Ishita Chandra*

This article extensively explores the contentious issue of whether amnesties granted for severe human rights violations can obstruct International Criminal Court (ICC) prosecutions. It navigates the complexities of balancing justice and reconciliation in post-conflict societies, citing historical examples like South Africa and Northern Ireland. The analysis encompasses legal frameworks, emphasizing the evolving perspectives on amnesties and the nuanced approach proposed in the 2013 Belfast Guidelines. The article scrutinizes the ICC’s jurisdiction, detailing provisions like Articles 16 and 53 of the Rome Statute, which potentially allow for an “amnesty exception.” It underscores the delicate interplay between national sovereignty and international obligations, particularly under the Rome Statute. The suggested approach advocates for ICC Prosecutors to consider factors such as legitimacy and adherence to international law when evaluating cases involving amnesties, contributing to the ongoing dialogue on reconciling justice with the imperative of peace in the aftermath of grave human rights violations.

Introduction

The International Criminal Court (ICC) is a permanent international court with the mandate to investigate, prosecute, and try individuals accused of the gravest crimes, such as genocide, crimes against humanity, war crimes, and aggression. Its core mission is twofold: to contribute to the prevention of such crimes and to end impunity for those responsible for them. Prosecution for war crimes is crucial for victims’ justice, but in cases of armed conflicts where serious violations of the laws of war have been committed, it must be balanced with a need for the State to address past atrocities without inciting more violence. A restorative justice approach with limited amnesties, emphasizing normative over punitive goals, may be more suitable in such circumstances. Amnesties for war crimes often arise during transitions, such as moving from war to peace or political shifts like the handing over of power from military regimes to democratic civilian governments. This necessitates a balance between the territorial state’s need for stability and the international community’s demand for accountability.

During the negotiations that culminated in the creation of the Rome Statute of the International Criminal Court, extensive discussions occurred concerning amnesties, the functions of truth commissions, and the need to facilitate the transition from authoritarian to democratic governments. Presently the Rome Statute comprehensively delineates the types of crimes falling within its jurisdiction; however, it lacks a dedicated provision addressing the ICC’s stance on acknowledging amnesties for these crimes. It is also important to note that the ICC is not obligated to assert jurisdiction over cases where an amnesty has been granted. The potential for an “amnesty exception” to the ICC’s jurisdiction is outlined in Articles 16 and 53 of the Rome Statute. Article 16 grants the United Nations Security Council the authority to suspend prosecution for a period of 12 months when there is a “threat to the peace, breach of the peace, or act of aggression”. However, this exception is conditional upon a Security Council resolution falling under Chapter VII of the UN Charter. Furthermore, as per Article 53, the ICC’s Prosecutor also has the discretion to refrain from pursuing a case if it is determined that conducting an investigation would not serve the “interests of justice”.

The debate over whether amnesties are prohibited under international law for grave crimes like crimes against humanity has been a subject of extensive discussion over the past few decades. In the early 2000s, the consensus was that international law has evolved to establish a general principle that amnesties should not be allowed in cases involving international crimes and severe human rights abuses. The Inter-American Court of Human Rights was the first international court to make a definitive declaration against amnesties. In its landmark ruling in the case of Barrios Altos v. Peru, it famously asserted that all provisions offering amnesty are unacceptable, as they are designed to hinder the investigation and punishment of those responsible for severe human rights violations, such as torture, extrajudicial, summary, or arbitrary executions, and forced disappearances. These actions are considered impermissible because they violate rights recognized by international human rights law that cannot be waived.

In the late 2000s, there was a shift in the thinking of some scholars regarding the absolute prohibition of amnesties. They began to argue that distinctions should be made among different types of amnesties based on factors like their extent, the context in which they are implemented, etc. This nuanced perspective, as outlined in the 2013 Belfast Guidelines on Amnesty and Accountability, contends that under certain circumstances, amnesties may be deemed necessary and can be structured in a way that aligns with international law and human rights principles. In the Marguš v Croatia case, the Grand Chamber of the European Court of Human Rights noted that while there is a growing trend in international law to view amnesties covering serious human rights violations as unacceptable, there might be situations where they are deemed acceptable. These situations could involve specific circumstances such as a reconciliation process.

This article aims to explore whether the amnesties granted by States to individuals responsible for severe human rights violations, can prevent prosecution before the ICC. By exploring this predicament, the article seeks to contribute to the ongoing dialogue on balancing the pursuit of justice with the imperative of reconciliation in the aftermath of grave human rights violations.

Amnesty For Human Right Violation Prosecutions: Boon Or Bane?

Supporters of criminal prosecutions present a variety of ethical, moral, and policy arguments to bolster their position that transitional societies should carry out criminal trials as part of their efforts to confront a history of human rights violations. The arguments supporting the prosecution of individuals at the ICC for human rights violations have been classified into 3 broad categories:

Firstly, the refusal to prosecute for grave crimes severely undermines the aims and objectives of the Rome Statute. The Preamble of the Rome Statute underscores the importance of ensuring that the most serious international crimes are not left unpunished and emphasizes the necessity of effective prosecution to eradicate impunity for those found responsible. It is crucial to note that the ICC was primarily established due to the significant failures of national court systems in holding individuals accountable for acts such as genocide, crimes against humanity, and war crimes. When amnesty is applied to individuals within the ICC’s jurisdiction, primarily impeding criminal prosecution, it presents a challenge to the ICC’s mandate. By making reference to Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT), we can elucidate that granting amnesty may be incompatible with the Statute’s goal of eliminating impunity for human rights violators. This provision states that as a general rule of interpretation, a treaty shall be interpreted in good faith following the ordinary meaning to be given to the terms of the treaty in their context and in the light of its goal and purpose.

Regarding sovereignty in the context of the Rome Statute, it is crucial to understand that by ratifying the Rome Statute, State parties relinquish a portion of their sovereignty in exchange for the prosecution and punishment of those responsible for international crimes. From this perspective, full deference by the ICC to national amnesties would undermine one of the primary purposes of the Rome Statute. It would be inappropriate for the ICC to decide not to prosecute alleged perpetrators of international crimes based on a national amnesty when international conventions impose a duty to prosecute on State parties.

Secondly, the deterrence to prosecute breeds and encourages similar crimes. The global community aims to uphold the principle of equality under the law and endeavors to foster public confidence in the importance of these norms and values by ensuring that crimes are thoroughly investigated and appropriately penalized. When certain individuals who have committed grave crimes escape punishment, it can breed skepticism and erode trust in the supremacy of these principles. If perpetrators of serious crimes are not held accountable, it may fuel public cynicism and undermine faith in the rule of law. Furthermore, when the global community either promotes or supports amnesty for human rights violations like genocide and crimes against humanity, it conveys a message to other oppressive regimes that they can operate without fear of repercussions for their acts. For individuals who have suffered from human rights violations, amnesties frequently appear as stark hypocrisy; while victims struggle to move beyond their suffering, those responsible roam about freely.

The United Nations Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities have determined that impunity is a significant factor perpetuating ongoing human rights violations worldwide. Reports on Chile and El Salvador, for instance, indicate that amnesty or de facto impunity has led to a rise in abuses in those countries. Furthermore, there is a strong indication that the International Criminal Tribunal for the former Yugoslavia’s failure to prosecute Slobodan Milosevic for crimes in Bosnia may have emboldened him to commit further offenses in Kosovo. However, it should be noted that the fear of prosecution and trial by the ICC may actually serve as a deterrent, dissuading current authorities from relinquishing their positions.

Thirdly, the most serious human rights abuses like genocide and crimes against humanity should not be left unpunished. The individual responsible for committing crimes against humanity and genocide bears criminal responsibility and is liable for punishment as a direct consequence of international law, regardless of any opposing national laws within the state. Several commentators and human rights organizations have pointed out that customary international law not only grants jurisdiction over those who commit crimes against humanity but also mandates their prosecution while prohibiting the possibility of amnesty for such individuals. Additionally, offering amnesty for crimes against humanity and genocide would be at odds with the principles of individual criminal responsibility recognized in the Nuremberg Charter and Judgment. It has been contended that national law cannot serve as a defense against a breach of international law, especially when such law encompasses norms classified as jus cogens, aligning with the spirit of Article 53 of the VCLT. The prohibition of certain international crimes, such as genocide and crimes against humanity, has achieved the status of jus cogens, and as a result, seeking amnesty under the pretext of national sovereignty cannot effectively serve as a defense against these charges.

However, several arguments also emerge for the grant of amnesty and non-prosecution of individuals for human rights violations. The focus on prosecuting individuals for international crimes involves careful consideration of the need to end past conflicts and encourage the surrender of armed dissident groups. This approach contributes to the transition toward a democratic state and aligns with amnesty’s underlying purpose, which is seen as a means to achieve peacekeeping, nation-building, and reconciliation.

The use of amnesty as a negotiating tool to encourage those responsible for human rights violations to relinquish power and agree to peace has been illustrated in case studies from Haiti, South Africa, and the Dayton Peace Accords. Additionally, the 1998 Good Friday Agreement (GFA) in Northern Ireland is a significant political agreement that provides comprehensive amnesties for offenses related to the Northern Ireland conflict before April 1998, contributing to the political unification of the country.

In cases where amnesty has been granted in exchange for peace, governing bodies have often provided financial compensation to victims and their families. Additionally, measures such as employment restrictions and purges, known as “lustration”, have been employed to prevent perpetrators from holding public office. These mechanisms are not merely a second-best alternative when prosecution is not feasible but may, in many situations, be more effective in achieving justice goals. The United Nations Secretary-General has expressed the view that careful amnesty implementation can contribute to the restoration of human rights, aiding the return and reintegration of displaced individuals and former combatants following armed conflicts. The High Commissioner for Human Rights commended the pardon of political leaders and activists in Ethiopia based on similar considerations, emphasizing the significance of these pardons for expanding democratic space and national reconciliation. Furthermore, amnesties that can help prevent further violence by facilitating the demobilization and dissolution of paramilitary groups are encouraged.

Evaluating the Arguments and the Suggestions thereof

The invocation of amnesty is explicitly prohibited by a fundamental principle in international law, which holds that serious offenses, including but not limited to war crimes, crimes against humanity, and genocide, are not eligible for amnesty or pardon under domestic laws. The prevailing consensus in academia is that any amnesty that obstructs the prosecution of offenses bound by such an obligation would constitute a violation of the relevant treaty and would be deemed internationally unlawful. Furthermore, considering the perspective of the victims, justice must be delivered, and effective remedies must be provided. Offering amnesty for acts of genocide would contravene both the Genocide Convention and customary international law. Article I of the Genocide Convention categorizes genocide as an international crime for which parties are obligated to “punish”. Additionally, Article IV of the Convention dictates that individuals involved in genocide or related acts are liable for punishment, regardless of their positions as constitutional leaders, public officials, or private citizens. Since the Genocide Convention reflects customary international law, any amnesty that impedes the prosecution of genocide would breach customary legal obligations. Even the Preamble of the Rome Statute of the ICC states that “the most serious crimes of concern to the international community as a whole must not go unpunished” demanding “effective prosecution”.

Providing amnesty that excludes accountability for crimes against humanity would clash with the obligations of States parties under International Covenant on Civil and Political Rights, Article 14(2) of UDHR, Article 18 of The Declaration on the Protection of All Persons from Enforced Disappearances Persons and other human rights treaties. While these treaties do not explicitly mention crimes against humanity, they have been interpreted to mandate the prosecution of such international offenses.

A State’s authority to grant amnesty for an offense can be constrained by treaties to which the State is a party. Numerous international treaties impose an obligation to pursue legal action against offenses related to humanitarian or human rights, as articulated in various conventions, including the “grave breaches” clauses in Article 90(2)(c)(i) of the 1977 Additional Protocol I to the Geneva Conventions of 1949 and the Genocide Convention. Additionally, in the case of Chumbipuma Aguirre et al. v. Peru (Barrios Altos Case), it was determined that amnesty provisions, prescription, and measures aimed at eliminating responsibility are unacceptable, as they are intended to obstruct the investigation and punishment of individuals responsible for grave human rights abuses, such as torture, extrajudicial, summary, or arbitrary executions, and enforced disappearances. The Court herein observed that such violations are considered to be against the non-derogable rights established by international human rights law.

The Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary, and Summary Executions assert that providing blanket immunity to individuals suspected of involvement in severe crimes is impermissible, regardless of the circumstances. This highlights the importance of accountability in cases of human rights abuses and emphasizes that immunity cannot shield individuals responsible for such acts. Furthermore, human rights treaty bodies have consistently affirmed their right to assess the legality of amnesties implemented by States parties. For instance, in the case of Malawi African Association et al. v. Mauritania, it was ruled that a domestic amnesty law that nullified the criminal nature of specific violations and facts under review could not prevent the Commission from conducting an examination of the matter.

Nonetheless, it is essential to recognize that in certain situations, the pursuit of a legal action can obstruct the process of national reconciliation. This is primarily due to the fact that nascent democracies may not withstand the disruptive repercussions of politically charged trials. As observed in instances such as Chile, Argentina, and Uruguay, countries emerging from authoritarian rule often grapple with polarization and instability. In such cases, the consolidation of democracy can be served by enacting a reconciliation policy in the form of an amnesty law. In nations where the military retains considerable influence even after stepping down from power, attempts to prosecute past wrongdoings may incite uprisings or other conflicts that could undermine the civilian government’s authority. Under such circumstances, the act of prosecution might inadvertently bolster the military’s inclination to challenge democratic institutions. The underlying purpose of amnesties in these contexts is to promote a reconciliatory gesture aimed at restoring normalcy among a divided populace. Additionally, in transitional societies, conducting criminal trials may prove unfeasible or unattainable. The state’s criminal justice system may lack the necessary capacity or resources to properly investigate, prosecute, and adjudicate the crimes in question. Moreover, the financial burden of investigating and prosecuting past human rights violations can be overwhelming for an emerging economy.

Therefore, today, it is crucial to find a balance between the pursuit of peace and the quest for justice. Consequently, a pragmatic approach involving selective prosecution along with the provision of amnesty, governed by transparent and objective criteria, emerges as a viable solution. The credibility of such an amnesty is enhanced when it is contingent upon the meeting of specific conditions. Drawing inspiration from the Belfast Guidelines, it is recommended that certain prerequisites be met before granting amnesty. These prerequisites might encompass surrendering and participating in Disarmament, Demobilization, and Reintegration (DDR) programs; engaging in transitional or restorative justice processes; providing testimony (whether publicly or privately) before a Truth Commission, a public inquiry, or a similar truth-restoration mechanism; returning unlawfully acquired property; making material and/or symbolic contributions to reparations, etc.

To conclude, it is suggested that ICC Prosecutors should take into consideration several factors when evaluating cases involving amnesties: (i) whether the state had valid reasons for granting the amnesty; (ii) whether the amnesty was granted in accordance with international law; and (iii) whether the amnesty was issued through a truth commission process that adheres to certain fundamental principles of due process. This approach aims to ensure that an amnesty, at the very least, meets the minimal standards of justice while striving to strike a balance between peace promotion and protection.

Conclusion

The ICC possesses jurisdiction over the most severe international crimes, which include war crimes, genocide, crimes against humanity, and the crime of aggression. Its jurisdiction operates in tandem with that of national courts, primarily aimed at addressing impunity for individuals who have committed international crimes and have not been appropriately prosecuted or not prosecuted at all within their home countries. However, under specific circumstances, a state may find itself compelled to grant amnesties to individuals responsible for international crimes as a means to achieve peace. In the absence of such amnesties, members of an oppressive regime might be hesitant to relinquish their weapons or control over security forces. A notable example of this occurred in South Africa, where a peaceful transition to a democratic government would have been unattainable without the assurance of amnesty for those who had committed politically motivated offenses. The experiences of Sierra Leone and Timor-Leste indicate that societies may only accept amnesties for international crimes in situations where the prospect of criminal prosecutions presents a severe and immediate threat to the stability of the state.

Clearly, there exist moral and ethical concerns that argue against pursuing prosecutions in cases where they are likely to result in political instability and additional loss of life. However, the obligation imposed on states to prosecute international crimes is applicable in only a limited set of situations, which include genocide, “grave breaches” of the Geneva Conventions, and torture (for states that are parties to the Torture Convention). The current restricted scope of this duty to prosecute international crimes permits states to potentially exchange amnesty for the sake of achieving peace.

*Ishita Chandra is a Third year B.A. LL.B. (Hons) student at Dr. B.R. Ambedkar National Law University, Sonipat, Haryana