Any amnesty process must, however, satisfy minimum conditions if it is to carry and maintain its legitimacy. First, conferring amnesties or immunities, or exercising a discretion not to prosecute or extradite,^[30] must be necessary as a last resort, to secure fundamental objectives such as the preservation of a fragile peace agreement or the survival of a transitional government,^[31] national reconciliation, or to save lives. Allowing prosecution in such circumstances would imperil vital countervailing public interests. A corollary of this first condition is that if the preconditions for the grant of amnesties have disappeared — for example, where a party in a civil war resumes the use of violence — then agreement on amnesties must also dissolve.^[32] The cost of these approaches is that criminal justice — including punishment, retribution, deterrence, and satisfaction for victims — is rationally traded for, or weighed against, other more pressing public goods.

Second, amnesties tailored to the specific circumstances of particular individuals following a fair and transparent determination procedure (such as a national reconciliation process) are more acceptable than blanket amnesties that immunise whole classes of people, irrespective of their individual responsibility.^[33] There should also be alternative forms of accountability for perpetrators and redress for victims, for example, through civil claims, compensation schemes and rehabilitation programs, and broader efforts to prevent violence through disarmament, social integration of ex‑combatants, and institutional restructuring.^[34]

Further, amnesty processes are more legitimate where they do not foreclose the prosecution of the most serious crimes, whether for offenders who fail to fully disclose their crimes (as in post-apartheid South Africa) or for more serious crimes (as in independent East Timor).^[35] This was the approach in Iraq in 2006, when the Iraqi Prime Minister offered amnesties to insurgents who had not targeted civilians or committed war crimes.^[36] By 2007, however, Iraq’s (Shi’ite) Prime Minister was deeply opposed to amnesties being offered to Sunni insurgents by the US military commander in Iraq (in exchange for those insurgent groups ceasing hostilities against US forces) due to concerns about their potential impact on sectarian violence in Iraq.

An amnesty offer by Indonesia to members of the Free Aceh Movement (GAM) in 2005, along with the release of more than 1500 prisoners, was similarly limited in scope, by encompassing only political offences (such as rebellion) and excluding ordinary criminal offences such as rape, murder and arson. The agreement between Indonesia and GAM provides for the Aceh Monitoring Mission to decide on amnesty disputes,^[37] which is essential given that it is unclear whether some offences, such as the illegal possession of weapons, will be classed as political or non-political. Amnesties are also connected with the establishment of a Commission for Truth and Reconciliation and are conditional in that the continuing use of weapons by GAM members disqualifies them from amnesties. Limiting amnesties to purely political offences (such as treason or sedition), and not extending them to ‘blood’ crimes, was advocated by the International Bar Association in relation to Fiji,^[38] although it may not be practical in higher intensity armed conflicts, particularly where violence by combatants generally complies with humanitarian law.

Third, amnesties granted by democratic parliamentary processes (as in Angola in 2002), or through consultative processes that engage victims and the community, are more likely to produce more appropriate amnesties than those conferred by national leaders upon themselves prior to leaving office. As Judge García-Ramírez found in the Inter-American Court of Human Rights case of Castillo Páez (Reparations):

Claims to democratic legitimacy underlying amnesty offers must, however, be carefully scrutinised. In February 2007, ostensibly to promote reconciliation, the Afghan Parliament passed legislation giving legal and judicial immunity to ‘[a]ll political parties and belligerent groups who fought each other during the past two and a half decades’.^[40] The legislation expressly doubted the credibility of reports by Human Rights Watch about atrocities committed by senior jihad and national leaders. Afghan politicians were free to pursue this approach because the Bonn Peace Accord of December 2001 did not address transitional justice issues or establish mechanisms for dealing with them, not least because ‘all parties to the peace agreement were involved in serious human rights abuses during the course of the conflict’ there.^[41] Indeed, the UN Secretary-General’s Special Representative, Lakhdar Brahimi, seemingly promoted peace over justice in the immediate political stabilisation of Afghanistan, paradoxically undermining peace and security by encouraging further violence by regional warlords and allowing serious rights violators to take up positions in the government and the judiciary.^[42] A number of suspected war criminals hold positions in the Afghan government and military, with the support — purportedly in the interests of stability — of some foreign governments involved in the multinational force stabilising Afghanistan.^[43]

In response to the legislation, the Afghanistan Independent Human Rights Commission complained that the legislation ‘will only promote impunity and leave those with serious human rights violations unpunished’.^[44] The legislation is incompatible with principles in the Afghan government’s own ‘Action Plan for Peace, Reconciliation and Justice in Afghanistan’, which states that the commission of international crimes ‘does not fall into the scope of amnesty on the basis of the principles of the sacred religion of Islam and internationally accepted standards’.^[45] The Action Plan itself had been based on widespread consultation with Afghans throughout the country. Moreover, a survey of 6000 Afghans by the Afghanistan Independent Human Rights Commission found that 90 per cent of respondents wanted human rights violators removed from office, and 40 per cent wanted them prosecuted, indicating popular unease about forgiving violations.

Further, amnesties conferred by one group that benefited from the crimes of others should be precluded for bias as in the case of self-amnesties. For example, the Reconciliation, Tolerance and Unity Bill 2005 (Fiji) proposed amnesties following full disclosure of crimes by those involved in a racialised coup by indigenous Fijians against a democratic, ethnic-Indian-led government in 2000.^[46] The Bill was sponsored by an indigenous-led government, which came to power as a result of the coup. The International Bar Association has criticised the proposal for being unilateral rather than negotiated; for immunising acts aimed at overthrowing a democratic government; and for encouraging impunity and a coup culture, not least because amnesties following an earlier coup in 1987 did not prevent the next coup.^[47]

In a different example, in Palestine, Irgun leaders such as Menachim Begin, a future Israeli Prime Minister, were never brought to justice for ‘terrorist’ crimes committed during the violent struggle to establish Israel. Underlying the exclusion of self‑amnesties or the beneficiaries of others’ violations is a concern for non‑discrimination, that is, that if amnesties are part of a reconciliation process, they should be extended equally to all participants in a conflict, without distinction.

Fourth, in most situations, since international crimes are matters of international concern, no single state should be permitted to decide unilaterally whether to confer amnesties. Although the views of the affected state should be accorded significant weight, they are not the exclusive consideration. It may not be acceptable to the international community, for example, for Afghanistan to offer an amnesty to insurgents fighting against the Afghan government and US forces where they extend to those suspected of serious crimes such as Taliban leader Mullah Mohammad Omar and sectarian ‘warlord’ Gulbuddin Hekmatyar.^[48]

In a different example, Britain’s willingness to secretly negotiate with Hamas and Hizballah in 2005 was questioned by Israel, the US and others, although that case is more complex because of the success of those organisations in democratic elections in the West Bank, Gaza and Lebanon in May and December of 2005 and January 2006.^[49] While electing terrorists may be democratic in the thinnest popular sense of democracy, the better normative view is that democracies founded on human rights principles ought to be constrained by rights-based limits precluding terrorism. While human rights law is not pacifist — tolerating the taking of human life in some circumstances (as in self-defence, or under humanitarian law in armed conflict) — it does not permit the instrumental killing of innocent civilians for political purposes,^[50] which is the essence of terrorist action.