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  • Diya Rajesh Kumar Vaya

The Amnesty Exception: The Oscillating Stance between Legality and Illegality in..........

This article is authored by Diya Rajesh Kumar Vaya, a Third Year Student of B.S.W. LL.B. at Gujarat National Law University, Gandhinagar.



Overview

Peace and justice are the two important considerations that arise in a post-conflict society. However, they are often seen as incompatible goals. The paradoxical issue of peace vs justice has been omnipresent in the international law discourse. This issue has become even more complex with the contemporary application of amnesties for those involved in human rights abuses, including crimes against humanity, as in the case of Libyan Saif-Al-Islam Gadaffi. While there exists a presumptive general ban on blanket amnesties, the legality of situation-specific and conditional amnesty vis-a-vis international law is yet to be conclusively determined. Some scholars proclaim that there exists a moral and legal duty to prosecute perpetrators of grave international crimes to ensure justice and deter impunity. However, others point out the benefits of a conditional amnesty to thwart the danger of potentially destabilizing peaceful restructuring and reconciliation of the society by insisting on prosecution.

In such an ambiguous situation, it is critical to determine the legality and validity of a national amnesty for those committing human rights abuses, under international law. This essay aims to, first, decode the existing jurisprudence surrounding the legality of an amnesty under international law, second, examine the decision of the ICC Appeals Chamber in the 2020 Gaddafi Admissibility Decision and third, recommend a holistic criterion to determine whether an amnesty is acceptable under international law in a particular case.



Introduction

An amnesty is a sovereign act of oblivion for past acts, granted to individuals guilty of crime. It may be based on certain conditions and a reassurance that they will not repeat the same acts. Those in favour argue that it is a necessary restorative measure to ensure that the society peacefully undergoes reconciliation and is protected from social and political isolation. Those who are against it argue that the grant of an amnesty brings about impunity, unaccountability, allows criminals to easily escape lability, and prevents victims from achieving true justice. Hence, the question of the grant and use of an amnesty, to allow the perpetrators of heinous crimes to escape criminal liability, has gained a controversial reputation.

Ascertaining the international legal status of amnesties is a complicated procedure due to two main reasons: first, there is no consensus on the treatment of amnesties under international law. Second, while international treaties mention an explicit duty to prosecute, there is neither mention of the validity, legality or effect of the grant of an amnesty to such violators, nor an explicit ban on amnesty.



Decoding the International Jurisprudence on the Legality of Amnesties

The oscillating stance of international law on the issue of amnesties is a matter of concern. While it is argued that the jurisprudence on this issue is developing, presently the ambiguity is blinding. Various treaties such as the Geneva Conventions 1949, Rome Statute of the ICC, Genocide and Torture Conventions explicitly provide for a duty to prosecute crime of a grave nature which includes "grave breaches," crimes against humanity, genocide, crimes of aggression, war crimes, torture etc. Yet, some commentators argue that an amnesty exception does exist within the Rome Statute based on an interpretation of its provisions. First, Article 17(1)(b), provides that in situations wherein the State having jurisdiction decides not to prosecute the accused, the ICC will declare a case inadmissible. However, if the State is unwilling or unable the ICC may exercise its jurisdiction. Second, Article 53(2)(c), which allows the Prosecutor to refuse prosecution where, “a prosecution is not in the interests of justice,” Third, on the basis of Article 16 which gives the Security Council discretionary power to defer proceedings. Fourth, under Article 15, which gives the Prosecutor discretionary powers to decline to prosecute proprio moto. Moreover, Article 6(5) of Additional Protocol II is often invoked to justify the grant of amnesties for war crimes. Several courts have used this provision to support their findings that amnesties are valid under international law, such as the AZAPO case. However, the ICRC interpretation of Article 6(5) states that this provision only provides for "combatant immunity," and cannot be applied to those who violate international law. Hence, it is clear that while treaty-based law places an obligation to prosecute upon States, there is no explicit preclusion of amnesties to alleged perpetrators.

The Inter-American Human Rights System has produced comparatively detailed amnesty case law due to the frequent use of amnesties in South America. These judgments conclude that amnesties that prevent investigation and prosecution of international crimes, such as war crimes, crimes against humanity, including serious human rights violations are impermissible. The IACHR, has explicitly determined that blanket amnesties granted by Chile, Peru, Argentina and El Salvador were incompatible with the rights under the ACHR, led to a complete derogation of human rights and the principles of natural justice. Further, The ICTY pointed out the frivolity of States adopting national measures that absolve its perpetrators from prosecution through an amnesty law for jus cogens norms. It reflected the international consensus against amnesties by stating that amnesties are generally opposed to the duty of States to investigate, to protect and guarantee non-repetition. There have been various other instances where the grant of a national blanket amnesty has been declared illegal.

However, there have also been instances where a qualified or conditional amnesty has been appreciated and accepted under international law. The prime example of an amnesty that was deemed acceptable was in the case of South Africa. The South African Constitutional Court upheld the legality of the amnesty granted. The main argument was that a Truth and Reconciliation Commission had been appointed to unearth the truth, the amnesty was conditional and not granted to all, it was granted on individual case-to-case basis and efforts were made to rehabilitate the victims. Recently, in 2014, the Grand Chamber of the European Court of Human Rights paved way for the possibility of the acceptance of an amnesty which includes compensation for the victims or some reconciliation. The International Law Commission’s Special Rapporteur on Crimes against Humanity also established that national amnesty laws should be be judged on a case by case basis.

Hence, there is no uniformity in the jurisprudence that has developed over the years. There exists acute confusion and ambiguity in the legal treatment of amnesties under international law. However, while there is no explicit general ban, blanket amnesties are generally considered unacceptable. Amnesties that are unconditional and only enacted as a "sham trial" will not be accepted. A conditional amnesty may be accepted, based on the circumstances and conditions of its grant.



Examining the Legality of the Amnesty Granted in the Case of Sail-Al-Islam Gaddafi

Recently, the case against Saif-Al-Islam Gaddafi was declared admissable by the ICC. While the Court did not rule on the legality of the national amnesty, it reversed the holding by the Pre-Trial Chamber thatthe grant of amnesty for crimes against humanity is incompatible with international law. There is clear reluctance on part of the ICC to place an explicit ban on amnesties.

While the Appeals Chamber did not rule on the legality of the amnesty law, the Prosecutor's Office in its response argued that the Libyan national amnesty law was invalid on various grounds. They argued that, first, the law did not exclude any category of perpetrators and included even high office holders or those with high responsibility who led the crimes. Second, the law allows exclusion from liability in international crimes, which is against the international legal consensus developed over the years. Third, the law didn’t provide for any effective means of accountability or reparations to the victims. Fourth, while the law does provide for the grant of amnesty through a reasoned judicial decision, it does not provide for transparency of the procedure. Fifth, there is no evidence that Gaddafi contributed to any peace-building efforts or that the grant of amnesty to him will contribute to any peace or reconciliation.

The reluctance of the ICC to conclusively rule on the subject of amnesties is premised on the argument that a conclusive rule can cause future complications. However, the Prosecution's arguments in this case show a growing trend towards the acceptance of a conditional amnesty that is truly involved in peaceful rehabilitative efforts. A very interesting aspect of these amnesties is the focus on victims. While criminal prosecution is sidelined, justice is not. An amnesty, to be legal, must provide for rehabilitation of individual victims and involve a judicially transparent procedure. These aspects definitely make conditional amnesties a worthy option vis-a-vis criminal prosecution.



Recommended Criteria to Determine the Legality of an Amnesty in International Law

There are certain guidelines and uniform practice that have been adopted in several cases, as well as certain fundamental positions of law have been reiterated time and again. This allows us to make certain strong inferences. The most important guidelines on amnesties are the Belfast Guidelines, which allow us to create a perspective of valid and legal amnesties as opposed to illegal and blanket amnesties. These guidelines have also been cited by the ICC.

Based on the jurisprudence that has developed, it is clear that for an amnesty to be valid under International Law, certain pre-conditions need to be fulfilled:

First, an amnesty must achieve objective of establishment of peace and initiating or furthering reconciliation. There is evidence that amnesty and truth and reconciliation procedure of South Africa, though criticized, prevented a civil war. The UN has also supported amnesty agreements that covered international crimes that were necessary to end military stand-offs in Haiti. Belfast Guideline 4A also states that for the pursuit of peace, accountability, disarmament and certain objectives, an amnesty can be given.

Second, the amnesty must be given along with other measures of eliciting accountability such as truth commissions, investigatory bodies, etc. This idea of justice implies that a conditional amnesty with an effective truth commission could bring justice. United Nations, has worked for establishing truth commissions as a mechanism complementary to criminal trials, with a limited amnesty to those “least responsible” for perpetrating the least serious crimes in post conflict Cambodia, Iraq, Afghanistan, etc. Belfast Guideline 5 reiterates the importance of accountability measures.

Third, Blanket amnesties should be prohibited entirely. Amnesties negotiated between incoming and outgoing regimes to facilitate transition, with proper legal body making decisions on grant of amnesty should be created. Amnesties such as those granted in Spain and Argentina will not be allowed. Belfast Guideline 14 reiterates the same.

Fourth, amnesties should be applicable only to subordinates, and NOT that those “most responsible” or high-level authorities responsible for perpetrating the crime. The grant of amnesty to Gaddafi, Pinochet, Sary, and other leaders who are the main powerful perpetrators is wrong. This exemplary approach was adopted in Cambodia as well as Sierra Leone, reiterated in Belfast Guideline 8.

Fifth, amnesty should not be granted for jus cogens crimes such as torture, crimes against humanity, genocide, grave breaches of Geneva Conventions, etc. Guideline 7 of the Belfast Guidelines requires exclusion of serious international crimes from the grant of an amnesty.

Sixth, amnesty should be granted only upon the fulfillment of pre-conditions such as surrendering, participation in restoration efforts to victims, truth telling, and a promise to prevent conduction of such crimes in the future. Belfast Guideline 11 and 12 state the same.

International law as a legal regime needs to come to terms with existent political realities in order to remain relevant. These guidelines can serve as a framework in determining the legality of an amnesty granted in the present and the future.



Conclusion

A post-conflict state is often caught in an extremely vulnerable position, wherein it may be forced to grant amnesty in exchange for peace and end of violence as it transpired in South Africa. It is not pragmatic to pit peace against justice. The most cogent and practical manner to achieve the equilibrium between the two, is through the grant of a conditional amnesty that is in accordance with International Law. There is no doubt about the ambiguity surrounding the status of amnesties under international law. However, it is clear through the jurisprudence developed over the years, that a conditional amnesty, with measures of victim rehabilitation and accountability granted after a transparent judicial process is a worthy and credible way out of violence and war.



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