criminal
prosecution system, a general presumption of illegality of amnesties for international crimes has
developed.94 However, if all amnesties for war crimes in all circumstances were to be considered
as invalid and never to be accorded international recognition, this might seriously blunt a useful
tool for ending or preventing civil wars,95 facilitating the transition to democratic civilian
90
Rome Statute, Art. 1.
Ibid “Unwillingness” and “inability” are defined in Art.17, para. (2) and (3).
92
Claudia Angaimer (2004), The ICC and amnesty: can the ICC, can the court accommodate a model
of restorativejustice? Eyes on the ICC, 1, p 138.
93
Security Council Resolution 827 (1993), creating the International Criminal Tribunal for the former
Yugoslavia (ICTY), and Resolution 955 (1994), creating the International Criminal Tribunal for Rwanda
(ICTR); Rome Statute for an International Criminal Court, approved on July 17, 1998.
94
Voicing a widely agreed statement, the Princeton Principles on Universal Jurisdiction, adopted by a group
of international law experts in 2001, proposed that “Amnesties are generally inconsistent with the obligation
on states to provide accountability for serious crimes under international law”; Principle 7, Princeton
Principles on Universal Jurisdiction 28 (2001), Princeton University Program in Law and Public Affairs,
Princeton University, Princeton, 2001. Human rights bodies have come to the same conclusion: InterAmerican Court of Human Rights, Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru) 14 March 2001;
Rodriguez v. Uruguay, Communication No. 322/1988, UN Human Rights Committee, 19 July 1994; Human
Rights Committee General Comment No. 20 on Art. 7 (replacing General Comment 7 concerning
prohibition of torture and cruel treatment or punishment, 10 March 1992.
95
For example, amnesties have been negotiated as part of peace deals in Sudan (Sudan Peace Agreement of
21 April 1997), the Democratic Republic of Congo (1999 Lusaka Ceasefire Agreement) and Sierra Leone
(Lome Peace Agreement of 8 July 1999), among others, as measures to stop the bloodshed. More recently,
the Russian Duma has enacted new amnesty laws as a means to help resolve the conflict inChechnya: “Total
126 people have applied for amnesty in Chechnya”, Relief Web (source: government of the Russian
Federation), 1 July 2003. President Joseph Kabila of the Democratic Republic of Congo has recently signed
amnesty laws for Congolese rebels, though war crimes are reportedly not covered. M. Durmmett, “Amnesty
for Congolese rebels”, BBC News, <http:news.bbc.co.uk/go/pr/fr/ /2/hi/africa/2953621.stm>, 16 April 2003.
91
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regimes96 or aiding the process of reconciliation.97 Notwithstanding the breadth of academic
writing to the contrary, one commentator has also observed that amnesties may not be clearly
restricted by emerging international legal rules: “Despite the growing tension between the
development of international criminal laws and institutions on the one hand, and state practice
embracing amnesties on the other, there is surprisingly little international law that directly
addresses the legitimacy of amnesties.”98
3. OPPORTUNITIES OF AMNESTY IN POST-CONFLICT PEACE SETTLEMENTS
IN AFRICA
Since the mid 1970s, at least 14 states on four continents have declared amnesty, or enacted
amnesty laws immunizing past regimes from accountability and liability. 99 Various problems and
dilemmas related to amnesty have characterized African conflict and its resolution, particularly
since the late 1990s.100 Packaged into post-conflict peace agreements, amnesties are ceded by
war-weary parties and often endorsed by an international community keen for peace.101
In order to create peace in post-conflict in Africa, there have been various debates over what
should be adopted, weather amnesty, International criminal court or traditional mechanisms.
Understanding the term, “peace” is important. It is often defined as a condition where violence
has been ended, or conflicting parties come to a peace agreement or absence of war, it is
commonly known as “negative peace.”102 Recent years, many scholars and practitioners are
drawing attention to the term, “positive peace.” Positive peace is on the other hand, underlines
roots causes of the conflict consistently trying to create better environment or structures for
people to live in whether the situation is prone to war or not. 103 It includes peace building and
96
During the past several years, Argentina, Cambodia, El Salvador, Guatemala, Haiti and Uruguay among
others have each granted amnesty, as part of the peace arrangement, to members of the former regime that
committed international crimes. N. Roht-Arriaza, “State responsibility to investigate and prosecute grave
human rights violations in international law”, California Law Review, Vol. 78, 1990, p. 451, pp. 458-61; US
Delegation Draft “State practice regarding amnesties and pardons”, presented to the Preparatory
Committee for the Establishment of an International Criminal Court, 4th Sess., August 1997.
97
The most clear example is that of South Africa, where the Promotion of National Unity and Reconciliation
Act 34 of 1995 sets up a mechanism to grant a broad amnesty for those who had committed politically
motivated crimes during the apartheid regime. See The Azanian Peoples Organization (AZAPO) v. The
President of the Republic of South Africa and ors., Case CCT 17/96, (South Africa), 1996 (hereinafter the
AZAPO case), para. 22.
98
Ronald C. Slye, The Legitimacy of Amnesties Under International Law and General Principles of AngloAmerican Law: Is a Legitimate Amnesty Possible?, 43 VA. J. INT’L L. 173, 182 (2002).
99
Burke-White, W. (2001) ‘Reframing Impunity: Applying Liberal International Law Theory to an Analysis of
Amnesty Legislation’ in Harvard International Law Journal, 42, p. 467.
100
The Peace-Justice Dilemma And Amnesty In Peace Agreements By Adam Penmanavailable at
101
Ibid
102
Amnesty Act V.S. ICCAre Traditional Mechanisms Alternatives to Reconciliation? A thesis submitted
byHANAYO OZAKI to the European University Center for Peace StudiesStadtschlaining/Burg, Austriain
partial fulfillment of the requirementsfor a Master of Arts degree in Peace and Conflict StudiesJune 2006
103
Ibid
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establishment of non-exploitative social structures.104 Cease-fire and signing a peace agreement
are important; however in order to achieve sustainable peace, roots causes of the conflict should
be underlined, and basic needs of conflicting partied should be addressed during the peace
process.105
In the past, human rights abusers, such as Sierra Leone’s FodaySankoh, bypassed accountability
for war crimes, living out their lives in relative comfort and harbored by other states with the
approval of the international community.106 But this precedent is unwinding, as the current ICC
case of former Liberian President Charles Taylor and the International Criminal Tribunal for
Rwanda (ICTR) demonstrate.107 Moreover, recent ‘amnesty for peace’ negotiations in Juba,
Sudan between the Ugandan government and Joseph Kony’s rebel group, the Lord’s Resistance
Army (LRA) –accused of countless human rights atrocities in Northern Uganda108 – and the
questions hovering over the fates of rebel leaders in the Democratic Republic of the Congo
(DRC), have made the dilemma of amnesty for peace a priority issue for the future of peace
agreements in Africa.109 Because, the new globalization of justice, the growing arch of
international human rights law and the increasing weight of the International Criminal Court
(ICC) in the international system have changed or perhaps diluted the doctrine of state
sovereignty, and jump-started a campaign for post-conflict justice.110
3.1. Legitimate Amnesties
Scholar Ronald Slye proposes six criteria for a legitimate amnesty, what he terms an
“accountable amnesty,” involving some form of accountability and more than symbolic relief to
victims.111 In his opinion, the amnesty granted as part of South Africa’s Truth and Reconciliation
Commission is the only amnesty thus far that comes close to including all six elements.112
First, an accountable amnesty must be democratically decided;113 it cannot, like the amnesties
granted in Argentina114 and Chile,115 be imposed by an outgoing government. Second,
104
Barash, David P. Peace and Conflict Studies (California: Sage Publications, 2002): 8.
105
Supra note 59
FodahSankoh was the leader of the rebel faction Revolutionary United Front (RUF) in the 10-year-long
Sierra Leone civil war. He was indicted on 17 counts of war crimes but died ‘peacefully’ awaiting trial.
107
The prosecution of war crimes from the Liberian and Rwandan conflicts demonstrate that there is active,
internationally endorsed, political will to end impunity.
108
Amnesty International (AI) (2006) ‘Uganda: Amnesty International Calls for an Effective Alternative to
Impunity’
in
AI
Index:
AFR
59/004/2006,
available
at
<http://web.amnesty.
org/library/Index/ENGAFR590042006?open&of=ENG-UGA>, accessed on 14 July 2007.
109
Supra note 64
110
Supra note 64
111
Ronald C. Slye, The Legitimacy of Amnesties Under International Law and General Principles of AngloAmerican Law: Is a Legitimate Amnesty Possible?, 43 VA. J. INT’L L. 173, 179 (2002). at 245-46.
112
Ibid at 246.
113
Ibid at 245.
114
Forced to resign upon defeat, the outgoing government enacted a blanket amnesty law before leaving
office.
115
Shortly into Pinochet’s reign—in 1978—the military granted itself a near-blanket amnesty that covered
almost all of the crimes committed in the dictatorship’s first five years.
106
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accountable amnesties must exclude serious crimes under international law.116 The individuals
most responsible for the atrocities must be held accountable in some way.
Third, those seeking amnesty must publicly account for their crimes.117 Obviously this element
does not require a trial, but rather some form of public confession. Fourth, and linked to the third
element, there must be an opportunity for the victims to question the individuals seeking
amnesty, or at least a means for the victims to challenge their application for amnesty. 118 Fifth,
the amnesty must provide meaningful reparations or other concrete benefit to victims.119
Finally, the amnesty cannot stand alone as the sole mechanism by which the country transitions
to a “human rights friendly regime.”120 Rather, the amnesty must be a part of a larger
comprehensive reconciliation package “aimed at addressing long-standing and serious societal
tensions and injustices.”121
Slye’s approach assumes that the nation possesses an infrastructure and resources sufficient for
the task. More subtly, his criteria requiring that the public have an opportunity to question those
people seeking amnesty raises further questions about whether a nation would be able to impose
adequate safeguards to legitimize the process.122 From a more specific standpoint, it appears that
Slye does not always require all six categories to be met in his analysis of amnesties. In his
comments concerning South Africa’s post-apartheid amnesty, he referred to it as accountable,
thereby suggesting that its transitional scheme fits all of his criteria. 123 South Africa, however,
allowed amnesty for the crime of apartheid, which is a crime against humanity. 124 This example,
therefore, does not in fact meet the particular requirement that the amnesty exclude serious
crimes under international law.
The Slye’s analysis of the elements comprising a legitimate amnesty under international human
rights law provides valuable guidelines for countries in or nearing post-conflict situations.
In the opinion of the writer, taking in to consideration these legitimate elements, countries
particularly Africa states can achieve peace settlement in post-conflict. In the absence justifiable
way for amnesty for those rebel forces, it logically and even practically impossible to bring
consensus and to end ongoing conflict by applying prosecution and punishment, because it
cannot be the only solution to bring peace. Sometimes, peace may be attained at the expense of
justice.
3.2. Amnesty Law as a Tool for Ending Violence in Africa
The most compelling argument in favor of amnesties is that, countries used and using amnesty to
end violent internal conflict and ending hostilities, and preventing the commission of future
116
Supra note 74
Ibid
118
Ibid
119
Ibid at 245.
120
Ibid at 245-46.
121
Ibid
122
Supar note 6 Elizabeth B.
123
Ibid
124
The United Nations General Assembly declared apartheid a crime against humanity in 1966. G.A. Res.
2202 (XXI), 1, U.N. Doc. A/6316 (Dec. 16, 1966).
117
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crimes, is a benefit to the international community that competes with the benefit of bringing
those perpetrators to justice.125 For instance, amnesty gives incentive to a certain rebel group to
come back and to collaborators with the government. The rebel group will not come out of the
bush when they know that they will be persecuted or punished. Because of the fear, people will
keep on fighting and remaining in the bush. A promise of unconditional amnesty might be
considered a necessary step in persuading the parties to give up armed struggle and if the intent
is to bring warring parties to the peaceful political process, they need assurances that they will
not be prosecuted.126 Thus, amnesty has an immense advantage for negotiation as well as ending
violence. In other words, the argument for amnesty rests on the need to achieve national
reconciliation so that a conflict-torn society can proceed to build a new democracy based on
tolerance and accommodation of factions that have very recently tried to destroy one other. 127
For example, amnesty for South Africa’s outgoing apartheid regime and opposition groups eased
the country’s transition to democracy, and Nigeria’s offer of protection for President Charles
Taylor helped in the resolution of Liberia’s seemingly intractable war. 128 Thus, the need for
security and stability, in the short-term form of a ceasefire, sanctions the adoption of amnesties at
the expense of justice is reasonable.129 In addition, questions of justice and human rights are
often stumbling blocks, further entangling the negotiation process and rendering the peace
process vulnerable to further potential points of disagreement and contention.130 Therefore,
amnesty is often a pragmatic solution to ending conflict.
The Truth and Reconciliation Commission for Sierra Leone, which when considering the
amnesty for serious human rights violations offered in the Lomé Accord argued:
Sometimes [amnesty] may simply be an unavoidable political reality, dictated by the
need to bring an end to conflict. To be sure, many amnesties given to tyrants in recent
decades are vulnerable to severe criticism. But it is too absolute to rule them out
altogether.131
The protective shield of amnesty also creates a fertile environment in which truths can emerge.
For example South Africa’s Truth and Reconciliation Commission, which granted amnesties for
past crimes and resolved the dilemma of justice and peace by both, easing the exit of the
apartheid regime and recognizing past atrocities committed, helped satisfy the need for justice
and created the foundation for reconciliation.132 Amnesty in South Africa created the space for
reconciliation, bringing former adversaries safely into contact and allowing uncomfortable truths
to emerge. Amnesty facilitated reconciliation, whereas just retribution or punishment for all
125
These countries include Afghanistan (2005), Argentina (1986), Chile (1989), El Salvador (1993), Guatemala
(1996), Haiti (1994), and Sierra Leone (1999).See Charles P. Trumbull IV, Giving Amnesties a Second
Chance, 25 BERKELEY J. INT’L L. 283, 295-97 &nn. 58- 59, 61-62, 66-67 & 69 (2007). at 314.
126
National Reconciliation, Transnational Justice, and the International Criminal Court Juan E. Méndez
available a twww.iilj.org/courses/documents/MendezArticle.pdf
127
Ibid
128
Nigerian President Olusegun Obasanjo offered Taylor safe exile, on condition that he stayed out of
Liberian politics in the hope that peace will fill the vacuum left.
129
Supra note 64
130
Ibid
131
Final Report of the Truth & Reconciliation Commission of Sierra Leone, Vol 1, ch 1, para 79.
132
Ibid
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apartheid era crimes would have separated perpetrators from victims, and genuine reconciliation
would have been impossible. South Africa turned away from civil war during the transitional
negotiations, and slid peacefully into democracy. The truth set South Africans free, and amnesty
helped facilitate the truth and the opportunity for reconciliation and, ultimately, freedom.133
However, an amnesty added to the peace package when negotiations are proceeding, or one
granted during a ceasefire should not be considered necessary for the end of the conflict.134
On the other hand, there are situations where the offer of an amnesty may be the only way to
begin peace talks. For instance, this may be the case in Uganda, where Joseph Kony and other
members of the Lord Resistance Army (LRA) are requiring amnesty before any talks concerning
peace are initiated.135 In situations like this, the lack of prosecution accompanying the amnesty
would be outweighed by the benefit of ending the conflict and the suffering of countless
civilians.136
3.3. Amnesties During Peace Negotiations
Where parties in a conflict begin to move towards political negotiations, temporary immunities
or amnesties are often offered to enable opposition leaders who have been detained or forced into
hiding or exile to return so that they can participate in thenegotiations without fear of
prosecution.137
The Truth and Reconciliation Commission for Sierra Leone, asserted that
[A]mnesties should not be excluded entirely from the mechanisms available to those
attempting to negotiate a cessation of hostilities after periods of brutal armed conflict.
Disallowing amnesty in all cases would be to deny the reality of violent conflict and the
urgent need to bring such strife and suffering to an end.138
Similarly, in a February 1990 speech to the South African Parliament, which paved the way for
public negotiations with the African National Congress (ANC), President F.W. de Klerk
announced that legislation would be enacted to grant indemnity to non-violent political prisoners
and exiles, and to repeal the ban on anti-apartheid political parties.139The prison releases and
indemnities were subsequently enacted in the 1990 Indemnity Act and 1992 Further Indemnity
Act,140 and the process culminated following democratic elections with the 1995 Promotion of
133
Ibid
Ibid
135
See Christine H. Chung, The Punishment and Prevention of Genocide: The International Criminal Court
as a Benchmark of Progress and Need, 40 CASE W. RES. J. INT’L L. 227, 240(2007).
136
It can be argued that this requirement could foster greater violence, with one or more sides to a conflict
using violence to make a situation desperate enough that an amnesty is proposed. The idea, however, is to
prevent the automatic inclusion of an amnesty in a transitional arrangement.
137
The Role of Amnesties in Conflict Transformation Dr. Louise Mallinder School of Law, Queen’s University
Belfast, 11 March 2009
138
Supra note 98, Vol 3b, ch 6, para 11.
139
F.W. DE KLERK, „Address by the State President, Mr FW De Klerk, DMS, at the Opening of the Second
Session of the Ninth Parliament of the Republic of South Africa, Cape Town, 2 February 1990‟.
140
Indemnity Act 1990 (No. 35), 18 May 1990; Further Indemnity Act 151 (1992). For a discussion of these
laws, see P. PARKER, „The Politics of Indemnities, Truth Telling and Reconciliation in South Africa: Ending
134
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National Unity and Reconciliation Act, which granted a broad amnesty for state and non-state
forces for political crimes, including serious human rights violations.141 Throughout the South
African transition, the evolving approaches to amnesty of both the apartheid government and the
ANC were reflective of the changing balance of power between the parties. 142 Such pre-peace
agreement amnesty and indemnity provisions can be crucial for creating the conditions in which
antagonistic groups can forge a dialogue and learn to trust each other, which can be an essential
component of reaching a peace settlement.143For example, a recent survey by Vinjamuri and
Boesenecker found that amnesty is the most frequently occurring ‘’justice mechanism‟ contained
in peace agreements, as it was a feature of 30 of 77 agreements reached between 1980 and
2006.144
In contrast, the survey revealed that trials and truth commissions were ‘’rarely specified in peace
agreements themselves‟.145The prevalence of amnesty laws resulting from negotiation processes
is perhaps a reflection of conflict resolution approaches to violent conflict, where negotiators are
encouraged to ‘move from zero sum, destructive patterns of conflict’146 and to make
‘’compromises’’.147In general, though Amnesties can merely suppress injustices and undermine
the rule of law, including international law. However, Amnesties particularly in Africa can
induce the end of conflict and provide space for truth and authentic reconciliation to emerge
without separating former adversaries or burdening limited state resources by punishing
perpetrators.
4. CONCLUSION
Apartheid without Forgetting,‟ (1996) 17 Hum. Rts L. J. (Human Rights Law Journal) 1; R. KEIGHTLEY,
„Political Offences and Indemnity in South Africa,‟ (1993) 9 S. Afr. J. Hum. Rts (South African Journal on
Human Rights) 334.
141
Promotion of National Unity and Reconciliation Act (1995) s 18.
142
L. MALLINDER, „Indemnity, Amnesty, Pardon and Prosecution Guidelines in South Africa‟, Working
Paper No. 2 from Beyond Legalism: Amnesties, Transition and Conflict Transformation project, Institute of
Criminology and Criminal Justice, Queen‟s University Belfast 2009.
143
Supra note 104
144
VINJAMURI & BOESENECKER, op cit n 72, at 16. Where amnesty was not explicitly mentioned in the
peace agreement, there may have been an implicit understanding between the negotiators that
prosecutions would not be pursued. For example, it is widely believed that the negotiators of the 1984 Naval
Club Pact in Uruguay reached a secret agreement that the state would not investigate or prosecute military
crimes. See eg A. BARAHONA DE BRITO, Human Rights and Democratization in Latin America: Uruguay
and Chile, Oxford University Press, Oxford, 1997, p78. Similarly, Hayner has argued that among the
negotiators of the 2003 Comprehensive Peace Agreement for the conflict in Liberia „verbal assurances from
other factions and international participants made clear that no prosecutions were planned‟, see P.
HAYNER, Negotiating Peace in Liberia: Preserving the Possibility for Justice, Centre for Humanitarian
Dialogue, Geneva, 2007, p5.
145
Ibid, op cit n 72, at 26.
146
H. MIALL, „Conflict Transformation: A Multi-Dimensional Task,‟ in M. Fischer, H.J. Gießmann, & B.
Schmelzle (eds) Berghof Handbook of Conflict Transformation, Berghof Research Center for Constructive
Conflict Management, Berlin, 2004, pp3-4.
147
J. AUVINEN & T. KIVIMAKI, „Conflict Transformation in South Africa,‟ (2001) 28 Politikon65 at 67.
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Amnesty can serves as a means to end an ongoing conflict as soon as possible to attain peace and
also for reconciliation and social harmony in a society, because there are some conflicts where
peace would be impossible to achieve without an amnesty.
All amnesties, regardless of their scope, are usually passed in one of three contexts, these are;
self-amnesties, amnesties related to truth commissions and amnesties to end conflict.
The expansion of international human rights and humanitarian law has meant that serious
international crimes have come to be viewed as in the interests of the world community as a
whole because they threaten the peace and security of humankind and because they shock the
conscience of humanity that, Over the last few decades, with the emergence of an international
criminal prosecution system, a general presumption of illegality of amnesties for international
crimes has developed.
Various problems and dilemmas related to amnesty have characterized African conflict and its
resolution, particularly since the late 1990s. Africans in order to create peace in post-conflict
they adopted amnesty, though its legality under international law is questionable.
However, amnesty has far-reaching and in-depth significant to attract parties to negotiate a peace
agreement and end conflict. This is the first priority in preventing perpetual human rights
violations. For example, amnesty for South Africa’s outgoing apartheid regime and opposition
groups eased the country’s transition to democracy, and Nigeria’s offer of protection for
President Charles Taylor helped in the resolution of Liberia’s seemingly intractable war.
5. BIBLIOGRAPHY
A. REFERENCE MATERIALS
1. Research Brief: Pardons in international jurisprudence International Center for Transitional
Justice
(ICTJ)
November
2008
available
atwww.swisspeace.ch/.../Carranza_Ruben_The_Right_to_Reparations.pdf
2. Amnesty Act V.S. ICC Are Traditional Mechanisms Alternatives To Reconciliation? available
atwww.aspr.ac.at/epu/research/Ozaki.pdf
3. Amnesty for war crimes: Defining the limits of international recognition YASMIN NAQVI
available atwww.icrc.org/eng/assets/files/other/irrc_851_naqvi.pdf
4. Amnesties In A Time Of Transition Elizabeth B. Ludwin
atwww.docs.law.gwu.edu/stdg/gwilr/PDFs/41-3/41-3-LUDWINKING.pdf
King*
available
5. Rule-Of-Law Tools For Post-Conflict States Amnesties. United Nation New York and Geneva,
2009 United Nations Publication Sales No. E.09.Xiv.1Isbn 978-92-1-154187-8 available
atwww.ohchr.org/Documents/Publications/Amnesties_en.pdf
6. Domestic Amnesty and International Jurisdiction Jonathan Klaaren1School of Law, University of the
Witwatersrand15
November
International-Jurisdiction
2000
available
atwww.docstoc.com/.../Domestic-Amnesty-and-
49 | P a g e
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www.ijahs.com Volume 3 Issue 1, (Jan-Feb 2016), PP. 24-51
7. Presidential Power Unbound: A Comparative Look at Presidential Pardon Power Jody C. Baumgartner
International
College
in
Beijing
atwww.professional.jodyb.net/Pardons.pdf
Mark
H.
Morris
Miami
University
available
8. Office Of The United Nations High Commissioner For Human Rights Rule-Of-Law Tools For
Post-Conflict States Amnesties UNITED NATION New York and Geneva, 2009 available at
www.ohchr.org/Documents/Publications/Amnesties_en.pdf 9. Articles Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative
Guidelines
for
the
International
Criminal
Court
CarstenStahn
available
atjicj.oxfordjournals.org/content/3/3/695.full.pdf
10. National Reconciliation, Transnational Justice, and the International Criminal Court Juan E.
Méndez available atwww.iilj.org/courses/documents/MendezArticle.pdf
11. The Peace-Justice Dilemma And Amnesty In Peace Agreements Written By Adam Penman
available atwww.kms1.isn.ethz.ch/serviceengine/Files/ISN/101969/.../Chapter+2.pdf
12. Amnesty and International Law: The case of the Lord’s Resistance Army insurgents in Northern
Uganda
Kasaija
Phillip
Apuuliavailable
atwww.kms1.isn.ethz.ch/serviceengine/Files/ISN/98115/...d2ce.../Chapter3.pdf
13. Amnesty And International Law: The Experience Of The Special Court For Sierra Leone Sarah
Williams available atwww.hrlr.oxfordjournals.org/content/5/2/271.full.pdf
14. Amnesty International Senegal Commentary On Implementing Legislation For The Rome
Statute
October
2007
AI
Index:
AFR
49/002/2007available
atwww.unhcr.org/refworld/pdfid/484cd6f017.pdf
15. Legality of amnesties in international humanitarian law The Lomé Amnesty Decision of the
Special
Court
for
Sierra
Leone
SIMON
M.
MEISENBERGavailable
atwww.icrc.org/eng/assets/files/other/irrc_856_meisenberg.pdf
16. Civil Society and Conflict Resolution: The Role of the Acholi Religious Leaders Peace Initiative
(ARLPI) in the Northern Uganda Conflict Apuuli Phillip KASAIJA available
atwww.istr.org/conferences/bangkok/.../Kasaija.ApuuliPhillip.pdf
17. Amnesty for Apartheid Crimes? The South African Truth and Reconciliation Commission and
International Law by Gunnar Theissen27 November 1998 available atuserpage.fuberlin.de/~theissen/pdf/LLM%20Thesis.PDF
18. Individual Accountability In South Africa: Cultural Optimum Or Political Facade? By Lorna
Mcgregoravailable at www.asil.org/ajil/recon3.pdf 19. The Cambodian Amnesties: Beneficiaries And The Temporal Reach Of Amnesties For Gross
Violation
Of
Human
Rights
Ronald
C.
Slyeavailable
athosted.law.wisc.edu/wilj/issues/22/1/slye.pdf
20. International
Criminal
Court
Justice
IN
atwww.observatori.org/paises/pais_78/documentos/timor.pdf
The
Shadowavailable
21. Literature
Review:
Trafficking
In
Post
Conflict
Situations
atwww.usaid.gov/our_work/cross.../Trafficking_Conflict_July2006.pdf
available
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www.ijahs.com Volume 3 Issue 1, (Jan-Feb 2016), PP. 24-51
22. International Law and Domestic Law: Definitely an Odd Couple By Ximena Fuentes
Torrijoavailable atwww.law.yale.edu/documents/pdf/sela/XimenaFuentes__English_.pdf
1.
2.
3.
4.
B. LAWS
The International Covenant on Civil and Political Rights (ICCPR)
The Genocide Convention
The Convention Against Torture
The Geneva Conventions
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