Amnesty is defined as complete and lasting forgetfulness of wrongs and offences previously committed. Therefore, when an amnesty is given, since all deeds are consigned to perpetual oblivion and everlasting silence, no one can be accused or punished for acts before committed.((CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM Vol. 2, para. 989 (transl. by and Joseph H. Drake, Oxford 1995). ))
In my previous post I briefly recounted the background and recent developments in the case against Saif al-Islam Gaddafi at the ICC, and how these recent developments relate to the issues of amnesties, pardons, and ne bis in idem. I was prompted by recent news reports that Saif al-Islam Gaddafi was pardoned and released from prison after being convicted and sentenced to death, and his legal teams’ press conference and statements that the ICC should dismiss the case against Saif al-Islam Gaddafi because he was pardoned and because of double jeopardy.
In this post I will discuss the law on amnesties and pardons in international criminal law and practice. I will set out some general points on the particular characteristics of amnesties and pardons, the differences between the two, and the underlying purposes for which they may be granted. While the validity of domestic amnesties within domestic legal systems is solely an issue for domestic courts, a question arises as to the validity of domestic amnesties granted for jus cogens crimes. It is necessary to examine whether States are prevented, either under their domestic law or by their international treaty obligations, from issuing amnesties for jus cogens crimes. To illustrate this issue, I will discuss some vignettes from Sierra Leone and Cambodia, as well as some examples of the UN’s treatment of amnesties.((The next two blog posts are based on my submissions in Case 002 before the ECCC on the issues of amnesty and pardon: Case of NUON Chea et al., 002/19-09-2007-ECCC-OCIJ, IENG Sary’s Submission Pursuant to the Decision on Expedited Request of Co-Lawyers for a Reasonable Extension of Time to File Challenges to Jurisdictional Issues, 7 April 2008; Case of NUON Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC 75), IENG Sary’s Appeal Against the Closing Order, 25 October 2010; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, IENG Sary’s Rule 89 Preliminary Objection (Amnesty and Pardon), 14 February 2011; Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, IENG Sary’s Supplement to his Rule 89 Preliminary Objection (Royal Amnesty and Pardon), 27 May 2011. I am most grateful for the outstanding assistance of Ms. Tanya Pettay, Senior Legal Consultant on the Case 003 Defence team for MEAS Muth, and previously Senior Legal Consultant on the Case 002 Defence team for IENG Sary at the ECCC.))
As noted above, Christian Wolff, an 18th century German philosopher and lawyer, defines amnesty as a “complete and lasting forgetfulness of wrongs and offences previously committed.”((CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM Vol. 2, para. 989 (transl. by Joseph H. Drake, Oxford 1995). )) One contemporaneous author (Andreas O’Shea) finds this definition antiquated because “amnesty has become integrated into the general project of obtaining and preserving the truth for future generations… [and] forgetfulness and oblivion have become antiquated factors in the perceptions of the role of amnesty.”((ANDREAS O’SHEA, AMNESTY FOR CRIME IN INTERNATIONAL LAW AND PRACTICE 4 (Kluwer International Law 2002). )) In his view early amnesty laws tended to include a “prohibition on persons seeking retribution for past deeds,” and “this prominent dimension of the early provisions fell away with time and modern amnesties have concentrated on the effects of the law.”((Id.)) I do not share O’Shea’s opinion; the classical definition of amnesty sufficiently captures the essence of amnesties as understood and applied today. Nonetheless this is not particularly germane. The vexing issue, one that has both legal and political implications, is to what extent amnesties are valid and binding both domestically and internationally: counterbalancing accountability with reconciliation, peace and stability. Legality co-existing with realpolitik.
Generally, an amnesty is given in lieu of prosecution. The concept dates back to ancient times. The word “amnesty” comes from the ancient Greek word ἀμνηστία – amnestia, meaning “forgetfulness.” Its original purpose was to end conflicts and foster peace by letting bygones be bygones. There is no trial, no conviction, no sentence imposed; guilt, in other words, has not been established, though presumably evidence exists that crimes were committed and the persons amnestied could reasonably have been exposed to criminal liability for those crimes. A pardon is defined as the act “of officially nullifying punishment or other legal consequences of a crime.”((BLACK’S LAW DICTIONARY 1137 (7th ed.) 1999.)) A pardon forgives a sentence imposed after a trial and a conviction for crimes committed.
Today little distinction seems to be placed on the terminological differences between amnesties and pardons. According to Black’s Law Dictionary: an “amnesty” is “a pardon extended by the government to a group or class of persons, usu. for a political offense; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted.”((BLACK’S LAW DICTIONARY 83 (7th ed.) 1999.)) In general, amnesty is a form of pardon. Both share the same legal consequences and both may take place at any stage of the proceedings,((ANDREAS O’SHEA, AMNESTY FOR CRIME IN INTERNATIONAL LAW AND PRACTICE 2 (Kluwer International Law 2002). According to O’Shea, “the political context is an important element in the definition of amnesty because it distinguishes amnesty from pardon.” Id.)) although the purpose and origins are different: pardons originate from the “absolute power of sovereigns,” providing for “a discretionary mechanism for sidestepping the courts”;((ANDREAS O’SHEA, AMNESTY FOR CRIME IN INTERNATIONAL LAW AND PRACTICE 2-3 (Kluwer International Law 2002). )) amnesties originate from “the early attempts to promote peace … and to ensure lasting victory over conquered territory.”((Id., p. 3.))
The purpose in offering amnesties today effectively remains the same as in antiquity: ending civil wars or enabling the transition from authoritarian to democratic governments.((See Mahnoush Arsanjani, The International Criminal Court and National Amnesty Laws, 93 AM. SOC’Y INT’L L. PROC. 65 (1999). )) Amnesties are an important tool States may employ to promote peace, as has been noted by many scholars.((See, e.g., William A. Schabas, Amnesty, The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 11 U. C. DAVIS J. INT’L L. & POL’Y, 145, 163-68 (2004); Charles P. Trumbull IV, Giving Amnesties a Second Chance, 25 BERKELEY J. INT’L L. 283, 314 (2008); Louise Mallinder, Indemnity, Amnesty, Pardon and Prosecution Guidelines in South Africa, Working Paper No. 2 from Beyond Legalism: Amnesties, Transition and Conflict Transformation 79 (February 2009). )) William Schabas finds unfortunate the UN Secretary-General’s remarks to the Security Council that it should reject any amnesty for genocide, war crimes, or crimes against humanity. He rightly argues that amnesty is very useful in promoting peace, reflected in Article 6(5) of Additional Protocol II to the Geneva Conventions:((Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977 (“Additional Protocol II”). )) “[a]t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”((See William A. Schabas, Amnesty, The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 11 U. C. DAVIS J. INT’L L. & POL’Y, 145, 165-68 (2004), arguing that “[p]eace and reconciliation are both legitimate values that should have their place in human rights law.”))
May a State grant amnesty?
The validity of a domestic amnesty in the State where it is granted is purely a matter of that State’s domestic law. The Appeals Chamber of the Special Court for Sierra Leone (“SCSL”) has explained: “The grant of an amnesty or pardon is undoubtedly an exercise of sovereign power, which essentially is closely linked, as far as a crime is concerned, to the criminal jurisdiction of the State exercising such sovereign power.”((Prosecutor v. Kallon, SCSL-04-15-AR72(E), and Kamara, SCSL-04-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 67. See also Leila Nadya Sadat, Exile, Amnesty and International Law, 81 NOTRE DAME L. REV. 955, 1023 (2006). )) The international obligations of a sovereign State are extraneous when determining the validity of amnesties or pardons in a domestic court.
What about if the amnesty or pardon is for jus cogens crimes?
Jus cogens norms are seen as peremptory norms of international law and are reflected in Article 53 of the Vienna Convention on the Law of Treaties:
a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole from which no derogation is permitted and which can be modified by a subsequent norm of general international law having the same character.((Vienna Convention on the Law of Treaties 1969, Art. 53.))
If crime is referred to as jus cogens, this status requires States not to engage in it, but does not necessarily require States to punish its commission. There is currently no norm of customary international law requiring States to punish the commission of jus cogens crimes. “[T]he fact that a State has a legal interest in ensuring that an obligation is complied with does not necessarily translate into a positive duty to prosecute every instance of jus cogens crimes. Moreover, there is no State practice assuming such a duty from the nature of the obligation.”((YASMIN Q. NAQVI, IMPEDIMENTS TO EXERCISING JURISDICTION OVER INTERNATIONAL CRIMES 140 (T.M.C. Asser Press 2010). )) “Besides there being no customary rule with a general content, no general international principle can be found that might be relied upon to indicate that an obligation to prosecute international crimes has crystallized in the international community.”((ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 302 (Oxford University Press 2003). )) If the punishment of such crimes has not attained customary international law status, the invalidity of amnesties for such crimes cannot have obtained such status. Even Dutch Prosecutor Ward Ferdinandusse, who believes that “customary international law today does impose a duty on States to prosecute all core crimes committed within their jurisdiction,”((WARD N. FERDINANDUSSE, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS 202 (T.M.C. Asser Press 2006) (emphasis added). He does not, however, believe this has been firmly established as a general duty to prosecute or extradite all core crimes perpetrators. Id.)) has concluded that amnesty laws may be considered an exception to this duty, rather than a violation of the duty.((Id., at 200.))
It may be argued that States have an obligation under the International Covenant on Civil and Political Rights (“ICCPR”) to take into account the jus cogens nature of certain international crimes when determining whether to grant amnesties since the ICCPR requires States to ensure that any person whose rights or freedoms are violated shall have an effective remedy. This may be true but cannot mean that States do not have constitutional authority to grant amnesties or pardons. A State has and must have discretion in how it affords an effective remedy to victims. An effective remedy does not necessarily require a prosecution.
Further, a distinction must be made between a State’s international obligations and its obligations towards its citizens. These are two distinct legal regimes. The Genocide Convention, the Convention Against Torture and the Geneva Conventions each oblige States to implement national legislation in order to provide for penal sanctions for persons who have committed the crimes specified in each convention.((Geneva Convention I, Art. 49; Geneva Convention II Art. 50; Geneva Convention III Art. 129; and Geneva Convention IV Art. 146; Genocide Convention, Art. 5; Convention Against Torture, Art. 4.)) If a State undertakes this obligation by becoming a party to these conventions and has not fully performed its international obligations, this is a matter between that State and the international community, rather than affecting that State internally. A State party to the Genocide Convention, for example, could bring a case against another State party to the Genocide Convention, at the International Court of Justice.((See Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by Resolution 260 (III) A of the U.N. General Assembly on 9 December 1948, Entry into force: 12 January 1951, Article IX.))
There is no overriding international law or standard of justice that disallows a State offering an amnesty, even for jus cogens crimes. According to Professor John Dugard:
[S]uccessor regimes are now told by the high priests of public opinion – NGOs and scholars – not only that they ought to prosecute but that they are obliged under international law to prosecute.… The implication of this argument is that international law prohibits amnesty. This is clearly spelt out by the Trial Chamber of the ICTY in Prosecutor v. Furundžija which held that amnesties for torture are null and void and will not receive foreign recognition. It is, however, doubtful, whether international law has reached this stage. State practice hardly supports such a rule as modern history is replete with examples of cases in which successor regimes have granted amnesty to officials of the previous regime guilty of torture and crimes against humanity, rather than prosecute them. In many of these cases, notably that of South Africa, the United Nations has welcomed such a solution. The decisions of national courts may also provide evidence of state practice.((John Dugard, Dealing with Crimes of a Past Regime. Is Amnesty Still an Option?, 12 LEIDEN J. INT’L L. 1001, 1002-04 (1999) (emphasis added). ))
National jurisdictions have authority to grant amnesties and pardons for jus cogens crimes; such a grant of amnesty or pardon is a matter of national sovereignty and domestic law. The Abidjan and Lomé Agreements are a good example.
The Abidjan and Lomé Agreements
The Abidjan Agreement was an agreement granted within the national jurisdiction of Sierra Leone providing blanket amnesty for all crimes committed by the Revolutionary United Front of Sierra Leone (“RUF”). The negotiations that led to this agreement were assisted by the Special Envoy of the United Nations Secretary-General for Sierra Leone, Berhanu Dinka,((See United Nations Mission in Sierra Leone (“UNAMSIL”)’s website, background section, available at http://www.un.org/en/peacekeeping/missions/past/unamsil/background.html.)) who, along with a representative of Organization of African Unity and a representative of the Commonwealth, signed the Abidjan Agreement as a moral guarantor.((Abidjan Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone, 30 November 1996, Art. 28, available at http://www.sierra-leone.org/abidjanaccord.html. “The Government of Cote d’Ivoire, the United Nations, the OAU and the Commonwealth shall stand as moral guarantors that this Peace Agreement is implemented with integrity and in good faith by both parties.”)) The international community for all intents and purposes accepted that the Sierra Leonean government had the authority to grant an amnesty for purportedly jus cogens crimes.
After the ceasefire negotiated in the Abidjan Agreement broke down, the government and RUF negotiated the Lomé Agreement. When the government of Sierra Leone signed the Lomé Agreement with the RUF in July 1999 to attempt to end the war in Sierra Leone, the UN signed as a moral guarantor to this agreement,((Lomé Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone, 7 July 1999, XXXIV, available at http://www.sierra-leone.org/lomeaccord.html.)) as it had done previously with the Abidjan Agreement.((Abidjan Agreement, Art. 28.)) The Lomé Agreement ensured “that no official or judicial action is taken against any member of [the parties in the civil war, including the RUF] in respect of anything done by them in pursuit of their objectives as members of those organisations, since March 1991, up to the time of the signing of the present Agreement.”((Lomé Agreement, Art. XI(3). )) This was a blanket amnesty for all crimes committed by the RUF, both national and international. It was only after this Agreement was reached that a handwritten caveat was appended to the signature of the Special Representative of the Secretary-General of the UN. This caveat was “a statement that the United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.”((UN Security Council Resolution 1315, UN Doc. No. S/RES/1315 (2000), 14 August 2000, preamble.))
After the Lomé Agreement was signed, the Secretary-General reported to the UN Security Council (in paragraph 54 of his report):
As in other peace accords, many compromises were necessary in the Lomé Peace Agreement. As a result, some of the terms under which this peace has been obtained, in particular the provisions on amnesty, are difficult to reconcile with the goal of ending the culture of impunity, which inspired the creation of the United Nations Tribunals for Rwanda and the Former Yugoslavia, and the future International Criminal Court. Hence the instruction to my Special Representative to enter a reservation when he signed the peace agreement.… At the same time, the Government and people of Sierra Leone should be allowed this opportunity to realize their best and only hope of ending their long and brutal conflict.((Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, S.C. Res. 836, U.N. Doc. No. S/1999/836, 30 July 1999, para. 54.))
On 20 August 1999, the UN Security Council adopted a Resolution welcoming the Lomé Agreement.((UN Security Council Resolution 1260, adopted by the Security Council at its 4035th meeting, U.N. Doc. No. S/RES/1260 (1999), 20 August 1999.)) The only mention it made of the amnesty was that it:
Stresses the urgent need to promote peace and national reconciliation and to foster accountability and respect for human rights in Sierra Leone and, in this context, takes note of the views contained in paragraph 54 of the report of the Secretary-General, welcomes the provisions in the Peace Agreement on the establishment of the Truth and Reconciliation Commission and the Human Rights Commission in Sierra Leone, and calls upon the Government of Sierra Leone and the RUF to ensure these Commissions will be established promptly within the time-frame provided for in the Peace Agreement.((Id., para. 10 (emphasis added). ))
The UN Security Council did not oppose the amnesty granted in the Lomé Agreement because it seemed to acknowledge that the amnesty presented “the best and only hope”((Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, S.C. Res. 836, U.N. Doc. No. S/1999/836, 30 July 1999, para. 54.)) of ending the conflict in Sierra Leone. This view is supported by Professor Schabas who opines: “The language in the Resolution seemed to suggest that the Security Council accepted the compromise in the Lomé Agreement. Its reference to the Secretary-General’s comments on amnesty was little more than a perfunctory note that criticized the amnesty ‘for the record’ but went no further.”((William A. Schabas, Amnesty, The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 11 U. C. DAVIS J. INT’L L. & POL’Y, 145, 150 (2004). ))
The UN has also encouraged countries to grant amnesties on several other occasions. For example, in 1993 the UN helped negotiate a blanket amnesty agreement in order to resolve the internal conflict in Haiti.((Charles P. Trumbull IV, Giving Amnesties a Second Chance, 25 BERKELEY J. INT’L L. 283, 293-94 (2008). )) The agreement consisted of an amnesty for the military junta in exchange for the reinstatement of President Aristide.((Id.)) In 1994, the UN supported the South African amnesty.((Id., at 293.)) Under the proposed amnesty plan, members of the apartheid government security forces and apartheid activists would receive blanket immunity. In exchange, the government would free the remaining political prisoners.((Id.)) As recently as May 2011, French President Nicolas Sarkozy publicly urged former Libyan leader Colonel Gaddafi to step down as “all options are open.”((G8 Summit: Sarkozy Offers Libya’s Gaddafi ‘Options’, BBC NEWS, 26 May 2011, available at http://www.bbc.co.uk/news/world-europe-13564999. )) Presumably, all options included an amnesty.
Thus, the UN, and prominent figures in the international community, do not categorically view all amnesties as unacceptable. The UN’s view on the validity or applicability of an amnesty by a State is not of concern to that State’s domestic courts interpreting domestic law. The UN may not require national courts to invalidate the amnesty. This would be a violation of the principle of State sovereignty as enshrined in Article 2(7) the United Nations Charter:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.((Charter of the United Nations, 26 June 1945, Art. 2(7). ))
Although the SCSL decided not to uphold the amnesty granted by the Sierra Leonean government in the Lomé Agreement,((See Prosecutor v. Kallon & Kamara, SCSL-2004-15- AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, paras. 67, 69, 71.)) this does not support the position that a State cannot issue amnesties or that that State’s national courts should not uphold them. The SCSL was set up as an independent, autonomous court separated from the domestic Sierra-Leonean court system. It was specifically envisioned that it would be able to apply international law directly under the principle of universal jurisdiction.((Id., para. 88.)) It was set up in this manner because following the Lomé Agreement, there were violations of the Agreement by those who had benefited from the amnesty contained within it: the fighting continued.((Prosecutor v. Sesay et al., SCSL-04-15-T, Judgement, 2 March 2009, paras. 908-14.)) Due to the continuation of the fighting, the Sierra Leonean government decided to lobby for the creation of an international tribunal.((See UN Security Council Resolution 1315, UN Doc. No. S/RES/1315 (2000), 14 August 2000, preamble.)) An international tribunal would create a way around the amnesty granted in the Lomé Agreement due to the UN’s caveat that it did not accept that the amnesty would apply to genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.((See Prosecutor v. Kallon & Kamara, SCSL-2004-15- AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 89.)) Though the SCSL did not uphold the amnesty, it did not declare it invalid in Sierra Leone’s domestic legal system.((See Prosecutor v. Kallon & Kamara, SCSL-2004-15- AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 50.)) The fact that the amnesty was granted in the first place, for alleged jus cogens crimes, demonstrates that the international community recognizes that amnesties may be granted for such crimes.
It could be argued, as found at the SCSL, that there is a “crystallizing international norm”((Prosecutor v. Kallon, SCSL-04-15-AR72(E), and Kamara, SCSL-04-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 82.)) that a State cannot grant an amnesty for serious violations of international humanitarian law. As Professor Layla Nadya Sadat states:
The International Criminal Court Statute is explicit on certain challenges to accountability such as superior orders, head of state immunity, and statute of limitations, but is silent both as to any duty to prosecute and with regard to amnesties. Although the issue was raised during the Rome Conference at which the Statute was adopted, no clear consensus developed among the delegates as to how the question should be resolved. This too suggests that customary international law had not crystallized on this point, at least not in 1998.((Leila Nadya Sadat, Exile, Amnesty and International Law, 81 NOTRE DAME L. REV. 955, 1022 (2006) (emphasis added). ))
A norm in the process of crystalizing is not yet settled customary international law that could bind a domestic court. And this assumes that such a court may be directly bound by customary international law. Adherence to either the monist or the dualist system determines the mechanism that a State employs in order to give effect to its international obligations. In a monist system international law forms part of the domestic law and can be applied directly in the domestic legal system. A State that adheres to a dualist system considers international law to be separate from domestic law. International law is only applied in such systems if: a. direct application is explicitly authorized by the Constitution; or b. national implementing legislation has incorporated the international law into that State’s domestic legal system.((See, e.g., Gabriele Olivi, The Role of National Courts in Prosecuting International Crimes: New Perspectives, 18 SRI LANKA J. INT’L L. 83, 86-87 (2006). ))
The UN never stated that it considered invalid a pardon and amnesty granted in Cambodia to former Khmer Rouge Foreign Minister Mr. Ieng Sary. In fact, the UN did not question the validity of the pardon and amnesty when they were granted in 1996 or when an Agreement establishing the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) was negotiated (between 1996 and 2003). This is evidence that there is still no crystallized norm of customary international law prohibiting amnesties for international crimes. Had the UN taken the position that the pardon and amnesty were invalid, the Agreement would reflect this. The UN could have appended a caveat to the Agreement, as it did to the Lomé Agreement. It did not.
In my opinion, the ECCC Trial Chamber incorrectly found that it was “entitled in the exercise of its discretion to attribute no weight to a grant of [Mr. Ieng Sary’s] amnesty which it considers contrary to the direction in which customary international law is developing.”((Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Decision on IENG Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), 3 November 2011, D51/15, para. 54.)) The Trial Chamber was required to apply customary international law as it stands; not as the Chamber perceived customary international law to be developing. Customary international law is defined by “extensive and virtually uniform” State practice and opinio juris.((North Sea Continental Shelf Cases (Germany v. Denmark, Germany v. The Netherlands), Judgement, I.C.J. Reports 1969, p. 43, para. 74; p. 44, para. 77.)) The Trial Chamber found that “state practice in relation to other serious international crimes is arguably insufficiently uniform to establish an absolute prohibition of amnesties in relation to them.”((Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Decision on IENG Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), 3 November 2011, D51/15, para. 54. The reference to “other” in the Trial Chamber’s finding refers to those international crimes not covered by the Geneva Conventions, the Genocide Convention and the Convention Against Torture.)) This finding was supported by the Trial Chamber’s review of the adoption, scope and application of amnesties in conflict or post-conflict countries in the last three decades. The Trial Chamber found that State practice of 28 States in the past three decades encompassed the implementation of amnesty laws, of which 18 cover the crimes of genocide, crimes against humanity and grave breaches of the Geneva Conventions.((Id., n. 105, citing Chile (1978 Decree-Law on Amnesty, covering crimes committed between September 1973 and March 1978); Brazil (1979 Amnesty Law, covering crimes committed between 1961 and 1974, except terrorism, assault and kidnapping); Argentina (1986 Full Stop Law and 1987 Due Obedience Law, covering crimes committed before December 1983, except rape, kidnapping and the hiding of minors, change of civil status and appropriation of immovable through extortion); Uruguay (1986 Law of Caducity); Honduras (1991 Decree No.87-91); El Salvador (1992 Law of National Reconciliation, Legislative Decree No. 147 and the 1993 Law of General Amnesty for the Consolidation of Peace, Legislative Decree No. 486, except kidnapping, extortion and drug related activities); Mauritania (1993 Amnesty Law); Cambodia (1994 Law); Haiti (1994 Law relating to Amnesty); Peru (1995 Amnesty Law No. 26479); South Africa (1995 Promotion of National Unity and Reconciliation Act); Republika Srpska (1996 Law on Amnesty and 1999 Law on Charges and Amendments to the Law on Amnesty); Sierra Leone (1996 Abidjan Agreement and 1999 Lome Peace Accord); Uganda (2000 Amnesty Act); Angola (2006 Memorandum of Understanding for Peace and Reconciliation in Cabinda Province implemented in a domestic Amnesty Law); Algeria (2005 Charter for Peace and National Reconciliation, except for collective massacres, rapes and bombings in public places); Honduras (2010 Amnesty Decree): and Tunisia (2011 Legislative Decree No. 2011-1 granting amnesty). ))
As recently as 23 November 2011, States have granted immunity for jus cogens crimes. Yemeni President Saleh signed an agreement where he will step down from power in exchange for immunity from prosecution. The Yemeni authorities have been accused of attacking its civilians.((See e.g., Q&A: Yemen Crisis, BBC NEWS, 23 November 2011, available at http://www.bbc.co.uk/news/world-middle-east-14988945: “In June, government planes bombed cities said to be under militant control in southern Abyan province, causing tens of thousands of people to flee, and attacks in the area continued for months.”)) No crimes appear to be barred from this immunity. UN Secretary-General Ban Ki-moon is reported to have stated that he was “encouraged by the positive development of the situation in Yemen.”((Yemeni President Saleh Signs Deal on Ceding Power, BBC NEWS, 23 November 2011, available at http://www.bbc.co.uk/news/world-middle-east-15858911.)) The UN Security Council also appeared to support the amnesty, while recognizing the serious human rights violations that had been committed it reaffirmed its view that a settlement agreement was “essential for an inclusive, orderly, and Yemeni-led process of political transition.”((UN Security Council Resolution 2014, UN Doc S/RES/2014 (2011), 21 October 2011, para. 4; See also Scott W. Lyons, Ineffective Amnesty: The Legal Impact on Negotiating the End of Conflict, available at http://wakeforestlawreview.com/2013/01/ineffective-amnesty-the-legal-impact-on-negotiating-the-end-of-conflict/.)) If there is such extensive practice demonstrating that States have implemented amnesty laws for serious international crimes, there cannot be extensive and virtually uniform State practice establishing an absolute prohibition of amnesties in relation to serious international crimes.
Of note is the 13 July 2016 decision by the Constitutional Chamber of El Salvador’s Supreme Court striking down its 1993 amnesty law as unconstitutional, as applied to crimes against humanity and war crimes violating Protocol II of the Geneva Conventions.((Full case report available (in Spanish) at http://static.ow.ly/docs/Amnist%C3%ADa-Sentencia%20versi%C3%B3n%20final_51gl.pdf; For English summary and discussion see Naomi Roht-Arriaza, El Salvador’s Constitutional Court Invalidates Amnesty Law; Will Prosecutions Follow?, available at https://ilg2.org/2016/07/19/el-salvadors-constitutional-court-invalidates-amnesty-law-will-prosecutions-follow/#more-11185.)) In reaching its decision, the Court relied on El Salvador’s obligations under the ICCPR, the American Convention on Human Rights, Protocol II of the Geneva Convention and national constitutional rights.((Naomi Roht-Arriaza, El Salvador’s Constitutional Court Invalidates Amnesty Law; Will Prosecutions Follow?, available at https://ilg2.org/2016/07/19/el-salvadors-constitutional-court-invalidates-amnesty-law-will-prosecutions-follow/#more-11185.)) Although the broader effects of this decision remain to be seen, it is undoubtedly an interesting development in the discussion on the customary international law of the validity of amnesties for serious international crimes and on States’ ability to issue such amnesties. In any case, it still reflects the view that amnesties are a domestic prerogative.
In the next post I will discuss the principle of ne bis in idem, its applicability and exceptions in international criminal law and practice. In a subsequent and final post I will probe the issues of amnesty and the principle of ne bis in idem in the context of the ICC.
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