While domestic legal systems are infused with discretionary political concepts such as immunities, amnesties and pardons, the availability of (domestic or international) amnesties for international crimes is an unsettled question.[12] The issue is not directly addressed in the 1998 Rome Statute [13] in relation to international crimes within the jurisdiction of the International Criminal Court (ICC).[14] State practice on the availability and conditions of amnesties is variable, while international organisations have similarly rejected and endorsed amnesties in different contexts.[15] There is no explicit customary rule against amnesties.[16] Amnesties have also featured prominently in peace agreements (including those brokered by the United Nations (UN))[17] for ending protracted non-international armed conflicts and terrorist campaigns, as a mechanism helping to bring peace and to restore or aid the transition to democracy.
International human rights law does not expressly preclude amnesties, although they may be incompatible with human rights law where they result in impunity for serious rights violations.[18] Of course, criminal prosecution is not the only means of avoiding impunity for serious rights violations, and a variety of methods outside the criminal justice system may effectively remedy such violations. In addition, in exceptional cases, amnesties that would confer impunity (where there are no alternative means of accountability) may still be lawful where, for instance, other branches of international law (such as the enforcement powers of the UN Security Council under Chapter VII of the UN Charter) provide a basis for suspending human rights to secure international peace and security.[19]
There is, however, a trend in practice towards the restriction of amnesties for serious international crimes. In the Lomé Amnesty Case the Special Court for Sierra Leone suggested that there is a ‘crystallizing international norm that a government cannot grant amnesty for serious violations of crimes under international law’.[20] For example, in 2005, Argentina’s Supreme Court declared unconstitutional two laws of 1986‑87, which effectively conferred amnesties on those responsible for violating human rights in Argentina’s ‘Dirty War’ of 1976‑83.[21] The Court reasoned that amnesty laws conferred by alleged human rights violators upon themselves while still in government violated both international human rights law as well as the duty to prosecute serious international crimes under international law.
Similarly, while the 1999 Lomé Peace Agreement in Sierra Leone conferred an ‘absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives’ between 1991 and 1999, the Statute of the Special Court for Sierra Leone precludes amnesties for crimes within its jurisdiction.[22] In the Lomé Amnesty Case, the Special Court for Sierra Leone found that while the conferral of amnesties is within the sovereign discretion of states, a state cannot exercise that power to deprive other states of universal jurisdiction over international crimes.[23] Thus, an amnesty conferred in one jurisdiction (in that case, by a peace agreement that was held not to comprise an international treaty) may not necessarily hold in other jurisdictions, particularly when the tribunal examining the amnesty is an international or a hybrid tribunal and is thus invested with an international mandate on behalf of the international community, rather than merely reflecting the criminal justice interests of one state.
Some recent instruments to prosecute mass violence have expressly excluded the possibility of amnesties. The Agreement between the UN and Cambodia to establish Extraordinary Chambers to prosecute the Khmer Rouge’s abuses forbids the Cambodian government from requesting ‘an amnesty or pardon for any persons who may be investigated for or convicted of crimes’.[24] However, the Agreement leaves to the Extraordinary Chamber the question of the scope of the one pardon already granted in 1996 for a genocide conviction in 1979. While UN negotiators have sometimes endorsed amnesties in the past, the UN recently signalled a shift away from supporting amnesties for any serious international crimes.[25]
[12] See generally, R Slye, ‘The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?’ (2003) 43 Vanderbilt Journal of International Law 173; D Cassel, ‘Lessons From the Americas: Guidelines for International Response to Amnesties for Atrocities’ (1996) 59 Law and Contemporary Problems 197; K Henrard, ‘The Viability of National Amnesties in View of the Increasing Recognition of Individual Criminal Responsibility at International Law’ (1987) 8 Michigan Yearbook of International Legal Studies 595; A Cassese, International Criminal Law (Oxford: Oxford University Press, 2003) 312‑16; C Stahn, ‘United Nations Peace-Building, Amnesties and Alternative Justice: A Change in Practice?’ (2002) 845 International Review of the Red Cross 193; J Dugard, ‘Dealing with Crimes of a Past Regime: Is Amnesty still an Option?’ (2000) 12 Leiden Journal of International Law 1001; W Burke-White, ‘Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation’ (2001) 42 Harvard International Law Journal 467.
[13] Rome Statute of the International Criminal Court, open for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
[14] On amnesties in the ICC, see C Stahn, ‘Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court’ (2005) 3 Journal of International Criminal Justice 695; J Gavron, ‘Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court’ (2002) 51 International and Comparative Law Quarterly 91; D Majzub, ‘Peace or Justice: Amnesties and the International Criminal Court’ (2002) 3 Melbourne Journal of International Law 247.
[15] Cassese, above n 12, 312‑16.
[16] Prosecutor v Morris Kallon and Brima Buzzy Kamara (Jurisdiction) (Lomé Amnesty Case), SCSL‑2004‑15‑AR72(E) and SCSL‑2004‑16‑AR72(E), Appeals Chamber, 13 March 2004, [82]; Cassese, above n 12, 315. Some writers suggest that there is a trend and presumption against national amnesties: Gavron, above n 14, 116‑17.
[17] R O’Brien, ‘Amnesty and International Law’ (2005) 74 Nordic Journal of International Law 261, 264, 270.
[18] See, eg, Chumbipuma Aguirre et al v Peru (Barrios Altos) (2001) Series C, No 75, [41]‑[44]. In particular, self-amnesty laws were found to violate arts 1(1) and 2 (general obligations to guarantee rights), 8 (right to a fair trial) and 25 (right to an effective remedy) of the Inter-American Convention on Human Rights; see also the concurring opinions of Judge Trindade, [10]‑[11] and Judge García-Ramírez, [9]‑[17]; Barrios Altos (Interpretation of Merits Judgment), IACHR (3 September 2001); Castillo Páez (Reparations) Case (27 November 1998) Ser C, No 43, [103]‑[108] and concurring opinion of Judge García-Ramírez, [6]‑[9]; see also UN Human Rights Committee, General Comment No 20 (1994).
[19] Pursuant to art 103 of the UN Charter, states’ obligations arising under the Charter including enforcement measures imposed by the Security Council take precedence over other international obligations, including those arising under human rights conventions. A recent example is the English case of R (Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327, where it was accepted that a Security Council resolution authorising the detention of terrorist suspects by a multinational force in Iraq lawfully suspended the procedural guarantees in detention provided for under the European Convention on Human Rights.
[20] Lomé Amnesty Case, above n 16.
[21] Simón Case, Argentine Supreme Court, causa No 17.768 (14 June 2005) S.1767.XXXVIII. The decision upheld the findings of lower courts on this issue and confirmed that Argentina’s Congress had validly annulled the amnesty laws in 2003; see C Bakker, ‘A Full Stop to Amnesty in Argentina’ (2005) 3 Journal of International Criminal Justice 1106.
[22] Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 7 July 1999, Lomé, UN Doc S/1999/777, art 9 (and a freedom from any ‘official or judicial action’); Statute of the Special Court for Sierra Leone, art 10.
[23] Lomé Amnesty Case, above n 16, [66]‑[74]; see also S Meisenberg, ‘Legality of Amnesties in International Humanitarian Law: The Lomé Amnesty Decision of the Special Court for Sierra Leone’ (2004) 856 International Review of the Red Cross 837.
[24] Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Signed at Phnom Penh, 6 June 2003, article 11 (Amnesty), available at <http://www.cambodia.gov.kh/krt/pdfs/Agreement%20between%20UN%20and%20RGC.pdf>.
[25] UN Secretary-General’s Report on Transitional Justice and the Rule of Law in Conflict and Post‑Conflict Societies, tabled in the UN Security Council, 6 October 2004, UN Doc CCPR/C/56/D/540/1993, [10]‑[11]; UN Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, February 2005, UN Doc E/CN.4/2005/102 (18 February 2005).