Yasmin Naqvi -
Limits which international law imposes on a domestic or international court’s ability to recognize an amnesty for war crimes
International law as a legal regime needs to accord with political realities in order to remain relevant, but should always be interpreted in a manner consistent with its rationale. If credence is given to the notion of transitional or restorative justice which secures the principle of legal adjudication of violations and consequently the basic tenets of democratic order and fundamental human rights, while not requiring unlimited prosecution, then limited amnesties within internationally accepted parameters can be considered consistent with the fundamental principles of international law as well as with the purposes and principles of the UN Charter.
It is thus necessary to determine whether or not an amnesty law is justified under international law. It is possible to glean from State practice and the decisions of national and international courts the elements which would seem to point towards an acceptable form of amnesty. In summary these would appear to be the following cumulative criteria: (1) the amnesty is prescribed and limited to achieving certain objectives, in particular, the objectives of securing peace and initiating or furthering reconciliation; (2) the amnesty is accompanied by other accountability measures such as truth commissions, investigatory bodies, or lustration; (3) the amnesty is not self-proclaimed, i.e., it is the result of negotiation between the outgoing and incoming regimes or of a peace deal brokered by international parties, such as the United Nations; and (4) the amnesty only applies to lower ranking members of armed forces or groups or those considered “least responsible” for the perpetration of international crimes.
Attempts to exonerate persons accused of war crimes which do not fit into the above criteria, or which otherwise fail to conform to the fundamental principles of international law, should not in principle be accorded recognition by domestic or international courts.
Validity on the basis of the purpose of the amnesty
This basis for validity is founded on the argument that but for therecognition of a limited amnesty for war crimes it will be impossible, or at least much more difficult, to secure peace or to initiate or further the process of reconciliation which may be in conflict with a policy of unlimited prosecution.
This argumentation was used by the Constitutional Court of South Africa to justify the broad amnesties granted under the Promotion of National Unity and Reconciliation Act 34 of 1995.142 While this judgment may be criticized for failing to thoroughly examine conventional and customary rules that require prosecution of international crimes and the question whether the Interim Constitution intended (or was able) to overrule these,143 there is considerable evidence on the other hand that the “amnesty for truth” deal negotiated between the outgoing apartheid regime and the new government prevented the outbreak of a civil war.144
The UN has also shown support for amnesty agreements covering international crimes that appear necessary to end military stand-offs.145 In recent years, however, there has been a tendency for it to reject the possibility of amnesties for international crimes in peace agreements.146
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 war crimes, a domestic or international court would have to demonstrate that the amnesty is justified under the “but for” test as enunciated above. 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 non-prosecution of such nationals accused of international crimes.147
Validity on the basis that the amnesty is accompanied by other accountability measures
This justification stems from the idea that there are significant nuances to the concept of justice in transitional societies.148 A “restorative justice” approach suggests that targeted prosecution together with a range of other accountability mechanisms fulfil a State’s duty to address accountability and put an end to impunity. Mr Joinet, in his “Final Report on the question of the impunity of perpetrators of violations of human rights”, proposed under Principle 19 – Purpose of the Right to Justice – that:
“There can be no just and lasting reconciliation (...) without an effective response to the need for justice; the prerequisite for any reconciliation is forgiveness which is a private act that implies that the victim knows the perpetrator of the violations and that the latter has been able to show repentance. Over and above any verdict, that is the essential purpose of the right to justice.”149
This conception of justice implies that a limited amnesty combined with an effective truth commission could satisfy “the essential purpose of the right to justice”.150
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.151
However, there has been a concerted move, headed by the United Nations, towards establishing truth commissions as acomplementary mechanism for trials, together with a restricted amnesty limited to those “least responsible” for perpetrating the least serious crimes. This development can be seen in the post-conflict measures adopted in Sierra Leone152 and East Timor153 and may well also be applied to Cambodia,154 Afghanistan155 and Iraq.156
The introduction of the gacaca157 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.158
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 overturned.159
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.160
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.161 Self-proclaimed amnesties are therefore unlikely to be considered valid under international law.162
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. 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.163
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.164
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. 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.165
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 usually weak in transitional societies. 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.166
This principled/exemplary approach has been adopted in the Statute of the Special Court for Sierra Leone and the Law Establishing the Extraordinary Court of Cambodia, both of which only have jurisdiction over those bearing the most responsibility for crimes committed on their territories.167
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 war crimes could be recognized for persons considered “least responsible”, whereas those in positions of authority should not be covered. Prosecution of persons who were most responsible for designing and implementing a policy or plan to commit war crimes, together with a limited amnesty for those considered “least responsible”, would fulfil a State’s duty not to condone such violations or recognize as lawful a situation created by the breach of jus cogens.168
This theory is also consistent with the Restatement view, according to which customary law would be violated by complete impunity for repeated or notorious instances of human rights violations, but would not require prosecution of every person who committed such an offence.169
This conclusion has significant ramifications with regard to the international principle of immunity for foreign heads of State and other high-ranking officials. Almost all the special courts set up to deal with war crimes and other serious international crimes exclude immunity for State officials.
However, in the light of the ICJ decision in the Arrest Warrant case, in which the Court upheld the absolute immunity of incumbent ministers of foreign affairs under customary law,170 domestic and quasi-international courts may face a further legal obstacle in prosecuting persons most responsible for the commission of war crimes. In some domestic cases dealing with the immunity of foreign States the jus cogens nature of war crimes has been used to argue the denial of sovereign immunity, mainly on the ground that conduct which is a criminal offence under international law cannot simultaneously be protected by international law.171
This is a cogent argument for denying immunity to authorities or officials of foreign States who are responsible for plans or policies for the commission of war crimes. The consequences of the jus cogens nature of war crimes in regard to the principle of immunity was an issue not touched upon in the Arrest Warrant case.172
It is submitted that there are strong arguments for denying the immunity of former high-ranking State officials on the basis of the jus cogens nature of the prohibition of war crimes, which supersedes any other principle of international law, including immunities of foreign heads of State.173
Furthermore, to uphold the immunity of a person accused of ordering the commission of large-scale war crimes would arguably amount to recognizing a situation created by the serious breach of a peremptory norm as lawful, a result clearly prohibited under customary international law. Considering that immunities for foreign officials are a privilege deriving from the sovereign independence of States, it is illogical that international law would give protection to State officials for acts deemed so serious that they are prohibited in all circumstances by that same international legal system.
This may be contrasted with the argument that certain limited amnesties for jus cogens crimes such as war crimes may be recognized because they do not constitute a recognition of the situation created by the breach of the peremptory norm as lawful. In the case of an internationally acceptable amnesty, this bar to prosecution of war crimes is motivated by the need to facilitate the most effective progress towards peace; its purpose is certainly not to protect those most responsible for such crimes. In addition, other accountability measures instituted in conjunction with the amnesty would ensure that the truth about the violations is documented, thereby enabling victims to have some sense of justice being done.
Obligations incumbent on States with regard to the enforcement of rules prohibiting war crimes do not preclude international recognition of restricted amnesties for war crimes which nonetheless enable societies to acknowledge and condemn offences committed during conflict or repressive rule.
Under customary international law, States may be either entitled or obliged to prosecute those accused of war crimes depending on the nature of the offence. The trend towards a customary duty to prosecute all war crimes should not be equated with a total invalidation of amnesties for such offences. What has been rejected by the international community is the culture of impunity, which was seen as an impediment to peace and the antithesis of all notions of justice.
Amnesties covering war crimes may be recognized in the limited circumstances where their non-recognition would amount to a threat to peace and security, for example, by undermining a peace agreement or provoking the overthrow of a newly established civilian government. Even in these circumstances, only those amnesties which are limited to internationally acceptable parameters and which are not inconsistent with the fundamental obligations of States under customary law should be accorded international validity.