Tilburg University
Amnesty justified?
Vriezen, V.
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Vriezen, V. (2011). Amnesty justified? The need for a case by case approach in the interest of human rights
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Amnesty justified?
The need for a case by case approach
in the interests of human rights
a
Amnesty justified? The need for a case by case approach in the interests of
human rights
Vera Vriezen
Dissertation-edition. A commercial edition of this thesis will be published by
Intersentia.
The research for this dissertation was financially supported by the Netherlands
Organisation for Scientific Research (NWO).
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© 2011, Vera Vriezen
AMNESTY JUSTIFIED?
THE NEED FOR A CASE BY CASE APPROACH
IN THE INTERESTS OF HUMAN RIGHTS
PROEFSCHRIFT
ter verkrijging van de graad van doctor aan Tilburg University
op gezag van de rector magnificus, prof.dr. Ph. Eijlander,
in het openbaar te verdedigen ten overstaan van
een door het college voor promoties aangewezen commissie
in de aula van de Universiteit
op vrijdag 16 december 2011 om 14.15 uur
door
Vera Vriezen
geboren op 19 juni 1981 te Vleuten-De Meern
Promotiecommissie:
Promotores:
prof.mr. W.J.M. van Genugten
prof.mr. M.S. Groenhuijsen
Overige leden:
prof.mr. C. Flinterman
prof.mr. R.M. Letschert
prof.mr. T.A. de Roos
prof.mr. H.G. van der Wilt
To Reza, Twan and Olivia
VOORWOORD
Graag wil ik de mensen bedanken die mij op verschillende wijze hebben geholpen
en gesteund deze dissertatie met succes te kunnen schrijven. Een aantal mensen wil
ik hierbij graag in het bijzonder bedanken.
Allereerst mijn twee promotores, professor Willem van Genugten en professor
Marc Groenhuijsen. Willem wil ik bedanken voor zijn begeleiding, vertrouwen en
steun, niet alleen gedurende het proefschrifttraject, maar ook in de aanloop
daarnaartoe. Willem heeft een grote rol gespeeld in de weg van student naar aio.
Marc wil ik bedanken voor zijn begeleiding, vertrouwen en enthousiasme vanaf de
eerste dag. Na een bespreking met Marc kreeg ik altijd weer nieuwe energie. Marc
wil ik ook bedanken voor het indienen van de subsidieaanvraag waardoor dit
onderzoek mogelijk werd.
De Nederlandse Organisatie voor Wetenschappelijk Onderzoek (NWO) wil ik
bedanken voor het mogelijk maken van dit onderzoek.
Dank gaat ook uit naar de leden van de promotiecommissie, de professoren Cees
Flinterman, Rianne Letschert, Theo de Roos en Harmen van der Wilt, voor het
lezen van het manuscript en hun waardevolle inzichten.
Mijn collega’s van de vakgroep EIP wil ik bedanken voor hun bijdrage aan een
plezierige werkomgeving.
Heel graag wil ik hier ook mijn familie bedanken. Allereerst wil ik mijn ouders
en mijn broer bedanken en voor hun liefde, steun en vertrouwen. Tot slot wil ik
mijn gezin bedanken. Lieve Reza, bedankt voor alles. Ik hou van je. Twan en
Olivia, jullie zijn mijn lieve schatjes. Bedankt voor jullie vrolijkheid, jullie hebben
mij de energie gegeven deze dissertatie tot een goed einde te brengen. Wat ben ik
gelukkig met jullie.
vii
CONTENTS
Voorwoord
List of Abbreviations
PART 1
INTRODUCTION
vii
xv
1
Chapter I
General introduction
3
1
2
3
4
3
5
5
6
Introduction
Research question
Objective of the study
Research approach
PART 2
IMPUNITY AND AMNESTY
Chapter II
Impunity
1
2
3
4
5
6
Introduction
Impunity
Forms of de iure impunity
3.1 Amnesty laws
3.2 Pardons
Effects on society
From impunity to a culture of impunity
Conclusion
9
11
11
13
17
18
18
20
22
25
ix
Contents
Chapter III
Amnesty
1
2
3
4
5
6
Introduction
The purposes of amnesty and the benefits of prosecution
2.1 Purposes of amnesty
2.2 Benefits of prosecution
Forms of amnesty
3.1 De iure amnesty
3.1.1 Blanket amnesty
3.1.2 Self-amnesty
3.1.3 Limited/political amnesty
3.1.4 Conditional amnesty
3.1.5 Corrective amnesty
3.1.6 Internationally legitimized amnesty
3.2 De facto amnesty
Timing and method of granting the amnesty
4.1 Amnesty before a transition or the end of conflict
4.2 Amnesty in a period of transition
Arguments in favour and against amnesty
5.1 In favour
5.2 Against
Conclusion
PART 3
THE LEGALITY OF NATIONAL AMNESTY LAWS
Chapter IV
The legality of national amnesty laws under international law
1
2
x
Introduction
The duty to prosecute in general international and regional human
rights treaty law
2.1 International Covenant on Civil and Political Rights 1966
2.1.1 ICCPR
2.1.2 Human Rights Committee
2.2 American Convention on Human Rights 1969
2.2.1 ACHR
2.2.2 Inter-American Commission on Human Rights
2.2.3 Inter-American Court of Human Rights
2.3 Convention for the Protection of Human Rights and Fundamental
Freedoms 1950
27
28
29
32
35
39
39
39
41
42
43
44
45
46
47
47
47
49
50
53
58
61
63
63
66
66
66
68
71
71
73
76
80
Contents
2.3.1 European Convention
2.3.2 European Court of Human Rights
The duty to prosecute in human rights conventions on specific crimes
3.1 Convention on the Prevention and Punishment of the Crime of
Genocide 1948
3.2 Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes against Humanity 1968
3.3 International Convention on the Suppression and Punishment of
the Crime of Apartheid 1976
3.4 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment 1984
3.4.1 Convention
3.4.2 Committee Against Torture
3.5 Inter-American Convention to Prevent and Punish Torture 1985
3.6 Inter-American Convention on Forced Disappearance of Persons
1994
3.7 International Convention for the Protection of All Persons from
Enforced Disappearance 2006
The duty to prosecute in international humanitarian law
4.1 Geneva Conventions 1949
4.2 Additional Protocol II to the Geneva Conventions 1977
The duty to prosecute in statutes of international courts and tribunals
5.1 Introduction
5.2 International Criminal Tribunal for the former Yugoslavia
5.3 International Criminal Tribunal for Rwanda
5.4 International Criminal Court
5.5 Special Court for Sierra Leone
Universal jurisdiction
Conclusion
92
95
95
98
99
99
100
102
103
107
111
116
Chapter V
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
119
3
4
5
6
7
1
2
3
4
5
6
Introduction
General Assembly
Security Council
International Court of Justice
Secretary-General
Commission on Human Rights/Human Rights Council
6.1 Commission on Human Rights
80
80
83
83
84
86
87
87
89
90
91
119
120
125
133
136
143
143
xi
Contents
7
8
6.2 Human Rights Council
Office of the High Commissioner for Human Rights
Conclusion
Chapter VI
Amnesty and the rights of victims
1
2
3
4
5
6
Introduction
The right to know the truth
2.1 Introduction
2.2 The development of the right to know the truth
2.3 The right to know the truth in international human rights law
2.4 Mechanisms to guarantee the right to know the truth
2.5 Interrelationship with other victims’ rights
2.6 Conclusion
The right to reparation
3.1 Introduction
3.2 The development of the right to reparation
3.3 The right to reparation in international human rights law
3.4 Mechanisms to guarantee the right to reparation
3.5 Interrelationship with other victims’ rights
3.6 Conclusion
The right to justice
4.1 Introduction
4.2 The development of the right to justice
4.3 The right to justice in international human rights law
4.4 Mechanisms to guarantee the right to justice
4.5 Interrelationship with other victims’ rights
4.6 Conclusion
Victim participation
Conclusion
PART 4
FRAMEWORK FOR THE LEGITIMATE USE OF AMNESTY
149
150
155
157
157
162
162
167
171
172
180
181
182
182
185
188
189
194
197
198
198
200
202
208
209
210
210
212
215
Chapter VII
Framework for the legitimate use of amnesty
217
1
2
3
217
218
223
xii
Introduction
Considerations for the drafting of a framework
Framework for the legitimate use of amnesty
Contents
Samenvatting (Dutch summary)
229
Bibliography
235
xiii
LIST OF ABBREVIATIONS
ACHR
AFRC
AI
Art(t).
AZAPO
CAT
CAVR
CDF
CIDH
CONADEP
Comm.
CPA
Doc.
ECCC
ECHR
ECtHR
ECOSOC
ed(s).
e.g.
et al.
etc.
ESMA
EU
FAA
American Convention on Human Rights
Armed Forces Revolutionary Council (Sierra
Leone)
Amnesty International
Article(s)
Azanian Peoples Organisation (South Africa)
Committee against Torture
Commission for Reception, Truth, and
Reconciliation (East Timor)
Civil Defence Forces (Sierra Leone)
Commission for the Investigation of Criminal
Acts (El Salvador)
Comisión Nacional sobre la Desaparición de
Personas [National Commission on the
Disappearance of Persons] (Argentina)
Communication
Comprehensive Peace Agreement (Nepal)
Document
Extraordinary Chambers in the Courts of
Cambodia
European Convention for the Protection of
Human Rights and Fundamental Freedoms
European Court of Human Rights
Economic and Social Council
editor(s)
exempli gratia [for example]
et alii/aliae [and others]
et cetera [and so on]
Escuela Superior de Méchanica de la Armade
[Navy School of Mechanics] (Argentina)
European Union
Angolan Armed Forces
xv
List of abbreviations
FMLN
FNLA
FBI
GA
GC
HRC
HRW
IAComHR
IACtHR
Ibid.
ICC
ICCPR
ICJ
ICRC
ICTJ
ICTR
ICTY
i.e.
IST
LRA
MINUSTAH
MMM
NGO
No(s).
OAS
OEA
OHCHR
p(p).
para(s).
Res.
rev.
RUF(/SL)
SC
SCSL
SG
SLA
STL
TRC
UCA
UDHR
UN
xvi
Frente Farabundo Martí para la Liberación
Nacional [Farabundo Martí National Liberation
Front] (El Salvador)
National Front for the Liberation of Angola
Federal Bureau of Investigation (USA)
General Assembly
Geneva Convention
Human Rights Committee
Human Rights Watch
Inter-American Commission on Human Rights
Inter-American Court of Human Rights
Ibidem [in the same place]
International Criminal Court
International Covenant on Civil and Political
Rights
International Court of Justice
International Committee of the Red Cross
International Center for Transitional Justice
International Criminal Tribunal for Rwanda
International Criminal Tribunal for the former
Yugoslavia
id est [that is]
Iraqi Special Tribunal
Lord’s Resistance Army (Uganda)
United Nations Stabilization Mission in Haiti
Memory, Memorials and Museums
Non-Governmental Organization
Number(s)
Organization of American States
Organización de los Estados Americanos[OAS]
Office of the United Nations High Commissioner
for Human Rights
page(s)
paragraph(s)
Resolution
revised
Revolutionary United Front (of Sierra Leone)
(United Nations) Security Council
Special Court for Sierra Leone
Secretary-General
Sierra Leone Army
Special Tribunal for Lebanon
Truth and Reconciliation Commission
José Simeón Cañas Universidad Centroamericana
[Central American University] (El Salvador)
Universal Declaration of Human Rights
United Nations
List of abbreviations
UNHRC
UNITA
U.S./USA
USSR
v.
Vol.
WCHR
United Nations Human Rights Council
Union for the Total Independence of Angola
United States of America
Union of Soviet Socialist Republics
versus
Volume
World Conference on Human Rights
xvii
PART 1
INTRODUCTION
CHAPTER I
GENERAL INTRODUCTION
1 INTRODUCTION
The granting of amnesty to perpetrators of human rights crimes is an issue on which
views vary tremendously. On the one hand, there are those who argue that justice
must be achieved by means of prosecutions in all circumstances; on the other hand,
there are those who claim that prosecution is not the only way to deal with a legacy
of human rights crimes. Amnesty as such does not mean that the crime was not
wrong, nor is it a denial of punishable acts or per se an excuse or a way of removing
legal grounds. Amnesty proper only means that no criminal investigation or
prosecution will take place despite the fact that crimes were committed. Amnesty
laws are created mainly when states are going through a period of transition, often
from war to peace, and of political upheaval, for example, when a democratic
government replaces a military regime.
One of the best-known examples of the use of amnesty in a transitional situation
is that of South Africa. Notwithstanding the international support for the amnesty in
South Africa, in Azanian Peoples Organisation (AZAPO) and Others v. President
of the Republic of South Africa and Others, the applicants requested the
Constitutional Court for an order declaring section 20(7) 1 (on the granting of
amnesty and effect thereof) of the Promotion of National Unity and Reconciliation
Act (1995) unconstitutional. The Court refused. Deputy President of the
Constitutional Court Ismail Mahomed explained this:
Every decent human being must feel grave discomfort in living with a
consequence which might allow the perpetrators of evil acts to walk the streets
of this land with impunity, protected in their freedom by an amnesty immune
from constitutional attack, but the circumstances in support of this course
require carefully to be appreciated. Most of the acts of brutality and torture
1
The Committee on Amnesty is allowed to grant amnesty in respect to any act, omission or offence if
the applicant concerned has made a full disclosure of all relevant facts, and provided further that the
relevant act, omission or offence was associated with a political objective and committed prior to 6
December 1993. Under section 20(7), as a result of the granting of amnesty, the perpetrator is relieved
from criminal and civil liability. The State or any other body, organization or person that would
ordinarily have been vicariously liable for the act, omission or offence is also relieved from liability.
3
Chapter I
which have taken place have occurred during an era in which neither the laws
which permitted the incarceration of persons or the investigation of crimes, nor
the methods and the culture which informed such investigations, were easily
open to public investigation, verification and correction. Much of what
transpired in this shameful period is shrouded in secrecy and not easily capable
of objective demonstration and proof. Loved ones have disappeared, sometimes
mysteriously and most of them no longer survive to tell their tales. … Secrecy
and authoritarianism have concealed the truth in little crevices of obscurity in
our history. Records are not easily accessible, witnesses are often unknown,
dead, unavailable or unwilling. All that often effectively remains is the truth of
wounded memories of loved ones sharing instinctive suspicions, deep and
traumatising to the survivors but otherwise incapable of translating themselves
into objective and corroborative evidence which could survive the rigours of the
law. 2
Recent history is full of examples of cases in which successor regimes have rather
granted amnesties to officials of the previous regime who were guilty of
international human rights crimes than prosecuted them. In some of these cases,
particularly that of South Africa, the United Nations has welcomed such a solution.
For example, in Sierra Leone, the state’s wish to grant amnesty was partly
stalled by the United Nations and prosecution of those allegedly responsible for
international crimes of genocide, crimes against humanity, war crimes and other
serious violations of international humanitarian law was made possible by the
establishment of the Special Court for Sierra Leone. The Sierra Leonean Truth and
Reconciliation Commission holds that:
those who argue that peace cannot be bartered in exchange for justice, under
any circumstances, must be prepared to justify the likely prolongation of an
armed conflict. Amnesties may be undesirable in many cases. Indeed, there are
examples of abusive amnesties proclaimed by dictators in the dying days of
tyrannical regimes. The Commission also recognises the principle that it is
generally desirable to prosecute perpetrators of serious human rights abuses,
particularly when they ascend to the level of gravity of crimes against
humanity. However, amnesties should not be excluded entirely from the
mechanisms available to those attempting to negotiate a cessation of hostilities
after periods of brutal armed conflict. Disallowing amnesty in all cases would
be to deny the reality of violent conflict and the urgent need to bring such strife
and suffering to an end. 3
The Preamble of the Rome Statute of the International Criminal Court also confirms
the development towards an international stand against impunity. The Preamble
states that “the most serious crimes of concern to the international community as a
whole must not go unpunished … their effective prosecution must be ensured …
2
South African Constitutional Court,Azanian Peoples Organisation (AZAPO) and others v. President
of the Republic of South Africa and Others, CCT17/96, Judgment of 25 July 1996,para. 17.
3
Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone Truth
& Reconciliation Commission, Vol. 3b, 5 October 2004, p. 365, Chapter 6, at 11.
4
General introduction
[and] it is the duty of every state to exercise criminal jurisdiction over those
responsible for international crimes.” The International Criminal Court is an
essential part of the international effort to fight impunity for serious international
human rights crimes. The states parties agreed that such grave crimes threaten the
peace, security and well-being of the world. Despite the growing number of
member states to the ICC Statute, state practice does not nearly reflect the
intentions of the ICC Statute. This may indicate that despite the fact that states
agree that human rights crimes should not go unpunished, it is quite difficult to
achieve this in transitional situations. In such situations, states need to balance the
need to (re)build the rule of law with the need to end human rights violations.
Therefore, it is worth examining whether it is advisable to foreclose the possibility
to grant amnesty.
2 RESEARCH QUESTION
National efforts to establish peace and democracy often clash with international
legal demands. It is obvious that some amnesties will not be recognized
internationally. The kind of blanket, unconditional amnesty, such as the amnesty
granted by the Pinochet regime to itself, cannot hope to receive international
recognition. However, the same principle does not necessarily apply to conditional
amnesties accompanied by, for instance, a thorough investigation by a truth and
reconciliation commission like the South African one. If all amnesties for
international human rights crimes in all circumstances were to be considered
unacceptable and never to be accorded international recognition, this might
seriously invalidate a useful tool for ending or preventing wars, facilitating the
transition to democratic civilian regimes or aiding the process of reconciliation.
Recognizing the still widespread state practice concerning amnesty, which,
according to national governments and courts, do not necessarily harm international
efforts to promote human rights, and given the fact that the international community
has an interest in respect for human rights and the rule of law, as well as the
restoration and maintenance of peace and public order and the ways in which
human rights may be enhanced, the core question of this research is:
What kind of amnesty measures can be considered legitimate in the light of the
need to combine respect for human rights and the rule of law with the need to
restore and maintain peace and public order?
3 OBJECTIVE OF THE STUDY
Although human rights advocates often reject the option of amnesty, there may be
good reasons for pursuing (conditional) amnesties. Granting amnesty may play a
role in alleviating tensions within countries and improving the human rights
situation. The study of theoretical arguments, amnesty laws, case law and state
5
Chapter I
practice is deemed to uncover facts that cannot easily be neglected when taking
decisions on this highly complex matter.
The research will concentrate on the clash between the effort to eradicate
impunity and the state practice of granting amnesty. How to balance two main aims:
on the one hand, respect for human rights and the non-desirability of impunity; on
the other hand, the need to go on, in one way or another, including the structural
requirements needed for such a way, such as the neutralization of opposition
groups, encouraging combatants to lay down their arms, the need to reach a peace
agreement and the improvement of the human rights situation.
The aim of this research is to develop a framework that can be used in
international as well as national criminal proceedings in cases in which the
legitimacy of an amnesty law, measure or judgment is questioned. To this end, the
factors that play a role when examining the legitimacy of an amnesty have to be
determined. The framework is not only useful when reviewing an amnesty already
granted. It may also be informative for and kept in mind by states considering
amnesty or actors involved in post-conflict processes of reconciliation, transitional
justice, and so on.
4 RESEARCH APPROACH
This study examines international law, literature, case law, reports, studies of
NGOs, and various kinds of United Nations’ documents in order to find an answer
to the core research question.
The research is composed of four parts:
Part 1 contains this chapter and is a general introduction to the research
containing a brief outline of the research subject, the research question, the
objective of the study and the methodology.
Part 2 will first outline the impunity matter in Chapter II. It is important to
understand impunity and the effects impunity may have on a society, because
impunity is the broader concept of which amnesty is a form. Chapter III addresses
amnesty. The reasons behind and the circumstances under which states decide to
grant amnesty are elaborated on. The purposes of amnesty will be outlined, as well
as the benefits prosecution may have. In addition, the various forms in which
amnesty may be granted will be presented. Arguments in favour and against
amnesty will be discussed.
Part 3 consists of three chapters relating to the legality of national amnesty laws.
In Chapter IV the legality of national amnesty laws under international law will be
discussed focusing on black-letter law as well as on judgments and views of
international supervisory bodies. Is there a duty to prosecute, or is the possibility to
grant amnesty foreclosed? In addition, the four international criminal courts and
tribunals most relevant to this research will be discussed, in order to investigate
what their opinion is on the granting of amnesty. Universal jurisdiction also forms
part of this chapter, because, since amnesty laws only have domestic significance,
other states may hold the perpetrators to account based on universal jurisdiction
6
General introduction
when an amnesty covers international crimes. The United Nations, with 193
members states being a very prominent actor, is the subject of Chapter V. A close
look will be taken at the United Nations’ position and practice on impunity,
amnesty and the duty to prosecute. A factor of high relevance for the subject of this
research is the victims. When the rights of victims are not respected, this may
influence the legitimacy of an amnesty. Chapter VI will therefore identify the rights
of victims related to the practice of granting amnesty, and set out these rights.
Attention will also be paid to victim participation in the process of granting
amnesty.
In Part 4, Chapter VII, the findings of this research will be considered. Based on
the findings in Part 2 and 3, the factors that are of significance when assessing
whether an amnesty measure may be considered legitimate are determined. This
culminates in a framework for the legitimate use of amnesty that can be used to
answer the research question on a case by case basis. In the framework for the
legitimate use of amnesty, the factors are put into questions. Confronted with a
specific case, all questions should be answered to get a full picture of the legitimacy
of an amnesty measure. Depending on the outcome of such an assessment, an
amnesty measure may be considered legitimate or not.
7
PART 2
IMPUNITY AND AMNESTY
CHAPTER II
IMPUNITY
1 INTRODUCTION
Over and over again, the world is confronted with grave and systematic human
rights violations: Argentina, Cambodia, Chile, Iraq, the former Yugoslavia,
Rwanda, Sierra Leone and South Africa are perhaps some of the most well-known.
The reason that these countries are some of the best known countries to have
violated human rights is because the international community paid attention to these
violations. The attention given to these violations is not merely bringing it into the
international news, but special attention. Special courts and tribunals were
established and international arrest warrants were issued in order to prosecute the
violators of the human rights crimes committed, at least those most responsible for
those crimes. In the cases of Argentina and Chile, Spain is trying to prosecute those
responsible for the violations committed during the military regimes in those
countries, and since June 2005, Argentina itself has also been prosecuting Dirty
War cases. 1 On 14 June 2005, the Argentine Supreme Court in the Simón case
declared the Full Stop and Due Obedience laws, which provided immunity from
prosecution as being unconstitutional. The Supreme Court stated the following:
While it is certain that Article 75, sec. 20 of the National Constitution maintains
the authority of the Legislative Power to decree general amnesty, this capacity
has suffered important limitations in terms of its reach. In principle, laws of
amnesty have been used historically as instruments of social pacification, with
the declared objective of resolving the conflicts that remain after the end of
armed civil struggles. In an analogous direction, laws 23.492 and 23.521 were
intended to leave in the past the conflicts between “civilians and the military.”
However, to the extent that they, like all amnesties, are oriented toward the
“forgetting” of grave human rights violations, they are in opposition to the
ordinances of the American Convention on Human Rights and the International
1
In June 2005, the Argentine Supreme Court struck down two amnesty laws and cleared the way for
prosecution of Dirty War crimes.
11
Chapter II
Covenant of [sic] Civil and Political Rights and are, therefore, constitutionally
intolerable. 2
In their respective votes, the judges showed an appreciation for the international
development of human rights law, citing diverse decisions that must necessarily be
respected at the domestic level. The Supreme Court referred to the Barrios Altos
case (2001) of the Inter-American Court of Human Rights, and held that:
[For] the purpose of fulfilling the international treatises on human rights, the
suppression of the Full Stop and Due Obedience laws cannot be postponed and
must be carried out in such a way that no normative obstacle to the prosecution
of events like those that constitute the object of the present case may be derived
from such laws. This means that those who benefited from such laws cannot
invoke the prohibition of the retroactivity of the most serious penal law or the
principle of res judicata. Thus, in accordance with what has been established by
the Inter-American Court in the cases cited, such principles cannot become an
impediment in the annulment of the aforementioned laws, either for the
prosecution of cases that were closed because of these laws, or for that of any
other case that may have been opened and never finalized. In other words, the
subjection of the Argentine State to the Inter-American jurisdiction impedes the
invocation of the principle of “irretroactivity” of the penal law in order to
disregard the duties assumed in relation to the prosecution of grave human
rights violations. 3
In December 2003, the Iraqi Special Tribunal (IST) was established to prosecute
Saddam Hussein and any Iraqi national or resident of Iraq accused of the crime of
genocide, crimes against humanity, war crimes, or violations of certain Iraqi laws
listed in Article 14 of the Statute. 4 After the internal conflicts in the former
Yugoslavia and Rwanda, two international criminal tribunals were established, the
International Criminal Tribunal for the former Yugoslavia (ICTY, 1993) and the
International Criminal Tribunal for Rwanda (ICTR, 1994). The ICTY has “the
power to prosecute persons responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia since 1991 in
accordance with the provisions of the … Statute”. 5 The ICTR has “the power to
prosecute persons responsible for serious violations of international humanitarian
law committed in the territory of Rwanda and Rwandan citizens responsible for
such violations committed in the territory of neighbouring States between 1 January
2
Argentina Supreme Court of Justice, Simón, Julio Héctor y otros s/ privación ilegítima de la libertad,
etc., Causa No. 17.768, Judgment of 14 June 2005. Opinion Judge Petracchi, para. 16, p. 244,
translation by K. Beamish-Brown in J.A. Montes, “The right to truth in the recent history of Argentina”,
in: A. Forcinito and F. Ordonéñez (eds.), Human Rights and Latin American Cultural Studies, Vol. 4
Hispanic Issues On Line 2009, pp. 137-149, p. 145.
3
Argentina Supreme Court of Justice, Simón, Julio Héctor y otros s/ privación ilegítima de la libertad,
etc., Causa No. 17.768, Judgment of 14 June 2005, para. 31, p. 120; Translation by K. Beamish-Brown
see footnote 2 above, pp. 145-146.
4
IST Statute, Article 10.
5
ICTY Statute, Article 1.
12
Impunity
1994 and 31 December 1994, in accordance with the provisions of the … Statute”. 6
A Tribunal for Cambodia (Extraordinary Chambers in the Court of Cambodia for
the Prosecution of Crimes Committed during the Period of Democratic Kampuchea,
ECCC) was established to try former Khmer Rouge leaders. In Sierra Leone, the
Special Court for Sierra Leone (SCSL) started in 2004 to prosecute persons who
bore the greatest responsibility for serious violations of international humanitarian
law and Sierra Leonean law committed in the territory of Sierra Leone since 30
November 1996. 7
Less well known maybe, but nonetheless no less important or serious are cases
that were not given the abovementioned ‘special attention’ and where impunity
continues to exist. One can mention here the case of Burma. Human rights crimes
are daily events for the citizens of this country. Crimes such as enforced relocation
of population, forced labour and the use of child soldiers are common practice.
Another region that may be mentioned in this respect is Tibet. Human rights crimes
such as coercive abortion, involuntary sterilization and torture are committed on the
Tibetan people on a large scale. As a result of the fact that the perpetrators of these
crimes are not charged, punished and prosecuted, a climate arises in which impunity
persists. 8
2 IMPUNITY
Impunity may appear in various forms, which may differ from place to place.
Impunity means that violations of the law are not punished. In this research,
impunity means the failure to hold perpetrators of human rights crimes accountable
and the inherent denial of the victims’ rights to justice, truth and reparation. In order
to prevent impunity and to achieve justice, it is required “that the perpetrators of
human rights violations be brought to account through a process which includes
investigation of the facts, indictment, trial sentencing and determination of
reparation for the victim of the offence”. 9 The absence or inadequacy of this process
implies impunity. 10
In 1995, Special Rapporteur Leandro Despouy indicated some negative and
positive trends regarding human rights and states of emergency. 11 Among those
6
ICTR Statute, Article 1.
SCSL Statute, Article 1.
8
The human rights situations in these two countries are the result of cultures of impunity. Up to today
no international efforts are made to make an end to these cultures of impunity concerning human rights
violations.
9
Geneviève Jacques, Beyond Impunity. An Ecumenical Approach to Truth, Justice and Reconciliation,
World Council of Churches Publications: Geneva 2000, p. 3.
10
Commission on Human Rights, Final Report on the Question of the Impunity of Perpetrators of
Human Rights Violations (Economic, Social and Cultural Rights), prepared by Mr. El Hadji Guissé,
Special Rapporteur, pursuant to Sub-Commission resolution 1996/24, E/CN.4/Sub.2/1997/8, 27 June
1997, para. 20.
11
Commission on Human Rights, Eighth annual report and list of States which, since 1 January 1985,
have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro Despouy,
7
13
Chapter II
trends are two that relate to the issue of impunity for gross violations of human
rights.
A negative trend is the persistence of immunity from prosecution for the
perpetrators of human rights violations which characterizes such situations, and
which persists even after the state of emergency has been lifted and even when
the country has returned to normal. Frequently, in many countries that have
experienced long periods during which their institutions have operated under a
state of emergency and there have been gross and systematic human rights
violations, Governments adopt measures of clemency or amnesty laws, on the
grounds of realpolitik or national reconciliation. A number of nongovernmental organizations have expressed deep concern to the Special
Rapporteur about such situations, as they represent a dangerous trend that
facilitates or encourages future violations. 12
A positive trend is
[t]he progress made in drawing up the draft code of crimes against the peace
and security of mankind, and the establishment of the International Tribunal for
the prosecution of persons responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia since
1991[. These] are indications of the international community’s determination to
set up machinery to punish gross and large-scale violations of human rights,
even in the most extreme circumstances. 13
In August 1991, the Sub-Commission on Prevention of Discrimination and
Protection of Minorities of the UN Commission on Human Rights decided to
conduct a study on the impunity of perpetrators of human rights violations. Special
Rapporteurs Louis Joinet and El Hadji Guissé wrote the final reports on this issue.
Mr. Joinet prepared the one on the violation of civil and political rights and Mr.
Guissé the one on the violation of economic, social and cultural rights. The Joinet
report was submitted to the Sub-Commission in June 1997 and contains a Set of
Principles for the protection and promotion of human rights to combat
impunity. 14Pursuant to the Vienna Declaration and Programme of Action, this Set
Special Rapporteur appointed pursuant to Economic and Social Council resolution 1985/37,
E/CN.4/Sub.2/1995/20, 26 June 1995.
12
See ibid., para. 15.
13
Ibid.
14
Commission on Human Rights, Question of the impunity of perpetrators of human rights violations
(civil and political). Final report prepared by Mr. Joinet pursuant to Sub-Commission decision
1996/119, E/CN.4/Sub.2/1997/20, 26 June 1997; and Commission on Human Rights, Question of the
impunity of perpetrators of human rights violations (civil and political). Revised final report prepared
by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October
1997. In response to a request by the Commission on Human Rights in Resolution 2002/79 SecretaryGeneral obtained the views of Governments and non-governmental organizations on the Set of
Principles. The International Commission of Jurists (ICJ) “considered the problem of impunity as a core
issue for the full observance of all human rights and the rule of law. It noted that the phenomenon of
impunity is incompatible with the international obligations of States and is a major obstacle to the full
14
Impunity
of Principles is intended as a guideline to assist states in developing effective
measures to combat impunity. 15 In 2005, the Set of Principles was updated by Diane
Orentlicher. 16
In the Set of Principles for the protection and promotion of human rights to
combat impunity, impunity is defined as “the impossibility, de jure or de facto, of
bringing the perpetrators of violations to account - whether in criminal, civil,
administrative or disciplinary proceedings - since they are not subject to any inquiry
that might lead to their being accused, arrested, tried and, if found guilty, sentenced
to appropriate penalties, and to making reparations to their victims.” 17 This
definition indicates that there are two kinds of impunity, de iure and de facto. De
iure impunity can result out of an amnesty (law), a pardon, an exemption or another
legal measure to prevent accountability (e.g. based on ordinary law such as
prescription or mitigating circumstances). 18 In regulations amounting to de iure
impunity, laws or regulations providing immunity or amnesty make it difficult or
impossible to prosecute a perpetrator for human rights abuses. 19
enjoyment of human rights. Furthermore, ICJ pointed out that international human rights bodies and
procedures have repeatedly stated that impunity is a violation of international human rights law and, in
particular, of the obligations to investigate violations and to prosecute and punish their perpetrators.
They have also stated that impunity is the main factor which allows a recurrence of human rights
violations”.
15
Commission on Human Rights,Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005, Preamble, p. 5.
16
Commission on Human Rights,Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005.Pursuant to Commission resolution 2004/72, the Set of Principles for the protection
and promotion of human rights through action to combat impunity (the Principles) have been
updated“to reflect recent developments in international law and practice, including international
jurisprudence and State practice, and taking into account the independent study” on impunity
(E/CN.4/2004/88) commissioned by the Secretary-General pursuant to resolution 2003/72. The
independent study, in turn, identified best practices in combating impunity, using the Principles as a
framework for assessment.
17
Commission on Human Rights,Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005, Definitions, p. 6.
18
Especially the 1980s showed a real outbreak of the issuing of amnesty laws and impunity measures,
particularly in Latin and South America. For example Argentina’s Self amnesty law no. 22.294 (22
September 1983)18, Full Stop law (Ley de Punto Final) no. 23.492 (12 December 1986)18 and Due
obedience law (Ley de Obediencia Debida) no. 23.521 (5 June 1987)18, Uruguay’s Expiration of the
punitive power of the state, Act 15.848 (22 December 1986), El Salvador’s Decree 805 (1987), Chile’s
Legislative decree 2.191 (1987) granting self-amnesty.
19
Human Rights Watch, India. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir,
Human Rights Watch 2006 vol. 18 no. 11(C), p. 27. India has several such provisions in its laws, aimed
at shielding its military personnel and civilian officials from legal accountability. In May 2008, the
Committee on Economic, Social and Cultural Rights noted with concern that there is “national security
legislation which grants impunity to state officials who violate human rights, including economic, social
and cultural rights.”; See also, Committee on Economic, Social and Cultural Rights, Consideration of
15
Chapter II
If no legal measure is taken, impunity can also result from the circumstances.
This occurs when no action is taken after a period of serious violations. De facto
impunity may occur intentionally or unintentionally, for example because of a lack
of resources or a weak judicial system. Intentional de facto impunity means that the
state willingly fails to prosecute and punish. In such a case, the state may want to
protect its own members or the military, or it may decide so for safety reasons. 20
This means that the institutions responsible fail to properly investigate the crimes
committed and therefore do not punish the perpetrators. It is also possible that the
fact that crimes were committed is denied or that a state for its own reasons decides
that no legal action will be taken. Human Rights Watch claims that both de iure and
de facto impunity will weaken confidence and trust in the government and security
forces and will cause more human rights violations. 21 According to Ratner, “[p]art
of the impunity problem today is that states too readily err on the side of presuming
trials will lead to instability and hurt the country.” 22 The new regime may fear the
possible influence and power the old regime still has, may assume that impunity is a
condition for reconciliation and the healing of social wounds, or underestimate the
people’s wish to see justice done. 23 This presumption may establish peace in the
short term, but it is unclear what the consequences of impunity are in the long term.
It is possible, that such a ‘bad’ example, will lead to civil unrest in the long term, or
may be a reason for a return to conflict.
Principle 1 of the updated Set of Principles on general obligations of states to
take effective action to combat impunity states:
reports submitted by states parties under articles 16 and 17 of the covenant: Concluding observations
of the committee on economic, social and cultural rights: India, E/C.12/IND/CO/5, 8 August 2008,
para. 12.
20
De facto impunity has been rampant in Jammu and Kashmir state, where in even well-documented
abuse cases there is no political will to prosecute; Human Rights Watch, India. “Everyone Lives in
Fear”: Patterns of Impunity in Jammu and Kashmir, Human Rights Watch 2006 vol. 18 no. 11(C), p.
27; See also, Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in
Northern Uganda, Human Rights Watch 2005 vol. 17 no. 12(A), pp. 42-44; In South-Africa, where
“most applications for amnesty were denied … the lack of prosecution against perpetrators who were
not granted amnesty has embittered victims and weakened the Commission’s legacy.” International
Center for Transitional Justice, Challenging Legacies of Impunity, Annual Report Magazine 2006/2007,
p. 26.
21
Human Rights Watch, India. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir,
Human Rights Watch 2006 vol. 18 no. 11(C), p. 27. See also: Commission on Human Rights, Report of
Working Group on Enforced or Involuntary Disappearances, E/CN.4/1990/13, 24 January 1990, para.
344: “Perhaps the single most important factor contributing to the phenomenon of disappearances may
be that of impunity. The Working Group’s experience over the past 10 years has confirmed the age-old
adage that impunity breeds contempt for the law. Perpetrators of human rights violations, whether
civilian or military, will become all the more brazen when they are not held to account before a court of
law. Impunity can also induce victims of these practices to resort to a form of self help and take the law
into their own hands, which in turn exacerbates the spiral of violence.”
22
Steven R. Ratner, “New Democracies, Old Atrocities: An Inquiry in International Law”, Georgetown
Law Journal, vol. 87 1999, pp. 707-748, p. 745.
23
Ibid.
16
Impunity
Impunity arises from a failure by States to meet their obligations to investigate
violations; to take appropriate measures in respect of the perpetrators, particularly
in the area of justice, by ensuring that those suspected of criminal responsibility are
prosecuted, tried and duly punished; to provide victims with effective remedies and
to ensure that they receive reparation for the injuries suffered; to ensure the
inalienable right to know the truth about violations; and to take other necessary
steps to prevent a recurrence of violations. 24
Notwithstanding the motives for impunity or its appearance, impunity may have
very serious negative consequences for a country, as will be pointed out in Sections
4 and 5. First, three different forms of de iure impunity will be outlined in Section
3.
3 FORMS OF DE IURE IMPUNITY
There are various ways in which impunity can be provided for in a legal way.
Section 2 elaborated upon the difference between impunity de iure and impunity de
facto. In this section, three different forms of de iure impunity will be explained:
amnesty laws, pardons and statutory limitations. Other forms of de iure impunity,
such as immunity for state officials, lie beyond the reach of this research. 25
A statute of limitations is a provision in domestic law that defines the period
after a crime within which proceedings based on that crime must be started. After
expiration of the set period, prosecution of the alleged offender becomes
impossible. Several international instruments foreclose the possibility of statutes of
limitation. For example, Article 29 of the Rome Statute and Article 1 of the
Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes against Humanity state that no statutes of limitation shall apply to crimes
against humanity or war crimes. It may be held that the ius cogens nature of the
prohibition of torture excludes statutory limitations. The ICTY took the position
that “other consequences [of the ius cogens character of the prohibition of torture
under international law] include the fact that torture may not be covered by a statute
of limitations.” 26 This conclusion regarding the crime of torture may be
extrapolated to other ius cogens crimes.
The coming subsections outline amnesty laws and pardons, two forms of de iure
impunity that are sometimes mistaken for one another. Statutory limitations are
relevant to this research, because the fact that statutory limitations are foreclosed
indicates the gravity of the crime concerned.
24
Commission on Human Rights,Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005, Principle 1, p. 7.
25
See, for example, Rosanne van Alebeek, The Immunity of States and Their Officials in International
Criminal Law and International Human Rights Law, Oxford University Press: New York 2008.
26
ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, para. 157.
17
Chapter II
3.1 Amnesty laws
An amnesty law is a law that grants amnesty to a group of people who have
committed crimes in a certain period. The law in effect shields the perpetrators from
being tried for the crimes they committed during a set period before the issuance of
the amnesty law. In the Study on amnesty laws and their role in the safeguard and
promotion of human rights, amnesty is defined as follows:
[A]n amnesty is considered to be the juridical expression of a political act
whose expected effects directly concern the promotion or protection of human
rights and, in some instances, the return to, or consolidation of, democracy:
Because the amnesty encourages national consensus in the wake of a
political change brought about in a democratic framework (elections
…);
Because it is the first act in the initiation of a demoncratic [sic]
process or marks a return to democracy; or
Because it is intended to block an internal crisis (non-international
armed conflict) or mark the end of an international armed conflict. 27
In the study, amnesty is “understood legally in the following sense: whether the
persons amnestied have or have not been tried or convicted, or served a sentence,
their conduct is deemed not to have constituted an offence and the penalty is
considered never to have been enforced”. 28Amnesties an sich do not include any
form of truth or accountability. The impunity for the crimes provided for in the law
is meant to be indefinite, but future governments may decide to abolish the amnesty
law and start prosecutions. This happened for instance in Argentina, almost 20 years
after amnesty was granted. Besides, when the amnesty covers international crimes,
other states may hold the perpetrators to account based on universal jurisdiction,
since amnesty laws only have domestic significance. 29
3.2 Pardons
A pardon is the removal of a sentence or punishment “by the sovereign under the
prerogative of mercy. Once a pardon is granted, the accused cannot be tried and if
he has already been convicted, he cannot be punished” 30 or must be released. Unlike
an amnesty, a grant of pardon does not eradicate the breach for which punishment is
remitted.
27
Commission on Human Rights, Study on Amnesty Laws and Their Role in the Safeguard and
Promotion of Human Rights, Preliminary Report by Mr. Louis Joinet, Special Rapporteur,
E/CN.4/Sub.2/1985/16, 21 June 1985, para. 7.
28
See ibid., para. 5.
29
See also Chapter IV, Section 6 on universal jurisdiction.
30
Elizabeth A. Martin (ed.), A Dictionary of Law, Oxford University Press: Oxford 2003.
18
Impunity
Pardons are often confused with amnesties, although they are quite different
from them. A pardon is usually issued after the person who committed the crime is
held accountable and thus lifts or reduces the punishment. 31 This is, however, not
always the case. Bronkhorst holds that practice differs from theory in the sense that
pardons have been used before conviction and amnesties after conviction to relieve
persons from punishment. Having said this, in principle a pardon is given after
conviction. Here lies an important distinction with amnesty. Although a pardon
releases the perpetrator, it does not interfere with the accountability and truth
functions of justice, as amnesty does. 32 Usually, amnesty implies both the
annihilation or eradication of criminal prosecution and execution of a sentence, a
pardon extinguishes only the execution of the sentence. 33 Amnesties and pardons
also have different goals and derive from other backgrounds. Amnesties achieve the
promotion of peace and reconciliation, a pardon provides a discretionary
mechanism to sidestep the courts. 34
Slye points out that pardons raise many of the same issues as amnesties, as a
result of which “[t]here are four justifications for pardons that are relevant for
amnesties. Pardons are justified as: an expression of the official grace and wisdom
of a leader of government; an expression of societal forgiveness for a transgression;
a recognition of rehabilitation; and as a contribution towards social stability.” 35
In general, amnesties are more controversial than pardons. This may be
explained by the fact that impunity is provided for a whole group of people;
amnesty often covers (serious) human rights violations (that were committed on a
large scale); the perpetrators are not identified and therefore the beneficiaries of an
amnesty are usually not publicly known; and the victims’ are denied their rights to
truth, reparation and justice (unless there are established other mechanisms to
provide victims or their relatives the truth and reparation). When a person is
pardoned, the criminal record remains unchanged. The pardon only affects the
31
Daan Bronkhorst, Truth and Reconciliation, Obstacles and Opportunities for Human Rights,
Amnesty International: Amsterdam 1995, p. 100.
32
Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of
Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol.
43 2002, pp. 173-247, p. 236.
33
Christopher C. Joyner, “Redressing Impunity for Human Rights Violations: The Universal
Declaration and the Search for Accountability”, Denver Journal of International Law and Policy, vol.
26 no. 4 1998, pp. 591-624, p. 612.
34
Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International:
The Hague/London/New York 2002, p. 2.
35
Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of
Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol.
43 2002, pp. 173-247, p. 236. Slye continues and provides examples of these justifications: “The
justification of amnesty as an expression of the grace or wisdom of a leader is most prominent in the
rhetoric surrounding the annual “amnesties” issued by many Asian countries to commemorate an
important national event. The rhetoric surrounding the more modern and sophisticated South African
amnesty reflects the justification of amnesty as a reflection of societal forgiveness. The utilitarian
justification of contributing to social stability is raised with respect to amnesties issued in transitional
contexts, from the amnesties issued at the end of the U.S. Civil War to those issued more recently in
Chile, Argentina, and South Africa.”
19
Chapter II
sentence. There are, however, also controversial pardons, such as the pardon
granted by U.S. President Ford to Richard Nixon in 1974, just before criminal
proceedings were initiated.
4 EFFECTS ON SOCIETY
Many newly formed democratic governments are … faced with the … problem
of how to treat the perpetrators of serious human rights violations committed
under the previous government. Often, the firm resolve of the new leaders to
bring these criminals to justice is gradually weakened during the transition
period. This provides many perpetrators of serious human rights violations a
means of escaping justice. Such impunity hardly contributes to strengthening
the people’s confidence in the new administration, especially when officials are
allowed to remain in office in spite of their past crimes. 36
For victims of human rights crimes, the lack of accountability as a result of
impunity is tough. But not only victims and their families suffer from impunity,
impunity affects the whole society. For instance, in Jammu and Kashmir (India),
Human Rights Watch observed that “impunity has bred cynicism and distrust of
authority. It has led to divisions in society that will take a long time to heal.” In
research conducted by Human Rights Watch many Kashmiris told them “that
impunity for human rights violations is the single biggest obstacle to restoration of
normality in the state. They made it plain that no peace or cease-fire will be
meaningful or enduring without an end to the almost complete impunity that the
Indian security forces and the militants have enjoyed.” 37 Another example is
Uganda, where “[t]he process involves acceptance of perpetrators back into the
community after certain rituals, but does not take into account the views of the
individual victims who might not want to forgive serious crimes, nor does it require
the perpetrators be punished or pay material damage to the victims.” 38
As a result of impunity, it is not possible to separate the guilty from the
innocent. 39 Luis Pérez Aguirre exemplifies:
As soon as impunity takes root in a nation, all members of the armed forces and all
members of the police who served during the reign of terror pass, without
36
Adama Dieng, “Opening Speech”, in: International Commission of Jurists, Justice. Not Impunity,
International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, pp.
19-26, pp. 20, 21.
37
Human Rights Watch, India. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir,
Human Rights Watch 2006 vol. 18 no. 11(C), p. 8; Hannah Arendt wrote that “the first step on the road
to total domination is to kill the juridical person in man”. Weschler explains this as “to make the
attainment of justice appear hopeless and its pursuit pointless.” in Lawrence Weschler, A Miracle, A
Universe. Settling Accounts with Torturers, Pantheon Books: New York 1990, p. 242.
38
Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern
Uganda, Human Rights Watch 2005 vol. 17 no. 12(A), p. 56.
39
Luis Pérez Aguirre, “The Consequences of Impunity in Society”, in: International Commission of
Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992, International Commission
of Jurists: Geneva 1993, p. 118.
20
Impunity
distinction, into the ranks of the guilty. Every single one. This is ominous for a
human community, for when an amnesty law (under any of its various guises) is
adopted, all citizens will tend to suspect and see as guilty anyone who wore a
uniform during those years. This is bound to happen if society fails to provide the
opportunity and the appropriate legal machinery to separate the guilty from the not
guilty. 40
According to Carlos Guzman “[t]he idea of impunity prevails in the collective
conscience. It is precisely these acts of impunity combined with the misapplication
of justice which promote the loss of control of public order.” 41 People are expected
to have faith in the new government while this government does not respect their
rights.
The Inter-American Court of Human Rights has stated that “impunity fosters
chronic recidivism of human rights violations, and total defenselessness of victims
and their relatives.” 42
Several NGOs and UN bodies have an opinion on the issue of impunity and the
consequences it might have. The UN Commission on Human Rights, for example,
was convinced “that impunity for violations of human rights and international
humanitarian law that constitute crimes encourages such violations and is a
fundamental obstacle to the observance and full implementation of human rights
and international humanitarian law”. 43 The UN Human Rights Committee 44 has
condemned the practice of states granting amnesties on several occasions, 45 and
warns that pardons and general amnesties may foster a culture of impunity in which
hostilities and human rights abuses may resume. 46 The International Commission of
Jurists considers “the problem of impunity as a core issue for the full observance of
human rights and the rule of law. … [T]he phenomenon of impunity is incompatible
with the international obligations of States and is a major obstacle to the full
40
Ibid.
Cecilia Bailliet, Between Conflict & Consensus: Conciliating Land Disputes in Guatemala, Institute
for Public & International Law: Oslo 2002, p. 357.
42
IACtHR, Paniagua Morales et al. v. Guatemala, Series C No. 37, Judgment of 8 March 1998
(Merits), para. 173.
43
Commission on Human Rights, Commission on Human Rights resolution 2004/72: Impunity,
E/CN.4/RES/2004/72, 21 April 2004; In 1993, the UN Commission on Human Rights in Resolution
1993/43, stated “that the increasingly widespread practice of impunity for perpetrators of violations of
human rights in various regions of the world is a fundamental obstacle to the observance of human
rights.”
44
The United Nations Human Rights Committee monitors states parties’ compliance with their
obligations under the ICCPR (1966).
45
For example, Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture,
or Other Cruel, Inhuman or Degrading Treatment or Punishment),Replaces general comment 7, 10
March 1992; Human Rights Committee, Concluding Observations of the Human Rights Committee:
Peru, A/51/40, paras. 339-364 (1996), para. 347; Human Rights Committee, Concluding Observations
of the Human Rights Committee: Haiti, A/50/40, paras. 224-241 (1995), para. 230.
46
Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina,
A/50/40, paras. 144-165 (1995), para. 158; Human Rights Committee, Concluding Observations of the
Human Rights Committee: Haiti, A/50/40, paras. 224-241 (1995), para. 230.
41
21
Chapter II
enjoyment of human rights.” 47 In its reply pursuant to Resolution 2002/79 of the
Commission on Human Rights, the International Commission of Jurists agrees with
this and “pointed out that international human rights bodies and procedures have
repeatedly stated that impunity is a violation of international human rights law and,
in particular, of the obligations to investigate violations and to prosecute and punish
their perpetrators.” 48The International Rehabilitation Council for Torture Victims
stresses that impunity for torture hinders the rehabilitation of victims of torture,
“particularly where such impunity creates the impression that the community in
which the victim lives implicitly condones the violation.” 49Human Rights Watch
emphasizes that impunity “creates an atmosphere in which violators believe that
they can get away with the most serious crimes”. 50 According to Amnesty
International, impunity denies the values of truth and justice and causes new
violations to occur. 51 All NGOs described here are convinced that impunity for
human rights violations will lead to the occurrence of new violations.
Human rights groups, NGOs and individual defenders hold that without ending
the culture of impunity, a commitment to the protection and promotion of human
rights is not fully complete. 52
5 FROM IMPUNITY TO A CULTURE OF IMPUNITY
A culture of impunity arises when the state consistently fails to prosecute human
rights violations. Hina Jilani, Special Representative of the UN Secretary-General
on Human Rights Defenders, explains that “in reality it is the absence of political
will on the part of Governments that allows impunity for human rights violations to
prevail”. 53 A culture of impunity can result from de iure or de facto impunity.
Either way, a culture of impunity is claimed to be a serious cause of new violations
of human rights. For example,
[a]ppalling outrages were committed during the Second World War by
organized members of different ethnic groups in Yugoslavia against fellow
citizens from other ethnic groups. Immediately following the war, however, in
the name of the Tito regime’s policy of “brotherhood and unity”, all discussion
of and attempts to come to terms with those acts were actively suppressed. This
47
Commission on Human Rights, Impunity. Report of the Secretary-General, E/CN.4/2003/97, 9
January 2003, para. 23.
48
Ibid.
49
Commission on Human Rights, Impunity. Report of the Secretary-General, E/CN.4/2000/90, 23
December 1999, para. 11.
50
Human Rights Watch, India. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir,
Human Rights Watch 2006 vol. 18 no. 11(C), p. 5-6.
51
Daan Bronkhorst, Truth and Reconciliation, Obstacles and Opportunities for Human Rights,
Amnesty International: Amsterdam 1995, p. 100.
52
General Assembly, Human Rights Defenders, A/56/341, 10 September 2001, para. 17.
53
See ibid., para. 14.
22
Impunity
policy continued over the next four decades, and society’s trauma and bitterness
left over from the horrors of the 1940s failed to heal. 54
According to Jacob Finci, “[o]ne of the reasons for the atrocities committed in …
Bosnia-Herzegovina is perhaps this failure to clarify the past, this attempt to sweep
it under the carpet. After the Second World War, the only ones held accountable for
their cruelty were the Germans; the role played by local collaborators was hidden
from view.” 55 Rigby claims that the wish of one generation to leave the violent past
alone without clarification “does not mean that subsequent generations will remain
satisfied with leaving it covered up”. 56 The sooner the truth is known, the better.
Therefore, it is never too late to establish the facts surrounding past violations. This
is illustrated by the criminal trials in Argentina instituted after the amnesty laws
were overturned (2005), and the establishment in 2003 of a hybrid tribunal in
Cambodia, established to prosecute those most responsible for violations committed
during the Khmer Rouge regime (1975-1979).
During the existence of the UN Commission on Human Rights, the Special
Rapporteurs reported on specific countries and topics, presented as reports to the
Commission. 57 Impunity is considered the primary cause of torture and summary
and arbitrary executions in these reports. 58 Another example of impunity being the
cause of grave human rights violations is the case of Rwanda. In 1994,
Bakuramutsa, the Rwandan Ambassador to the UN, expressed the view that the
genocide in Rwanda resulted directly from impunity for earlier collective
massacres:
Since 1959 Rwanda has repeatedly experienced collective massacres, which, as
early as 1964, were described by Pope Paul VI and two Nobel Prize winners Bertrand Russell and Jean-Paul Sartre - as the most atrocious acts of genocide
this century after that of the Jews during the Second World War. But whenever
such tragedies occurred the world kept silent and acted as though it did not
understand that there was a grave problem of the violation of human rights.
Unfortunately, the perpetrators of these crimes were never brought to justice for
their acts. The recent genocide in Rwanda, which awakened, shocked and
saddened the universal conscience, is the direct result of this culture of
impunity. 59
54
Jacob Finci, “War and Accountability: One Bosnian’s view”, in: S. Fleming, D. Meddings and P.
Perrin (eds.), Forum: War and Accountability, International Committee of the Red Cross: Geneva 2002,
p. 66.
55
Ibid.
56
Andrew Rigby, Justice and Reconciliation. After the Violence, Lynne Riener Publishers:
Boulder/London 2001, p. 3.
57
In 2006, the UN Commission on Human Rights was replaced by the Human Rights Council.
58
Antoine Blanca, “Speech”, in: International Commission of Jurists, Justice. Not Impunity,
International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, pp.
15-18, p. 17.
59
Security Council, Security Council, 49th year: 3453rd meeting, Tuesday, 8 November 1994, New
York. The situation concerning Rwanda, S/PV.3453, 8 November 1994, pp. 13-14.
23
Chapter II
Another example of the fact that impunity can lead to grave human rights crimes is
that which Adolf Hitler allegedly encouraged in the run-up to World War II. It is
suggested that the impunity with which the Turkish Government carried out the
genocide against the Armenian people in the period 1915-1918 (during World War
I) emboldened Hitler to carry out the genocide of the Jewish people. 60 However,
there is no empirical evidence of a causal connection.
Up to today, impunity of past violations is a reason for the occurrence of new
ones. In those cases, impunity is often so widespread and accountability so rare or
totally absent, that victims of human rights crimes no longer even report the crimes.
Sometimes, this is connected with the fact that the authorities take part in the crimes
themselves. On other occasions it is out of fear of retribution, but overall, the crimes
are not reported because people know the perpetrators will not be punished. The
Special Representative of the Secretary-General on human rights defenders reported
that “[t]he lack of transparency and accountability in the functioning of State
institutions has added to the culture of impunity”. In particular, violations
committed by the military and other security forces are rarely investigated or
punished, and “[e]ven where there have been prosecutions, sentences have been
light”. 61 The Human Rights Committee has also expressed its concern over
impunity for police, military and security forces. 62 In 2001, Hina Jilani described
military tribunals as “the cornerstones of impunity for perpetrators of human rights
violations. Unacceptably light sentences imposed for gross violations of human
rights cast doubt on the independence and impartiality of military tribunals and
strengthen the perception that there is a deliberate design to conceal atrocities and
shield members of the armed forces accused of committing them.” 63 The experience
of the Working Group on Enforced or Involuntary Disappearances and the UN
Secretary-General confirm Jilani’s assertion. 64 Joinet is of the opinion that human
60
It is said that eight days before Hitler invaded Poland, he turned to his inner circle and said something
like, “Who, after all, speaks today of the annihilation of the Armenians?”; Ben Chigara, Amnesty in
International Law, The Legality under International Law of National Amnesty Laws, Pearson
Education: Harlow 2002, p. 54.
61
General Assembly, Human Rights Defenders, A/56/341, 10 September 2001, para. 15.
62
Human Rights Committee, Concluding Observations of the Human Rights Committee: Colombia,
A/47/40, paras. 390-394 (1992), para. 393. See also Human Rights Committee, Coronel et al. v.
Colombia, Comm. No. 778/1997, CCPR/C/76/D/778/1997, 24 October 2002, para. 3.6.
63
General Assembly, Human Rights Defenders, A/56/341, 10 September 2001, para. 47; See also,
Commission on Human Rights, Report of Working Group on Enforced or Involuntary Disappearances,
E/CN.4/1990/13, 24 January 1990, para. 345, p. 84, stating “[m]ilitary courts contribute significantly to
impunity, in the Working Group's experience. A recurrent theme in times of internal crisis or under the
doctrine of national security is that military personnel attested to have engaged in gross misconduct, are
almost invariably acquitted or given sentences that are disproportionate to the crime committed.
Subsequent promotions are even commonplace.”
64
Commission on Human Rights, Report of Working Group on Enforced or Involuntary
Disappearances, E/CN.4/1990/13, 24 January 1990, para. 345; Commission on Human Rights,
Impunity, E/CN.4/2004/88, 27 February 2004, para. 42:“While specialized civilian courts may
strengthen domestic efforts to combat impunity, human rights treaty bodies and a wide range of special
mechanisms of the Commission on Human Rights have concluded that military courts should not be
competent to try serious human rights violations (principle 31).”
24
Impunity
rights violations committed by members of the armed forces must fall within the
jurisdiction of the ordinary courts exclusively. 65 Given the findings of the various
actors, this seems the right approach.
6 CONCLUSION
Impunity appears to be an obstacle to the rule of law, but on the other hand, demand
for accountability may cause endurance of the conflict resulting in additional human
rights violations or endanger the political transformation into a democratic system.
An example of how difficult accountability is to achieve is that of Cambodia.
For decades, impunity prevailed in Cambodia. In 2003, the ECCC was set up to
bring to trial senior leaders of Democratic Kampuchea and those who were most
responsible for the crimes and serious violations of Cambodian penal law,
international humanitarian law and custom, and international conventions
recognized by Cambodia, that were committed during the period from 17 April
1975 to 6 January 1979. 66 At the end of 2010, only two trials had commenced. In
October 2010, Hun Sen, Cambodia’s Prime Minister, told United Nations SecretaryGeneral Ban Ki-Moon that opening a third trial risked the country falling back into
civil conflict and was therefore foreclosed. Hun Sen himself is a former Khmer
Rouge officer.
In a post-conflict society, impunity clashes with the need to (re)build the rule of
law. Therefore, it is essential to establish counterbalancing measures to guarantee
the rights of victims as much as possible in case amnesty is deemed unavoidable to
establish or maintain a peaceful situation.
It is easy to claim that impunity must be combated and human rights violations
prosecuted by holding those responsible accountable, but this is far from easy in
most cases. Overall, it may be stated that prosecution must be taken very seriously.
Not only does the absence of prosecutions mean impunity, if the situation endures it
also runs the risk of creating a culture of impunity that may lead to new violations.
In a culture of impunity, victims have no opportunity to claim their rights. A culture
of impunity must be differentiated from a situation in which impunity is part of a
transitional justice program in which amnesty was granted accompanied with
counterbalancing measures to respect the rights of victims as much as possible. In
such a case, amnesty is granted, and as a result, impunity prevails for crimes
committed in a certain period under certain specified circumstances. When
prosecutions are conducted, they must be carried out after an investigation and in a
fair trial. When these aspects are not complied with, the prosecution will not be
considered legitimate.
65
Commission on Human Rights, Question of the impunity of perpetrators of human rights violations
(civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision
1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 38.
66
Agreement between the United Nations and the Royal Government of Cambodia concerning the
Prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea,
Phnom Penh, 6 June 2003.
25
Chapter II
When amnesty is decided upon, this is often seen as an option of last resort. The
reasons behind and the circumstances under which states decide to grant amnesty
are elaborated on in Chapter III.
26
CHAPTER III
AMNESTY
1 INTRODUCTION
An amnesty law is a form of impunity and a way of providing immunity from
prosecution; it provides the perpetrator with immunity or protection from domestic
prosecution and punishment. Amnesties, pardons and similar measures have
shielded those responsible for war crimes, crimes against humanity and genocide
from prosecution in numerous states for centuries. Despite the development of
international law since the end of World War II, states continued and still continue
to grant amnesty for international human rights crimes. 1 The practice of granting
amnesty even increased in the second half of this period. There is no clear definition
of the concept of amnesty, in fact, an amnesty can differ from case to case, in the
sense that “amnesties can have a range of characteristics and consequently, the
definition of amnesty can differ substantially between jurisdictions”. 2 Amnesty
derives from the Greek word amnestia, which means an act of forgetting. It is an act
which erases “from legal memory some aspect of criminal conduct by an offender.
It is most frequently granted to groups of people in respect of political offences[,
usually before conviction 3,] and is wider than a pardon, which merely relieves an
offender of punishment.” 4 An amnesty applies only to acts committed before the
law was passed and is thus retroactive. 5 Because criminal and often also civil
liability are extinguished, the granting of an amnesty presupposes that crimes were
perpetrated. 6 One of the characteristics of amnesty is the political context in which
1
Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the
International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 29.
2
See ibid., p. 2.
3
For example, in Argentina, Amnesty Laws were enacted after convictions were made en trials were
taking place.
4
Elizabeth A. Martin (ed.), A Dictionary of Law, Oxford University Press: Oxford 2003, p. 25. For a
description of pardon, see Section 3.2 of Chapter II.
5
Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the
International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 3.
6
Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International:
The Hague/London/New York 2002, p. 2; Louise Mallinder, Exploring the Practice of States in
Introducing Amnesties, Study submitted for the International Conference ‘Building a Future on Peace
27
Chapter III
amnesty laws are issued. 7 The circumstances in which amnesties are issued are
often situations of political transition, or attempts to come to an agreement on a
political transition. O’Shea also observes that the political context distinguishes
amnesty from pardon. 8
After political transitions or internal conflict, the national judiciary is usually too
weak for criminal trials to take place in an effective and fair way. 9 As a result,
states may opt to do nothing at all about the crimes that were perpetrated, forget
about the past and to focus on the future, opt to issue an amnesty law, to make clear
no prosecutions will take place, opt to establish mechanisms to promote peace and
reconciliation, possibly joined by an amnesty, or opt to endeavour to carry out
criminal proceedings. Amnesty is something that can be decided for, when the
prosecution of offenders jeopardizes peace and reconciliation. There are also other
motives, which the next section outlines.
This study only takes amnesty laws, regulations, measures and agreements into
consideration, not the omission or decision by a government not to prosecute.
2 THE PURPOSES OF AMNESTY AND THE BENEFITS OF PROSECUTION
In a new democracy, the decision to prosecute perpetrators of human rights
violations has to be balanced against the need to achieve other ends such as peace
and reconciliation.
Notwithstanding their obligations under international law, many states choose
for some sort of amnesty measure, instead of prosecuting those responsible. It is
very difficult to decide what the best option is in the long term, and states often opt
for ‘instant’ stability by means of an amnesty law. 10 The practice of some states has
shown that prosecutions can still be carried out years after the end of the conflict
and the granting of amnesty, as happened in Argentina.
and Justice’, Nuremberg, 25-27 June 2007, p. 2, 3; Florian Razesberger, The International Criminal
Court: The Principle of Complementarity, Peter Lang: Frankfurt am Main 2006, p. 159.
7
Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the
International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 2.
8
Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International:
The Hague/London/New York 2002, p. 2; See for ‘Pardons’ section 1.3.2.
9
See Diane F. Orentlicher, “The Future of Universal Jurisdiction in the New Architecture of
Transitional Justice”, in: Stephen Macedo (ed.), Universal Jurisdiction, National Courts and the
Prosecution of Serious Crimes under International Law, University of Pennsylvania Press: Philadelphia
2004, pp. 214-239.
10
See Ben Chigara, Amnesty in International Law, The Legality under International Law of National
Amnesty Laws, Pearson Education: Harlow 2002, p. 17, 18, for another opinion: “If sacrifice of victims’
equal treatment before the law is regarded as consideration for the better common good of achieving
democracy, what should happen if the stability and democracy hoped for prove elusive? Does the
amnesty become void, and its beneficiaries subject to investigation and prosecution for crimes against
humanity? This makes the amnesty approach to resolution of crimes against humanity fickle. Amnesty
laws are not the only means by which reconciliation can be achieved by a community emerging from
State terror and atrocity. Provided that they do not cover atrocious crimes that international law obliges
States to punish, they perhaps can be used to facilitate such reconciliation.”
28
Amnesty
The liberty of states to enact amnesty legislation only has a domestic effect. In
today’s world, states may interfere with each other’s decisions to grant amnesty for
international human rights crimes as a result of the practice of universal jurisdiction,
irrespective of the effects this might have for the state at issue. 11 In addition, the
ICC might have jurisdiction and sidestep the amnesty law.
The government in a new democracy may also opt for prosecutions, with the
idea that this will result in stability in the long term, but because of the risks
involved, this option is not often chosen. Examples are Rwanda, where the ICTR is
combined with the local justice practice of gaçaça, and Sierra Leone, where the
government created a Special Court together with the UN, after prior efforts to
establish peace, including one granting amnesty, did not work out.
In 2007, Reiter, Olsen and Payne:
document a steady rate of impunity. Amnesties have remained a popular choice
among transitional democracies, particularly in the early stages of
consolidation, and many other countries choose to do nothing with regard to the
past. We conclude that state choices are best characterized as a process of
delayed justice whereby most countries pursue amnesties or do nothing in the
early years and only later adopt accountability measures. 12
In the following subsections, the purposes of amnesty and the benefits of
prosecution will be elaborated upon.
2.1 Purposes of amnesty
Although the international community requires that justice prevails, 13 and
although victims generally have the right to see justice done by means of legal
proceedings, 14 national states often prefer amnesty to prosecution. When criminal
prosecutions bring with them certain risks, amnesty may provide an opportunity at
reconciliation, stability and peace. One of the main reasons for granting amnesty is
that the prosecution of perpetrators may endanger the peaceful transition to
democratic rule and even led to a coup d’état. Other motives for granting amnesty
may be to prevent the continuation of hostilities and human rights abuses, the
killing of civilians or politicians, or to prevent serious damage to the country’s
economy.
11
See also Chapter IV, Section 6 on universal jurisdiction.
Andrew G. Reiter, Tricia D. Olsen, and Leigh A. Payne, Amnesty in the Age of Accountability, Paper
prepared for presentation at the 49th International Studies Association Convention: San Francisco, CA,
March 26-29 2007, p. 11.
13
According to Article 7 of the Princeton Principles on Universal Jurisdiction, which were established
by a group of international law experts in 2001: “Amnesties are generally inconsistent with the
obligation of states to provide accountability for serious crimes under international law ...”
14
Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255282, pp. 276-277.
12
29
Chapter III
According to a 1985 UN report entitled “Study on amnesty laws and their role in
the safeguard and promotion of human rights”, the goals most frequently set are:
-
alleviating tensions;
aiding the transition to democracy;
neutralizing opposition groups;
encouraging combatants to lay down their arms; 15
trying to reach a peace agreement, and;
encouraging the return of exiles. 16
Strikingly, human rights as such are missing from this list, while a major reason for
granting amnesty may be to improve the human rights situation in the long run. The
opposite argument, however, may also be defended, as the proposed research aims
to show. Often, amnesty is the tool to persuade a military junta or putsch leader to
relinquish power. By not requiring governments to risk provoking or continuing a
civil war and by recognizing the importance of other objectives such as
reconciliation, international law may be able to accommodate the transitional
process through the mechanism of principled and limited amnesties.
Besides amnesties granted for the reasons listed above, amnesty may also be
granted for ordinary offences. This type of amnesty must be clearly distinguished
from the amnesties covering political offence, which are the subject of this study.
An amnesty for ordinary offences may be granted, for example, to deal with the
overcrowding in prisons, for humanitarian purposes, or because of a national
holiday. For prisoners, the possibility of a future amnesty for ordinary offences or a
pardon may reduce the tension in prisons. 17 In Turkey, amnesty laws are issued to
make illegal buildings legal. 18
15
Violators of human rights crimes do not easily give way to democratic processes without securing
concessions, including amnesty. For them, an amnesty agreement is a precondition for peace. As a
relative of a murder victim in northern Uganda said: “We should not take these rebels to court;
otherwise those who are still in the bush will never come out. The best thing is to offer them amnesty as
is being done.” In: Office of the United Nations High Commissioner for Human Rights, Making Peace
our Own. Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern
Uganda, United Nations: 2007, p. 48.
16
Commission on Human Rights, Study on Amnesty Laws and Their Role in the Safeguard and
Promotion of Human Rights, Preliminary Report by Mr. Louis Joinet, Special Rapporteur,
E/CN.4/Sub.2/1985/16, 21 June 1985, pp. 8-14.
17
See ibid., paras. 25-26: “25. Subsidiarily the authorities sometimes see in amnesty laws a means of
dealing with the overcrowding of prisons, a situation which may prejudice the human rights of
prisoners. The preambles of some amnesty laws explicitly refer to this consideration (e.g. Portugal,
Decree Law No. 259/74 of 15 June 1974, providing for an amnesty for ordinary offences. See also the
amnesty recently granted in the United Kingdom to reduce prison overcrowding).
26. In some cases, the purpose of an amnesty is strictly humanitarian. In Zaire, the act of 17 November
1981 covers disabled persons. In Syria, Act No. 26 of 12 March 1978 covers incurable or chronically ill
prisoners. In the Eastern European countries, such humanitarian measures appear to be traditional,
particularly in respect of children, women, the aged and the sick. In the USSR (Decrees of 19 October
1979 and 14 October 1981), in Bulgaria (1979) and in Hungary (Acts of 29 March 1975, measures of
30
Amnesty
Besides political motives, there may also be pragmatic reasons for not instituting
proceedings in a new democracy. Many states do not have the power to enhance fair
trials or lack the resources and legal tools to do so. There can be a lack of support
from the citizens, because prosecutions might jeopardize the newly found
democracy. Perpetrators may still hold high positions in the military or government
and prosecuting them may threaten the new government. The judicial
system/judiciary may be “too weak, unskilled, biased, or corrupt to carry out the
difficult task of overseeing fair and expeditious trials”. 19 In addition, when evidence
is unavailable, witnesses are dead or missing, or when the system may not be able
to grant fair and impartial trials because of the large number of perpetrators, a state
may decide to grant amnesty.
Louise Mallinder developed an Amnesty Law Database, which in July 2010
contained information on 529 amnesty processes in 138 countries since the end of
World War II. 20 Based on this database, she identifies the following categories of
motives behind amnesty laws:
-
alleviating internal pressure;
protecting state agents from prosecution;
promoting peace and reconciliation;
responding to international pressure;
providing reparations;
encouraging exiles to return;
adhering to cultural or religious traditions.
this kind have been adopted – in particular, to mark the International Year of the Child – for the benefit
of minors, pregnant women and mothers of very young children.”
18
S. Kahraman, A. Saatci and S. Misir , “Effects of adding illegal storeys to structural systems”,
Sadhana vol. 31 no. 5 2006, pp. 505-659, p. 515.
19
Stephan Landsman, “Alternative Responses to Serious Human Rights Abuses: Of Prosecution and
Truth Commissions”, Law and Contemporary Problems, vol. 59 no. 4 1996, pp. 81-92, p. 85.
20
Louise Mallinder, Outline of the Amnesty Law Database, accessible via
<www.transitionaljustice.ulster.ac.uk/.../OutlineAmnestyLawDatabase.pdf>
31
Chapter III
Mallinder provides a graph showing the motives of states that introduce amnesty
laws:
States often have several motives for introducing an amnesty law and these motives
may be connected to each other. 21 For example, when an amnesty law is issued, a
country may not have the means to prosecute and guarantee fair trials, but at the
same time it is possible that violations continue to occur so that an amnesty may be
granted as part of a peace agreement with combatants or to persuade a military
regime to step down. Amnesty as part of a program of peace building may be
regarded as an action “to strengthen and solidify peace in order to avoid a relapse
into conflict”. 22 The prospect of facing justice may well prevent a regime from
handing over power. Additionally, the new government may fear jeopardizing the
process of national reconciliation by prosecuting those responsible for the violations
of the former regime. This same situation can apply to a self-amnesty, granted by
the outgoing regime to itself just before leaving power. The new democratic
government may consider the amnesty improper, but given the fragile democracy,
keep the amnesty in place. In such a situation, the state may introduce
counterbalancing mechanisms and for instance establish a truth commission as
happened in Chile.
A development that may be distilled from a comparison of the reasons listed by
Joinet and those listed by Mallinder, is that there is distinguished a new category of
amnesty that is granted in response to international pressure.
Improving the human rights situation in the long run is not one of the motives
mentioned by both Joinet and Mallinder, which indicates that this is not a major
reason for the granting of an amnesty. If improving the human rights situation in the
long run is not a common objective, amnesty is first and foremost granted to
improve the (human rights) situation in the short term, and maybe even be merely
21
Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the
International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 8.
22
General Assembly/Security Council, An Agenda for Peace. Preventive diplomacy, peacemaking and
peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit
Meeting of the Security Council on 31 January 1992, A/47/277-S/24111, 17 June 1992, para. 21.
32
Amnesty
temporary. If this is true, and amnesty laws are just a kind of cease-fire, their
enactment should be reconsidered. Notwithstanding the fact that it is important to
bring an end to hostilities and to the violations of human rights, it is just as
important that those violations do not reoccur in the future and that an amnesty law
is not just a temporary solution. In case of an internal conflict, or a violent
oppression by the government of (a group/part of) its people, those people will
likely be living in the same country for the rest of their lives. The idea that the
perpetrators, and especially those most responsible, can continue their lives without
being punished can be unbearable for those who suffered, and does not contribute to
an atmosphere of trust or strengthen the rule of law. However, Mallinder holds that
“[i]n addition to the short-term objectives of simply ending the violence, it can be
argued that in the longer term, amnesties can contribute to preventing a recurrence
of the violations and promoting peaceful coexistence between former enemies.” 23
One major reason to grant amnesty, categorized by Joinet but not by Mallinder,
is to persuade combatants to lay down their arms, currently of high relevance for the
situation in Uganda. Combatants may probably not be willing to lay down their
arms if they risk investigations and prosecutions of the grave crimes they
committed. Under these circumstances, an amnesty may provide a way to “end
ongoing hostilities, to start a transition process and to finally obtain peace”. 24 This
is remarkable, since the objective of encouraging a military junta to leave power or
to end hostilities is identified in other recent literature and practice. 25 For instance,
in 1999, in Sierra Leone an amnesty law was passed granting a blanket amnesty to
Corporal Foday Sankoh and “all combatants and collaborators in respect of
anything done by them in pursuit of their objectives, up to the time of the signing of
the present [Lomé Peace] Agreement”. Article IX.3 of the Peace Agreement
between the government of Sierra Leone and the Revolutionary United Front of
Sierra Leone states that:
To consolidate the peace and promote the cause of national reconciliation, the
Government of Sierra Leone shall ensure that no official or judicial action is
taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in
respect of anything done by them in pursuit of their objectives as members of
23
Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the
International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 42.
24
Florian Razesberger, The International Criminal Court: The Principle of Complementarity, Peter
Lang: Frankfurt am Main 2006, p. 159.
25
Yasmin Naqvi, “Amnesty for War Crimes: Defining the Limits of International Recognition”,
International Review of the Red Cross, vol. 85 no. 851 2003, pp. 583-624, p. 588; Florian Razesberger,
The International Criminal Court: The Principle of Complementarity, Frankfurt am Main: Peter Lang
2006, p. 159; Patrick Nduwimana, “Burundi Rebels Won’t Join Truce Team Without Amnesty”,
Reuters: 1 April 2008, available at <http://www.reuters.com/article/africaCrisis/idUSL01782031>;
Leila N. Sadat, “Universal Jurisdiction, National Amnesties, and Truth Commissions: Reconciling the
Irreconcilable”, in: Stephen Macedo (ed.), Universal Jurisdiction, National Courts and the Prosecution
of Serious Crimes under International Law, University of Pennsylvania Press: Philadelphia 2004, pp.
193-211, p. 196; U.S. delegation paper on state practice regarding amnesties and pardons, NonPaper/WG.3/No.7, 6 August 1997; Colombia Justice and Peace Law.
33
Chapter III
those organisations, since March 1991, up to the time of the signing of the
present Agreement. In addition, legislative and other measures necessary to
guarantee immunity to former combatants, exiles and other persons, currently
outside the country for reasons related to the armed conflict shall be adopted
ensuring the full exercise of their civil and political rights, with a view to their
reintegration within a framework of full legality.
Many argue that amnesty is too high a price for peace, but the Truth and
Reconciliation Commission (TRC) in Sierra Leone:
is unable to declare that it considers amnesty too high a price to pay for the
delivery of peace to Sierra Leone, under the circumstances that prevailed in
July 1999. It is true that the Lomé Agreement did not immediately return the
country to peacetime. Yet it provided the framework for a process that pacified
the combatants and, five years later at the time of writing, has returned Sierra
Leoneans to a context in which they need not fear daily violence and atrocity. 26
The Sierra Leonean TRC explicitly links the amnesty that was granted to the
circumstances in which it was granted. The Sierra Leonean TRC implies that
otherwise the granting of amnesty would have been unacceptable. Moreover, the
Sierra Leonean TRC holds that:
those who argue that peace cannot be bartered in exchange for justice, under
any circumstances, must be prepared to justify the likely prolongation of an
armed conflict. Amnesties may be undesirable in many cases. Indeed, there are
examples of abusive amnesties proclaimed by dictators in the dying days of
tyrannical regimes. The Commission also recognises the principle that it is
generally desirable to prosecute perpetrators of serious human rights abuses,
particularly when they ascend to the level of gravity of crimes against
humanity. However, amnesties should not be excluded entirely from the
mechanisms available to those attempting to negotiate a cessation of hostilities
after periods of brutal armed conflict. Disallowing amnesty in all cases would
be to deny the reality of violent conflict and the urgent need to bring such strife
and suffering to an end. 27
This observation by the Sierra Leonean TRC captures very well the reality of the
practice of using amnesty as a tool to achieve peace.
President Sanguinetti explained why an amnesty was chosen for in Uruguay:
First, ... accusations were going ... to disturb society ... Second, ... if we were
going to have a settling of accounts for the left and the terrorists the military
should be amnestied, too. ... Third, it was necessary to have a climate of
26
Truth & Reconciliation Commission Sierra Leone, Witness to Truth: Report of the Sierra Leone
Truth & Reconciliation Commission, Vol. 3b, 5 October 2004, p. 365, Chapter 6, at 12.
27
See ibid., at 11.
34
Amnesty
stability so as to consolidate democracy. ... [F]inally, for historical reasons.
Traditionally, after all great conflicts in a country the solution has been an
amnesty for both sides. 28
It is possible that Mallinder placed amnesties that encourage combatants to lay
down their arms or to reach a peace agreement under the category of promoting
peace and reconciliation, which is in return missing in Joinet’s list. However,
amnesty is often used for the two goals set by Joinet but not by Mallinder.
2.2 Benefits of prosecution
The preamble to the Updated Set of Principles for the protection and promotion of
human rights to combat impunity states: “there can be no just and lasting
reconciliation unless the need for justice is effectively satisfied”. 29 According to
Jacob Finci, the trials conducted by the ICTY serve several purposes. The trials
“provide victims with a sense of justice – a feeling that their grievances have been
addressed on at least one level and can more easily be put to rest rather than
smouldering in anticipation of the next round of conflict.” Secondly, Finci mentions
the goal of deterrence. The trials before the ICTY show:
that the international community will not tolerate such atrocities and will hold
future perpetrators accountable. The third and last goal is to demonstrate that
individuals – not entire ethnic or religious or political groups – committed
atrocities, for which they need to be held accountable. In so doing, it rejects the
dangerous culture of collective guilt and retribution that could lead to further cycles
of grievance and violence. 30
Secretary-General Kofi Annan, in his report on the rule of law and transitional
justice in conflict and post-conflict societies, emphasized the role criminal trials can
play in transitional contexts and describes the underlying reasons:
Criminal trials can play an important role in transitional contexts. They express
public denunciation of criminal behaviour. They can provide a direct form of
accountability for perpetrators and ensure a measure of justice for victims by
giving them the chance to see their former tormentors made to answer for their
crimes. Insofar as relevant procedural rules enable them to present their views and
concerns at trial, they can also help victims to reclaim their dignity. Criminal trials
can also contribute to greater public confidence in the State’s ability and
28
Quote from President Sanguinetti of Uruguay, in: Lawrence Weschler, A Miracle, A Universe.
Settling Accounts with Torturers, Pantheon Books: New York 1990, p. 188.
29
Commission on Human Rights,Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005, Preamble. p. 5.
30
Jacob Finci, “War and Accountability: One Bosnian’s view”, in: S. Fleming, D. Meddings and P.
Perrin (eds.), Forum: War and Accountability, International Committee of the Red Cross: Geneva 2002,
p. 67.
35
Chapter III
willingness to enforce the law. They can also help societies to emerge from periods
of conflict by establishing detailed and well-substantiated records of particular
incidents and events. They can help to de-legitimize extremist elements, ensure
their removal from the national political process and contribute to the restoration of
civility and peace and to deterrence. 31
There are several arguments in favour of prosecutions for a transitional
society: 32
-
-
-
Rule of law. Prosecutions substantially enhance the prospects for the
establishment of the rule of law. It is hard to reinstate the rule of law while
perpetrators of serious human rights crimes are at large;
Victims. Bringing the perpetrators to account may help to restore the
victims’ dignity. By performing trials, the victims’ right to justice is
honoured. Prosecutions also contribute to the revelation of the state of
affairs that led to the crime and serve to establish the truth. Besides,
prosecution is one of the most effective ways of identifying and creating
the basis for the compensation of victims;
Punishment. Prosecution can provide a means of punishing perpetrators for
their criminal conduct. Punishing the perpetrators demonstrates that human
rights crimes are not condoned. In addition, punishment is a way of
retributive justice; 33
Denunciation. Prosecution and punishment for human rights violations
symbolize the culpability felt by the people for the crimes committed; 34
Deterrence. Prosecuting those responsible for violations of human rights
law may deter future violations of human rights (not only in the state at
issue, but in other states as well); 35
31
Security Council, The rule of law and transitional justice in conflict and post-conflict societies.
Report of the Secretary-General, S/2004/616, 23 August 2004, para. 39.
32
See, for example, Stephan Landsman, “Alternative Responses to Serious Human Rights Abuses: Of
Prosecution and Truth Commissions”, Law and Contemporary Problems, vol. 59 no. 4 1996, pp. 81-92,
pp.83, 84; Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, Case
Research Paper Series in Legal Studies Working Paper 05-31, Case Western Reserve University:
Cleveland August 2005, p. 10; Donald L.Hafner and Elizabeth B.L. King, “Beyond Traditional Notions
of Transitional Justice: How Trials, Truth Commissions, and Other Tools for Accountability Can and
Should Work Together”, Boston College International & Comparative Law Review, vol. 30 no. 1 2007,
pp. 91-109, p. 92; International Council on Human Rights Policy, Negotiating Justice? Human Rights
and Peace Agreements, International Council on Human Rights Policy: Versoix 2006, p. 76.
33
In post-conflict societies, it may be worth looking into alternative possibilities for punishment.
Cavadino and Dignan suggest, that when it is decided that “punishment is to be inflicted, it is surely
better that the punishment should directly benefit the victim or society than that it should merely hurt or
restrict the offender.” – Michael Cavadino and James Dignan, The Penal System. An Introduction, Sage
Publications: London/Thousand Oaks/New Delhi 2002, p. 45.
34
Michael Cavadino and James Dignan, The Penal System. An Introduction, Sage Publications:
London/Thousand Oaks/New Delhi 2002, p. 43.
35
There is a distinction between individual deterrence and general deterrence. With individual
deterrence, it is meant that the perpetrator him- or herself is deterred, which is an effect that does not
often occur in reality. General deterrence means that although individual perpetrators are punished,
36
Amnesty
-
-
-
Truth finding. Prosecutions help establish the truth about the past through
accepted legal means and therefore serve as a truth finding mechanism,
which may function as a means of educating the citizenry to the nature and
extent of the prior crimes;
Heal social wounds. Prosecution may be essential to heal the social
wounds caused by serious human rights violations; 36
Prevent revenge. Prosecutions help to deter vigilante justice. When
perpetrators are held accountable and are punished for the crimes they
committed, feelings of revenge will diminish;
Culture of accountability. Prosecutions prevent impunity, and the effects
impunity may have on a society as described in Chapter II; 37
Separate collective guilt from individual guilt. Prosecutions “remove the
stigma of historic misdeeds from the innocent members of communities
that are collectively blamed for the atrocities committed on other
communities”; 38
Remove perpetrators from positions of authority. Prosecutions may prevent
those perpetrators most responsible from remaining in or returning to
positions of authority.
All these arguments correspond largely to the risks that an amnesty measure
entails. It is difficult to (re)build the rule of law when those responsible are not
brought to justice. Prosecuting at least those most responsible sets an example for
the future. Without prosecutions, victims are left in the dark and may feel
abandoned when those responsible for their suffering are not prosecuted and
punished. Without prosecution and punishment, the denunciation of the crimes
committed is not made clear and this does not deter any future perpetrators from
committing crimes. As a result, a culture of impunity arises instead of a culture of
accountability. Because the truth about violations and the circumstances in which
they took place remains unknown, social wounds remain open and may ignite
others are deterred, which seems to have a more deterrent effect and is one of the justifications for
punishment. Deterrent effects are however “limited and easy to overestimate.” See: Michael Cavadino
and James Dignan, The Penal System. An Introduction, Sage Publications: London/Thousand
Oaks/New Delhi 2002, p. 34-35.
36
See, for example, Luis Pérez Aguirre, “The Consequences of Impunity in Society”, in: International
Commission of Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992,
International Commission of Jurists: Geneva 1993, p. 114: “The crimes did take place, and as long as
they go unpunished, they will continue to gnaw at the collective national consciousness and
unconscious.”
37
In northern Uganda, “[t]hose who favoured criminal trials often identified both preventing impunity
and preventing further harm as the added-value of prosecution.” - Office of the United Nations High
Commissioner for Human Rights, Making Peace our Own. Victims’ Perceptions of Accountability,
Reconciliation and Transitional Justice in Northern Uganda, United Nations: 2007, p. 50.
38
Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255282, p. 277; Richard Goldstone believes this argument is the only way the cycle of violence can be
broken, see: Lawrence Weschler, “Inventing Peace”, The New Yorker, 20 November 1995, abstract
available via <http://www.newyorker.com>
37
Chapter III
feelings of revenge. Resulting from the fact that the perpetrators as individuals are
not held responsible and separated from the group, community or institution they
form part of, the whole group where they are a part of may be seen as perpetrators.
As a result, revenge and blame may be aimed at the whole group they are part of,
instead of on them as individual perpetrators. As stated in a population-based
survey in Bosnia and Herzegovina, 86% of the victims (who survived) do not know
personally the person who victimized them. 39
Richard Goldstone points out the risk of not prosecuting international human
rights crimes. He concludes:
that the failure of the international community to prosecute Pol Pot, Idi Amin,
Saddam Hussein and Mohammed Aidid, among others, encouraged the Serbs to
launch their policy of ethnic cleansing in the former Yugoslavia with the
expectation that they would not be held accountable for their international
crimes. 40
Again, there is no empirical evidence of a causal connection to confirm this
statement. 41 This notwithstanding, the reasoning of Goldstone is something to keep
in mind and may indeed be one of the major negative side effects of using amnesty
as a bargaining tool to reach peace. The Centre for Justice and Reconciliation
agrees with Goldstone and holds that “the prospect of amnesty … could serve to be
an impetus to human rights violators to maintain power and keep the society
hostage”. 42
Notwithstanding the presumed positive effects of prosecution, the arguments in
favour of prosecution do not necessarily provide the desired effect. For example,
deterrence is not so much an effect of prosecution but much more, it is hoped that
this will be an effect of prosecution. Trials may also end in acquittal of the suspect,
as a result of which not only the truth remains unknown, but there may also be
negative side effects. For example, the victims may feel abandoned again or it may
foster feelings of revenge. Alphons Orie mentioned that people expected miracles
from international justice and the tribunals, but these expectations are far too high.
A thousand years ago, people murdered, and they still do. There is no evidence of
improvement despite laws and punishments. 43 Therefore, the presumed benefits of
prosecution should be taken into account, but they are not guarantees. They merely
point out the risks that correspond to the arguments in favour of prosecution when
39
Marta Valinas, Stephan Parmentier and Elmar Weitekamp, ‘Restoring Justice’ in Bosnia and
Herzegovina. Report of a population based survey, Working paper No. 31, Katholieke Universiteit
Leuven: Leuven 2009, p. 57.
40
Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, Case Research
Paper Series in Legal Studies Working Paper 05-31, Case Western Reserve University: Cleveland
August 2005, p. 10.
41
See Chapter I, Section 5.
42
Centre for Justice and Reconciliation, ‘Golden parachutes’ for powerful perpetrators?, accessible via
<http://www.cjr.nl/index2.php?option=com_content&task=view&id>
43
Alphons Orie, at the Hague Debate at the Paleiskerk “Justice for victims?”, The Hague: 13 November
2008.
38
Amnesty
amnesty is granted. In this regard, they may be taken into account when considering
amnesty. Dependent on the situation, they may also guide policymakers in
transitional societies to decide what counterbalancing measures such as a truth
commission or public apologies might be necessary.
3 FORMS OF AMNESTY
There are various classifications of amnesty practice, varying from dictatorial
decrees to legitimate acts of parliament. For international recognition, it matters
what form of amnesty is granted. Therefore, it is necessary to elaborate on the
different forms of amnesty. Since the different forms of amnesty are not mutually
exclusive, overlap is possible.
3.1 De iure amnesty
3.1.1 Blanket amnesty
A blanket amnesty covers all crimes committed during a certain period, without
any conditions. This means that no distinction is made between common crimes,
political crimes, and international crimes, unless they are specifically excluded, nor
does it consider the motives for the crime. 44 Because a blanket amnesty usually
covers all crimes, states do not have to mention the crimes covered by the amnesty,
for example torture or war crimes. Such an amnesty provision granting blanket
amnesty may be formulated as to grant amnesty and “reprieve to all combatants and
collaborators in respect of anything done by them in pursuit of their objectives” 45
during the conflict. In this way, blanket amnesties “have the widest scope and the
least legitimacy”. 46 A blanket amnesty, when it is not accompanied by other
transitional justice initiatives, for example a truth commission, does not in any way
deal with the past. Blanket amnesty laws violate the rights of victims to the truth,
reparation and justice. A blanket amnesty is usually granted in the form of an
amnesty law or as part of a peace agreement and is often issued by the government
that took part in the human rights violations itself. An example of a blanket amnesty
is the one agreed upon in the Lomé Peace Agreement between the government of
44
William W. Burke-White, “Protecting the Minority: A Place for Impunity? An Illustrated Survey of
Amnesty Legislation, Its Conformity with International Legal Obligations, and Its Potential as a Tool
for Minority-Majority Reconciliation”, Journal on Ethnopolitics and Minority Issues in Europe,Issue2
2000, p. 5; See also, Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study
submitted for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27
June 2007, p. 22.
45
Article IX on Pardon and Amnesty of the Peace Agreement between the government of Sierra Leone
and the Revolutionary United Front of Sierra Leone, 7 July 1999.
46
William W. Burke-White, “Protecting the Minority: A Place for Impunity? An Illustrated Survey of
Amnesty Legislation, Its Conformity with International Legal Obligations, and Its Potential as a Tool
for Minority-Majority Reconciliation”, Journal on Ethnopolitics and Minority Issues in Europe,Issue2
2000, p. 5.
39
Chapter III
Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF). 47
Amnesty was incorporated into the Peace Agreement, because the government
thought that it was the only way to make the RUF end the violence. 48Ambassador
Francis G. Okelo, Executive Secretary of the United Nations Secretary-General,
signed this peace agreement. However, he added a disclaimer to his signature on
behalf of the United Nations, holding that the amnesty provision contained in
Article IX of the Agreement should not apply to international crimes of genocide,
crimes against humanity, war crimes and other serious violations of international
humanitarian law. 49 The disclaimer is in line with the general UN opinion on
amnesty and impunity, which will be outlined in Chapter V, but nevertheless, the
exclusion of those who committed these crimes as beneficiaries of the amnesty,
may carry with it certain risks, especially as granting amnesty was considered to be
the only means to end the conflict. In 1993, the United Nations accepted
unconditional amnesty for crimes committed in Haiti, because it considered the
Governors Island Agreement, which contained an amnesty provision, the only
viable solution to the conflict. The UN seems to decide on a case by case basis
whether it supports a national initiative to grant amnesty or not.
A blanket amnesty has no truth or justice function and fails to provide justice or
relief for victims. Overall, blanket amnesties are considered illegitimate. Examples
of blanket amnesties are found especially in Latin and South America, since the end
of the 1970s. 50 But also in Africa, there are examples of blanket amnesty laws, for
instance in Mozambique 51 and Uganda. 52 In 1997, the Human Rights Committee
47
Peace Agreement between the government of Sierra Leone and the Revolutionary United Front of
Sierra Leone, 7 July 1999. Article IX on Pardon and Amnesty reads as follows:
“1. In order to bring lasting peace to Sierra Leone, the Government of Sierra Leone shall take
appropriate legal steps to grant Corporal Foday Sankoh absolute and free pardon.
2. After the signing of the present Agreement, the Government of Sierra Leone shall also grant absolute
and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in
pursuit of their objectives, up to the time of the signing of the present Agreement.
3. To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra
Leone shall ensure that no official or judicial action is taken against any member of the RUF/SL, exAFRC, ex-SLA or CDF 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. In
addition, legislative and other measures necessary to guarantee immunity to former combatants, exiles
and other persons, currently outside the country for reasons related to the armed conflict shall be
adopted ensuring the full exercise of their civil and political rights, with a view to their reintegration
within a framework of full legality.”
48
“In all good faith, … [the Government] believed that the RUF would not agree to end hostilities if the
Agreement were not accompanied by a form of pardon or amnesty.” Truth & Reconciliation
Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone Truth & Reconciliation
Commission, Vol. 3b, 5 October 2004, 514 pp, p. 365, Chapter 6, at 10.
49
Security Council, Report of the Secretary-General on the establishment of a Special Court for Sierra
Leone, S/2000/915, 4 October 2000, para. 23.
50
Examples are the 1978 Chilean amnesty, the 1986 Argentinean Full Stop Law, and the 1993 El
Salvadoran amnesty.
51
“The 1992 peace accord in Mozambique contained blanket amnesties for both sides of the civil war.”
In: Alana Tiemessen, “Amnesties for Atrocities: Impunity or Accountability?”, Human Security
40
Amnesty
noted “with concern [that] the amnesty granted to civilian and military personnel
for human rights violations they may have committed against civilians during the
civil war” is a “sweeping amnesty [that] may prevent the appropriate investigation
and punishment of the perpetrators of past human rights violations, undermine
efforts to establish respect for human rights, and constitute an impediment to efforts
undertaken to consolidate democracy”. 53
3.1.2 Self-amnesty
Before the Argentine military junta handed over power in 1983, they granted
themselves amnesty. 54 Such an amnesty, passed shortly before stepping down and
acquitting their violations of human rights committed during the military regime, is
a self-amnesty. A self-amnesty is often a blanket amnesty covering all crimes
committed by the regime in a certain period. It is issued to avoid prosecution.
Another well-known example of a self-amnesty is the one granted by the Chilean
dictator Augusto Pinochet to himself and his military regime in 1978. 55 In Peru,
Fujimori also issued two self-amnesty laws in 1995 to foreclose prosecution for the
atrocities committed by his regime. In Barrios Altos v. Peru (2001) the InterAmerican Court of Human Rights said that these self-amnesty laws make victims
defenceless and that they prolong impunity. It held that the laws violate the aims
and spirit of the American Convention on Human Rights. The Court emphasized
that “[t]his type of law precludes the identification of the individuals who are
responsible for human rights violations, because it obstructs the investigation and
access to justice and prevents the victims and their next of kin from knowing the
truth and receiving the corresponding reparation”. 56 Judge Augusto Cançado
Trindade of the Inter-American Court of Human Rights, in his consideration of the
Chilean Almonacid case (2006), explained the reasons for the inadmissibility of
self-amnesty laws:
Bulletin, Centre of International Relations University of British Columbia: Vancouver 2008, pp. 7-10,
p. 7.
52
“In 2000, the Uganda Parliament passed the Amnesty Act: it offers amnesty to all Ugandans engaged
or engaging in acts of rebellion against the government since January 26, 1986, on condition that they
report to a local authority, renounce and abandon the rebellion, surrender all weapons in their
possession, and are issued a certificate of amnesty by the government. The Act has been promoted as a
tool to promote peace and to encourage rebels from all parts of Uganda to come home.” - Human
Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda,
Human Rights Watch 2005 vol. 17 no. 12(A), p. 37.
53
Human Rights Committee, Concluding Observations of the Human Rights Committee: Lebanon,
CCPR/C/79/Add.78, 1 April 1997, para. 12.
54
In Argentina, the self-accorded amnesty was nullified by the new democratic regime. However, since
the power the military remained to have constituted a serious threat to the newly established
democracy, a few years later the Full Stop Law (1986) and the Law of Due Obedience (1987) were
issued to amnesty those responsible again.
55
Chilean Decree 2191.
56
IACtHR,Barrios Altos v. Peru, Series C, No. 75, Judgment of 14 May 2001 (Merits), para. 43.
41
Chapter III
Ultimately, self-amnesties violate the right to know the truth and the right to
justice. They callously disregard the terrible suffering of the victims and hinder
the right to appropriate reparations. Their vicious effects, in my view, permeate
the whole social body, with the ensuing loss of faith in human justice and true
values and a perverse distortion of the purpose of the State. Originally created
to serve the common good, the State becomes an entity that exterminates
members of certain sectors of the population (the most precious constituent
element of the State itself, its human substratum) with total impunity. From an
entity designed to serve the common good, it becomes an entity responsible for
truly criminal practices, undeniable State crimes. 57
Guatemala shows another example of a military regime that granted itself amnesty.
The new President, Vinicio Cerezo, did not repeal the amnesty. Juán Mendez claims
that “at the end of Cerezo’s term, members of the military committed more
violations of human rights with further impunity”. 58
Self-amnesties have no legal value. Therefore, a succeeding regime may repeal
such a law and prosecute those benefiting from the amnesty. Obviously, those
responsible for the violations may also be tried in other countries by means of
universal jurisdiction. Oppressors should not “gain benefits from having made the
work of future accountability mechanisms difficult, especially not the benefits of
traveling among humanity, the humanity that rightly considers them hostis humani
generis”. 59 Whenever they leave their home country, they risk being arrested and
brought to trial. However, an amnesty law may have been a precondition for
handing over power, and repealing a self-amnesty law may risk a return of violence
or even a coup d’état. For this reason, for example, the Chilean self-amnesty law
was not overturned.
3.1.3 Limited/political amnesty
Limited or political amnesties are those granted to specific groups or individuals for
a specific set of crimes committed (with political objectives) in a certain period. In
these circumstances, individuals are sometimes required to go through an amnesty
application and process to provide evidence for their eligibility, as was the case in
South Africa. Here, perpetrators had to apply for amnesty with the Amnesty
57
IACtHR, Almonacid-Arellano et al v. Chile, Series C No. 154 Judgment of 26 September 2006
(Preliminary Objections, Merits, Reparations and Costs), Concurring opinion of judge a.a. CançadoTrindade,para. 21.
58
Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255282, p. 266. Mendez states: “A few days before Vinicio Cerezo was inaugurated, the military enacted a
sweeping self-amnesty law. The newly-inaugurated Congress tries to repeal the law, but Cerezo
prevailed upon his party members to defeat the bill. During his term there were at least two more
amnesty laws, to immunize military and civilians who had plotted against him, but covering human
rights abuses as well.” Cerezo actively impeded “any attempt to invalidate the shameless self-amnesty
with which his military predecessors left office.”
59
Pablo de Greiff, “Comment: Universal Jurisdiction and Transitions to Democracy” pp. 121-130, in:
Stephen Macedo (ed.), Universal Jurisdiction, National courts and the prosecution of serious crimes
under international law, University of Pennsylvania Press: Philadelphia 2004, p. 130.
42
Amnesty
Committee of the Truth and Reconciliation Commission (TRC). The South African
TRC was entitled to grant amnesty to persons who committed politically motivated
crimes, and excluded crimes committed out of racism and/or malice. Other
examples of countries that have issued limited amnesties are East Timor and
Rwanda. East Timor established the Commission for Reception, Truth, and
Reconciliation (CAVR), and Rwanda uses the traditional process of gaçaça courts
to grant amnesty to perpetrators of less serious crimes.
When issuing an amnesty law, a state may also decide to exclude certain crimes
from the amnesty law. In Sierra Leone, the amnesty agreed upon in the peace
agreement between the Government and the RUF/SL was initially a blanket
amnesty, covering all crimes, but it ended up as a limited amnesty, by excluding the
international crimes of genocide, crimes against humanity, war crimes and other
serious violations of international humanitarian law. In Romania, two general
amnesty laws were issued in 1990. 60 The first law granted amnesty to any crime for
which a sentence of less than three years was prescribed. Several crimes, like
murder, severe bodily injury and rape, were specifically excluded from the amnesty.
The second law excluded all human rights crimes. Such exclusions are quite
remarkable. By limiting the amnesty to ordinary crimes, those most responsible
may still be held accountable. Whether this really happens is another question. But
by limiting the amnesty, the state shows denunciation of the crimes and its
commitment to international law. Besides, it shows the victims and society that it
will not protect those responsible for serious human rights crimes. In the Arusha
Peace and Reconciliation Agreement for Burundi it was agreed to establish a
National Peace and Reconciliation Commission, which may also advise the national
assembly on the granting of amnesty that is consistent with international law for
political offences. 61
3.1.4 Conditional amnesty
A conditional (or discrete, or compromise) amnesty is typically issued as part of a
broader program of transitional justice mechanisms such as a truth commission or
reparations program. Amnesty is granted by the new regime in exchange for an
action by the perpetrator applying for amnesty. Such an action can be
acknowledgement, truth, apology, and/or a form of reparation such as compensation
or restitution. A conditional amnesty aims to facilitate a social transition and to
promote reconciliation, “and also to further inquiry or revelation, either on their
own or in combination with other government initiatives … [and] may be designed
60
Edwin Rekosh, “Romania: A persistent Culture of Impunity”, in Naomi Roht-Arriaza (ed.), Impunity
and Human Rights in International Law and Practice, Oxford University Press: New York/Oxford
1995, p. 135.
61
Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights
and Reports of the Office of the High Commissioner and the Secretary-General, Office of the United
Nations High Commissioner for Human Rights Analytical Study on Human Rights and Transitional
Justice, Addendum. Inventory of Human Rights and Transitional Justice Aspects of Recent Peace
Agreements, A/HRC/12/18Add.1, 21 August 2009, pp. 3-4.
43
Chapter III
to diminish an armed conflict or civil unrest”. 62 It may also be the outcome of
negotiations, as for example in South Africa.
Blanket amnesties are sometimes conditional, such as the Ugandan Amnesty Act
(2000), whereas conditional amnesties are almost always limited. Tiemessen notes
that “[g]enerally speaking, the more limited and conditional the amnesty the more
politically and legally … [acceptable] it is to the international community”. 63
Besides, a conditional amnesty needs some support from society. 64An example of a
conditional amnesty is the amnesty granted by the TRC in South Africa to which
Ratner refers as the “amnesty-for-confession law”. 65
An amnesty as part of a peace agreement may also be considered conditional
upon ending the violence. A return to conflict or reigniting of the violence is a
breach of the peace agreement upon which the amnesty is made conditional.
3.1.5 Corrective amnesty
A corrective amnesty tries to correct the status of wrongly detained or punished
individuals after a conflict. An example of a provision containing the possibility to
grant amnesty is Article 6(5) of Additional Protocol II to the Geneva Conventions.
This article provides that “[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”. This type of amnesty applies
to acts of treason, sedition, rebellion, or other offences against the state and is often
granted after a change in the social and political situation; for example the lifting of
a state of emergency, or the end of an internal or international armed conflict. It is
not intended to cover human rights violations, as explained in more detail in Section
4.4 of Chapter IV.
Ronald Slye defines another type of corrective amnesty. This amnesty “is not
strictly an amnesty, but the reversal of an injustice – an injustice created by an
illegitimate law, or by mistaken or fabricated facts”. 66 An example is the Brazilian
Transitory Constitutional Provisions Act of 5 October 1988, Articles 8 and 9. Joinet
disagrees with the use of amnesty to reverse an injustice: “On strict grounds of
principle, granting amnesty to a prisoner of opinion is tantamount to an implicit
62
Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of
Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol.
43 2002, pp. 173-247, p. 243.
63
Alana Tiemessen, “Amnesties for Atrocities: Impunity or Accountability?”, Human Security Bulletin,
Centre of International Relations University of British Columbia: Vancouver 2008, pp. 7-10, p. 8.
64
Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of
Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol.
43 2002, pp. 173-247, p. 243.
65
Steven R. Ratner, “New Democracies, Old Atrocities: An Inquiry in International Law”, Georgetown
Law Journal, vol. 87 1999, pp. 707-748, p. 739.
66
Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of
Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol.
43 2002, pp. 173-247, p. 244.
44
Amnesty
acknowledgement that his conduct was criminal, whereas it is really the authority
responsible for the penalty, being guilty of unlawful detention, [that] might be
granted amnesty.” 67
This reasoning may be questioned, and is not in line with the definition provided
by Joinet himself in his 1985 Study. 68 As explained in Section 3.1 of Chapter II,
amnesty not only shields the perpetrator from prosecution and punishment, it
nullifies the fact that a crime was perpetrated, which makes it an excellent way to
reverse an injustice.
3.1.6 Internationally legitimized amnesty
In internationally legitimized amnesties, amnesty for serious and systematic human
rights violations is specifically excluded, so that they cannot possibly be interpreted
to apply to genocide, torture, rape and other crimes against humanity.
Internationally legitimized amnesties should be combined with counterbalancing
mechanisms to address the consequences of the violations for which amnesty is
granted. Such mechanisms can be a truth commission or a reparations program.
Amnesties that have international legitimacy are a relatively recent development,
evolving from the mid-1990s on. 69 William Burke-White notes that Guatemala,
Croatia, and Bosnia and Herzegovina issued amnesty laws according to these
criteria. An internationally legitimized amnesty must be the result of a democratic
process. Ronald Slye identifies the following features as a prerequisite to
internationally legitimate amnesties:
To qualify as accountable, an amnesty must have the following characteristics.
First, it must be democratic in its creation. … The general involvement of the
public and the involvement of more than one branch of a democratic
government are two important indicators of the democratic nature of an
amnesty. Second, it must not apply to those most responsible for war crimes,
crimes against humanity, and other serious violations of international criminal
law. Third, it must impose some form of public procedure or accountability on
its recipients. … Fourth, it must provide an opportunity for victims to question
and challenge an individual’s claim to amnesty. Fifth, it must provide some
concrete benefit, usually in the form of reparations, to victims. Such a benefit
could come either from the beneficiary or from the state. Sixth, …, it must be
designed to facilitate a transition to a more human rights friendly regime, or as
67
Ibid.
See Section 3.1 of Chapter II.
69
William W. Burke-White, “Protecting the Minority: A Place for Impunity? An Illustrated Survey of
Amnesty Legislation, Its Conformity with International Legal Obligations, and Its Potential as a Tool
for Minority-Majority Reconciliation”, Journal on Ethnopolitics and Minority Issues in Europe,Issue2
2000, pp. 21-22.
68
45
Chapter III
part of a comprehensive program of reconciliation aimed at addressing longstanding and serious societal tensions and injustices. 70
3.2 De facto amnesty
Even without the adoption of an amnesty law, perpetrators may benefit from
impunity when the government simply fails to prosecute them. 71 Such a de facto
amnesty is thus undeclared. Besides unwillingness to prosecute on the part of the
government, in a new democracy it may be impossible to prosecute those
responsible for past human rights abuses because the system is incapable of giving
the perpetrators a fair trial. Next to this, the costs of prosecution are high and in a
newly found democracy, it could be argued that the money could be used for other
imperative matters, such as to restore order, to strengthen democracy, to build up
the economy and to rebuild infrastructure.
[T]he major problem confronting Afghanistan was not, in the first instance,
accountability, but security, the return of refugees, food for those who were in
danger of starving, and a measure of good governance so that law and order
could be introduced and maintained. The same is true of Iraq. Whilst it is
desirable to prosecute those who committed human rights violations during
Saddam Hussein’s dictatorship, the first imperative was to stop the looting, to
return to some measure of law and order, and to enable Iraqi leaders and people
to begin taking part in future decision making, which will restore some
semblance of stability and peaceful co-existence. 72
Since the international community increasingly demands that justice is done, de
facto amnesties will become rare and if amnesty is opted for, this will be a de iure
amnesty. When a state plans to institute legal proceedings in the future, the situation
of impunity is only temporary and may depend on rebuilding the judiciary. In a
state that was torn apart by conflict, this may take a considerable amount of time.
70
Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of
Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol.
43 2002, pp. 173-247, pp. 245, 246.
71
Leila N. Sadat, “Universal Jurisdiction, National Amnesties, and Truth Commissions: Reconciling
the Irreconcilable”, in: Stephen Macedo (ed.), Universal Jurisdiction, National Courts and the
Prosecution of Serious Crimes under International Law, University of Pennsylvania Press: Philadelphia
2004, pp. 193-211, 197.
72
Alexander Boraine, “Retributive Justice and Restorative Justice: Contradictory or Complementary?”,
in: Nanci Adler (ed.),Genocide and Accountability. Three Public Lectures by Simone Veil, Geoffrey
Nice and Alex Boraine, Vossiuspers UvA: Amsterdam 2004, pp. 51, 52.
46
Amnesty
4 TIMING AND METHOD OF GRANTING THE AMNESTY
Amnesties may be issued at various times surrounding conflict or accompanying the
transition to democracy. The following sections will elaborate on the timing of
granting the amnesty.
4.1 Amnesty before a transition or the end of conflict
An amnesty granted before a transition or the end of conflict may have several
causes and may be a self-amnesty granted by a dictatorial regime to itself. The old
government may fear prosecutions under the new regime, and as a precaution, issue
an amnesty law that exonerates it from any crimes committed during its rule. It is
also possible that amnesty is granted before a transition, as part of a peace
agreement. In order to bargain an end to a violent internal conflict, states may
choose to offer amnesty to combatants in exchange for ending the crimes and to
promote peace and reconciliation. 73 Combatants may not be willing to lay down
their arms with the prospect of facing trial. In such a case, amnesty may be used as
a condition for taking part in peace negotiations.
These two situations are in fact very alike, since amnesty in both instances
enhances chances of peace and may be agreed to in return for ending the violence.
Both also risk a return to conflict when the amnesty, which was a precondition for
peace, is repealed. Examples of such amnesties are the Lomé Peace Agreement and
the Chilean Amnesty Law.
4.2 Amnesty in a period of transition
In case the outgoing regime did not ask for amnesty as a condition to step down, or
issued a self-amnesty law, the new government may nevertheless decide that given
the circumstances, an amnesty law for crimes committed under the previous regime
will ease the transition. By not carrying out prosecutions, the new regime tries to
promote peace and avoid possible civil unrest. 74 The amnesty in South Africa
(1994) is an example of a transitional amnesty, as well as the amnesties in Uruguay
(1985), Argentina (1986/1987) and Haiti (1993).
Mallinder examined the enactment methods of amnesty laws. It appears that
most amnesties are granted either through executive decrees or by a promulgated
law. About 14% of amnesties are part of a negotiated peace agreement. In
approximately 3% of all amnesty laws, society was consulted.
73
Karen Gallagher, “No Justice, No Peace: The Legalities and Realities of Amnesty in Sierra Leone”,
Thomas Jefferson Law Review,vol. 23 2000, pp. 149-198, p. 170.
74
See ibid., p. 169.
47
Chapter III
The legitimacy of an amnesty law depends partially on the enactment method.
When the victims and the rest of society are not involved in the process of granting
amnesty, this influences the legitimacy of the amnesty.
The public can be involved in the decision to grant amnesty either through a
broad consultation program, an election campaign promise to introduce amnesty, or
a referendum, either specifically on the amnesty law or on a new constitution that
contains amnesty provisions. 75 The amnesty is less likely to contribute to
reconciliation and peace in the long term if victims and society were not involved in
the process that led to the granting of amnesty. It is important that attention is given
to the size of victim groups. When the victims represent only a small part of society,
the outcome of a referendum may not necessarily reflect their opinion. Other
difficulties may be that voters in a referendum may be intimidated, or that they base
their vote on incorrect information. When amnesty is granted without any
counterbalancing measures, this may seem to victims and society as if the
perpetrators are compensated instead of the victims.
In Uruguay, years after the enactment of the 1985 amnesty law, which granted
amnesty to military officials involved in human rights violations during the 19731985 dictatorship, a referendum was organized to ask the people whether the
amnesty law should be repealed. A Uruguayan commented on the outcome of the
referendum: “It’s not that people approve of impunidad – they emphatically don’t –
but that they just don’t see any alternative.” 76 Several people signed the petition
leading up to the referendum, but voted against the referendum out of fear. 77 “In
this case, peace is justice.” 78 In 2009, a second referendum was held in Uruguay.
48% of the people voted to overturn the amnesty law. This was not enough due to a
minimum of 50%. However, the Uruguay Supreme Court found the amnesty law
unconstitutional shortly thereafter, and in March 2011, the Inter-American Court of
75
Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the
International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 14.
76
Lawrence Weschler, A Miracle, A Universe. Settling Accounts with Torturers, Pantheon Books: New
York 1990, p. 211.
77
See ibid., p. 212.
78
See ibid., p. 234.
48
Amnesty
Human Rights overturned the amnesty law in a case before the court regarding the
abduction and disappearance of Maria Claudia Garcia Iruretagoyena de Gelman.
5 ARGUMENTS IN FAVOUR OF AND AGAINST AMNESTY
Despite all the arguments in favour of prosecutions, many new democracies in the
last few decades have chosen not to prosecute. Both policy and practical reasons lie
behind these decisions. These may be the same reasons that may lead states to grant
amnesty, and are described in Section 2.1 of this chapter. If no criminal trials are
held to hold those responsible for human rights crimes responsible, there are a
number of other options to deal with the past. In those instances where prosecutions
were foreclosed, it is possible that a truth commission was established to find out
the truth about the past period of violations. Separately from or in addition to a truth
commission, it is possible that amnesty was granted to the perpetrators of human
rights crimes. Besides, it is possible that nothing was done about the past, which
implicates an implicit de facto amnesty.
Views on the issue of amnesty vary tremendously. On the one hand, there are
those who argue that justice must be achieved by means of prosecutions in all
circumstances; on the other hand, there are those who claim that prosecution is not
the only way a transition to peace can take place, and that justice can also be
achieved by other means. Consider, for instance, the view expressed by John
Dugard that NGOs and Western activists often seem to neglect the circumstances in
a country that prefers amnesty to prosecution. In his words “wounds are best healed
at home, by national courts and truth commissions, rather than by foreign courts and
international tribunals”. 79 In between there are many other views. See, for instance,
Peter Krapp, who is of the opinion that amnesty must be the exception and not the
rule: “[A]mnesty as a political instrument must be carefully limited by legislation
and jurisprudence to avoid abuse.” He also states that “… punishment secures the
conditions for a free society that protects individual and collective rights”, and
emphasizes that some crimes are so egregious that they must remain ineligible for
amnesty, such as war crimes, crimes against humanity and genocide. 80 Human
Rights Watch agrees that amnesties may be granted to individuals for their
participation in internal armed conflicts, but opposes in all circumstances amnesties
for those allegedly responsible for war crimes, crimes against humanity and
genocide. 81
In South Africa, amnesty was granted in exchange for truth. Archbishop Tutu
holds that “[d]e oplossing die gevonden werd was niet perfect, maar het was het
79
John Dugard, “Dealing with Crimes of a Past Regime. Is Amnesty Still an Option?”, Leiden Journal
of International Law, vol. 12 1999, pp. 1001-1015, p. 1006.
80
Peter Krapp, “Amnesty: Between an Ethics of Forgiveness and the Politics of Forgetting”, German
Law Journal, vol. 6 no. 1 2005, pp. 185-195, p. 194.
81
Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern
Uganda, Human Rights Watch 2005 vol. 17 no. 12(A), p. 40.
49
Chapter III
beste wat onder de heersende omstandigheden bereikt kon worden – de waarheid in
ruil voor de vrijheid van de daders”. 82
Aryeh Neier wants
to quarrel with the assumption that a principal reason for seeking justice, or
criterion for evaluating its efficacy, should be the future stability of the
reconstituted democracy. Such predictions are highly speculative. Who’s to say
that clemency more simply further embolden the torturers, thereby inviting rather
than preventing future abuses? And who is it precisely who’s to be authorised to
make determinations regarding such larger considerations? El Salvador’s Duarte
and Guatemala’s Cerezo both have insisted that the larger good required their
staying in office and completing their terms - that was the foremost priority, and
certain sacrifices in the human-rights field hence could well prove necessary. But
who are they to say that? The human capacity to look backward is frail enough.
The human capacity to look forward is frailer yet. Rather, punishment is the
absolute duty of society to honor and redeem the suffering of the individual victim.
In a society of law, we say it is not up to individual victims to exercise vengeance,
but rather up to society to demonstrate respect for the victim, for the one who
suffered, by rendering the victimiser accountable. As a matter of law we simply
have to say we are not going to grant clemency to the most grotesque criminals.
We may be forced to do so on the basis of force majeure, but we should never do
so as a matter of law. 83
Neier emphasizes the position of the victim in post-conflict societies. Victims are
indeed central to the whole debate. For this reason, Chapter VI is dedicated to the
victims of human rights crimes and their rights in post-conflict situations.
The following subsections provide an overview of the arguments used by
proponents and opponents of the use of amnesty in political transitions.
5.1 In favour
With regard to international human rights crimes, the arguments in favour of
amnesties go along with the purposes amnesty is claimed to serve:
Promoting peace and reconciliation. In situations where criminal prosecutions are
unlikely to promote peace and stability in a country, amnesty may offer an
opportunity at reconciliation and social stability in the short term. 84 This may be
observed in for example Uruguay. Senator Flores Silva explains:
82
Desmond Tutu, Geen toekomst zonder verzoening, De Bezige Bij: Amsterdam 1999, p. 60.
Neil J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon With Former Regimes.
Volume I: General Considerations, United States Institute of Peace Press: Washington 1995, pp. 497498.
84
Newman, Dwight G., “The Rome Statute, some reservations concerning amnesties, and a distributive
problem”, American University International Law Review, no. 20 2005, pp. 293-357, p. 304; Ronald C.
Slye, “The Legitimacy of Amnesties under International Law and General Principles of AngloAmerican Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43
2002, pp. 173-247, p. 197.
83
50
Amnesty
The problem of amnesty cannot be understood out of the whole situation of our
country. Uruguay lived through a transition from authoritarian rule which was not
at all typical. We didn’t have the benefit of the classic situation in which the
dictatorship suffers an external defeat, like Argentina in the Malvinas or the Greek
generals in Cyprus, and therefore has to step down. We didn’t have the other
classic way out, either, in which the dictatorship loses as a result of an internal war,
as happened in Nicaragua with the downfall of Somoza. Our way was to mobilise
civil society and gradually encircle the regime until it accepted the transition. That
was accomplished through a series of steps – the votes in 1980 and 1982 and 1984,
for example – all of which were imperfect, which is to say they were not
completely democratic. But each step made it possible to advance, and we achieved
two things that no one else has achieved: democracy – which, for instance, Chile
still hasn’t – and a peaceful transition, without any deaths along the way. 85
He continues:
We made a moral decision. I didn’t say it was an easy one. These abuses must
never happen again. I can do nothing to change the fact that we lived under
fascism. What I can do is prevent it from happening again. Listen, as far as I’m
concerned they should all have gone to prison. There should never have been any
dictatorship, never any coup. I am in favour of the Tupamaros’ never having
existed. But we did have Tupamaros, and war, and the logic of war, and fascism –
that’s what happens in war, that’s why you shouldn’t start shooting in the first
place – and my job is to give my son a country where we will again have civil
government and democracy. That takes time, and peace. 86
Trying to reach a peace agreement. In cases of internal conflict, it is hard to achieve
peace without some form of amnesty, because “combatants would be unlikely to lay
down their weapons and dictators would be unwilling to hand over power” with the
prospect of being put on trial. 87 In Sierra Leone, “[t]he signatories to the 1999
Lomé Peace Agreement agreed to amnesty in order to secure the peace. It was
accepted, at the time of the signing of the Lomé Peace Agreement, that the RUF
would not have signed the agreement if there had been any prospect of legal action
being taken against its members.” 88Offering amnesty to reach a peace agreement
may seem unjust for those who have been the victim of past human rights
violations, but it can be justified because by reaching a peace agreement, future
crimes will be prevented.
85
Lawrence Weschler, A Miracle, A Universe. Settling Accounts with Torturers, Pantheon Books: New
York 1990, p. 183.
86
See ibid., p. 184.
87
Louise Mallinder, “Can Amnesties and International Justice Be Reconciled?”, 6th Annual Conference
of the Association of Human Rights Institutes (AHRI)/A COST Action Conference: “Past, Current and
Future Policies of the EU in the field of Human Rights, Peace and Security”, Irish Centre for Human
Rights: Galway, 1 October 2005, p. 1.
88
Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone
Truth & Reconciliation Commission, Vol. 3b, 5 October 2004, p. 364, para. 6.
51
Chapter III
Persuade a military regime to step down/combatants to lay down their arms. It is
argued that amnesty may ensure better prospects for respect for human rights than
its alternatives; since rebels and combatants may not be eager to end hostilities and
surrender if they will face trial, the possibility of an amnesty may provide a way
out. 89 The same holds for dictators and their regimes; they will not surrender and
transfer power to democrats unless they are sure prosecutions will not take place. 90
Amnesty may be used as a bargain to persuade combatants and military regimes to
lay down their arms and achieve peace.
Aiding the transition to democracy. Amnesty may be granted for the reason that the
prosecution of perpetrators may jeopardize the peaceful transition to democratic
rule and even led to a coup d’état or a civil war. Sometimes it is not possible to
build a situation of peace and hold the perpetrators accountable at the same time.
Any attempt by one side to punish its opponents or pursue prosecutions may
reignite the conflict, because it is conceived as victor’s justice. 91 By not requiring
governments to risk provoking or continuing a civil war and by recognizing the
importance of other objectives such as reconciliation, international law may be able
to accommodate the transitional process through the mechanism of principled and
limited amnesties. 92 In this sense, “[a]mnesties are a means of reassuring former
regime forces and their supporters that they continue to play a role within the new
political system and need not overthrow it. … Following a path of punishment can,
instead, serve to maintain rather than reconcile differences between groups in
society.” 93
Alleviating internal tensions. In the case of a military junta being overthrown,
amnesties can have the effect of suppressing the need for vengeance of those who
were subjugated, and thus stabilize the reconciliation process. 94 An atmosphere of
forgiveness may foster reconciliation more than prosecutions will, and enhance the
chances of survival of the new democracy. This is particularly the case when the
new government has to cooperate with elements of the old regime. Revealing the
truth about past violations of human rights “still has the potential of inciting
89
Dwight G. Newman, “The Rome Statute, some reservations concerning amnesties, and a distributive
problem”, American University International Law Review, no. 20 2005, pp. 293-357, p. 305.
90
Ibid.
91
Louise Mallinder, “Can Amnesties and International Justice Be Reconciled?”, International Journal
of Transitional Justice, vol. 1 2007, pp. 208-230, p. 209.
92
Yasmin Naqvi, “Amnesty for War Crimes: Defining the Limits of International Recognition”,
International Review of the Red Cross, vol. 85 no. 851 2003, pp. 583-624, p. 588.
93
Andrew G. Reiter, Tricia D. Olsen, and Leigh A. Payne, Amnesty in the Age of Accountability, Paper
prepared for presentation at the 49th International Studies Association Convention: San Francisco, CA,
March 26-29 2007, pp. 7 and 9.
94
Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International:
The Hague/London/New York 2002, p. 24.
52
Amnesty
violence, as happened in Burundi where the government was overthrown in a coup
the day the truth commission report was due to be released”. 95
Adhering to cultural or religious traditions. Amnesty may fit into local restorative
justice practices and traditional dispute resolution mechanisms. Amnesty is often
justified by arguing that it fosters reconciliation. Reconciliation is an important
element of the practice of restorative justice. Cultural or religious justice traditions
may focus on the truth, healing, reintegration and reconciliation through community
dispute resolution mechanisms. By means of an amnesty, these goals can be
achieved. Examples of such local mechanisms are the Rwandan tradition of gaçaça,
and the Ugandan traditions of mato oput, kayo cuk, tonu ci koka and culo kwor.
Amnesty saves expense. This argument is more a result of the granting of amnesty
than a reason to opt for amnesty. If a legitimate amnesty is issued, the expense that
is saved by not prosecuting can be used for a number of things that are necessary
after conflict or regime change, for instance to strengthen the judiciary or rebuild
the infrastructure. It may also be used for a program of reparations for the victims
or a truth commission.
5.2 Against
The arguments against the use of amnesty are connected with the arguments in
favour of prosecutions. In a situation where crimes are not punished, inconsistent
with the fact that they are crimes punishable by law, a situation of impunity is
created. This situation may have devastating consequences in the sense that future
perpetrators are not deterred from committing crimes. Amnesty may thus constitute
an incentive to new crimes. Chigara notes that amnesty can serve “to undermine
law’s efficacy and integrity”. 96 Opponents to the use of amnesty have various
arguments against the use of amnesty. The most common arguments are listed
below:
First and foremost, it is argued that granting amnesty for gross violations of human
rights is a violation of the international law obligations of a state. 97 Besides, there
are several other reasons not to grant amnesties, which will be outlined below.
These reasons do not necessarily apply in every situation, but are possible negative
consequences of granting amnesty in post-conflict situations.
95
Andrew G. Reiter, Tricia D. Olsen, and Leigh A. Payne, Amnesty in the Age of Accountability, Paper
prepared for presentation at the 49th International Studies Association Convention: San Francisco, CA,
March 26-29 2007, p. 10.
96
Ben Chigara, Amnesty in International Law, The Legality under International Law of National
Amnesty Laws, Pearson Education: Harlow 2002, p. 55.
97
See Chapter IV.
53
Chapter III
Amnesty provides impunity. An amnesty fails to provide for justice and does not
confirm that serious human rights violations are intolerable. When perpetrators of
human rights violations are not held accountable, this leads to impunity, as
described in Chapter I.
Amnesties impede the establishment of the rule of law. 98 After a period in which
grave human rights violations were perpetrated, new or reinstated democracies
should act legitimately. “It is difficult to foster respect for the rule of law and move
from an absence of rule of law to its promotion, even symbolically, while serious
human rights violators and abusers remain unpunished.” 99 Prosecutions show the
victims that serious human rights violations will not be tolerated and not condoned
easily and strengthen respect for the rule of law.
Amnesties weaken the new government. The granting of amnesty may result in
widespread public disappointment in and distrust of the new government.
Amnesties may entrench the power of human rights violators by allowing them to
stay in government or by leaving opponents of the government – particularly the
military – with the power to undermine the new government.
Victims’ rights are violated. There is an obligation to victims to bring the
perpetrators of crimes that caused their suffering to justice. Amnesty deprives
victims of any sense of justice, particularly if not accompanied by some form of
reparation, which undermines efforts at societal recovery and reconciliation. An
amnesty does not recognize or remedy the suffering of the victims and their
families. It does not restore the victims’ dignity as human beings and the feeling of
being appreciated as citizens. The granting of amnesty disables truth seeking
through legal trials and the opportunity to create a concrete and public record of
events. Alex Boraine, Deputy Chair of the South African Truth and Reconciliation
Commission until 1998, points out that:
[b]y lapsing into amnesia, the danger arises of leaving people in constant
victimhood, instead of enabling them to become survivors who move forward with
their lives. Victims have the right to know at whose hands they and their loved
ones suffered. To delay and/or suppress the truth makes it difficult, if not
impossible, to uphold the rule of law and develop a culture of human rights. 100
98
Trumbull states that “if citizens perceive that criminals are not held accountable for their actions, they
are more likely to disregard the law themselves, further undermining the establishment of the rule of
law.” Charles P. Trumbull, “Giving Amnesties a Second Chance”, Berkeley Journal of International
Law,vol. 25 2007, pp. 283-345, p. 308.
99
International Council on Human Rights Policy, Negotiating Justice? Human Rights and Peace
Agreements, International Council on Human Rights Policy: Versoix 2006, p. 76.
100
Alexander Boraine, “Retributive Justice and Restorative Justice: Contradictory or Complementary?”,
in: Nanci Adler (ed.),Genocide and Accountability. Three Public Lectures by Simone Veil, Geoffrey
Nice and Alex Boraine, Vossiuspers UvA: Amsterdam 2004, p. 40.
54
Amnesty
If not accompanied by counterbalancing measures, amnesty laws deny victims the
rights to justice, to know the truth and to reparations. This denial of rights may
intensify the suffering of victims. Victims may feel that their suffering is not
recognized by the authorities and not known by society. Victims may feel
abandoned, and may continue to live in the ‘past’.
Amnesty may undermine progress towards democracy. In the long run an amnesty
may weaken efforts to establish a stable democracy that honours human rights and
the rule of law.
Amnesty may embolden future perpetrators. Amnesties embolden future
perpetrators by institutionalizing impunity and guaranteeing that they will be able to
negotiate their way out of justice. When perpetrators are not punished and the state
shows no denunciation of the crimes, the victims and society may lose confidence
in the government. Ronald Slye argues that “amnesties send a signal to would be
violators that if they are powerful enough to create enough uncertainty or
instability, they may escape accountability”. 101 Lawrence Weschler believes that
“[a]ny form of amnesty invites a repetition of human rights abuses. Someone who
has done such things and is not punished is inclined to do them again.” 102
According to Aryeh Neier, amnesties “create a culture of impunity that only
encourages further human rights violations”. 103 According to Michael Scharf,
especially when the international community encourages or negotiates an amnesty,
as it did in Cambodia, El Salvador, Haiti, Sierra Leone and South Africa, 104 “it
sends a signal to other rogue regimes that they have nothing to lose by instituting
repressive measures; if things start going badly, they can always bargain away their
responsibility for crimes by agreeing to peace”. 105 Ben Chigara points out that the
“negligence of the United Nations in not enforcing its own laws in the face of
nation States’ claims of the right to declare pardon for breaches of international law
breeds confidence in would-be criminals that they can get away with it”. 106
Amnesty laws may have positive results for the transitional state in the first
instance, but according to Kenneth Roth, amnesty laws do not ensure long-lasting
peace. He points out that in Haiti the opposite was true. Each self-amnesty by the
military showed that there would be no serious price to pay for past political
101
Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of
Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol.
43 2002, pp. 173-247, p. 197.
102
Lawrence Weschler, A Miracle, A Universe. Settling Accounts with Torturers, Pantheon Books: New
York 1990, p. 217.
103
Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice, Times Books:
New York 1998, p. 12.
104
Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, Case Research
Paper Series in Legal Studies Working Paper 05-31, Case Western Reserve University: Cleveland
August 2005, p. 4.
105
See ibid., p. 10.
106
Ben Chigara, Amnesty in International Law, The Legality under International Law of National
Amnesty Laws, Pearson Education: Harlow 2002, p. 11.
55
Chapter III
violence and was a “licence for further bloodshed” which only led to further
interruptions of democracy and to further atrocities. 107 As Roth points out “Haiti
illustrates the dangers of ignoring accountability for past abuse in the haste to
secure a ‘transition to democracy’. Each time a supposedly reformist regime took
power, Haitians were asked to forget the past, to look forward to a new era. Sooner
or later, this impunity emboldened reactionary forces to resume political killing.” 108
No healing of social wounds. Amnesty laws may hamper reconciliation. For
victims, it is hard to see perpetrators going back into society without them being
punished or having provided the truth about past violations of human rights. This
will lead to problems in society that will not easily resolve and perhaps even result
into renewed conflict. Alana Tiemessen questions the effectiveness of using
amnesties to bring about peace and reconciliation: “While the provision of
amnesties may bring about a temporary peace among political elites, reintegrating
perpetrators back into the communities where their living victims remain can often
incite revenge violence and population displacement.” 109 Geneviève Jacques
stipulates that impunity “engenders social frustration, despair, resignation and
apathy, while feeding aggressiveness, violence, the collapse of moral restraints and
the rejection of the values on which a cohesive society relies. It fosters a culture of
violence devoid of ethical principles.” 110
Amnesty may stir up vigilante justice. General amnesties remove any possibility of
individualizing guilt. Impunity can also induce victims of these practices to resort to
a form of self-help and take the law into their own hands, which in turn exacerbates
the culture of violence. “The larger the number of victims, the greater the risk of
hatred and revenge ... which will lead sooner or later to civil strife.” 111
All the arguments against amnesty mentioned above should be considered in
perspective. This means that the arguments against amnesty are not inevitable
consequences, but merely possible consequences.
A state may violate its international obligations when issuing an amnesty
measure, but when it acts in the best interests of the state, there should be some
leeway. It cannot be the purpose of international criminal law to force states to
107
Kenneth Roth, “Human rights in the Haitian transition to democracy”, in: Carla Hesse and Robert
Post (eds.), Human Rights and Political Transitions: Gettysburg to Bosnia, Zone Books: New York
1999, pp. 93-131, p. 93. See also: Juan E. Méndez, “Accountability for Past Abuses”, Human Rights
Quarterly, vol. 19 1997, pp. 255-282, p. 266.
108
See ibid., Roth 1999, p. 126.
109
Alana Tiemessen, “Amnesties for Atrocities: Impunity or Accountability?”, Human Security
Bulletin, Centre of International Relations University of British Columbia: Vancouver 2008, pp. 7-10,
p. 9.
110
Geneviève Jacques, Beyond Impunity. An Ecumenical Approach to Truth, Justice and
Reconciliation, World Council of Churches Publications: Geneva 2000, p. 4.
111
Richard Goldstone, “Exposing Human Rights Abuses - A Help or Hindrance to Reconciliation?”,
Hastings Constitutional Law Quarterly, vol. 22 1995, pp. 607-621, p. 620.
56
Amnesty
comply with its rules even when this means that, for example, a violent conflict
may continue. Sometimes, when there is no other option, exceptions should be
allowed and amnesty possible.
Amnesty means impunity. It means that the perpetrators cannot be held
criminally accountable. However, there may be a way to hold the perpetrators
civilly accountable and demand reparation. Those responsible may also be denied
functions of authority and public service.
Prosecutions resulting from fair trials demonstrate that committing crimes is not
tolerated and that perpetrators will be held accountable. This is based upon and
reinstates the rule of law. When amnesty is presented as an exceptional measure, it
does not necessarily lead to disrespect for the rule of law. When the amnesty is
made conditional or when it is accompanied by counterbalancing mechanisms and
is part of a program that is designed in consultation with victims and at least a
substantial majority of society, the amnesty may be acceptable.
Amnesties do not necessarily weaken the new government. When the state
shows commitment to the rule of law and establishes counterbalancing measures for
the victims, an amnesty may strengthen the new government.
Besides, prosecuting those responsible may well weaken the new government as
well. In Argentina, for example, prosecutions were halted, and those already
convicted were released because holding those responsible destabilized the
democracy as a result of the threat of the still powerful army.
The truth that is established in criminal proceedings is not revealed when
amnesty is granted by which criminal liability is foreclosed. However, archives and
documents containing relevant information may be released and a truth commission
will also contribute to uncovering the truth.
Not granting amnesty for the sake of the victims is a very legitimate reason for
refraining from issuing an amnesty measure. However, when such an amnesty
measure provides the only way out of conflict and prevents new crimes in a
continuation of the conflict, the victims and society may well agree on an amnesty
as a trade-off for peace. If the right to justice is offered, the right to know the truth
and the right to reparation may still be fulfilled by the state in the best way possible.
It is important to recognize the suffering and strength of victims and their relatives.
It is argued that amnesty undermines progress towards democracy, but as
demonstrated in the situations in Argentina and Uruguay, prosecutions may do so as
well. Risking a return to conflict or a coup d’état by prosecuting those most
responsible is not worth sacrificing democracy.
Amnesty may embolden future perpetrators, but prosecutions are no guarantee
either of deterring future perpetrators. Prosecution and punishment exist for a long
time, but crimes and violence still exist. That is not to say that there is no point in
prosecution and punishment at all, but that exceptions to the general rule that crimes
must be punished should be allowed when contributing to the goals justice means to
serve itself.
While it is true that victims may find it very hard to see perpetrators return to
their normal lives without being held accountable because of an amnesty, this will
57
Chapter III
also be the case when amnesty is not granted. A state will never be able to hold all
those who participated in human rights crimes accountable. In a best-case scenario,
those most responsible are brought to account. Many crimes will remain
unpunished just because the legal system will not be able to handle the number of
cases. This seems one of the bitter consequences of a regime change or the end of
conflict, but it often is an inevitable price to pay when one wants peace and
democracy. The victims should nevertheless be attended to in another way.
Opponents of amnesty argue that it may stir up vigilante justice because the
perpetrators are not individualized. This may be the case, but prosecution does not
remove that risk either. As stated earlier, many perpetrators will remain unknown,
and therefore there is always a risk of vigilante justice.
6 CONCLUSION
Amnesty is a concept used in political transitions or post-conflict situations to
foreclose prosecution. The motives behind a decision to grant amnesty vary per
situation and may be granted to benefit the country by fostering peace and
reconciliation, or to benefit those who give up power. There are several forms of
amnesty, which often reflect the situation a state is in. Some forms of amnesty are
more likely to be accepted by victims, bystanders and society than others. The
moment of the granting of the amnesty may reflect that amnesty was a precondition
for achieving peace, or a means to embolden peace.
If not accompanied by counterbalancing measures, and instituted after broad
participation of victims and society in the process, the victims may feel neglected
and abandoned, and this may weaken the prospects of the new government.
In the last decades, international law has developed towards a situation in which
impunity for human rights violations at national level is heavily criticized at
international level. In this same period, however, more and more amnesty laws have
been issued. Before, there was less interest from the international community
punishing perpetrators after internal wars and, consequently, there was no need to
issue an amnesty law. Nowadays, the interference of the international community
influences national processes and choices after a political transition or in a postconflict period. It appears that the increased use of amnesties is thus less a reflection
of our increased tolerance of impunity and more an indicator of the growing force
of the international human rights movement and international criminal law.
The argument that future abuses must be prevented is used by both proponents
and opponents of amnesty laws. It is difficult to measure the impact an amnesty has
on a society and how it contributes to reconciliation. It is equally difficult to
measure the effectiveness of the amnesty. This is particularly the case when the
amnesty is part of a bigger program of transitional justice measures. Amnesty in
principle, if not accompanied with a counterbalancing measure, violates the right to
a remedy, the right to truth, the duty to prosecute and punish and the right to
reparations. In both cases, this depends on the standard one uses. Regarding the
impact, there are many factors that may be taken into account. A feature that is
58
Amnesty
common to most amnesties is that the state or institution that granted the amnesty
was convinced of its necessity, and saw no alternative. Examples are the amnesties
in South Africa, Argentina and Sierra Leone.
59
PART 3
THE LEGALITY OF NATIONAL AMNESTY LAWS
CHAPTER IV
THE LEGALITY OF NATIONAL AMNESTY LAWS
UNDER INTERNATIONAL LAW
1 INTRODUCTION
There are arguments for and against amnesty, as Chapter III showed.
During the 1993 United Nations World Conference on Human Rights (WCHR),
the issue of impunity for human rights violations was discussed and rejected. In its
report, the WCHR notes that “[s]tates should abrogate legislation leading to
impunity for those responsible for grave violations of human rights such as torture
and prosecute such violations, thereby providing a firm basis for the rule of
law”. 1Further, the WCHR emphasized its concern over “the issue of impunity of
perpetrators of human rights violations, and supports the efforts of the [UN]
Commission on Human Rights and the [UN] Sub-Commission on Prevention of
Discrimination and Protection of Minorities to examine all aspects of the issue”.2
From the establishment and work of several international courts and tribunals
and the ICC in the last two decades, it may be determined that the international
community is uncomfortable with the endurance of impunity for serious human
rights crimes. Many international crimes are criminalized in general and specific
conventions. Some of these conventions contain provisions in which they oblige
states to criminalize the respective crime in their national laws. To state, however,
that there exists a duty to prosecute is a big step.
According to the United Nations General Assembly, the responsibility and duty
to protect, promote and implement human rights lies primarily with the state. 3 This
raises many questions that relate to the core of this research. For example, is the
state obliged to initiate prosecutions against every single perpetrator when there is a
duty to prosecute, or is it sufficient to try just a few exemplary cases? In case of the
1
World Conference on Human Rights, Report of the World Conference on Human Rights. Report of the
Secretary-General, A/CONF.157/24 (Part I), 13 October 1993, sub 60.
2
Ibid., sub 91.
33
General Assembly, Declaration on the Right and Responsibility of Individuals, Groups and Organs
of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,
A/RES/53/144, 8 March 1999, p. 3. See also, William A. Schabas, Impunity and Human Rights
Defenders, Paper presented at the FrontLine Conference: Dublin 17 January 2002, p. 4.
63
Chapter IV
latter, what cases should be chosen, and how many of them should be tried? What
will happen to the rest of them? And, how to deal with the victims? They may feel
abandoned by their own state since it is extremely important for victims that their
voices are heard and that the truth about what happened to them is acknowledged.
In case every suspected perpetrator should be tried, there is an enormous amount of
work to be done: who are all the suspected perpetrators? They must be identified
first. Evidence against each one of them should be collected. What institution is
going to try all the suspects? The workload and capacity to try all of them will be
enormous, not to mention the fact that fair trials must be conducted. As one may
imagine, the answer to these questions is far from simple. On the one hand, it is
desirable that every single perpetrator is tried and punished; on the other hand,
when crimes occurred on a large scale, as is unfortunately often the case, it is not
feasible to try and punish all of the perpetrators in a fair trial. Rwanda’s attempt to
do this is an exemplary case here. Rwanda “decided on a policy of maximal
accountability for the crime of genocide and crimes against humanity committed” 4
from the beginning of the armed conflict, 1 October 1990, until 31 December 1994.
However, in 2002, after operating for seven and a half years, the ICTR had tried
only nine suspects. The Rwandese specialized genocide chambers had tried a little
more than 7,000 suspects in five and a half years, while there were still some
112,000 suspects in prison. 5 At that point, the Rwandese government decided to
create approximately 10,000 local gaçaça courts to deal quickly and more
effectively with the judicial backlog. 6
A number of NGOs are concerned that “the fact that in practice it is impossible
to try without exception every single person responsible for serious violations of
human rights” involves the risk of indirectly legitimizing impunity. 7 One can see
from the Rwanda case that whether or not there exists a duty to prosecute, in postconflict societies it is extremely difficult to live up to this standard. Not only is it
hard to find all the suspects, it is almost impossible to try them all fairly before a
competent judicial institution within reasonable time.
Notwithstanding the practical or logistical problems in the country itself of
prosecuting large numbers of people after democratic transition, since the
establishment of the ICC such problems no longer stand in the way of holding
accountable those most responsible. Ben Chigara argues that international processes
are indispensable when international crimes are committed. 8
4
Amnesty International, Rwanda. Gaçaça: A Question of Justice, 2002, AI Index: AFR 47/007/2002, p.
1.
5
Ibid.
6
Ibid.
7
Commission on Human Rights, Progress report on the question of the impunity of perpetrators of
violations of human rights (civil and political rights) / prepared by Mr. Joinet, pursuant to
subcommission resolution 1994/3, E/CN.4/Sub.2/1995/18, 28 June 1995, paras. 11, 12.
8
Ben Chigara, Amnesty in International Law,The Legality under International Law of National
Amnesty Laws, Pearson Education: Harlow 2002, p. 10. “Because the laws at issue when such amnesty
laws are contemplated often have a dual existence as national laws on the one hand, and as international
64
The legality of national amnesty laws under international law
Multiple conventions, covenants, declarations, resolutions and reports contain
efforts to fight impunity. One of the most recent is the Nuremberg Declaration on
Peace and Justice 2008. 9 Principle 2 on ‘Ending impunity’ states:
The most serious crimes of concern to the international community, notably
genocide, war crimes, and crimes against humanity, must not go unpunished
and their effective prosecution must be ensured. The emergence of this
principle as a norm under international law has changed the parameters for the
pursuit of peace.
As a minimal application of this principle, amnesties must not be granted to
those bearing the greatest responsibility for genocide, crimes against humanity
and serious violations of international humanitarian law.
Each State has the primary responsibility to protect its population from these
crimes. This responsibility entails the prevention, investigation and prosecution
of such crimes. 10
This principle assumes a duty to prosecute the most serious crimes of concern to the
international community. Besides, it states that amnesty for such crimes is not an
option. The last part of the principle overlooks the possibility that under some
circumstances, amnesty, rather than prosecution, may protect the states’ population
from suffering from serious human rights crimes. The intention of states should
indeed be to prosecute and punish those responsible. However, even with the best
intensions, this is not always possible.
In the following sections, the most important documents in the area of
international crimes relevant to the duty to prosecute and/or mentioning amnesty or
impunity will be discussed, in order to discover whether or not there exists in these
documents a duty to prosecute the respective crimes, and whether or not amnesty
for these crimes has consequences in the international legal arena.
laws on the other, it is important that breaches of international law be accounted for by international
processes, whatever approaches are taken domestically to address violation of national laws.”
9
General Assembly, Annex to the letter dated 13 June 2008 from the Permanent Representatives of
Finland, Germany and Jordan to the United Nations addressed to the Secretary-General, Nuremberg
Declaration on Peace and Justice, A/62/885, 19 June 2008. This “[d]eclaration contains definitions,
principles and recommendations on issues of peace, justice and impunity, and making peace and
dealing with the past, as well as promoting development. Although it is not a legal document, it aspires
to “guide those involved at the local, national and international levels in all phases of conflict
transformation, including mediation, post-conflict peacebuilding, development, and the promotion of
transitional justice and the rule of law” and thus to influence the future practice of making and building
“just and lasting peace”.”
10
See ibid., Principle 2.
65
Chapter IV
2 THE DUTY TO PROSECUTE IN GENERAL INTERNATIONAL AND REGIONAL
HUMAN RIGHTS TREATY LAW
2.1 International Covenant on Civil and Political Rights1966
2.1.1ICCPR
On 16 December 1966, the UN General Assembly adopted the International
Covenant on Civil and Political Rights (ICCPR). The Covenant entered into force
on 23 March 1976. Parties to the ICCPR commit themselves to respect the rights of
individuals laid down in the Covenant, for example the right to life, the right to
liberty and security of person, the right to a fair trial and the right to freedom of
thought, conscience and religion. To date, 167 countries have ratified the ICCPR.
Article 2 of the ICCPR holds that “[e]ach State Party to the present Covenant
undertakes to respect and to ensure to all individuals within its territory and subject
to its jurisdiction the rights recognized in the present Covenant,” “undertakes to
take the necessary steps … to adopt such legislative or other measures as may be
necessary to give effect to the rights recognized in the present Covenant”, and
“undertakes … [t]o ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity”. 11
The UN Human Rights Committee (HRC) is the monitoring treaty-based body
of the ICCPR. The Committee also publishes General Comments, in which it
interprets provisions of the ICCPR. In General Comment No. 20 (1992) on Article
7 of the ICCPR the Committee notes, “that some States have granted amnesty in
respect of acts of torture. Amnesties are generally incompatible with the duty of
States to investigate such acts … States may not deprive individuals of the right to
an effective remedy, including compensation and such full rehabilitation as may be
11
Article 2 ICCPR:
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the
present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes
and with the provisions of the present Covenant, to adopt such legislative or other measures as may be
necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an
effective remedy, notwithstanding that the violation has been committed by persons acting in an official
capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
66
The legality of national amnesty laws under international law
possible.” 12 In General Comment No. 31 (2004), the Human Rights Committee
elaborates on Article 2 of the ICCPR. The Committee states:
There may be circumstances in which a failure to ensure Covenant rights as
required by article 2 would give rise to violations by States Parties of those
rights, as a result of States Parties’ permitting or failing to take appropriate
measures or to exercise due diligence to prevent, punish, investigate or redress
the harm caused by such acts by private persons or entities. States are reminded
of the interrelationship between the positive obligations imposed under article 2
and the need to provide effective remedies in the event of breach under article
2, paragraph 3. 13
The Committee thus seems to read a duty to prosecute into Article 2 of the ICCPR.
The Committee is of the opinion that governments not only have a duty to protect
their citizens from violations of physical integrity, but also have a duty to
investigate violations when they occur and to end them. 14 The duty to investigate
precedes the duty to prosecute.
Administrative mechanisms are particularly required to give effect to the
general obligation to investigate allegations of violations promptly, thoroughly
and effectively through independent and impartial bodies. National human
rights institutions, endowed with appropriate powers, can contribute to this end.
A failure by a State Party to investigate allegations of violations could in and of
itself give rise to a separate breach of the Covenant. Cessation of an ongoing
violation is an essential element of the right to an effective remedy. 15
The Human Rights Committee in General Comment No. 31 continues to claim that
both the failure to investigate and the failure to prosecute may constitute breaches
of the ICCPR. The duty to investigate and prosecute violations of the ICCPR arises
especially for “those violations recognized as criminal under either domestic or
international law, such as torture and similar cruel, inhuman and degrading
treatment (Article 7), summary and arbitrary killing (Article 6) and enforced
disappearance (Articles 7 and 9 and, frequently, 6)”. 16 The Human Rights
Committee holds that:
[a]ccordingly, where public officials or State agents have committed violations
of the Covenant rights referred to in this paragraph, the States Parties concerned
may not relieve perpetrators from personal responsibility, as has occurred with
certain amnesties (see General Comment 20 (44)) and prior legal immunities
12
Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other
Cruel, Inhuman or Degrading Treatment or Punishment),Replaces general comment 7, 10 March 1992,
para. 15.
13
Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation
Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 8.
14
See ibid., para. 15.
15
Ibid.
16
See ibid., para. 18.
67
Chapter IV
and indemnities. Furthermore, no official status justifies persons who may be
accused of responsibility for such violations being held immune from legal
responsibility. Other impediments to the establishment of legal responsibility
should also be removed, such as the defence of obedience to superior orders or
unreasonably short periods of statutory limitation in cases where such
limitations are applicable. States parties should also assist each other to bring to
justice persons suspected of having committed acts in violation of the Covenant
that are punishable under domestic or international law. 17
From the Committee’s clarification of Article 2 ICCPR, it is clear that in the event
of ICCPR rights being violated, the Committee rejects impunity and the possibility
to grant amnesty or shield the perpetrators in any other way from criminal
responsibility and acknowledges a duty to prosecute those responsible.
Furthermore, the Committee recognizes that impunity for violations of the rights
contained in the ICCPR “may well be an important contributing element in the
recurrence of the violations”. Consequently, the Committee notes that the states
parties may not provide impunity in any way to those responsible. When the
Committee considers that impunity ‘may well be’ an important contributing
element in the recurrence of the violations, this is far from certain. It merely
assumes a risk. The conclusion that the Committee draws from this risk does not
take into consideration the possible negative consequences of prosecution.
In Article 14(7) of the ICCPR, it is held that “[n]o one shall be liable to be tried
or punished again for an offence for which he has already been finally convicted or
acquitted in accordance with the law and penal procedure of each country”. Since
the Committee does not recognize amnesty, amnesty is not considered an acquittal,
and therefore, in line with this, disregarding an amnesty in foreign or international
proceedings is not in violation of the principle ne bis in idem. Articles 2 and 4
ICCPR imply that even in a state of emergency, amnesty is not an option. 18
2.1.2 Human Rights Committee
This paragraph discusses several examinations of state party reports by the Human
Rights Committee, relevant to the duty to prosecute or the rejection of impunity.
In its 1993 Concluding Observations on Uruguay, the Committee notes “its deep
concern on the implications for the Covenant of the Expiry Law”, a law approved in
1986 providing amnesty to all military and law enforcement members for any acts
committed in the country during the 1973-1985 dictatorship:
[T]he Committee emphasizes the obligation of States parties, under article 2 (3) of
the Covenant, to ensure that all persons whose rights or freedoms have been
violated shall have an effective remedy as provided through recourse to the
competent judicial, administrative, legislative or other authority. The Committee
17
Ibid.
Kai Ambos, “Impunity and International Criminal Law. A Case Study on Colombia, Peru, Bolivia,
Chile and Argentina”, Human Rights Journal, vol. 18 no. 1-4 1997, pp. 1-15, p. 7.
18
68
The legality of national amnesty laws under international law
notes with deep concern that the adoption of the Law effectively excludes in a
number of cases the possibility of investigation into past human rights abuses and
thereby prevents the State party from discharging its responsibility to provide
effective remedies to the victims of those abuses. The Committee is particularly
concerned that the adoption of the Law has impeded follow-up on its views on
communications. Additionally, the Committee is particularly concerned that, in
adopting the Law, the State party has contributed to an atmosphere of impunity
which may undermine the democratic order and give rise to further grave human
rights violations. This is especially distressing given the serious nature of the
human rights abuses in question. 19
The Human Rights Committee cannot rule on violations that took place before
ratification of the ICCPR in the country concerned. The Argentinean case of S.E.
and her three disappeared children, submitted by S.E. who claimed the right to a
remedy was violated by the enactment of the two amnesty laws, was declared
inadmissible ratione temporis. 20 However, in the comments of the HRC on the
report of Argentina under Article 40 of the ICCPR, the Committee expressed its
concern about the two amnesty laws, and held that they violated the ICCPR. 21
In the 1995 Concluding Observations on Haiti, the Committee expressed:
its concern about the effects of the Amnesty Act, agreed upon during the
process which led to the return of the elected Government of Haiti. It is
concerned that, despite the limitation of its scope to political crimes committed
in connection with the coup d’état or during the past regime, the Amnesty Act
might impede investigations into allegations of human rights violations, such as
summary and extrajudicial executions, disappearances, torture and arbitrary
arrests, rape and sexual assault, committed by the armed forces and agents of
national security services. In this connection, the Committee wishes to point
out that an amnesty in wide terms may promote an atmosphere of impunity for
perpetrators of human rights violations and undermine efforts to re-establish
respect for human rights in Haiti and to prevent a recurrence of the massive
human rights violations experienced in the past. 22
19
Human Rights Committee, Concluding Observations of the Human Rights Committee: Uruguay,
CCPR/C/79/Add.19 (1993), para. 7.
20
S. E. (name deleted) v. Argentina, CCPR/C/38/D/275/1988, 26 March 1990, paras. 2.1, 3.1, 5.3 and
6(a).
21
Human Rights Committee, Comments on Argentina, CCPR/C/79/Add.46, 21/22 March 1995, 1995,
para. 10: “The Committee reiterates its concern that Act 23.521 (Law of Due Obedience) and Act
23.492 (Law of Punto Final) deny effective remedy to victims of human rights violations during the
period of authoritarian rule, in violation of articles 2 (2, 3) and 9 (5) of the Covenant. The Committee is
concerned that amnesties and pardons have impeded investigations into allegations of crimes
committed by the armed forces and agents of national security services and have been applied even in
cases where there exists significant evidence of such gross human rights violations as unlawful
disappearances and detention of persons, including children. The Committee expresses concern that
pardons and general amnesties may promote an atmosphere of impunity for perpetrators of human
rights violations belonging to the security forces. The Committee voices its position that respect for
human rights may be weakened by impunity for perpetrators of human rights violations.”
22
Human Rights Committee, Concluding Observations of the Human Rights Committee: Haiti,
A/50/40, paras. 224-241 (1995), para. 230.
69
Chapter IV
In 1996, the Committee expressed its deep concern about the situation in Peru:
The Committee is deeply concerned that the amnesty granted ... absolves from
criminal responsibility and, as a consequence, from all forms of accountability,
all military, police and civilian agents of the State who are accused,
investigated, charged, processed or convicted for common and military crimes
for acts occasioned by the ‘war against terrorism’ from May 1980 until June
1995 ... Such an amnesty prevents appropriate investigation and punishment of
perpetrators of past human rights violations, undermines efforts to establish
respect for human rights, contributes to an atmosphere of impunity among
perpetrators of human rights violations, and constitutes a very serious
impediment to efforts undertaken to consolidate democracy and promote
respect for human rights and is thus in violation of article 2 of the Covenant. 23
The Committee again emphasized that an amnesty, such as the one granted in
Peru, “is incompatible with the duty of States to investigate human rights violations,
to guarantee freedom from such acts within their jurisdiction, and to ensure that
they do not occur in the future”. 24 In 1999, when the Committee examined amnesty
provisions in Chilean law, it reaffirmed its opinion:
The Amnesty Decree Law, under which persons who committed offences between
11 September 1973 and 10 March 1978 are granted amnesty, prevents the State
party from complying with its obligation under article 2, paragraph 3, to ensure an
effective remedy to anyone whose rights and freedoms under the Covenant have
been violated. The Committee reiterates the view expressed in its General
Comment 20, that amnesty laws covering human rights violations are generally
incompatible with the duty of the State party to investigate human rights violations,
to guarantee freedom from such violations within its jurisdiction and to ensure that
similar violations do not occur in the future. 25
In its Concluding Observations on Argentina in 2000, the Committee stated that
“[g]ross violations of civil and political rights during military rule should be
prosecutable for as long as necessary, with applicability as far back in time as
necessary to bring their perpetrators to justice”. 26 This indicates that no statutes of
limitation should cover serious violations of the ICCPR. The Committee
recommended, “that rigorous efforts continue to be made in this area and that
measures be taken to ensure that persons involved in gross human rights violations
are removed from military or public service”. 27
23
Human Rights Committee, Preliminary Observations of the Human Rights Committee: Peru,
CCPR/C/79/Add.67, 25 July 1996, para. 9.
24
Ibid.
25
Human Rights Committee, Concluding Observations of the Human Rights Committee: Chile,
CCPR/C/79/Add.104, 30 March 1999, para. 7.
26
Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina,
CCPR/CO/70/ARG, 3 November 2000.
27
Ibid.
70
The legality of national amnesty laws under international law
In 2001, in its Concluding Observations on Croatia, the Committee stated its
concern about the possible effect of the amnesty law. The amnesty law excludes
war crimes, but it does not define war crimes. Therefore, the Committee is
concerned that persons who allegedly committed serious violations of human rights
may benefit from the amnesty law. 28
The main reasons against the use of amnesty mentioned by the Committee are:
-
Violation of the right to an effective remedy for victims;
Possible promotion of an atmosphere of impunity;
Possible weakening of respect for human rights;
Amnesty impedes investigations into allegations of human rights violations;
Amnesty undermines effects to prevent a recurrence of human rights
violations;
Amnesty absolves all military police and civilian agents from criminal
responsibility and accountability;
Amnesty prevents punishment of perpetrators of past human rights
violations;
Perpetrators of serious violations of human rights may benefit from an
amnesty law.
In sum, the Human Rights Committee leaves no room for amnesty for serious
violations of the ICCPR. The Committee considers domestic and international
crimes such as torture and similar cruel, inhuman and degrading treatment,
summary and arbitrary killing and enforced disappearance as serious violations. It is
not clear whether the Committee accepts amnesty for less serious violations.
2.2 American Convention on Human Rights 1969
2.2.1ACHR
The adoption of the American Declaration of the Rights and Duties of Man in
Bogotá, Colombia in April 1948 was the first move towards the inter-American
human rights system. This Declaration was the first general international human
rights instrument. The American Convention on Human Rights (ACHR) was
adopted on 22 November 1969, and entered into force on 18 July 1978. To date, 25
American countries out of 35 members of the Organization of American States
(OAS) are state party to the ACHR. The Convention identifies the human rights that
the ratifying states have agreed to respect and ensure. The Convention also creates
the Inter-American Court of Human Rights and defines the functions and
procedures of both the Commission and the Court.
28
Human Rights Committee, Concluding Observations of the Human Rights Committee: Croatia,
CCPR/CO/71/HRV, 30 April 2001, para. 11.
71
Chapter IV
The Inter-American Commission on Human Rights claims that laws or measures
that lead to impunity will not hold up in court because they violate the rights in the
American Convention. 29
In addition, Articles 25 and 27 foreclose the possibility of granting amnesty in a
state of emergency. 30
In 1994, the Government of the Republic of Guatemala and the Unidad
Revolucionaria Nacional Guatemalteca issued an agreement on human rights issues.
Impunity is one of the issues mentioned in the agreement. Article 3 ‘Commitment
against impunity’ of the Comprehensive Agreement on Human Rights reads:
1. The Parties agree on the need for firm action against impunity. The
Government shall not sponsor the adoption of legislative or any other type of
measures designed to prevent the prosecution and punishment of persons
responsible for human rights violations.
2. The Government of the Republic of Guatemala shall initiate in the legislature
necessary legal amendments to the Penal Code so that enforced or involuntary
disappearances and summary or extra-judicial executions may be characterized
as crimes of particular gravity and punished as such; likewise, the Government
shall foster in the international community, recognition of enforced or
involuntary disappearances and of summary or extra-judicial executions as
crimes against humanity.
3. No special law or exclusive jurisdiction may be invoked to uphold impunity
in respect of human rights violations. 31
Every country that is faced with human rights crimes on a large scale deals with
those crimes in its own manner. In a period of only a few decades, various countries
in the Latin and South American continent experienced a period in which human
rights atrocities occurred, often followed by amnesty measures. Given the fact that,
understandably, victims often do not approve of amnesty measures, over the years
the Inter-American Commission and the Inter-American Court on Human Rights
were faced with several cases in which an amnesty measure had to be examined.
There are several regional conventions, in addition to the international ones, that are
29
IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on the Massacre of the Jesuits in El
Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 210: “Article 2 of the American
Convention establishes the obligation of states parties to adopt ‘such legislative or other measures as
may be necessary’ to give effect to the rights and freedoms protected in the American Convention. This
provision includes a negative obligation, whereby states are also obliged to refrain from issuing laws
that eliminate, restrict or nullify the rights and freedoms enshrined in the Convention, or that render
them ineffective.” Article 2 ACHR on Domestic Legal Effects provides: “Where the exercise of any of
the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions,
the States Parties undertake to adopt, in accordance with their constitutional processes and the
provisions of this Convention, such legislative or other measures as may be necessary to give effect to
those rights or freedoms.”
30
See also, Kai Ambos, “Impunity and International Criminal Law. A Case Study on Colombia, Peru,
Bolivia, Chile and Argentina”, Human Rights Journal, vol. 18 no. 1-4 1997, pp. 1-15, p. 7.
31
Comprehensive Agreement on Human Rights, Guatemala, 26 March 1994, art. 3, accessible via
<http://www.c-r.org/our-work/accord/guatemala/human-rights-agreement.php>
72
The legality of national amnesty laws under international law
relevant in the work of the Inter-American Commission and Court, including the
American Convention on Human Rights (1969), the Inter-American Convention to
Prevent and Punish Torture (1985), 32 and the Inter-American Convention on Forced
Disappearance of Persons (1994). 33
2.2.2 Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights (IAComHR) is one of two
organs in the inter-American system for the promotion and protection of human
rights. The other organ is the Inter-American Court of Human Rights. The
IAComHR is an autonomous body of the Organization of American States. 34 Over
the years, the IAComHR build a doctrine on the subject of amnesties in several key
cases. In these cases, the IAComHR was consistent in the rejection of amnesty laws
and ruled that “comparative legal measures that preclude or terminate the
investigation and prosecution of State agents who may be responsible for serious
violations of the American Convention or Declaration violate multiple provisions of
these instruments”. 35 When considering a case, the Commission takes note of the
circumstances in which the alleged violation(s) took place and of efforts of the state
responsible to fulfil its obligations. 36
In 1993, the IAComHR wrote to the government of El Salvador about the
General Amnesty Law (Decree No. 486 of 1993) the country had enacted. This
32
Article 17, Inter-American Convention to Prevent and Punish Torture.
Article XIII, Inter-American Convention on Forced Disappearance of Persons.
34
The IAComHR was created in 1959 and entered into force in 1960. Its main function is promoting
the observance and protection of human rights. In carrying out its mandate, the Commission, amongst
other things, “[r]eceives, analyzes and investigates individual petitions which allege human rights
violations, pursuant to Articles 44 to 51 of the Convention”; “Observes the general human rights
situation in the member States and publishes special reports regarding the situation in a specific State,
when it considers it appropriate”; “Carries out on-site visits to countries to engage in more in-depth
analysis of the general situation and/or to investigate a specific situation. These visits usually result in
the preparation of a report regarding the human rights situation observed, which is published and sent to
the General Assembly”; “Recommends to the member States of the OAS the adoption of measures
which would contribute to human rights protection”; and “Requests States to adopt specific
"precautionary measures" to avoid serious and irreparable harm to human rights in urgent cases. The
Commission may also request that the Court orders "provisional measures" in urgent cases which
involve danger to persons, even where a case has not yet been submitted to the Court.”34 The
IAComHR may submit cases to the Inter-American Court.
35
IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9
rev. 1, 26 February 1999, para. 345; IAComHR, Consuelo et al. v. Argentina, Cases 10.147, 10.181,
10.240, 10.262, 10.309, 10.311, Report No. 28/92, OEA/Ser.L/V/II.83 Doc. 14 at 41 (1993), 2 October
1992, paras. 37, 39, 41; IAComHR, Mendoza et. al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305,
10.372, 10.373, 10.374 and 10.375, Report No. 29/92, OEA/Ser.L/V/II.83 Doc. 14 at 154 (1993), 2
October 1992, paras. 46, 49, 51.
36
IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El
Salvador), Report No. 136/99, Case 10.488, 22 December 1999, e.g. paras. 52-60; IAComHR,
Consuelo et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, 10.311, Report No. 28/92,
OEA/Ser.L/V/II.83 Doc. 14 at 41 (1993), 2 October 1992, paras. 42, 48.
33
73
Chapter IV
report clarifies the IAComHRs position on amnesty for human rights crimes and the
duty to prosecute. In the Salvadoran situation, the IAComHR was afraid that:
[t]he Legislative Assembly’s passage of a General Amnesty Law on March 20,
immediately after publication of the Report of the Truth Commission, could
compromise effective implementation of the Truth Commission’s
recommendations and eventually lead to a failure to comply with the
international obligations undertaken by the Government of El Salvador when it
signed the Peace Agreements. 37
The IAComHR notified the government of its opinion because the president was
still allowed to veto the recently approved amnesty law. 38 The IAComHR also
reminded the government of “the fact that the political agreements concluded
among the parties in no way relieve the State of the obligations and responsibilities
it has undertaken by virtue of its ratification of the American Convention on Human
Rights and other international instruments on the same subject”. 39
The Inter-American Commission on Human Rights reminded the Government
of El Salvador
that El Salvador’s ratification of the American Convention on Human Rights
made it a State Party and as such it has, as the Inter-American Court of Human
Rights stated, “(...) a legal duty (...) to use the means at its disposal to carry out
a serious investigation of violations committed within its jurisdiction, to
identify those responsible, to impose the appropriate punishment and to ensure
the victim adequate compensation.” In reference to Article 1 of the Convention,
the Court added that “if the State apparatus acts in such a way that the violation
goes unpunished (...) the State has failed to comply with its duties to ensure the
free and full exercise of those rights to the persons within its jurisdiction”. 40
The IAComHR noted “[t]hat amnesty extinguishes criminal and civil liability and
thus disregards the legitimate rights of the victims’ next-of-kin to reparation. Such a
measure will do nothing to further reconciliation and is certainly not consistent with
the provisions of Articles 1, 2, 8 and 25 of the American Convention on Human
Rights.” 41 Amnesty “legally removes the right to justice … since it makes
impossible any effective investigation of human rights violations, or the prosecution
and punishment of all those persons involved and the reparation of damages
caused”. 42
37
IAComHR, Report on the Human Rights Situation in El Salvador (1994), part 4, accessible via
<http://www.cidh.oas.org/DefaultE.htm>
38
Ibid.
39
Ibid.
40
Ibid.
41
Ibid.
42
Ibid.
74
The legality of national amnesty laws under international law
The IAComHR believes that:
the very sweeping General Amnesty Law passed by El Salvador’s Legislative
Assembly constitutes a violation of the international obligations it undertook when
it ratified the American Convention on Human Rights, because it makes possible a
“reciprocal amnesty” without first acknowledging responsibility (despite the
recommendations of the Truth Commission); because it applies to crimes against
humanity, and because it eliminates any possibility of obtaining adequate
pecuniary compensation, primarily for victims.43
In December 1997, the IAComHR, with respect to the human rights situation in
Colombia, noted that “cases of violations of human rights and/or of international
humanitarian law, could constitute crimes of an international character which would
incur the individual criminal responsibility of the authors, who may be prosecuted
in any State in which they happen to be [found]”. 44 This means that,
notwithstanding national measures of impunity, those alleged to be responsible may
still be prosecuted in other states or by an international court or tribunal. In 2004,
the Commission recognized:
Some states affected by internal armed conflicts and their consequences have
issued amnesty laws when implementing mechanisms for achieving peace and
national reconciliation. Nonetheless, the granting of amnesties and pardons
should be limited to punishable conduct in the nature of political crimes or
common crimes linked to political crimes insofar as, having a direct and close
relationship with the political criminal conduct, they do not constitute serious
violations under international law. Those responsible for committing such
crimes should not benefit unduly from grounds of exclusion from punishment,
such as the prescription of the crime and prescription of the punishment, the
granting of territorial or diplomatic asylum, the refusal to extradite a person for
the commission of crimes punished by international law, or the granting of
amnesties or pardons. 45
Here, the IAComHR considers that national measures to achieve peace and national
reconciliation may include the granting of amnesty. The Commission does not fight
the claim that amnesty may contribute to national peace and reconciliation, but
states that amnesties must not be granted to those responsible for serious violations
under international law, even when such a measure contributes to peace and
reconciliation.
On 26 March 2009, the IAComHR rendered a decision on the arbitrary
detention, torture, and forced disappearance of 70 people related to the 1979
Brazilian amnesty law. The decision of the Commission consolidated the inter43
Ibid.
IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9
rev. 1, 26 February 1999, para. 340.
45
IAComHR, Report on the Demobilization Process in Colombia, OEA/Ser.L/V/II.120, Doc. 60, 13
December 2004, para. 23.
44
75
Chapter IV
American jurisprudence in relation to forced disappearances and extrajudicial
executions, and the resulting obligation of the states to discover the truth and
investigate, prosecute and punish serious violations of human rights. The Brazilian
amnesty law granted blanket amnesty and no truth commission was established to
investigate the violations committed by the regime and its members. According to
the Commission, the Brazilian amnesty violates the right to juridical personality,
the right to life, the right to humane treatment and the right to personal liberty
(Articles 3, 4, 5 and 7). In addition, the right to a fair trial and the right to judicial
protection are violated by the amnesty (Articles 8 and 25). The Commission found
that the right to freedom of thought and expression (Article 13) was violated for the
victims and their relatives. 46
The IAComHR found every amnesty law it has considered incompatible with
the ACHR. 47 According to the Commission, states have an obligation to investigate,
prosecute and punish serious human rights violations. 48
2.2.3 Inter-American Court of Human Rights
The Inter-American Court of Human Rights (IACtHR) is, next to the IAComHR,
the other organ for the promotion and protection of human rights in the interAmerican system. 49
The IACtHR has decided, on more than one occasion, that states have a duty to
prevent human rights violations. When human rights violations occur, states have a
duty to investigate those violations and punish those responsible. In addition, the
Court recognizes a right to reparation for the victims. 50 Several cases are illustrative
46
Comisión Interamericana de Derechos Humanos, Demanda ante la Corte Interamericana de Derechos
Humanos en el caso de Julia Gomes Lund y Otros (Guerrilha do Araguaia) Contra la República
Federativa de Brasil, (Caso 11.552), 26 de marzo de 2009, para. 257.
47
Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 29.
48
See, for example, IAComHR, Garay Hermosilla et al. v. Chile, Case 10.843, Report No. 36/96,
OEA/Ser.L/V/II.95 Doc. 7 rev. at 156 (1997), 15 October 1996; Annual Report 1997, Report No. 25/98
(Chile), 7 April 1998, paras. 72 and 84, OES/Ser.L/V/II-98 doc 6 rev., 13 April 1998; and Report on the
Human Rights Situation in El Salvador (1994), OEA/Ser.L/V/II.85,Doc. 28 rev., 11 February 1994, pp.
78-79. In this case, the Commission was referring to the amnesty law (decree No. 805) that was
approved by the El Salvador legislative assembly on October 27, 1987. As with decree 486 of 1993,
that law had granted an "absolute and automatic amnesty" to the authors and accomplices of political
crimes or common crimes related to political crimes, or common crimes involving at least 20 persons,
committed on or before October 22, 1987. As the Commission stated on that occasion, this law had the
effect of "legally removing the possibility of any effective investigation and prosecution of those
responsible, or any adequate compensation for the victims and their relatives flowing from civil liability
for the crimes committed". (Annual Report of the IAComHR 1992-1993, OEA/Ser.L/V/II.83, Doc 14,
12 March 1993, Report No. 26/92, Case 10,287 "Las Hojas" (El Salvador), page 11.).
49
Its objective is the application and interpretation of the American Convention on Human Rights and
related treaties. The Court was established in 1978, after the American Convention on Human Rights
entered into force, and is located in San José, Costa Rica. A case may be referred to the Court either by
the state involved or by the Commission. Opposed to decisions of the Commission, the judgments of
the Court are binding.
50
IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), para.
174. See also, IACtHR, Neira-Alegría et al. v. Peru, Series C No. 20, Judgment of 19 January 1995
76
The legality of national amnesty laws under international law
here. For example, on 29 July 1988, the IACtHR rendered a judgment in Velásquez
Rodríguez v. Honduras. This was the first time an international judicial body
rendered a judgment on cases of disappearances. 51 The IACtHR held that states
have a duty to:
investigate every situation involving a violation of the rights protected by the
Convention. If the State apparatus acts in such a way that the violation goes
unpunished and the victim's full enjoyment of such rights is not restored as
soon as possible, the State has failed to comply with its duty to ensure the free
and full exercise of those rights to the persons within its jurisdiction. The same
is true when the State allows private persons or groups to act freely and with
impunity to the detriment of the rights recognized by the Convention. 52
The IACtHR repeatedly noted that “[w]henever there has been a human rights
violation, the State has a duty to investigate the facts and punish those responsible,
... and this obligation must be complied with seriously and not as a mere
formality”. 53 The Court acknowledged that a state is not judged on the outcome of
an investigation into human rights violations, but on the effort to conduct a serious
investigation. In the words of the IACtHR:
In certain circumstances, it may be difficult to investigate acts that violate an
individual's rights. The duty to investigate, like the duty to prevent, is not
breached merely because the investigation does not produce a satisfactory
result. Nevertheless, it must be undertaken in a serious manner and not as a
mere formality preordained to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal duty, not as a step taken
by private interests that depends upon the initiative of the victim or his family
or upon their offer of proof, without an effective search for the truth by the
government. This is true regardless of what agent is eventually found
responsible for the violation. 54
(Merits), para. 69; IACtHR, Caballero-Delgado and Santana v. Colombia, Series C No. 22, Judgment
of 8 December 1995 (Merits), para. 56; IACtHR, Castillo-Páez v. Peru, Series C No. 34, Judgment of 3
November 1997 (Merits), para. 90.
51
Commission on Human Rights, Report of Working Group on Enforced or Involuntary
Disappearances, E/CN.4/1990/13, 24 January 1990, para. 360.
52
IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), para.
176.
53
IACtHR, Myrna Mack Chang v. Guatemala, Series C No. 101, Judgment of 25 November 2003
(Merits, Reparations and Costs), para. 273; IACtHR, Cantoral-Benavides v. Peru, Series C No. 88,
Judgment of 3 December 2001 (Reparations and Costs), para. 69; IACtHR, Cesti-Hurtado v. Peru,
Series C No. 78, Judgment of 31 May 2001 (Reparations and Costs), para. 62; IACtHR, Trujillo-Oroza
v. Bolivia, Series C No. 92, Judgment of 27 February 2002 (Reparations and Costs), para. 100;
IACtHR, Tiu Tojín v. Guatemala, Series C No. 190, Judgment of 26 November 2008 (Merits,
Reparations, and Costs), para. 69.
54
IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), para.
177.
77
Chapter IV
When states do not investigate alleged violations, they are considered
responsible for aiding perpetrators. 55
In cases concerning disappearances, the duty to investigate continues to exist
until there is certainty about the fate of the persons who have disappeared. Even
when those responsible for the disappearances benefit from an impunity measure,
the state has a duty to do everything within its power to reveal the truth and inform
the relatives of the fate of the victims and, if they have been killed, the location of
their remains. 56
In 2001, the Inter-American Court delivered its first judgment on the merits on
an amnesty. 57 In the Barrios Altos judgment of 14 May 2001, the Court ruled that
the amnesty laws issued by Peru are incompatible with the Convention. The Court
considered:
that all amnesty provisions, provisions on prescription and the establishment of
measures designed to eliminate responsibility are inadmissible, because they
are intended to prevent the investigation and punishment of those responsible
for serious human rights violations such as torture, extrajudicial, summary or
arbitrary execution and forced disappearance, all of them prohibited because
they violate non-derogable rights recognized by international human rights
law. 58
The Peruvian self-amnesty laws were considered incompatible with the American
Convention and therefore:
the said laws lack legal effect and may not continue to obstruct the investigation
of the grounds on which this case is based or the identification and punishment
of those responsible, nor can they have the same or a similar impact with regard
to other cases that have occurred in Peru, where the rights established in the
American Convention have been violated. 59
Since 2001, the Court has reaffirmed this position repeatedly. 60 According to the
Court’s jurisprudence, states parties have the duty “to investigate human rights
55
Ibid.
See ibid., para. 181. See also, IACtHR, Blake v. Guatemala, Series C No. 27, Judgment of 2 July
1996 (Preliminary Objections), para. 39.
57
Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 29.
58
IACtHR,Barrios Altos v. Peru, Series C No. 75, Judgment of 14 May 2001 (Merits), para. 41.
59
See ibid.,para. 44.
60
IACtHR, Myrna Mack Chang v. Guatemala, Series C No. 101, Judgment of 25 November 2003
(Merits, Reparations and Costs), para. 276; IACtHR, El Caracazo v. Venezuela, Series C No. 95,
Judgment of 29 August 2002 (Reparations and Costs), para. 119; IACtHR, Trujillo-Oroza v. Bolivia,
Series C No. 92, Judgment of 27 February 2002 (Reparations and Costs), para, 106; IACtHR,Barrios
Altos et al. v. Peru, Series C No. 83, Judgment of 3 September 2001 (Interpretation of the Judgment on
the Merits), para. 15.
56
78
The legality of national amnesty laws under international law
violations, prosecute those responsible and avoid impunity”. 61 The IACHR “has
defined impunity as the lack of investigation, pursuit, detention, prosecution and
punishment of those responsible for human rights violations”. 62 “States have the
obligation to employ all available legal means in order to avoid … impunity which
allows for the chronic repetition of human rights violations and leaves the victims
and their families powerless.” 63
In El Caracazo v. Venezuela (2002) the Court emphasized that “[t]he State must
ensure that domestic proceedings directed toward investigation and punishment of
those responsible … have the desired effects and, specifically, not resort to
measures such as amnesty, extinguishment and measures designed to eliminate
responsibility”. 64
In conclusion, it may be observed that the Inter-American Court of Human
Rights has confirmed the views of the Inter-American Commission. Neither
amnesty nor any other form of impunity for human rights violations are acceptable
under the American Convention on Human Rights. Impunity is moreover a possible
cause of new violations and violates victims’ rights, especially the rights to know
the truth, justice and compensation. “[A]ny person who considers himself or herself
to be a victim of such violations has the right to resort to the system of justice to
attain compliance with this duty by the State, for his or her benefit and that of
society as a whole.” 65 The IACtHR recognizes a duty to investigate, prosecute and
punish human rights violations of the Convention. 66
61
IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9
rev. 1, 26 February 1999, para. 345; IACtHR, Loayza-Tamayo v. Peru, Series C No. 42, Judgment of 27
November 1998 (Reparations and Costs), para. 170.
62
IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9
rev. 1, 26 February 1999, para. 345; IACtHR, Paniagua Morales et al. v. Guatemala, Series C No. 37,
Judgment of 8 March 1998 (Merits), para. 173.
63
IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9
rev. 1, 26 February 1999, para. 345; IACtHR, Paniagua Morales et al. v. Guatemala, Series C No. 37,
Judgment of 8 March 1998 (Merits), para. 173; See also, IACtHR, Loayza-Tamayo v. Peru, Series C
No. 42, Judgment of 27 November 1998 (Reparations and Costs), para. 170; IACtHR, CantoralBenavides v. Peru, Series C No. 88, Judgment of 3 December 2001 (Reparations and Costs), para. 69.
64
IACtHR, El Caracazo v. Venezuela, Series C No. 95, Judgment of 29 August 2002 (Reparations and
Costs), para. 119; See also, IACtHR, Myrna Mack Chang v. Guatemala, Series C No. 101, Judgment of
25 November 2003 (Merits, Reparations and Costs), para. 276.
65
IACtHR, El Caracazo v. Venezuela, Series C No. 95, Judgment of 29 August 2002 (Reparations and
Costs), para. 115. See also, IACtHR, Trujillo-Oroza v. Bolivia, Series C No. 92, Judgment of 27
February 2002 (Reparations and Costs), para. 99.
66
IACtHR, El Caracazo v. Venezuela, Series C No. 95, Judgment of 29 August 2002 (Reparations and
Costs), para. 115.
79
Chapter IV
2.3 European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950
2.3.1 European Convention
The European Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights, ECHR) was adopted in Rome
by the Council of Europe on 4 November 1950 and entered into force on 3
September 1953. All 47 member states of the Council of Europe are party to the
European Convention. The European Convention on Human Rights is an
international treaty under which the member states of the Council of Europe
promise to secure fundamental civil and political rights, not only to their own
citizens but also to everyone within their jurisdiction.
The ECHR does not contain any provisions on amnesty or impunity. Article 13
ECHR on the right to an effective remedy holds that “[e]veryone whose rights and
freedoms as set forth in this Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been committed
by persons acting in an official capacity”. This implies that in order to provide
victims of ECHR violations with an effective remedy, violations should be
investigated.
2.3.2 European Court of Human Rights
The European Court of Human Rights (ECtHR) is a permanent court established in
1959. 67 In a 1996 judgment, the ECtHR ruled that “the notion of an ‘effective
remedy’ entails, in addition to the payment of compensation where appropriate, a
thorough and effective investigation capable of leading to the identification and
punishment of those responsible and including effective access for the complainant
to the investigatory procedure”. 68On 22 March 2001, the European Court of Human
Rights reiterated:
that the first sentence of Article 2 § 1 of the Convention enjoins States to take
appropriate steps to safeguard the lives of those within their jurisdiction. That
implies a primary duty to secure the right to life by putting in place effective
criminal-law provisions to deter the commission of offences which endanger
67
The Court is based in Strasbourg, France. Any person, group of individuals, company or NGO having
a complaint about a violation of their rights under the Convention may lodge an individual application.
The Court also decides on inter-State applications alleging violations of the civil and political rights set
out in the European Convention on Human Rights brought by one State against another. The Court may
only deal with the matter after all domestic remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six months from the date on which the final
decision was taken ; See also Article 35 ECHR.
68
ECtHR, Aksoy v. Turkey, 100/1995/606/694, Judgment of 18 December 1996, para. 98.
80
The legality of national amnesty laws under international law
life, backed up by law-enforcement machinery for the prevention, suppression
and sanctioning of breaches of such provisions. 69
So far, the issue of amnesty for serious violations of human rights was the subject
of only one case before the ECtHR. On 30 March 2009, the European Court of
Human Rights decided on the admissibility in the case of Ould Dah v. France. Ould
Dah is a Mauritanian army officer who was convicted by a French court for acts of
torture committed in Mauritania, based on universal jurisdiction. 70 The French Gard
Assize Court sentenced Ould Dah to 10 years imprisonment for torture and acts of
barbarity. 71 “The sentence was pronounced despite the fact that Mr Ould Dah had
had the benefit, in his country, of an amnesty law passed in 1993”, 72 covering
crimes committed by members of the armed and security forces between 1 January
1989 and 18 April 1992. Ould Dah claimed, “that only Mauritanian law should
apply and, more particularly, the Amnesty Law of 1993 from which he claimed he
should benefit”. 73 France was the first state to overrule a national amnesty issued by
another state for a serious violation of human rights and to convict the perpetrator. 74
The French court considered that “[w]hatever the legitimacy of such an amnesty, in
the framework of a local politics of reconciliation, that law has no effect except on
the territory of the state concerned and it is not binding on third countries, within
the framework of the application of international law.” 75It has, therefore, no effect
on a prosecution in France. The European Court of Human Rights ruled that
amnesty for torture and barbarity is generally incompatible with the duty of states to
investigate such crimes. 76 The ECtHR:
69
ECtHR, Streletz, Kessler and Krenz v. Germany, Judgment of 22 March 2001, para. 86. See also:
ECtHR, Akkoç v. Turkey, Applications nos. 22947/93 and 22948/93, Judgment of 10 October 2000,
para. 77, and ECtHR, Osman v. the United Kingdom, Application No. 23452/94, Judgment of 28
October 1998, para. 115. The first sentence of Article 2(1) reads: Everyone's right to life shall be
protected by law.
70
Herta Däubler-Gmelin, “The State of Human Rights in Europe: The Need to Eradicate Impunity”,
Report of the Committee on Legal Affairs and Human Rights, Council of Europe, Parliamentary
Assembly, Doc. 11934, 3 June 2009.
71
ECtHR, Decision on the admissibility in the case of Ould Dah v. France, Press release issued by the
Registrar, No. 13113/03, 30 March 2009.
72
Ibid.
73
Ibid.
74
Cedric Ryngaert, “Applying the Rome Statutes Complementarity Principle: Drawing Lessons from
the Prosecution of Core Crimes by States Acting under the Universality Principle”, Criminal Law
Forum vol. 19 no. 1 2008, pp. 153-180, p. 167.
75
English translation by Amnesty International. The original French text reads:
“Quelle que soit le légitimité d’une telle amnistie, dans le cadre d’une politique locale de réconciliation,
cette loi n’a d’effet que sur le territoire de l’Etat concerné et n’est pas opposable aux pays tiers, dans le
cadre de l’application du droit international. Elle n’a en conséquence aucune incidence sur l’action
publique pour l’application de la loi en France.” Available in: Amnesty International, Universal
Jurisdiction: The Duty of States to Enact and Enforce Legislation - Chapter Ten (Torture: State
Practice at the National Level), AI Secretariat: London September 2001, pp. 34, 35.
76
ECtHR,Ould Dah c. France, Requête No. 13113/03, Décision 17 mars 2009, p. 17.
81
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reiterated that the prohibition of torture occupied a prominent place in
international law and that the prohibition was binding. It also observed that at
the material time the United Nations Convention against Torture of 1984 had
already come into force and had been incorporated into French law. The
“absolute necessity” of prohibiting and penalising torture thus justified, in the
exercise of universal jurisdiction (i.e. the right of States to prosecute the
perpetrators of acts of torture committed outside their own jurisdiction), not
only that the French courts declared that they had jurisdiction to try the case,
but also that they would apply French law. Otherwise, application of the
Mauritanian amnesty law, which served merely to grant impunity to the
perpetrators of torture, would deprive the universal jurisdiction provided for by
the United Nations Convention of 1984 of its substance. Like the United
Nations Committee of Human Rights and the International Criminal Tribunal
for former Yugoslavia, the Court considered that an amnesty law was generally
incompatible with the duty on States to investigate acts of torture or barbarity. 77
The ECtHR declared the application inadmissible. 78
Next to the right to justice and the right to reparation, the right of victims to know
the truth surrounding a violation is also recognized by the ECtHR. In Gongadze v.
Ukraine, the ECtHR recognized that not knowing what happened to a disappeared
family member may constitute torture, a breach of Article 3 of the ECHR.79
77
ECtHR, Decision on the admissibility in the case of Ould Dah v. France, Press release issued by the
Registrar, No. 13113/03, 30 March 2009.
78
ECtHR,Ould Dah c. France, Requête No. 13113/03, Décision 17 mars 2009, p. 19.
79
ECtHR, Gongadze v. Ukraine, Application No. 4451/70, Judgment of 8 November 2005. The
relevant paragraphs (184-186) read:
184. The Court observes that Article 3 has previously been relied on in a number of similar cases
against Turkey in which the applicants complained that they had suffered inhuman and degrading
treatment in the context of the death or disappearance of their next of kin. Whether a family member of
a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of
special factors which give the suffering of the relative a dimension and character distinct from the
emotional distress which may be regarded as inevitably caused to relatives of a victim of serious
violations of human rights. Relevant elements will include the proximity of the family tie, the particular
circumstances of the relationship, the extent to which the family member witnessed the events in
question, the involvement of the family members in the attempts to obtain information about the
disappeared person and the way in which the authorities responded to those enquiries (see ECtHR,
Orhan v. Turkey, Application No. 25656/94, Judgment of 18 June 2002, para. 358).
185. In the instant case the Court notes that the applicant's husband disappeared in September 2000 and
that, according to the applicant, it was only in March 2003 that she received convincing information
that the decapitated body that had been found in Tarashcha in November 2000 was that of her husband.
In the meantime, the applicant had received numerous contradictory statements from the authorities
about his fate. In particular, in December 2000 the Prosecutor General announced that the Tarashcha
corpse was not Mr Gongadze; on 10 January 2001 the Prosecutor General publicly announced that it
was highly probable that the corpse was Mr Gongadze and, at the same time, announced that there were
witnesses who had seen Mr Gongadze alive after his disappearance; three days later the GPO informed
the applicant that there was no evidence that the corpse was Mr Gongadze; and a fortnight later the
applicant was recognised as an aggrieved party because there was enough evidence to believe that the
Tarashcha corpse was that of her late husband. This situation of uncertainty continued, with the result
that, having raised doubts as to the identity of the Tarashcha corpse, and therefore the fate of the
applicant's husband, the State authorities at the same time constantly refused to grant the applicant full
82
The legality of national amnesty laws under international law
3 THE DUTY TO PROSECUTE IN HUMAN RIGHTS CONVENTIONS ON SPECIFIC
CRIMES
This section elaborates on the duty to prosecute in human rights conventions on
specific crimes. The selection of conventions is made in correspondence with those
crimes that are considered to be the most serious human rights crimes that may
occur during a violent conflict, and of which crimes there are specific conventions.
These crimes are genocide, war crimes and crimes against humanity, including
apartheid, torture and forced disappearances. The conventions related to these
crimes are presented in chronological order of adoption.
3.1 Convention on the Prevention and Punishment of the Crime of Genocide
1948
Shortly after the end of the World War II, on 9 December 1948, the UN General
Assembly adopted the Convention on the Prevention and Punishment of the Crime
of Genocide (Genocide Convention). Genocide is regarded as one of the most
serious crimes of concern to the international community as a whole. 80 Currently,
141 states have ratified the Genocide Convention, indicating that a large majority of
the states in the world agrees that the crime of genocide should be prevented and
punished. Apart from that, it may be observed that genocide belongs to the category
of ius cogens crimes. Moreover, the crime of genocide is also one of the crimes
within the jurisdiction of the ICC, which implies that there is broad consensus on
the principle that the crime of genocide should not go unpunished.
Article 6 of the Genocide Convention, read in combination with Articles 1, 3 81
and 5, 82 stipulates that genocide or any of the other acts enumerated in Article 3 is
an international crime for which the consequence of committing is prosecution.
Article 6 provides: “Persons charged with genocide or any of the other acts
access to the relevant material in the case file. Only in August 2005 was the applicant allowed access to
the file. In September 2005 the GPO announced that the latest DNA test conducted in Germany proved
that the body found in Tarashcha was that of the applicant's husband.
186. The Court finds that the attitude of the investigating authorities towards the applicant and her
family clearly caused her serious suffering which amounted to degrading treatment contrary to Article 3
of the Convention. It concludes, therefore, that there has been a violation of this provision.
80
See, for instance, ICC Statute Article 5.
81
Convention on the Prevention and Punishment of the Crime of Genocide, Article 3:
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
82
Convention on the Prevention and Punishment of the Crime of Genocide, Article 5: The Contracting
Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to
give effect to the provisions of the present Convention and, in particular, to provide effective penalties
for persons guilty of genocide or any of the other acts enumerated in Article 3.
83
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enumerated in Article 3 shall be tried by a competent tribunal of the State in the
territory of which the act was committed, or by such international penal tribunal as
may have jurisdiction with respect to those Contracting Parties which shall have
accepted its jurisdiction.” There is no room for exceptions or amnesty. Article 1 of
the Genocide Convention stipulates: “The Contracting Parties confirm that
genocide, whether committed in time of peace or in time of war, is a crime under
international law which they undertake to prevent and to punish.”
The use of the words ‘undertake’ in Article 1 and ‘shall’ in Article 6 designates
a duty to prosecute, without the possibility of exceptions or amnesty. The
International Court of Justice affirms the obligation to punish the crime of genocide
for states parties to the Convention. 83
3.2 Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity 1968
The Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity was developed out of fear for a situation in
which the war criminals of World War II, who were not yet held accountable, could
no longer be held responsible for their crimes. 84 The UN General Assembly adopted
it on 26 November 1968. It entered into force on 11 November 1970. Currently, 54
countries have ratified the Convention.
The Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity contains no duty to prosecute. The
Convention is silent on the issues of amnesty and impunity. Having said that, the
Preamble of the Convention states that punishment is an important element to
prevent future war crimes and crimes against humanity. 85 Therefore, no statutory
limitations should cover war crimes and crimes against humanity. 86 Recognizing
83
International Court of Justice, Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February
2007, para. 79.
84
The Human Rights Commission prepared the Convention. The Preamble of the Convention notes:
“Recognizing that it is necessary and timely to affirm in international law, through this Convention, the
principle that there is no period of limitation for war crimes and crimes against humanity, and to secure
its universal application”
85
“Convinced that the effective punishment of war crimes and crimes against humanity is an important
element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the
encouragement of confidence, the furtherance of co-operation among peoples and the promotion of
international peace and security”
86
Crimes against humanity and war crimes are defined in Article 1 of the Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes against Humanity:
“No statutory limitation shall apply to the following crimes, irrespective of the date of their
commission:
(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8
August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946
of the General Assembly of the United Nations, particularly the "grave breaches" enumerated in the
Geneva Convention of 12 August 1949 for the protection of war victims;
(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined
84
The legality of national amnesty laws under international law
that prosecution and punishment are important elements in the prevention of crimes,
the wording of the Convention implies that not prosecuting, for example because an
amnesty law was issued, will not contribute to the prevention of crimes.
One may assume that, in line with the spirit of this Convention, if the granting of
amnesty is deemed necessary, such an amnesty should not cover war crimes or
crimes against humanity. This presumption is confirmed in Article 4, which
provides that there should be no statutory or other limitations covering war crimes
or crimes against humanity. An amnesty may be considered as an ‘other limitation’
in the wording of Article 4. This reads:
The States Parties to the present Convention undertake to adopt, in accordance
with their respective constitutional processes, any legislative or other measures
necessary to ensure that statutory or other limitations shall not apply to the
prosecution and punishment [emphasis added] of the crimes referred to in
articles I and II of this Convention and that, where they exist, such limitations
shall be abolished.
Article 3 contains a provision on the extradition of individuals suspected of war
crimes or crimes against humanity. 87 Articles 3 and 4 embolden the idea that it
should always be possible to prosecute and punish individuals guilty of war crimes
or crimes against humanity. Since it is not desirable that these crimes remain
unpunished or become unpunishable, the Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes against Humanity tries to rule out
the possibility that a situation occurs in which prosecution and punishment are no
longer an option.
The Council of Europe adopted a similar convention, the European Convention
on the Non-Applicability of Statutory Limitations to Crimes against Humanity and
War Crimes, on 25 January 1974. This Convention entered into force on 27 June
2003, after three ratifications. To date, seven countries have ratified this
Convention. Unlike the UN Convention, the applicability is limited to cases for
which the statutory limitation period has not expired at the time of its entry into
force. The low number of ratifications may be explained by the preceding existence
of the UN Convention, since they cover the same subject.
Although there is no duty to prosecute war crimes and crimes against humanity
based on this Convention, it is unlikely that an amnesty covering such grave human
rights crimes will hold up in international prosecutions.
in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by
resolutions 3 (I) of 13 February 1946 and 95 ((I) of 11 December 1946 of the General Assembly of the
United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of
apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic
law of the country in which they were committed.”
87
Article 3: “The States Parties to the present Convention undertake to adopt all necessary domestic
measures, legislative or otherwise, with a view to making possible the extradition, in accordance with
international law, of the persons referred to in article II87 of this Convention.”
85
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3.3 International Convention on the Suppression and Punishment of the Crime
of Apartheid 1976
The states parties to the International Convention on the Suppression and
Punishment of the Crime of Apartheid are convinced that the convention makes “it
possible to take more effective measures at the international and national levels
with a view to the suppression and punishment of the crime of apartheid”. 88 Yet,
there is no international jurisprudence on the crime of apartheid. Article 1(1)
declares that apartheid is a crime against humanity, and “that inhuman acts resulting
from the policies and practices of apartheid and similar policies and practices of
racial segregation and discrimination” are international crimes. 89 Categorized under
crimes against humanity in Article 7 of the ICC Statute, apartheid falls under the
jurisdiction of the ICC.
The Convention was adopted by the UN General Assembly on 30 November
1973 and entered into force on 18 July 1976. Now, 107 countries are party to the
Convention. South Africa is not a state party. Article 4 of the Convention forces
states parties to prevent and punish the crime of apartheid, and, inter alia, to adopt
legislative, judicial and administrative measures to prosecute, bring to trial and
punish in accordance with their jurisdiction persons responsible for, or accused of,
the acts defined in Article 2. Article 4 reads:
The States Parties to the present Convention undertake:
(a) To adopt any legislative or other measures necessary to suppress as well as
to prevent any encouragement of the crime of apartheid and similar
segregationist policies or their manifestations and to punish persons guilty
of that crime;
(b) To adopt legislative, judicial and administrative measures to prosecute,
bring to trial and punish in accordance with their jurisdiction persons
responsible for, or accused of, the acts defined in article II of the present
Convention, whether or not such persons reside in the territory of the State
in which the acts are committed or are nationals of that State or of some
other State or are stateless persons.
The phrases in Article 4 “undertake ... to punish persons guilty of that crime” and
“undertake to adopt legislative, judicial and administrative measures to prosecute,
bring to trial and punish” indicate that the International Convention on the
Suppression and Punishment of the Crime of Apartheid entails an obligation on
state parties to the convention to criminalize apartheid. It cannot be held that the
88
Preamble of the International Convention on the Suppression and Punishment of the Crime of
Apartheid.
89
Article 1(1): The States Parties to the present Convention declare that apartheid is a crime against
humanity and that inhuman acts resulting from the policies and practices of apartheid and similar
policies and practices of racial segregation and discrimination, as defined in article II of the
Convention, are crimes violating the principles of international law, in particular the purposes and
principles of the Charter of the United Nations, and constituting a serious threat to international peace
and security.
86
The legality of national amnesty laws under international law
convention obliges states to prosecute, or that amnesty or other impunity measures
are foreclosed. Nevertheless, since the crime of apartheid is adopted in the Rome
Statute of the ICC as a crime against humanity, states are nevertheless expected to
prosecute and punish the crime of apartheid when committed as part of a
widespread or systematic attack directed against any civilian population. 90
3.4 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment 1984
3.4.1 Convention
On 10 December 1984, the UN General Assembly adopted the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Convention against Torture). The Convention entered into force on 26 June 1987.
Currently, 149 states have ratified the Convention. Torture is one of the crimes
against humanity listed in Article 7 of the ICC Statute, 91 and it is recognized in the
Statutes of the International Criminal Tribunals for former Yugoslavia (Article 5)
and Rwanda (Article 3) and in the Statute of the Special Court for Sierra Leone
(Article 2). Article 1 of the Convention against Torture describes the crime of
torture. 92
Article 4 of the Convention contains a duty to criminalize all acts of torture,
attempts to commit torture and complicity or participation in torture. All state
parties shall make these offences “punishable by appropriate penalties which take
into account their grave nature”. Article 5 obliges states parties to take such
measures as may be necessary to establish its jurisdiction over the offences referred
to in Article 4 if the offences are committed in any territory under its jurisdiction or
on board a ship or aircraft registered in that state; the alleged offender is a national
of that state; the victim was a national of that state if that state considers it
appropriate.
The Convention against Torture entails an explicit provision to extradite or
submit the case to its competent authorities for the purpose of prosecution in Article
90
See Article 7 ICC Statute.
Article 7 of the ICC Statute states that for the purpose of the ICC Statute, torture as part of a crime
against humanity must be committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack. Article 7 (2e) ICC Statute states: "Torture" means the
intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the
custody or under the control of the accused; except that torture shall not include pain or suffering
arising only from, inherent in or incidental to, lawful sanctions.
92
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on
a person for such purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions.
91
87
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7(1). 93This provision is not literally a duty to prosecute. 94 The competent authorities
may still decide not to institute proceedings. However, the prohibition of torture is
an ius cogens crime universally recognized as non-derogable, and subject to
universal jurisdiction. 95 Moreover, the 1975 UN Declaration against Torture 96 in
Article 10 holds that alleged acts of torture shall be prosecuted:
If an investigation under article 8 or article 9 establishes that an act of torture as
defined in article 1 appears to have been committed, criminal proceedings shall
be instituted against the alleged offender or offenders in accordance with
national law. If an allegation of other forms of cruel, inhuman or degrading
treatment or punishment is considered to be well founded, the alleged offender
or offenders shall be subject to criminal, disciplinary or other appropriate
proceedings. 97
Based on this provision, it may be held that the Declaration against Torture entails a
duty to prosecute acts of torture and consequently leaves no room for amnesty or
any other form of impunity. The Convention contains provisions that amount to the
same effect. Article 12 obliges states to “ensure that its competent authorities
proceed to a prompt and impartial investigation, wherever there is reasonable
ground to believe that an act of torture has been committed in any territory under its
jurisdiction”. The Torture Convention in Articles 13 and 14 recognizes the rights of
victims to justice and reparation. Under the Convention, a state party has a duty to
investigate alleged acts of torture, as well as a duty to provide reparation to the
victims.
93
The state party in territory under whose jurisdiction a person alleged to have committed any offence
referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him,
submit the case to its competent authorities for the purpose of prosecution.
94
Christopher C. Joyner, “Redressing Impunity for Human Rights Violations: The Universal
Declaration and the Search for Accountability”, Denver Journal of International Law and Policy, vol.
26 no. 4 1998, pp. 591-624, p. 606.
95
Commission on Human Rights, Eighth annual report and list of States which, since 1 January 1985,
have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro Despouy,
Special Rapporteur appointed pursuant to Economic and Social Council resolution 1985/37. Annex 1,
Report of the meeting of experts on rights not subject to derogation during states of emergency and
exceptional circumstances Geneva 17-19 May 1995,E/CN.4/Sub.2/1995/20, 26 June 1995, para. 40.
96
General Assembly, Declaration on the Protection of All Persons from Being Subjected to Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by UN General Assembly
Resolution 3452 (XXX), 9 December 1975.
97
Article 8 UN Declaration against Torture:
“Any person who alleges that he has been subjected to torture or other cruel, inhuman or degrading
treatment or punishment by or at the instigation of a public official shall have the right to complain to,
and to have his case impartially examined by, the competent authorities of the State concerned.”
Article 9 UN Declaration against Torture:
“Wherever there is reasonable ground to believe that an act of torture as defined in article 1 has been
committed, the competent authorities of the State concerned shall promptly proceed to an impartial
investigation even if there has been no formal complaint.”
88
The legality of national amnesty laws under international law
3.4.2 Committee against Torture
The Committee against Torture (CAT) monitors the implementation of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. 98 In its reports, the CAT rejects amnesty laws for serious human rights
violations. For example, in its 1996 Annual Report, it stressed the incompatibility
of amnesty laws with the Convention against Torture in the following words: “[t]he
Committee considers amnesty laws in force in Senegal to be inadequate to ensure
proper implementation of certain provisions of the Convention.” 99 Over the last
decade, the CAT has condemned the amnesty laws in for example Peru, Azerbaijan,
Kyrgyzstan, 100 Benin, 101 Chile, 102Bahrain 103 and Tajikistan. 104 With respect to
another form of impunity, prescription, the CAT recommends that states repeal the
statute of limitations for crimes involving torture. 105
In its reports and considerations of reports submitted by states parties under
Article 19 of the Convention against Torture, the CAT also mentions positive
results. For instance, in its 2002/2003 Report the CAT welcomed the positive
98
The CAT is a treaty-based body within the UN system. Every state party is obliged regularly to
submit an implementation report to the CAT. The CAT examines each submitted report and publishes
its conclusions, concerns and recommendations to the state party in the form of concluding
observations or comments; See Articles 17-24 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
99
Committee against Torture, Report of the Committee against Torture, A/51/44, 9 July 1996, para. 117.
100
Committee against Torture, Report of the Committee against Torture, Twenty-third session (8-19
November 1999), Twenty-fourth session (1-19 May 2000), A/55/44, para. 59 (Peru), paras. 68, 69
(Azerbaijan), paras. 74, 75 (Kyrgyzstan).
101
Committee against Torture, Report of the Committee against Torture, Twenty-seventh session (12-23
November 2001), Twenty-eighth session (29 April-17 May 2002), A/57/44, para. 34.
102
Committee against Torture, Report of the Committee against Torture, Thirty-first session (10-21
November 2003), Thirty-second session (3-21 May 2004), A/59/44, para. 56. The CAT (in para. 57)
recommends Chile to “Reform the Constitution to ensure the full protection of human rights, including
the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment in
conformity with the Convention, and to this end abolish the Amnesty Law”.
103
Committee against Torture, Report of the Committee against Torture, Thirty-third session (16-26
November 2004), Thirty-fourth session (2-20 May 2005), A/60/44, para. 108: “The Committee
expresses its concern at: ... (g) The blanket amnesty extended to all alleged perpetrators of torture or
other crimes by Decree No. 56 of 2002 and the lack of redress available to victims of torture”.
104
Committee against Torture, Report of the Committee against Torture, Thirty-seventh session (6-24
November 2006), Thirty-eighth session (30 April-18 May 2007),A/62/44, para. 38 (17): “[T]he
Committee is concerned about the fact that acts of torture and ill-treatment in the years 1995 to 1999
were immunized from punishment by amnesty laws, thereby entrenching impunity of those responsible
for torture”.
105
Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of
the Convention, Conclusions and Recommendations of the Committee against Torture: Turkey,
CAT/C/CR/30/5, 27 May 2003, para. 7 (c); Committee against Torture, Consideration of Reports
Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of
the Committee against Torture: Slovenia, CAT/C/CR/30/4, 27 May 2003, para. 6 (b); Committee
against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the
Convention, Conclusions and Recommendations of the Committee against Torture: Chile,
CAT/C/CR/32/5, 14 June 2004, para. 7 (f).
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development that the new constitution of Venezuela “requires the State to
investigate and impose penalties for human rights offences, declares that action to
punish them is not subject to a statute of limitations and excludes any measure
implying impunity, such as an amnesty or a general pardon.” 106 In its 2003/2004
Report, with respect to Colombia, the CAT expressed “its satisfaction at: (a) The
statement by the state party’s representative that there neither has been nor will be
any amnesty or clemency in the state party for acts of torture”. 107 In this same
report, with respect to Croatia, the Committee “takes note with satisfaction of the
assurances given by the state party’s representative that the 1996 Amnesty Act has
not been applied to acts of torture”. 108 There are no amnesty laws that have received
approval of the CAT.
In conclusion, the CAT recognizes the duty to prosecute torture and other cruel,
inhuman or degrading treatment or punishment distilled from the Convention. The
CAT rejects amnesty or other forms of impunity, such as statutes of limitation, for
acts of torture.
3.5 Inter-American Convention to Prevent and Punish Torture 1985
On 9 December 1985, the OAS General Assembly adopted the Inter-American
Convention to Prevent and Punish Torture. The Convention entered into force on 28
February 1987 and has 18 states parties to date.
Article 6 of the Inter-American Convention to Prevent and Punish Torture
provides:
In accordance with the terms of Article 1, the States Parties shall take effective
measures to prevent and punish torture within their jurisdiction.
The States Parties shall ensure that all acts of torture and attempts to commit
torture are offenses under their criminal law and shall make such acts
punishable by severe penalties that take into account their serious nature. The
States Parties likewise shall take effective measures to prevent and punish other
cruel, inhuman, or degrading treatment or punishment within their
jurisdiction. 109
This article contains a duty to criminalize torture. To punish acts of torture, the
perpetrator of the crime must be prosecuted. The article holds that state parties
should take effective measures to punish torture; it does not claim that every act of
106
Committee against Torture, Report of the Committee against Torture, Twenty-ninth session (11-22
November 2002), Thirtieth session (28 April-16 May 2003), A/58/44, para. 76. See also: Committee
against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the
Convention, Conclusions and Recommendations of the Committee against Torture: Venezuela,
CAT/C/CR/29/2, 23 December 2002, para. 6 (c).
107
Committee against Torture, Report of the Committee against Torture, Thirty-first session (10-21
November 2003), Thirty-second session (3-21 May 2004), A/59/44, para. 64.
108
See ibid., para. 74.
109
(Footnote added) Article 1: “The State Parties undertake to prevent and punish torture in accordance
with the terms of this Convention.”
90
The legality of national amnesty laws under international law
torture should be prosecuted and punished. The Convention is silent on amnesty or
other impunity measures. Thus, this Convention does not contain a duty to
prosecute torture, but merely a commitment by states to prevent and punish acts of
torture as much as possible.
Supervision of this Convention falls within the ambit of the Inter-American
Commission and Court.
3.6 Inter-American Convention on Forced Disappearance of Persons 1994
In the Annual Report of the IAComHR 1983, the General Assembly resolved to
declare that the crime of forced disappearance “is an affront to the conscience of the
hemisphere and constitutes a crime against humanity”. 110 In 1984, the General
Assembly considered the practice of forced disappearance to be cruel and inhuman,
mock the rule of law, and undermine those norms that guarantee protection against
arbitrary detention and the right to personal security and safety. 111 As a result, the
Inter-American Convention on Forced Disappearance of Persons was drafted. At 9
June 1994, the General Assembly to the Organization of American States adopted
the Convention. The Convention entered into force on 28 March 1996 and to date,
14 American states have ratified the Convention. Supervision of this Convention
falls within the working space of the Inter-American Commission and Court.
In the Preamble of the Inter-American Convention on Forced Disappearance of
Persons it is considered “that the forced disappearance of persons violates numerous
non-derogable and essential human rights enshrined in the American Convention on
Human Rights, in the American Declaration of the Rights and Duties of Man, and
in the Universal Declaration of Human Rights”. It is also reaffirmed “that the
systematic practice of the forced disappearance of persons constitutes a crime
against humanity”.
Article 1 of the Convention embodies a duty to prosecute the crime of forced
disappearance. Article 1 obliges states parties to undertake “to punish within their
jurisdictions, those persons who commit or attempt to commit the crime of forced
disappearance of persons and their accomplices and accessories” and “[t]o
cooperate with one another in helping to prevent, punish, and eliminate the forced
disappearance of persons”. 112
110
IAComHR General Assembly, Annual Report of the Inter-American Commission on Human Rights,
AG/RES. 666 (XIII-0/83), 18 November 1983, para. 4.
111
IAComHR General Assembly, Annual Report of the Inter-American Commission on Human Rights,
AG/RES. 742 (XIV-0/84), 17 November 1984 .
112
Article 1:
The States Parties to this Convention undertake:
a. Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency
or suspension of individual guarantees;
b. To punish within their jurisdictions, those persons who commit or attempt to commit the crime of
forced disappearance of persons and their accomplices and accessories;
c. To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance
of persons;
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Article 4 of the Convention defines that “[t]he acts constituting the forced
disappearance of persons shall be considered offenses in every state party.
Consequently, each state party shall take measures to establish its jurisdiction over
such cases.” This implies a duty to criminalize and make prosecution possible.
Article 6 entails the duty to prosecute in case a request for extradition is denied. 113
Article 7 states that the crime of enforced disappearance is not subject to statutes of
limitations. 114
Like its sister, the International Convention for the Protection of All Persons
from Enforced Disappearance, this Convention expects state parties to prosecute
and punish the crime of enforced disappearance. The international Convention will
be discussed in the next subsection.
3.7 International Convention for the Protection of All Persons from Enforced
Disappearance 2006
The UN Commission on Human Rights established a Working Group on Enforced
or Involuntary Disappearances by Resolution 20 of 29 February 1980. 115 The
Working Group on Enforced or Involuntary Disappearances has the task to monitor
states’ compliance with the obligations arising from the Declaration and gives
assistance to states regarding the implementation. The mandate originally included
the role of intermediary between the families of disappeared persons and the
involved governments. Aim of the Working Group was to ensure “that sufficiently
documented and clearly identified individual cases are investigated and the
whereabouts of the disappeared persons clarified”. 116 In a 1990 report, the Working
Group stated that it remained “of the view that those responsible for disappearances
should be prosecuted to the full extent of the law, a task that falls on the State”. 117
To strengthen the UN position on this matter, the General Assembly adopted the
Declaration on the Protection of All Persons from Enforced Disappearance on 18
December 1992, “[c]onsidering that enforced disappearance undermines the deepest
d. To take legislative, administrative, judicial, and any other measures necessary to comply with the
commitments undertaken in this Convention.
113
Article VI: When a State Party does not grant the extradition, the case shall be submitted to its
competent authorities as if the offense had been committed within its jurisdiction, for the purposes of
investigation and when appropriate, for criminal action, in accordance with its national law. Any
decision adopted by these authorities shall be communicated to the state that has requested the
extradition.
114
Article VII: Criminal prosecution for the forced disappearance of persons and the penalty judicially
imposed on its perpetrator shall not be subject to statutes of limitations.
However, if there should be a norm of a fundamental character preventing application of the stipulation
contained in the previous paragraph, the period of limitation shall be equal to that which applies to the
gravest crime in the domestic laws of the corresponding State Party.
115
Commission on Human Rights, Report of the Working Group on Enforced or Involuntary
Disappearances, E/CN.4/1435, 26 January 1981, para 26.
116
Commission on Human Rights, Report of the Working Group on Enforced or Involuntary
Disappearances, E/CN.4/1999/62, 28 December 1998, para. 2.
117
Commission on Human Rights, Report of Working Group on Enforced or Involuntary
Disappearances, E/CN.4/1990/13, 24 January 1990, para. 347.
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The legality of national amnesty laws under international law
values of any society committed to respect for the rule of law, human rights and
fundamental freedoms, and that the systematic practice of such acts is of the nature
of a crime against humanity”. 118 The Declaration in Article 18 provides that those
responsible for the crime of enforced disappearance “shall not benefit from any
special amnesty law or similar measures that might have the effect of exempting
them from any criminal proceedings or sanction”. 119 In addition, the Declaration
states that “[i]n the exercise of the right of pardon, the extreme seriousness of acts
of enforced disappearance shall be taken into account”. 120 In the Working Group’s
General Comment on Article 18 of the Declaration, it is provided that Article 18
must be interpreted in such a way that even an amnesty law “endorsed by a
referendum or similar consultation procedure” “should be considered as being
contrary to the provisions of the Declaration”. 121 In the opinion of the Working
Group, “the enactment of amnesty laws and the implementation of other measures
that lead to impunity … may perpetuate continuing human rights abuses for many
years”. 122 Combating impunity for the crime of forced disappearance is held to be a
possible factor in prevention of the crime. 123 The Working Group claims that
“States are under an obligation to take effective measures to prevent and terminate
acts of enforced disappearance by making them continuing offences under criminal
law and establishing civil liability for those responsible”. 124 In its 2009 Report, the
Working Group reminds “States of their obligations under the Declaration to
prevent impunity by taking lawful and appropriate steps to bring to justice those
alleged to have committed enforced disappearances”, 125 and reaffirms that the
118
General Assembly, Declaration on the Protection of All Persons from Enforced Disappearances,
A/RES/47/133, 18 December 1992.
119
See ibid., Article 18(1). The Working Group strongly urges all states to comply with Article 18; See:
Commission on Human Rights, Report of the Working Group on Enforced or Involuntary
Disappearances, E/CN.4/1999/62, 28 December 1998, para. 336.
120
General Assembly, Declaration on the Protection of All Persons from Enforced Disappearances,
A/RES/47/133, 18 December 1992, Article 18(2).
121
Commission on Human Rights, Report of the Working Group on Enforced or Involuntary
Disappearances, E/CN.4/2006/56, 27 December 2005, para. 49, general comment para. 2.
122
Human Rights Council, Implementation of General Assembly Resolution 60/251 of 15 March 2006
Entitled “Human Rights Council”, Report of the Working Group on Enforced or Involuntary
Disappearances, A/HRC/4/41, 25 January 2007, p. 2. See also para. 25.
123
See ibid., para. 500. Paragraph 500 continues: “Among them, the Working Group highlights the
following: harmonization of domestic law with the obligations of States under the Declaration and other
international human rights law; accessible and updated registries of detainees; guaranteed access to
appropriate information and to places of detention for relatives and lawyers of persons deprived of their
liberty; ensuring that persons are brought before a judicial authority promptly following detention;
bringing to justice all persons accused of having committed acts of enforced disappearance, ensuring
that perpetrators do not benefit from any special amnesty law or other similar measures likely to
provide exemption from criminal proceedings or sanctions; and providing redress and adequate
compensation to victims and their families.”
124
Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances,
A/HRC/7/2, 10 January 2008, Annex I. Revised Methods of Work of the Working Group (adopted on 30
November 2007), para. 4.
125
Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances,
A/HRC/10/9, 25 February 2009, para. 448.
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Declaration refers to “the duty to try alleged perpetrators of acts of disappearance
before ordinary (not military) courts, [and] the exemption of the criminal offence of
acts of enforced disappearances from statutes of limitation, special amnesty laws
and similar measures leading to impunity”. 126 These duties are related to the rights
to truth, justice and reparation. In paragraph 8 of the General Comment on Article
18 of the Declaration, it is specified that:
[p]erpetrators of disappearances shall not benefit from such laws if the State has
not fulfilled its obligations to investigate the relevant circumstances surrounding
disappearances, identify and detain the perpetrators, and ensure the satisfaction of
the right to justice, truth, information, redress, reparation, rehabilitation and
compensation to the victims. 127
Under the ICC Statute, enforced disappearances committed as part of a
widespread or systematic attack directed against any civilian population, with
knowledge of the attack are a crime against humanity. 128
The UN General Assembly adopted the International Convention for the
Protection of All Persons from Enforced Disappearance 129 on 20 December
2006. 130 The Convention entered into force on 23 December 2010. To date, 29
countries are state party to the Convention. Its Preamble reasserts that the states
parties to the Convention are:
Determined to prevent enforced disappearances and to combat impunity for the
crime of enforced disappearance,
Considering the right of any person not to be subjected to enforced
disappearance, the right of victims to justice and to reparation,
Affirming the right of any victim to know the truth about the circumstances of
an enforced disappearance and the fate of the disappeared person, and the right
to freedom to seek, receive and impart information to this end
An obligation to investigate, criminalize, prosecute and punish the crime of
enforced disappearances may be distilled from Articles 3, 4, 5 and 7 of the
Convention. Article 3 holds that “[e]ach State Party shall take appropriate measures
to investigate acts defined in article 2 committed by persons or groups of persons
acting without the authorization, support or acquiescence of the State and to bring
those responsible to justice”. Article 4 obliges states to criminalize enforced
disappearances. Article 5 states that “[t]he widespread or systematic practice of
126
Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances,
A/HRC/10/9, 25 February 2009, pp. 86, 87.
127
Commission on Human Rights, Report of the Working Group on Enforced or Involuntary
Disappearances, E/CN.4/2006/56, 27 December 2005, para. 49, general comment para. 8(c).
128
Article 7 (1)(i) ICC Statute.
129
Recalling the Declaration on the Protection of All Persons from Enforced Disappearance adopted by
the General Assembly of the United Nations in its resolution 47/133 of 18 December 1992.
130
General Assembly, International Convention for the Protection of All Persons from Enforced
Disappearance, A/RES/61/177, 12 January 2007.
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The legality of national amnesty laws under international law
enforced disappearance constitutes a crime against humanity as defined in
applicable international law and shall attract the consequences provided for under
such applicable international law”. Article 7 holds that “[e]ach State Party shall
make the offence of enforced disappearance punishable by appropriate penalties
which take into account its extreme seriousness”. The duty to prosecute or extradite
is laid down in Article 9(2). 131
The consensus on a duty for states parties to investigate, prosecute and punish
the international crime of enforced disappearance is clear. Especially the phrase
“[d]etermined to prevent enforced disappearances and to combat impunity for the
crime of enforced disappearance” is unambiguous. In addition, the Convention
recognizes the rights of victims to justice, truth and reparation.
4 THE DUTY TO PROSECUTE IN INTERNATIONAL HUMANITARIAN LAW
4.1 Geneva Conventions 1949
The four Geneva Conventions of 1949 form the foundation of international
humanitarian law. 132 After their adoption on 12 August 1949, they entered into
force on 21 October 1950. To date, 194 states are party to the Geneva Conventions.
According to Tom Farer:
[t]he Geneva Conventions were designed to cover inter-State wars and largescale civil wars. But the principles they embody have a wider scope. Plainly a
part of contemporary international customary law, they are applicable wherever
political ends are sought through military means. No principle is more central
to the humanitarian law of war than the obligation to respect the distinction
between combatants and non-combatants. 133
It seems against the aim of the Conventions to withhold applicability outside the
scope of international conflicts. This matter came to the fore in Prosecutor v. Duško
Tadić (ICTY), where the Appeals Chamber noted that for the applicability of
Article 3, it is not relevant whether the violation of international humanitarian law
131
Article 9 (2): Each State Party shall likewise take such measures as may be necessary to establish its
competence to exercise jurisdiction over the offence of enforced disappearance when the alleged
offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to
another State in accordance with its international obligations or surrenders him or her to an international
criminal tribunal whose jurisdiction it has recognized.
132
The Geneva Conventions explicitly protect people who are not taking part in the hostilities during an
armed conflict, like civilians and those who are no longer participating in the hostilities, such as the
wounded and sick in armed forces in the field, the wounded, sick and shipwrecked members of armed
forces at sea, and prisoners of war. The Conventions are applicable to international conflicts.
133
Security Council, Report pursuant to paragraph 5 of Security Council Resolution 837 (1993) on the
investigation into the 5 June 1993 attack on United Nations forces in Somalia conducted on behalf of
the Security Council, by Professor Tom Farer, S/26351, 24 August 1993, para. 9.
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was committed in the context of an international or an internal armed conflict, as
long as certain conditions are met. 134
The Geneva Conventions and their Protocols hold that those responsible for
grave breaches must be sought, tried or extradited, whatever nationality they may
hold. The first Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, in Article 49 contains a duty to
criminalize grave breaches of the Convention:
The High Contracting Parties undertake to enact any legislation necessary to
provide effective penal sanctions for persons committing, or ordering to be
committed, any of the grave breaches of the present Convention defined in the
following Article.
Next, the article establishes an obligation to prosecute (or extradite) grave
breaches of the first Geneva Convention:
Each High Contracting Party shall be under the obligation to search for persons
alleged to have committed, or to have ordered to be committed, such grave
breaches, and shall bring such persons, regardless of their nationality, before its
own courts. It may also, if it prefers, and in accordance with the provisions of
its own legislation, hand such persons over for trial to another High Contracting
Party concerned, provided such High Contracting Party has made out a prima
facie case.
The same text as in Article 49 of the first Geneva Convention (GC) is included in
the other three Geneva Conventions, respectively in Article 50 GC II, Article 129
GC III and Article 146 GC IV, 135 and therefore the duty to prosecute is applicable
to breaches of all four Conventions. What grave breaches under the four Geneva
Conventions and Additional Protocols are is defined in each separate Geneva
Convention, and in Additional Protocol I (1977). 136 Additional Protocol I concerns
134
ICTY, Prosecutor v. Dusko Tadića/k/a/ “Dule” (Decision on the defence motion for interlocutory
appeal on jurisdiction), IT-94-1, 2 October 1995, para. 94.
135
First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (GC I), Second Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II), Third Geneva Convention
relative to the Treatment of Prisoners of War (GC III), Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War (GC IV).
136
Art. 50 GC I and Art. 51 GC II are identical and state: Grave breaches to which the preceding Article
relates shall be those involving any of the following acts, if committed against persons or property
protected by the Convention: wilful killing, torture or inhuman treatment, including biological
experiments, wilfully causing great suffering or serious injury to body or health, and extensive
destruction and appropriation of property, not justified by military necessity and carried out unlawfully
and wantonly.
Art. 130 GC III states: Grave breaches to which the preceding Article relates shall be those involving
any of the following acts, if committed against persons or property protected by the Convention: wilful
killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering
or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile
96
The legality of national amnesty laws under international law
the Protection of Victims of International Armed Conflicts. Additional Protocol II
relates to the Protection of Victims of Non-International Armed Conflicts. Because
Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this
Convention.
Art. 147 GC IV states: Grave breaches to which the preceding Article relates shall be those involving
any of the following acts, if committed against persons or property protected by the present
Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully
causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful
confinement of a protected person, compelling a protected person to serve in the forces of a hostile
Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the
present Convention, taking of hostages and extensive destruction and appropriation of property, not
justified by military necessity and carried out unlawfully and wantonly.
Article 11 AP 1 on the Protection of persons states: […] 4. Any wilful act or omission which seriously
endangers the physical or mental health or integrity of any person who is in the power of a Party other
than the one on which he depends and which either violates any of the prohibitions in paragraphs 1 and
2 or fails to comply with the requirements of paragraph 3 shall be a grave breach of this Protocol.
In Article 85 AP I continues on the definition of grave breaches: [...] 2. Acts described as grave
breaches in the Conventions are grave breaches of this Protocol if committed against persons in the
power of an adverse Party protected by Articles 44, 45 and 73 of this Protocol, or against the wounded,
sick and shipwrecked of the adverse Party who are protected by this Protocol, or against those medical
or religious personnel, medical units or medical transports which are under the control of the adverse
Party and are protected by this Protocol.
3. In addition to the grave breaches defined in Article 11, the following acts shall be regarded as grave
breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this
Protocol, and causing death or serious injury to body or health:
(a) making the civilian population or individual civilians the object of attack;
(b) launching an indiscriminate attack affecting the civilian population or civilian objects in the
knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian
objects, as defined in Article 57, paragraph 2 (a)(iii);
(c) launching an attack against works or installations containing dangerous forces in the knowledge that
such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined
in Article 57, paragraph 2 (a)(iii);
(d) making non-defended localities and demilitarized zones the object of attack;
(e) making a person the object of attack in the knowledge that he is hors de combat;
(f) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent
or red lion and sun or of other protective signs recognized by the Conventions or this Protocol.
4. In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the
following shall be regarded as grave breaches of this Protocol, when committed wilfully and in
violation of the Conventions or the Protocol:
(a) the transfer by the occupying Power of parts of its own civilian population into the territory it
occupies, or the deportation or transfer of all or parts of the population of the occupied territory within
or outside this territory, in violation of Article 49 of the Fourth Convention;
(b) unjustifiable delay in the repatriation of prisoners of war or civilians;
(c) practices of apartheid and other inhuman and degrading practices involving outrages upon personal
dignity, based on racial discrimination;
(d) making the clearly-recognized historic monuments, works of art or places of worship which
constitute the cultural or spiritual heritage of peoples and to which special protection has been given by
special arrangement, for example, within the framework of a competent international organization, the
object of attack, causing as a result extensive destruction thereof, where there is no evidence of the
violation by the adverse Party of Article 53, subparagraph (b), and when such historic monuments,
works of art and places of worship are not located in the immediate proximity of military objectives;
(e) depriving a person protected by the Conventions or referred to in paragraph 2 of this Article of the
rights of fair and regular trial. [...]
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Additional Protocol II contains a controversial provision, this Protocol is examined
separately in the next subsection.
4.2 Additional Protocol II to the Geneva Conventions 1977
Additional Protocol II to the 1949 Geneva Conventions relating to the Protection of
Victims of Non-International Armed Conflicts was the first treaty that specifically
applied to non-international armed conflict. The Protocol was drafted because of the
increase in non-international armed conflicts after the adoption of the initial four
Geneva Conventions. It entered into force on 7 December 1978. Before, Article 3
common to the Geneva Conventions was the only provision applicable to noninternational armed conflicts. To date, 166 states are party to Additional Protocol II.
In proceedings before national courts, amnesty laws were occasionally upheld with
reference to Article 6(5) of Protocol II as an international legal justification of
amnesties. 137 Article 6(5) explicitly foresees in the granting of amnesty:
At 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. 138
This provision should be interpreted within the scope of the Geneva Conventions,
which means that it is not intended to cover violations of international humanitarian
law. The International Committee of the Red Cross (ICRC) affirms this
interpretation of Article 6(5) in Protocol II. According to the ICRC, the amnesty
provision is:
the equivalent of what in international armed conflicts is known as “combatant
immunity,” i.e.[,] the fact that a combatant may not be punished for acts of
hostility, including killing enemy combatants, as long as he respected
international humanitarian law, and that he has to be repatriated at the end of
active hostilities. In non-international armed conflicts, no such principle exists,
and those who fight may be punished, under national legislation, for the mere
fact of having fought. Article 6(5) attempts to encourage a release at the end of
hostilities for those detained or punished for the mere fact of having
137
See, for instance, South African Constitutional Court, Azanian Peoples Organisation (AZAPO) and
others v. President of the Republic of South Africa and Others, CCT17/96, Judgment of 25 July 1996,
para. 30. See also, Chilean Supreme Court, Bárbara Urive Tambley and E. F. Van Jurick, Rol No.
5.566, 26 October 1995.
138
Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II), Adopted on 8 June 1977 by the Diplomatic
Conference on the Reaffirmation and Development of International Humanitarian Law applicable in
Armed Conflicts, entry into force 7 December 1978; Naomi Roht-Arriaza, “Combating impunity: Some
thoughts on the way forward”, Law and Contemporary Problems, vol. 59 1996, pp. 93-102, p. 97.
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The legality of national amnesty laws under international law
participated in hostilities. It does not aim at an amnesty for those having
violated international humanitarian law. 139
The Inter-American Commission also confirmed the interpretation that Article 6(5)
was not meant to cover violations of international humanitarian law committed in
non-international armed conflicts in e.g. Parada Cea et al. v. El Salvador 140and in
the 3rd Report on the Human Rights Situation in Colombia. 141The ICTY has
affirmed that serious violations of the provisions in the Geneva Conventions during
internal armed conflicts are international crimes because “customary international
law imposes criminal liability for serious violations of common Article 3, as
supplemented by other general principles and rules on the protection of victims of
internal armed conflict, and for breaching certain fundamental principles and rules
regarding means and methods of combat in civil strife”. 142 According to the ICTY
Appeals Chamber, this view is strengthened by the fact that the ICTR Statute,
which is concerned with an internal conflict, made violations of common Article 3
subject to prosecution at the international level. 143
Article 6(5) does not intend to provide amnesty for perpetrators of international
humanitarian law. The provision intends to promote peace and reconciliation.
Additional Protocol II to the Geneva Conventions contains no provision indicating
an obligation to prosecute.
5 THE DUTY TO PROSECUTE IN STATUTES OF INTERNATIONAL COURTS AND
TRIBUNALS
5.1Introduction
In the past, political transitions were often accompanied by blanket amnesties. This
was the case, for example, in Chile. Nowadays, during or after political transitions
there is an increasing demand from the international community that accountability
139
Letter of 15 April 1997 from Dr. Toni Pfanner, Head of the Legal Division, ICRC Headquarters,
Geneva, to Naomi Roht-Arriaza and Douglas Cassel (filed with the addressees), in: Naomi RohtArriaza, “Combating impunity: Some thoughts on the way forward”, Law and Contemporary Problems,
vol. 59 1996, pp. 93-102, p. 97.
140
IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99,
OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 116: “The preparatory work for
Article 6(5) indicates that the purpose of this precept is to encourage amnesty, ... as a type of liberation
at the end of hostilities for those who were detained or punished merely for having participated in the
hostilities. It does not seek to be an amnesty for those who have violated international humanitarian
law.”
141
IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9
rev. 1, 26 February 1999, para. 345.
142
ICTY, Prosecutor v. Dusko Tadića/k/a/ “Dule” (Decision on the defence motion for interlocutory
appeal on jurisdiction), IT-94-1, 2 October 1995, para. 134.
143
ICTY, Prosecutor v. Zdravko Mucić (aka "Pavo"), Hazim Delić, Esad Landžo (aka "Zenga") and
Zejnil Delalić (Appeal Judgment), IT-96-21-A, 20 February 2001, para. 170.
99
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should be dealt with right away. 144 This may be done, for example, by means of a
tribunal or special court such as those in the former Yugoslavia, Rwanda and Sierra
Leone. The Rome Statute of the ICC was adopted to give states parties an incentive
to investigate and prosecute the crimes under the jurisdiction of the ICC right away,
because if they fail to do so, the ICC may initiate an investigation. The
establishment of these courts and tribunals “reflect[s] a growing shift in the
international community, away from a tolerance for impunity and amnesty and
towards the creation of an international rule of law”. 145 This section will elaborate
on the International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia (5.2), the International Criminal Tribunal for Rwanda (5.3), the
International Criminal Court (5.4) and the hybrid Special Court for Sierra Leone
(5.5). This is the chronological order of establishment. Other similar courts did not
provide enough relevant information to discuss them here.
5.2International Criminal Tribunal for the former Yugoslavia
On 25 May 1993, the UN Security Council, acting under Chapter VII of the UN
Charter, established the International Criminal Tribunal for the prosecution of
persons responsible for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia (ICTY) since 1991 as a peace
enforcement measure. 146 The ICTY was established after reports describing mass
atrocities taking place in Croatia and Bosnia and Herzegovina. The reports revealed
“horrendous crimes, in which thousands of civilians were being killed and
wounded, tortured and sexually abused in detention camps and hundreds of
thousands expelled from their homes”. 147 The Security Council was convinced that
the ICTY would contribute to the restoration and maintenance of peace, and that the
“prosecution of persons responsible for … serious violations of international
humanitarian law will contribute to ensuring that such violations are halted and
effectively redressed”. 148 By bringing perpetrators to trial, the ICTY aims to deter
future crimes and render justice to thousands of victims and their families, thus
contributing to a lasting peace in the former Yugoslavia.
For the ICTY there has been no need to pronounce on the issue of amnesty since
the successor states of the former Yugoslavia have refrained from enacting amnesty
144
William A. Schabas, Impunity and Human Rights Defenders, Paper presented at the FrontLine
Conference: Dublin 17 January 2002, p. 1.
145
Security Council, The rule of law and transitional justice in conflict and post-conflict societies.
Report of the Secretary-General, S/2004/616, 23 August 2004, para. 40.
146
Security Council, Security Council Resolution 827 (1993) [on establishment of the international
tribunal for prosecution of persons responsible for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1991], S/RES/827(1993), 25 May 1993.
147
ICTY, “About the ICTY”, accessible via <http://www.icty.org/>
148
Security Council, Security Council Resolution 827 (1993) [on establishment of the international
tribunal for prosecution of persons responsible for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1991], S/RES/827(1993), 25 May 1993.
100
The legality of national amnesty laws under international law
laws. 149 Nevertheless, the Trial Chamber of the ICTY in Furundžija declared that
the prohibition on torture has an ius cogens character, and that amnesties for torture
are null and void ab initio and will not receive foreign recognition. 150The ICTY
held that:
[t]he fact that torture is prohibited by a peremptory norm of international law
has other effects at the inter-state and individual levels. At the inter-state level,
it serves to internationally de-legitimise any legislative, administrative or
judicial act authorising torture. It would be senseless to argue, on the one hand,
that on account of the jus cogens value of the prohibition against torture,
treaties or customary rules providing for torture would be null and void ab
initio,[…] and then be unmindful of a State say, taking national measures
authorising or condoning torture or absolving its perpetrators through an
amnesty law.[…] If such a situation were to arise, the national measures,
violating the general principle and any relevant treaty provision, would produce
the legal effects discussed above and in addition would not be accorded
international legal recognition. 151
In addition, the Trial Chamber stated that “torture may not be covered by a statute
of limitations, and must not be excluded from extradition under any political
offence exemption”. 152
The ICTY in Tadić determined “that customary international law imposes
criminal liability for serious violations of common Article 3, as supplemented by
other general principles and rules on the protection of victims of internal armed
conflict, and for breaching certain fundamental principles and rules regarding
means and methods of combat in civil strife”. 153 The Tribunal indicated that there
is:
no doubt that … [the violations] entail individual criminal responsibility, regardless
of whether they are committed in internal or international armed conflicts.
Principles and rules reflect elementary considerations of humanity widely
recognized as the mandatory minimum for conduct in armed conflicts of any kinds.
No one can doubt the gravity of the acts at issue, nor the interest of the
international community in their prohibition. 154
149
Christian Tomuschat, Human Rights, Between Idealism and Realism, Oxford University Press: New
York 2003, pp. 288-289.
150
ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, paras.
151-157; Art. 53 Vienna Convention on the Law of Treaties (1969).
151
ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, para. 155.
Original footnotes omitted.
152
See ibid., para. 157.
153
ICTY, Prosecutor v. Dusko Tadića/k/a/ “Dule” (Decision on the defence motion for interlocutory
appeal on jurisdiction), IT-94-1, 2 October 1995, para. 134. See also IAComHR, Third Report on the
Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 341;
ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, para. 157.
154
ICTY, Prosecutor v. Dusko Tadića/k/a/ “Dule” (Decision on the defence motion for interlocutory
appeal on jurisdiction), IT-94-1, 2 October 1995, para. 129; See also IAComHR, Third Report on the
Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 341.
101
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In the Trial Chamber Judgment of Mucić et al., it was held that:
[t]he fact that the Geneva Conventions themselves do not expressly mention
that there shall be criminal liability for violations of common article 3 clearly
does not in itself, preclude such liability. Furthermore, identification of the
violation of certain provisions of the Conventions as constituting “grave
breaches” and thus subject to mandatory universal jurisdiction, certainly cannot
be interpreted as rendering all of the remaining provisions of the Conventions
as without criminal sanction. While “grave breaches” must be prosecuted and
punished by all States, “other” breaches of the Geneva Conventions may be so.
Consequently, an international tribunal such as this must also be permitted to
prosecute and punish such violations of the Conventions. 155
In the Appeals Chamber Judgment of Mucić et al., the ICTY confirmed that “[i]t is
universally acknowledged that the acts enumerated in common Article 3 [of the
Geneva Conventions] are wrongful and shock the conscience of civilised people,
and thus are, in the language of Article 15(2) of the ICCPR, ‘criminal according to
the general principles of law recognised by civilised nations’”. 156
Notwithstanding the fact that the ICTY did not have to deal with the issue of
amnesty, it considered amnesty or any other legal means to foreclose prosecution of
torture and serious violations of Article 3 common to the Geneva Conventions as
acts with no international legal recognition. This notwithstanding, Article 28 of the
ICTY Statute provides the possibility to take a national pardon or commutation of
sentence into account in the interests of justice and the general principles of law.
The President of the ICTY in consultation with the judges, acting under Article 28,
may decide to maintain the national measure. When one considers amnesty equal to
pardon, the ICTY may decide to refrain from prosecution in an individual case in
the interests of justice and general principles of law.
5.3 International Criminal Tribunal for Rwanda
On 8 November 1994, the UN Security Council, acting under Chapter VII of the
UN Charter, created the International Criminal Tribunal for Rwanda (ICTR) by
Resolution 955 (1994).
The UN Security Council established the ICTR in response to “reports
indicating that genocide and other systematic, widespread and flagrant violations of
international humanitarian law have been committed in Rwanda”. 157The ICTR was
established to prosecute those responsible for genocide and other serious violations
of international humanitarian law committed in the territory of Rwanda between 1
January 1994 and 31 December 1994. The main aim of the ICTR is to “contribute
155
ICTY, Prosecutor v. Zdravko Mucić (aka “Pavo”), Hazim Delić, Esad Landžo (aka “Zenga”)and
Zejnil Delalić (Trial Judgment), IT-96-21-T, 16 November 1998, para 308.
156
See ibid., para 173.
157
Security Council, Security Council Resolution 955 (1994) [on establishment of an international
tribunal for Rwanda and adoption of the statute of the tribunal], S/RES/955(1994), 8 November 1994.
102
The legality of national amnesty laws under international law
to the process of national reconciliation and to the restoration and maintenance of
peace”. 158
Like the International Criminal Tribunal for the former Yugoslavia, the
International Criminal Tribunal for Rwanda did and does not have to deal with
suspects who were granted amnesty, because Rwanda did not proclaim amnesty. 159
This notwithstanding, it may be held that the crimes within the jurisdiction of the
ICTR contribute to the concept that these crimes are ius cogens crimes which are
susceptible for prosecution by means of universal jurisdiction. At the same time,
Article 27 of the ICTR Statute contains a provision similar to Article 28 of the
ICTY Statute. As explained in the previous section, the tribunal may decide to
maintain a national measure of impunity in an individual case, based on the
interests of justice and the general principles of law.
5.4 International Criminal Court
In 1998, the international community established the International Criminal Court
(ICC). The Rome Statute of the International Criminal Court (ICC Statute) was
adopted by 120 states on 17 July 1998, and entered into force on 1 July 2002 (after
the 60th ratification). The ICC aims to eradicate impunity by trying those
responsible for “the most serious crimes of concern to the international community
as a whole”. 160 The ICC is the first permanent international criminal court. It has
jurisdiction with respect to the crime of genocide, crimes against humanity and war
crimes and is “[d]etermined to put an end to impunity for the perpetrators of these
crimes and thus to contribute to the prevention of such crimes”. From the fact that
currently 116 states have ratified the Rome Statute of the ICC, it may be concluded
that there is broad consensus on the fact that the crimes the ICC has jurisdiction
over should not go unpunished. The ICC is not hindered by a distinction between
crimes committed in internal and international armed conflicts.
The ICC Statute states in its Preamble that the states parties to this Statute
recognize “that such grave crimes threaten the peace, security and well-being of the
world”, they affirm “that the most serious crimes of concern to the international
community as a whole must not go unpunished and that their effective prosecution
must be ensured by taking measures at the national level and by enhancing
international cooperation”. The states parties are “[d]etermined to put an end to
impunity for the perpetrators of these crimes and thus to contribute to the
prevention of such crimes,” because “such grave crimes threaten the peace, security
and well-being of the world” and recall “that it is the duty of every State to exercise
its criminal jurisdiction over those responsible for international crimes”. Criminal
jurisdiction includes universal jurisdiction. The crimes within the jurisdiction of the
ICC are part of customary international law.
158
Ibid.
Christian Tomuschat, Human Rights, Between Idealism and Realism, Oxford University Press: New
York 2003, pp. 288-289.
160
Preamble ICC Statute.
159
103
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The ICC is an essential part of the international effort to eradicate climates of
impunity that often shelter those who committed serious international crimes. 161
The ICC may complement national judicial systems when these are unable or
unwilling to prosecute persons responsible for genocide, crimes against humanity
and war crimes. 162 Because the ICC only has the power to investigate and prosecute
if the state concerned fails to do so, it encourages states to initiate domestic
investigations and prosecutions. In fact, a duty to prosecute for the state may be
recognized here; when the state fails to comply with the duty to prosecute properly,
the ICC obtains the power to open investigations into the situation concerned.
During the negotiations leading up to the ICC Statute, the issue of how to deal
with national amnesties and national truth and reconciliation efforts was brought up,
but it was not explicitly dealt with in the ICC Statute. Views on the matter clashed
sharply during the negotiations, as many participants felt very strongly that
prosecution is the sole appropriate response, whereas others felt very strongly that
alternative mechanisms are acceptable. Even among those delegations that favoured
the prosecution of all international crimes, many had reservations about laying
down an inflexible rule for all time mandating prosecution as the only acceptable
response in all situations. On the other hand, creating an explicit exception allowing
amnesties was equally unacceptable. Some delegations opposed any exception on
principle, whereas others were concerned that any exception would be immediately
exploited and abused. As a result, the drafters allowed the Court to develop an
appropriate approach when faced with concrete situations. 163
Notwithstanding the clear message in the Preamble of the ICC Statute, which at
least suggests that not initiating an investigation and prosecution because of a
national amnesty law would be incompatible with the purpose of the ICC, 164 some
articles of the Statute grant the ICC Prosecutor and the judges some margin to
recognize an amnesty exception to its jurisdiction. Such margin may be important,
because when the ICC Prosecutor interprets the ICC Statute strictly and initiates an
investigation and prosecution without regard to local circumstances, this may
infringe on and overturn politically sensitive arrangements. The following articles
are worth mentioning here:
161
Darryl Robinson, “Serving the Interests of Justice: Amnesties, Truth Commissions and the
International Criminal Court”, European Journal of International Law, vol. 14 no. 3 2003, pp. 481-505,
p. 482.
162
See ICC Statute, Preamble and Article 1.
163
Darryl Robinson, “Serving the Interests of Justice: Amnesties, Truth Commissions and the
International Criminal Court”, European Journal of International Law, vol. 14 no. 3 2003, pp. 481-505,
p. 483.
164
According to Goldstone and Fritz, the ICC is not aiming to start an investigation and prosecution in
each and every instance, or without regard to the concerned state’s societal system. Thus, concerns for
an ICC Prosecutor who will intervene in transition processes are misplaced; Richard J. Goldstone and
Nicole Fritz, “‘In the Interests of Justice’ and Independent Referral: The ICC Prosecutor’s
Unprecedented Powers”, Leiden Journal of International Law, vol. 13 2000, pp. 655-667, p. 660.
However, the complementarity principle in the ICC Statute gives both national courts and the ICC
jurisdiction over the crimes within the jurisdiction of the ICC, which means in principle that
prosecution is the appropriate means.
104
The legality of national amnesty laws under international law
̶
Under Article 16 (Deferral of investigation or prosecution), the UN
Security Council may request the ICC Prosecutor to halt investigations or
prosecutions in a specific case for a period of twelve months when the
Security Council adopts a Resolution on that matter under Chapter VII of
the UN Charter. This request is renewable each year. A Chapter VII
Resolution is made with respect to threats to the peace, breaches of the
peace, or acts of aggression. For the purpose of deferral, this means that
prosecution by the ICC must be regarded as a threat to the international
peace and security. When prosecution by the ICC is deemed to be a threat
to a newly established peace, or peace negotiations, the Security Council
may request the ICC Prosecutor to postpone investigations or prosecutions
in the interests thereof.
̶
According to Article 17 (Issues of admissibility), the Court has to
determine that a case is inadmissible where the state that has jurisdiction
over the case has properly investigated or prosecuted it. States have the
primary responsibility for investigating and prosecuting the crimes within
the jurisdiction of the ICC, since the ICC is complementary to national
jurisdictions. A national amnesty may be regarded as an act by a state that
is unwilling or unable genuinely to carry out the investigation or
prosecution. 165To find a situation or case inadmissible under Article 17,
alternative sanctions, such as reparations, exile, public apologies, or
mandatory participation in a truth commission or traditional justice
mechanisms, may be taken into account by the ICC.
̶
Article 20 (Ne bis in idem), holds that the ICC shall not try persons already
tried by another court, unless the proceedings in the other court:
(3)(a) Were for the purpose of shielding the person concerned from
criminal responsibility for crimes within the jurisdiction of the Court;
or
(3)(b) Otherwise were not conducted independently or impartially in
accordance with the norms of due process recognized by international
law and were conducted in a manner which, in the circumstances, was
inconsistent with an intent to bring the person concerned to justice.
This indicates that sham proceedings will not prevent the ICC from
opening an investigation. Sham trials, which aim to shield perpetrators
from criminal responsibility and appropriate punishment, may be
recognized as providing veiled impunity for perpetrators of grave human
rights violations. Recognizing that the effect of a sham trial is equivalent to
165
Article 17(1)(a) ICC Statute.
105
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an amnesty measure, it is likely that a national amnesty will not prevent the
ICC from exercising its powers.
̶
Under Article 53 (Initiation of an investigation) the ICC Prosecutor may
decide not to initiate an investigation when he believes that “… [taken] into
account the gravity of the crime and the interests of victims, there are
nonetheless substantial reasons to believe that an investigation would not
serve the interests of justice”. 166 The phrase “interests of justice” gives the
ICC Prosecutor discretion in complex situations. Factors that may be of
relevance here are the interests of victims and possible domestic
accountability measures. A national amnesty law may be taken into
consideration here as well.
In line with the Preamble, Article 29 states that “[t]he crimes within the jurisdiction
of the Court shall not be subject to any statute of limitations”. This means that
whatever time has elapsed since the crime was committed, it will always be
possible to prosecute those responsible. Seen as a restriction to prevent prosecution,
a statute of limitations is comparable to an amnesty provision. Regarded as such, it
may be argued that the ICC will not recognize amnesty since it is a restriction to
prosecute. Given the fact that the ICC Statute forecloses the possibility of ruling out
prosecution after a number of years by a statute of limitations, it is quite unlikely
that it will accept the impossibility of prosecuting because of an amnesty law.
In conclusion, it may be stated that it is very unlikely that the ICC will ever give
up prosecution because of an amnesty, since it is completely against the Court’s
mandate and policy. However, it is not inconceivable that the ICC Prosecutor will
refrain from initiating an investigation because of alternative transitional justice
measures a state party has taken, of which an amnesty law may form a part, when
these alternative measures comply with the criteria to be developed in this research
and the ICC Prosecutor believes that prosecution will do more harm than good. The
former President of the ICC, Philippe Kirsch, once said that under the ICC Statute
“some limited amnesties may be compatible” with the obligations to genuinely
investigate or prosecute. At the same time, it seems likely that the ICC will not
honour sweeping amnesty provisions that have been put in place by regimes to
protect their own officials. 167
166
Article 53(1)(c) ICC Statute. Article 53(3)(b) ICC Statute states: “The Pre-Trial Chamber of the ICC
may review this decision of the prosecutor, and in such a case, the decision of the prosecutor not to
proceed shall be effective only if confirmed by the Pre-Trial Chamber.” See also Michael P. Scharf,
“The Amnesty Exception to the Jurisdiction of the International Criminal Court”, Cornell International
Law Journal, vol. 32 1999, pp. 507-527, pp. 522-527, and John Dugard, “Possible Conflicts of
Jurisdiction with Truth Commissions”, in: Antonio Cassese, Paola Geata and John R.W.D. Jones (eds.),
The Rome Statute of the International Criminal Court: A Commentary, Vol. 1, Oxford University Press:
Oxford/New York 2002, pp. 693-704, pp. 701-702.
167
In the extradition case against the former Chilean dictator Augusto Pinochet, neither his lawyers nor
the Chilean government brought forward the amnesty decree of 1978, which granted unconditional,
total amnesty for crimes committed between 1973 and 1978, probably because they did not expect that
a foreign court would pay serious attention to an amnesty decree in effect granted by Pinochet to
106
The legality of national amnesty laws under international law
5.5 Special Court for Sierra Leone
The Government of Sierra Leone and the United Nations set up the Special Court
for Sierra Leone (SCSL) jointly after the call “of the Government of Sierra Leone
for assistance from the United Nations in establishing a strong and credible court
that will meet the objectives of bringing justice and ensuring lasting peace”. 168 The
SCSL was established by an Agreement between the United Nations and the
Government of Sierra Leone pursuant to Security Council Resolution 1315 (2000)
of 14 August 2000 169 and is playing a crucial role in bringing justice for horrific
human rights abuses committed during the Sierra Leone armed conflict. 170
On 16 January 2002, in Freetown, the United Nations and the Government of
Sierra Leone signed an agreement establishing the Special Court 171 to provide “a
credible system of justice and accountability for the very serious crimes committed
… [which] would end impunity and would contribute to the process of national
reconciliation and to the restoration and maintenance of peace”. 172
Before the establishment of the Court, on 7 July 1999, the Government of Sierra
Leone and the armed opposition Revolutionary United Front signed a peace
agreement to settle the war in their country that began in 1991. Article IX of the
Lomé Peace Agreement states:
himself. In the judgments on the extradition case, only two Law Lords mentioned the question of
amnesty; John Dugard, “Dealing with Crimes of a Past Regime. Is Amnesty Still an Option?”, Leiden
Journal of International Law, vol. 12 1999, pp. 1001-1015, p. 1007. In the words of Kofi Annan, the
ICC Statute is to ensure “… that mass-murderers and other arch criminals cannot shelter behind a state
run by themselves and their cronies, or take advantage of a general breakdown of law and order”. With
respect to the jurisdiction of the ICC, UN Secretary-General Kofi Annan stated: “No one should
imagine that it would apply to a case like South Africa’s, where the regime and the conflict which
caused the crimes have come to an end, and the victims have inherited the power. It is inconceivable
that, in such a case, the court would seek to substitute its judgment for that of a whole nation which is
seeking the best way to put a traumatic past behind it and build a better future. (Speech at the
Witwatersrand University Graduation Ceremony on the occasion of the conferment of an Honorary
Doctor of Laws degree, Johannesburg, 1 September 1998.)
168
Security Council, Security Council Resolution 1315 (2000) [on establishment of a Special Court for
Sierra Leone], S/RES/1315(2000), 14 August 2000.
169
SCSL Statute.
170
“The conflict, which lasted from 1991 to 2002, was characterized by extreme brutality. Civilians
suffered widespread and systematic attacks involving murder, mutilation, amputation, torture, rape,
abduction, and the conscription and use of child soldiers. The majority of crimes were perpetrated by
rebels from the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council
(AFRC). Government forces and their allies, including the Civil Defense Forces (CDF), also committed
serious violations, albeit on a smaller scale than those by the rebel alliance.” In: Human Rights Watch,
Sierra Leone.Justice in Motion. The Trial Phase of the Special Court for Sierra Leone, November 2005
vol. 17 no. 14(A), p. 1.
171
Agreement between the United Nations and the Government of Sierra Leone on the Establishment of
a Special Court for Sierra Leone.
172
Security Council, Security Council Resolution 1315 (2000) [on establishment of a Special Court for
Sierra Leone], S/RES/1315(2000), 14 August 2000; The SCSL is mandated to try those who bear the
greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since 30 November 1996.
107
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PARDON AND AMNESTY
1. In order to bring lasting peace to Sierra Leone, the Government of Sierra
Leone shall take appropriate legal steps to grant Corporal Foday Sankoh
absolute and free pardon.
2. After the signing of the present Agreement, the Government of Sierra Leone
shall also grant absolute and free pardon and reprieve to all combatants and
collaborators in respect of anything done by them in pursuit of their objectives,
up to the time of the signing of the present Agreement.
3. To consolidate the peace and promote the cause of national reconciliation,
the Government of Sierra Leone shall ensure that no official or judicial action is
taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF 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. In addition, legislative and other measures necessary to
guarantee immunity to former combatants, exiles and other persons, currently
outside the country for reasons related to the armed conflict shall be adopted
ensuring the full exercise of their civil and political rights, with a view to their
reintegration within a framework of full legality.
In the Report of the UN Secretary-General on the establishment of a Special Court
for Sierra Leone, the UN Secretary-General discussed the amnesty clause in the
Lomé Peace Agreement. He stated:
While recognizing that amnesty is an accepted legal concept and a gesture of
peace and reconciliation at the end of a civil war or an internal armed
conflict,[…] the United Nations has consistently maintained the position that
amnesty cannot be granted in respect of international crimes, such as genocide,
crimes against humanity or other serious violations of international
humanitarian law. … At the time of the signature of the Lomé Peace
Agreement, the Special Representative of the Secretary-General for Sierra
Leone was instructed to append to his signature on behalf of the United Nations
a disclaimer to the effect that the amnesty provision contained in article IX of
the Agreement (“absolute and free pardon”) shall not apply to international
crimes of genocide, crimes against humanity, war crimes and other serious
violations of international humanitarian law. This reservation is recalled by the
Security Council in a preambular paragraph of resolution 1315 (2000). 173
In UN SC Resolution 1315 (2000), it was recalled “that the Special Representative
of the Secretary-General appended to his signature of the Lomé Agreement 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
173
Security Council, Report of the Secretary-General on the establishment of a Special Court for Sierra
Leone, S/2000/915, 4 October 2000.
108
The legality of national amnesty laws under international law
humanitarian law”. 174 The Security Council reaffirmed “that persons who commit
or authorize serious violations of international humanitarian law are individually
responsible and accountable for those violations and that the international
community will exert every effort to bring those responsible to justice in
accordance with international standards of justice, fairness and due process of
law”. 175 The Appeals Chamber of the SCSL affirmed that “[t]he interpretative
declaration appended by the Secretary-General’s representative at the signing of the
Lomé Agreement is in accordance with international law and is sufficient indication
of the limits of the amnesty granted by the Agreement”. 176
Article 10 of the SCSL Statute provides that “[a]n amnesty granted to any
person falling within the jurisdiction of the Special Court in respect of the crimes
referred to in articles 2 to 4 of the present Statute shall not be a bar to
prosecution”. 177 The crimes named in Articles 2 to 4 are crimes against humanity,
violations of Article 3 common to the Geneva Conventions and of Additional
Protocol II, and other serious violations of international humanitarian law.
On 13 March 2004, the SCSL Appeals Chamber rendered an important decision
on the validity of amnesties under international law, in accordance with Article 10
of its Statute. In its decision regarding its jurisdiction in Prosecutor v. Morris
Kallon and Brima Bazzy Kamara, the Court held that “the amnesty granted in the
Lomé Agreement … is ineffective in removing the universal jurisdiction to
prosecute persons accused of such crimes that other states have by reason of the
nature of the crimes. It is also ineffective in depriving an international court such as
the Special Court of jurisdiction.” 178 The Appeals Chamber found that the Lomé
Peace Agreement created rights and obligations that are to be regulated by the
domestic laws of Sierra Leone. Consequently, “whether it is binding on the
Government of Sierra Leone or not does not affect the liability of the accused to be
prosecuted in an international tribunal for international crimes such as those
contained in Articles 2 to 4 of the Statute of the Court”. 179 According to the SCSL:
174
Security Council, Security Council Resolution 1315 (2000) [on establishment of a Special Court for
Sierra Leone], S/RES/1315(2000), 14 August 2000.
175
Ibid.
176
SCSL Appeals Chamber, Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Decision on
Challenge to Jurisdiction: Lomé Accord Amnesty, Case No. SCSL-2004-15-AR72(E) and Case No.
SCSL-2004-16-AR72(E), 13 March 2004, para. 89.
177
Alejandra Vicente, Justice against Perpetrators, The Role of Prosecution in Peacemaking and
Reconciliation, paper prepared for BADIL expert forum: Ghent University May 2003, p. 12.
178
SCSL Appeals Chamber, Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Decision on
Challenge to Jurisdiction: Lomé Accord Amnesty, Case No. SCSL-2004-15-AR72(E) and Case No.
SCSL-2004-16-AR72(E), 13 March 2004, para. 88.
179
See ibid., para. 86. There is a variety of legal sources supporting the principle that domestic laws or
judicial decisions cannot exempt a person accused of international crimes from individual criminal
responsibility or prevent a foreign or international court from prosecuting. E.g., the Allied Control
Council Law No. 10 of 1946 provided that no statute, pardon, grant of immunity or amnesty under the
Nazi regime would be admitted as a bar to trial or punishment: Art. II.5: “In any trial or prosecution for
a crime herein referred to, the accused shall not be entitled to the benefits of any statute of limitation in
respect to the period from 30 January 1933 to 1 July 1945, nor shall any immunity, pardon or amnesty
granted under the Nazi regime be admitted as a bar to trial or punishment.”; In 1968, the UN General
109
Chapter IV
The grant of amnesty or pardon is undoubtedly an exercise of sovereign power
which, essentially, is closely linked, as far as crime is concerned, to the
criminal jurisdiction of its state exercised in such sovereign power. Where
jurisdiction is universal, a state cannot, by the grant of amnesty, deprive another
state of its jurisdiction to prosecute the offender. It is for this reason unrealistic
to regard as universally effective the grant of amnesty by a state in regard to
grave international crimes in which there exists universal jurisdiction. A state
cannot bring into oblivion and forgetfulness a crime such as a crime against
international law, which other states are entitled to keep alive and remember. 180
This decision of the Special Court is the first ruling of a (mixed) international
criminal tribunal unequivocally stating that amnesties do not bar the prosecution of
human rights crimes before international or foreign national courts. According to
the Minister of Justice of Sierra Leone, Solomon Berewa, without the amnesty
provision in the Lomé Peace Agreement the Revolutionary United Front would
have refused to sign the agreement and to end hostilities. 181 It is therefore
remarkable that the Special Court in its decision did not take into account the
situation in Sierra Leone or the consequences its decision might have. Human
Rights Watch is nevertheless of the opinion that “[a]ccountability for serious human
rights crimes committed during Sierra Leone’s war is essential for several reasons,
including to bring justice to the victims, to punish the perpetrators, and to
strengthen respect for the rule of law in the post-conflict era”. 182 In another
decision, the SCSL ruled that:
[t]he crimes mentioned in Articles 2-4 of the Statute of the Special Court
(crimes against humanity; violations of Article 3 common to the Geneva
Conventions and Additional Protocol II, and other serious violations of
international humanitarian law) are international crimes entailing universal
jurisdiction. Article IX of the Lomé Agreement cannot constitute a legal bar to
the exercise of jurisdiction over international crimes by an international court or
a state asserting universal jurisdiction. Equally, it does not constitute a legal bar
to the establishment of an international court to try crimes against humanity. 183
Assembly stated that no statutory limitation would apply to war crimes, crimes against humanity, or
genocide, see the Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity, General Assembly Resolution 2391, 26 November 1968.
180
SCSL Appeals Chamber, Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Decision on
Preliminary Motion Based on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by the Lomé
Accord, Case No: SCSL-2004-15-PT and SCSL-2004-16-PT, 13 March 2004, para. 75.
181
Solomon Berewa, “Addressing impunity using divergent approaches: The Truth and Reconciliation
Commission and the Special Court”, accessible via <http://www.sierra-leone.org/trcbooksolomonberewa.html>
182
Human Rights Watch, Sierra Leone.Justice in Motion. The Trial Phase of the Special Court for
Sierra Leone, November 2005 vol. 17 no. 14(A), p. 1.
183
SCSL Appeals Chamber, Prosecutor v. Augustine Gbao, Decision on Preliminary Motion on the
Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the
Establishment of the Special Court, Case No. SCSL-2004-15-AR72(E), 25 May 2004, para. 8.
110
The legality of national amnesty laws under international law
The SCSL made clear that a national amnesty provision covering grave human
rights violations, even one agreed to in a peace agreement, will have no legal value
in international proceedings by a foreign national court based on universal
jurisdiction, nor for an international court such as the Special Court for Sierra
Leone, and consequently, will not prevent those courts from exercising jurisdiction,
and prosecuting and punishing the perpetrators.
6 UNIVERSAL JURISDICTION
In the international human rights arena, there are two ways of holding perpetrators
of international human rights crimes accountable before a court. Either prosecution
before an international court or tribunal based on international law, or before a
national court of a third-party state based on universal jurisdiction. Universal
jurisdiction is a complementary means for the enforcement of international
jurisdiction for international crimes. Through universal jurisdiction, a crime falls
within the jurisdiction of all states. By means of universal jurisdiction, a state may
or even should exercise:
jurisdiction over crimes allegedly committed in the territory of another state by
nationals of another state against national of another state where the crime
alleged poses no direct threat to the vital interests of the state asserting
jurisdiction. In other words, universal jurisdiction amounts to the claim by a
state to prosecute crimes in circumstances where none of the traditional links of
territoriality, nationality, passive personality or the protective principle exists at
the time of the commission of the alleged offence. 184
The principle of universal jurisdiction “is based on the notion that certain crimes are
so harmful to international interests that States are entitled, and even obliged, to
bring proceedings against the perpetrator, regardless of the location of the crime or
the nationality of the perpetrator or the victim”. 185 These crimes are considered
imprescriptible. 186 Universal jurisdiction is only applicable to serious international
human rights crimes like genocide, crimes against humanity, war crimes, piracy and
torture. 187 Menno Kamminga explains whether it is more a duty or a right to
exercise universal jurisdiction: the exercise of universal jurisdiction is considered to
be an obligation regarding grave breaches of the Geneva Conventions and torture
184
Council of the European Union, 8672/1/09, AU-EU Technical Ad hoc Expert Group on the Principle
of Universal Jurisdiction, Report: Brussels 16 April 2009, para. 8.
185
General Assembly, Report of the UN High Commissioner for Human Rights, A/56/36, 28 September
2001, para. 72.
186
Commission on Human Rights, Final Report on the Question of the Impunity of Perpetrators of
Human Rights Violations (Economic, Social and Cultural Rights), prepared by Mr. El Hadji Guissé,
Special Rapporteur, pursuant to Sub-Commission resolution 1996/24, E/CN.4/Sub.2/1997/8, 27 June
1997, para. 29.
187
Council of the European Union, 8672/1/09, AU-EU Technical Ad hoc Expert Group on the Principle
of Universal Jurisdiction, Report: Brussels 16 April 2009, para. 9.
111
Chapter IV
for states parties to these conventions. 188 Based on customary international law,
states are entitled to exercise jurisdiction over the crime of genocide, crimes against
humanity, war crimes and torture. 189 Universal jurisdiction originates from the idea
that when a state itself is not able or willing to prosecute, other countries may try
those suspected of serious international crimes, who are considered hostis humani
generis. Through the existence of the mechanism of universal jurisdiction, it is
hoped that states are encouraged to investigate and prosecute themselves. Justice is
the main motive for the application of universal jurisdiction.
Although it was possible, states did not use universal jurisdiction for a long
time. Since approximately 1998, universal jurisdiction has been used more and
more on several occasions. In particular Spain has made use of the possibility, the
most famous example being that of former Chilean military leader, General
Augusto Pinochet Ugarte, who as a result was arrested in London in 1998. During
the proceedings against Pinochet in London:
Senator Pinochet was alleged to have breached norms of international law
founded on customary international law, conventions and treaties. The
prohibition of torture ‘has evolved into a peremptory norm of jus cogens, that
is, a norm that enjoys a higher rank in the international hierarchy than treaty
law and even “ordinary customary” rules’. Charges of torture are commonplace
in the leading cases on crimes against humanity. Therefore, when executive
decisions compromise enforcement of norms jus cogens, they undermine the
very core of international standards. In the view of Lords Millet and Philips
torture and hostage taking are ‘international crimes for which there could be no
immunity even before the [Torture] Convention came into effect and
consequently there is no immunity under customary international law’. 190
During the proceedings, the self-amnesty law issued by Pinochet himself did not
come up. It was evident that the amnesty argument would not stand up outside
Chile. Eventually, Great Britain did not extradite Pinochet to Spain; due to health
issues, he was released in 2000 and returned to Chile. Although Pinochet was not
extradited to Spain to be tried, the case led to a flood of other cases. One case based
on universal jurisdiction that led to a conviction, was that of Adolfo Scilingo, an
Argentinean naval officer who was found guilty of crimes against humanity by a
Spanish court in 2005. 191 Cases concerning crimes within their jurisdiction but not
brought before the ICTY and ICTR may be brought before courts in other states
188
Menno Kamminga, “Lessons Learned from the Exercise of Universal Jurisdiction in Respect of
Gross Human Rights Offenses”, Human Rights Quarterly, vol. 23 2003, pp. 940-974, p. 965.
189
Ibid.
190
Ben Chigara, Amnesty in International Law, The Legality under International Law of National
Amnesty Laws, Pearson Education: Harlow 2002, p. 17.
191
Scilingo wrote a book on his involvement in the Dirty War, called ‘El Vuelo’ (which means ‘The
Flight’) referring to the death flights he witnessed as a naval officer. In Spain he was convicted for
crimes against humanity and torture.
112
The legality of national amnesty laws under international law
under the principle of universal jurisdiction. There are already several examples of
such cases. 192
Notwithstanding the increasing role of international law, the increasing use of
universal jurisdiction and the establishment of international court and tribunals, the
responsibility for prosecution lies primarily with the state concerned. Even when
the state concerned does not comply with its obligations under international law, the
court or tribunal that does want to investigate and prosecute is reliant on
cooperation of the state concerned regarding evidence and the extradition of
suspects. Article 93(1) of the ICC Statute specifies the forms of cooperation that
may be needed. The UN Principles of international co-operation in the detection,
arrest, extradition and punishment of persons guilty of war crimes and crimes
against humanity provide that “States shall co-operate with each other in the
collection of information and evidence which would help to bring to trial the
persons … [against whom there is evidence that they have committed war crimes
and crimes against humanity] and shall exchange such information”. 193 This
notwithstanding, witnesses have to be traced and be willing to cooperate and testify.
They may fear retaliation. The threat of a criminal trial in another country may
however stimulate a state to show its commitment to the rule of law and to comply
with its obligations under international law. This happened for instance in the case
of Ricardo Miguel Cavallo, a former Argentinean naval officer, who was extradited
from Mexico to Spain in 2003, where he was charged with genocide, crimes against
humanity and terrorism. In 2005, the Argentinean Constitutional Court ruled that
the two amnesty laws were unconstitutional and subsequently, Argentina initiated
proceedings against Cavallo. As a result, in 2008, he was extradited from Spain to
Argentina to stand trial. Notwithstanding the difficulties, universal jurisdiction is an
important fall-back instrument in cases where the state concerned is genuinely
unable or unwilling to investigate, prosecute and punish the suspects of serious
violations of human rights.
One of the initiatives to clarify and promote universal jurisdiction is the
Princeton Principles on Universal Jurisdiction announced by renowned jurists and
legal experts in 2001. Principle 13 emphasizes that the aim of the Princeton
Principles is to strengthen accountability and universal jurisdiction. 194 According to
192
See, for instance, Belgium v. the "Four of Butare" (two Rwandan nuns, Consolata Mukangango
(known as Sister Gertrude) and Julienne Mukabutera (known as Sister Julienne Kisito), academic
Vincent Ntezimana and the former Minister Alphonse Higaniro) (2001), Belgium v. Ephrem Nkezabera
(2009) and Germany v. Maksim Sokolovic (2001).
193
General Assembly, Principles of international co-operation in the detection, arrest, extradition and
punishment of persons guilty of war crimes and crimes against humanity, General Assembly Resolution
3074 (XXVIII), 3 December 1973, para. 6.
194
Principle 13:
1. National judicial organs shall construe national law in a manner that is consistent with these
Principles.
2. Nothing in these Principles shall be construed to limit the rights and obligations of a state to prevent
or punish, by lawful means recognized under international law, the commission of crimes under
international law.
113
Chapter IV
Principle 2(1), serious crimes under international law are piracy, slavery, war
crimes, crimes against peace, crimes against humanity, genocide and torture.
Besides stipulating that there exists an obligation to prosecute these crimes, the
Principles also rule out every form of de iure impunity. A number of Principles are
relevant in this respect. Principle 4 obligates states to support accountability. 195
Principle 5 on ‘Immunities’ states that “the official position of any accused person,
whether as head of state or government or as a responsible government official,
shall not relieve such person of criminal responsibility nor mitigate punishment”.
Principle 6 holds that “Statutes of limitations or other forms of prescription shall
not apply to serious crimes under international law as specified in Principle 2(1)”.
Principle 7 is specifically about amnesties:
1. Amnesties are generally inconsistent with the obligation of states to provide
accountability for serious crimes under international law as specified in
Principle in 2(1).
2. The exercise of universal jurisdiction with respect to serious crimes under
international law as specified in Principle 2(1) shall not be precluded by
amnesties which are incompatible with the international legal obligations of the
granting state.
The authors of the Princeton Principles are well aware that “the imprudent or
untimely exercise of universal jurisdiction could disrupt the quest for peace and
national reconciliation in nations struggling to recover from violent conflict or
political oppression”, and therefore asks for discretion in the exercise of universal
jurisdiction. 196
On 21 March 2006, the UN General Assembly adopted the Basic Principles and
Guidelines on the right to a remedy and reparation for victims of gross violations of
international human rights law and serious violations of international humanitarian
law (known as the Van Boven-Bassiouni Principles). 197 Principle 5 of the Van
Boven-Bassiouni Principles contains a view on universal jurisdiction:
3. These Principles shall not be construed as limiting the continued development of universal
jurisdiction in international law.
195
Article 4:
1. A state shall comply with all international obligations that are applicable to: prosecuting or
extraditing persons accused or convicted of crimes under international law in accordance with a legal
process that complies with international due process norms, providing other states investigating or
prosecuting such crimes with all available means of administrative and judicial assistance, and undertaking such other necessary and appropriate measures as are consistent with international norms and
standards.
2. A state, in the exercise of universal jurisdiction, may, for purposes of prosecution, seek judicial
assistance to obtain evidence from another state, provided that the requesting state has a good faith
basis and that the evidence sought will be used in accordance with international due process norms.
196
Stephen Macedo (ed.), Princeton Principles on Universal Jurisdiction, Princeton University:
Princeton 2001, p. 25.
197
General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, A/RES/60/147, 21 March 2006. The Principles and Guidelines were drafted by the
114
The legality of national amnesty laws under international law
[W]here so provided in an applicable treaty or under other international law
obligations, States shall incorporate or otherwise implement within their
domestic law appropriate provisions for universal jurisdiction. Moreover, where
it is so provided for in an applicable treaty or other international legal
obligations, States should facilitate extradition or surrender offenders to other
States and to appropriate international judicial bodies and provide judicial
assistance and other forms of cooperation in the pursuit of international justice,
including assistance to, and protection of, victims and witnesses, consistent
with international human rights legal standards and subject to international
legal requirements such as those relating to the prohibition of torture and other
forms of cruel, inhuman or degrading treatment or punishment. 198
Beneficiaries of an amnesty measure may only safely rely on their being let off
scot-free in their own country. Outside the borders, suspects of serious violations of
human rights may be arrested and prosecuted because amnesty has no international
validity. The following consideration of the ICTY in Furundžija (1998) regarding
the universal crime of torture is exemplary here:
Furthermore, at the individual level, that is, that of criminal liability, it would
seem that one of the consequences of the jus cogens character bestowed by the
international community upon the prohibition of torture is that every State is
entitled to investigate, prosecute and punish or extradite individuals accused of
torture, who are present in a territory under its jurisdiction. Indeed, it would be
inconsistent on the one hand to prohibit torture to such an extent as to restrict
the normally unfettered treaty-making power of sovereign States, and on the
other hand bar States from prosecuting and punishing those torturers who have
engaged in this odious practice abroad. This legal basis for States’ universal
jurisdiction over torture bears out and strengthens the legal foundation for such
jurisdiction found by other courts in the inherently universal character of the
crime. It has been held that international crimes being universally condemned
wherever they occur, every State has the right to prosecute and punish the
authors of such crimes. As stated in general terms by the Supreme Court of
Israel in Eichmann, and echoed by a USA court in Demjanjuk, “it is the
universal character of the crimes in question i.e. international crimes which
vests in every State the authority to try and punish those who participated in
their commission.” 199
Therefore, the perpetrators are only safe from prosecution in the country that
granted amnesty, unless the state repeals the law at a later date. By means of
universal jurisdiction, another country may institute proceedings, as the case of
independent experts Mr. Theo van Boven and Mr. M. Cherif Bassiouni and adopted by the UN
Commission on Human Rights on 19 April 2005 in Resolution 2005/35.
198
General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, A/RES/60/147, 21 March 2006, Principle 5.
199
ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, para. 156.
115
Chapter IV
Ould Dah v. France (ECtHR) illustrates. 200 Other countries may however decide to
respect the state’s choice not to prosecute, for the sake of the country’s future, for
instance, when the granting of amnesty was the only means of establishing peace.
The home state of the national against whom proceedings are initiated will possibly
not be pleased; therefore, states will be careful in initiating cases based on universal
jurisdiction. Universal jurisdiction will continue to play a role, notwithstanding the
jurisdiction of the ICC. The ICC will never be able to prosecute all suspects of
serious violations of human rights that are not tried in their home country. 201
Whether an amnesty stands in the way of exercising universal jurisdiction may be
examined through the framework for amnesty review.
7 CONCLUSION
From the sections above it has become evident that several conventions and
declarations contain a rejection of amnesty or other measures of impunity and/or an
obligation to prosecute. In line of these findings, amnesty laws should thus not
cover acts that constitute violations of the rights recognized in these international
human rights instruments. This is also one of the main arguments of opponents of
the use of amnesty. However, state practice does not reject amnesties. This is very
inconvenient for the opponents of amnesty, since general state practice against the
prohibition of amnesty or the duty to prosecute casts doubt on these demands.
During his visit to the ICTY in 1997, Kofi Annan said: “Impunity cannot be
tolerated, and will not be. In an interdependent world, the rule of the law must
prevail.” This is a very strong statement to which one has to agree in principle.
There are, however, exceptions.
Instead of ignoring the fact that state practice of issuing amnesties exists, and
simply claiming that amnesties are unacceptable and repeating their possible
negative consequences without further looking into the underlying reasons for
granting amnesty in the state concerned, the actual consequences or the possibility
that amnesty enhances the prospects for peace more than conducting prosecutions
does, it seems more realistic to take the possible positive effects of amnesty into
account. None of the conventions, treaties, declarations or statutes and their
monitoring bodies discussed in this chapter considers the possibility that amnesty,
in some cases and under certain circumstances, may positively contribute to the
human rights situation. Under international law, no immunity from prosecution and
punishment is permitted for serious human rights crimes, qualified as war crimes,
genocide and crimes against humanity. Article 27 of the Vienna Convention on the
Law of Treaties provides that a state may not unilaterally invoke the provisions of
its domestic law as justification for its failure to perform the legal obligations
imposed by an international treaty. However, no mention is made of an exception
200
See Section 2.3.2 of this chapter, on the European Court of Human Rights.
See also, Stephen Macedo (ed.), Princeton Principles on Universal Jurisdiction, Princeton
University: Princeton 2001, p. 16.
201
116
The legality of national amnesty laws under international law
regarding a state of emergency in which an amnesty measure may be deemed
necessary to restore peace and order.
When holding the position that a duty to prosecute exists, and forcing a country
to either prosecute or extradite, one should be sure that prosecution is in the best
interests of the people. This is, however, a claim that cannot be held with certainty
in every situation.
Notwithstanding the fact that various international, regional and crime specific
legal instruments foreclose impunity for civil and political rights, there is no general
framework to put amnesty measures to the test. Neither is there a standardized
approach when a state issues an amnesty that cannot pass muster. In the next
chapter, the United Nations position and practice regarding impunity, amnesties and
the duty to prosecute will be discussed in more detail, in order to find out how the
various UN mechanisms deal with amnesty and impunity-related issues.
117
CHAPTER V
THE UNITED NATIONS’ POSITION AND PRACTICE
ON IMPUNITY, AMNESTIES AND THE DUTY TO
PROSECUTE
1 INTRODUCTION
The Charter of the United Nations was adopted on 26 June 1945 and entered into
force on 24 October 1945. It is the constituent treaty of the United Nations. The
Charter was “designed to introduce law and order and an effective collective
security system into international relations”. 1 One of the main purposes of the
United Nations is:
[t]o maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and
for the suppression of acts of aggression or other breaches of the peace, and to
bring about by peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace. 2
Over the years, due to developments in countries across the globe, various UN
bodies have dealt with questions on impunity, amnesty and the duty to prosecute
serious human rights violations. Major achievements in the field of international
criminal justice are the establishment of the ICTY and the ICTR, already discussed
in Chapter III.
The General Assembly, the Security Council and the International Court of
Justice are relevant organs within this research and these organs will be discussed in
this chapter. In addition, the Secretary-General of the United Nations, the former
Commission on Human Rights, the Human Rights Council and the Office of the
High Commissioner on Human Rights will be elaborated on.
1
Peter Malanczuk, Akehurst’s Modern Introduction to International Law, Routledge: London/New
York 1997, p. 27.
2
UN Charter, Article 1(1).
119
Chapter V
Worth mentioning in this introduction is the UN World Conference of Human
Rights. 3 This conference marked “the beginning of a renewed effort to strengthen
and further implement the body of human rights instruments” of the United
Nations. 4 On 25 June 1993, the representatives of 171 states adopted the Vienna
Declaration and Programme of Action with consensus. In paragraph 18 of Section
II, “[t]he World Conference on Human Rights recommends to the General
Assembly … the establishment of a High Commissioner for Human Rights for the
promotion and protection of all human rights”. 5 The General Assembly
subsequently created the post of High Commissioner for Human Rights by
Resolution 48/141 of 20 December 1993. 6 In paragraph 23 of Section II, “[t]he
World Conference on Human Rights stresses that all persons who perpetrate or
authorize criminal acts associated with ethnic cleansing are individually responsible
and accountable for such human rights violations, and that the international
community should exert every effort to bring those legally responsible for such
violations to justice”. 7In paragraph 60 of Section II, it is laid down that “[s]tates
should abrogate legislation leading to impunity for those responsible for grave
violations of human rights such as torture and prosecute such violations, thereby
providing a firm basis for the rule of law”. 8 As is clear from these paragraphs and
the consensus on the Vienna Declaration, amnesty laws should not cover serious
violations of human rights.
Currently, there are 193 member states of the United Nations. Given its global
reach, the UN position and practice on impunity, amnesty and the duty to prosecute
is well worth setting out.
2 GENERAL ASSEMBLY
Over the years, the General Assembly has on several occasions given its opinion
on questions of prosecution of human rights crimes and remedies for victims. 9
Although General Assembly resolutions are not legally binding, they often
nonetheless represent confirmation of state practice and opinio iuris. 10 The
3
The WCHR was organized in Vienna (Austria) from 14 to 25 June 1993 (just a few weeks after the
establishment of the ICTY). See also Section 1 of Chapter IV.
4
UN OHCHR, ‘World Conference on Human Rights, 14-25 June 1993, Vienna, Austria’, accessible via
<http://www.ohchr.org/>
5
World Conference on Human Rights, Vienna Declaration and Programme of Action,
A/CONF.157/23, 12 July 1993, Section II,para.18.
6
General Assembly, High Commissioner for the promotion and protection of all human rights,
A/RES/48/141, 7 January 1994.
7
World Conference on Human Rights, Vienna Declaration and Programme of Action,
A/CONF.157/23, 12 July 1993, Section II, para. 23.
8
See ibid., para. 60.
9
The UN General Assembly is one of the principal organs of the United Nations, established in 1945
under the UN Charter. The General Assembly is a forum for multilateral negotiations and the main
deliberative organ of the UN, determining UN policy.
10
Michael P. Scharf, “The Amnesty Exception to the Jurisdiction of the International Criminal Court”,
Cornell International Law Journal, vol. 32 1999, pp. 507-527, p. 520; Andreas O’Shea, Amnesty for
120
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
following relevant developments and statements are worth mentioning with respect
to the UN position on impunity, amnesty and the duty to prosecute. They are
presented in chronological order:
* On 10 December 1948, the UN General Assembly adopted and proclaimed the
Universal Declaration of Human Rights (UDHR). Article 8 of the Universal
Declaration guarantees “the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the constitution or
by law”. 11 The right to a remedy is a right to protect victims. In order to provide an
effective remedy, the fact that a crime occurred, and if so the conduct of the crime,
has to be established in fair legal proceedings. This means that the omission not to
prosecute fails to guarantee the right to a remedy, and consequently violates Article
8 of the UDHR. Seen in this light, implicitly, the UDHR thus contains a duty to
prosecute whenever the victims prefer prosecutions over impunity. Article 7 UDHR
claims that all are equal before the law and are entitled without any discrimination
to equal protection of the law. 12
* In 1969, The UN General Assembly in Resolution 2583 noted that:
The thorough investigation of war crimes and crimes against humanity, and the
detection, arrest, extradition and punishment of persons responsible for war
crimes and crimes against humanity, constitute an important element in the
prevention of such crimes, the protection of human rights and fundamental
freedoms, the encouragement of confidence, the furtherance of co-operation
among peoples and the promotion of international peace and security.
* In Resolution 2840 (1971) on the question of the punishment of war criminals and
of persons who have committed crimes against humanity, the General Assembly
noted that it is “[c]onvinced that the effective punishment of war crimes and crimes
against humanity is an important element in putting an end to and preventing such
crimes, in the protection of human rights and fundamental freedoms, in the
strengthening of confidence and in promoting co-operation between peoples as well
as peace and international security”. 13 The General Assembly affirmed “that war
crimes and crimes against humanity are amongst the most dangerous crimes under
international law”, 14 and is “convinced of the need for international co-operation in
the thorough investigation of war crimes and crimes against humanity, ... and in
Crime in International Law and Practice, Kluwer Law International: The Hague/London/New York
2002, p. 249.
11
Article 8 UDHR.
12
Universal Declaration of Human Rights 1948, Article 7: “All are equal before the law and are entitled
without any discrimination to equal protection of the law. All are entitled to equal protection against
any discrimination in violation of this Declaration and against any incitement to such discrimination.”
13
General Assembly, Question of the punishment of war criminals and of persons who have committed
crimes against humanity, General Assembly Resolution 2840 (XXVI), 18 December 1971.
14
Ibid.
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Chapter V
bringing about the detection, arrest, extradition and punishment of all war criminals
and persons guilty of crimes against humanity who have not yet been brought to
trial or punished”. 15 The “refusal by States to co-operate in the arrest, extradition,
trial and punishment of persons guilty of war crimes and crimes against humanity is
contrary to the purposes and principles of the Charter of the United Nations and to
generally recognized norms of international law”. 16
* In 1973, the UN General Assembly adopted the Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of
war crimes and crimes against humanity, in which it declared that:
War crimes and crimes against humanity, wherever they are committed, shall
be subject to investigation and the persons against whom there is evidence that
they have committed such crimes shall be subject to tracing, arrest, trial and, if
found guilty, to punishment … as a general rule in the countries in which they
committed those crimes … States shall not take any legislative or other
measures which may be prejudicial to the international obligations they have
assumed in regard to the detection, arrest, extradition and punishment of
persons guilty of war crimes and crimes against humanity. 17
* On 29 November 1985, the UN General Assembly adopted the Declaration of
Basic Principles of Justice for Victims of Crime and Abuse of Power. In the
accompanying resolution, the General Assembly “[c]alls upon Member States to
take the necessary steps to give effect to the provisions contained in the Declaration
and, in order to curtail victimization as referred to hereinafter, endeavour: … To
establish and strengthen the means of detecting, prosecuting and sentencing those
guilty of crimes.” 18 Principle 4 on ‘the access to justice and fair treatment’ provides
that “[v]ictims should be treated with compassion and respect for their dignity.
They are entitled to access to the mechanisms of justice and to prompt redress, as
provided for by national legislation, for the harm that they have suffered.” In the
1999 Guide for Policy Makers. On the Implementation of the United Nations
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
it is emphasized that redress includes access to justice and fair treatment, restitution,
compensation and the necessary material, medical, psychological and social
assistance and support. 19
15
Ibid.
See ibid., para. 4.
17
General Assembly, Principles of international co-operation in the detection, arrest, extradition and
punishment of persons guilty of war crimes and crimes against humanity, General Assembly Resolution
3074 (XXVIII), 3 December 1973, paras. 1, 5, 8.
18
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES 40/34,
29 November 1985, para. 4(d).
19
Guide for Policy Makers. On the Implementation of the United Nations Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power, UNODCCP, Centre for International
Crime Prevention, New York 1999, pp. 17, 24, 26 and 27, and para. 19.
16
122
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
* In 1989, the General Assembly endorsed Resolution 1989/65 of the UN
Economic and Social Council on the Principles on the effective prevention and
investigation of extra-legal, arbitrary and summary executions. Principle 19
strongly opposes amnesty laws for extra-legal, arbitrary or summary executions.
Principles 18 and 19 read:
18. Governments shall ensure that persons identified by the investigation as
having participated in extra-legal, arbitrary or summary executions in any
territory under their jurisdiction are brought to justice. Governments shall either
bring such persons to justice or cooperate to extradite any such persons to other
countries wishing to exercise jurisdiction. This principle shall apply irrespective
of who and where the perpetrators or the victims are, their nationalities or
where the offence was committed.
19. Without prejudice to principle 3 above, an order from a superior officer or a
public authority may not be invoked as a justification for extra-legal, arbitrary
or summary executions. Superiors, officers or other public officials may be held
responsible for acts committed by officials under their authority if they had a
reasonable opportunity to prevent such acts. In no circumstances, including a
state of war, siege or other public emergency, shall blanket immunity from
prosecution be granted to any person allegedly involved in extra-legal, arbitrary
or summary executions.
* On 14 December 1990, the UN General Assembly adopted the Model treaty on
extradition “as a useful framework that could be of assistance to States interested in
negotiating and concluding bilateral agreements aimed at improving co-operation in
matters of crime prevention and criminal justice”. 20 Article 3 of this Model treaty
provides mandatory grounds for refusal. Article 3(e) holds that “[e]xtradition shall
not be granted … if the person whose extradition is requested has, under the law of
either Party, become immune from prosecution or punishment for any reason,
including lapse of time or amnesty”. Read in combination with other General
Assembly resolutions, for example the 1973 Principles of international co-operation
in the detection, arrest, extradition and punishment of persons guilty of war crimes
and crimes against humanity, Article 3(e) should not be interpreted to cover
amnesties for gross human rights violations.
* On 18 December 1992, the UN General Assembly adopted the Declaration on the
protection of all persons from enforced disappearance. 21 Article 4 provides that
“[a]ll acts of enforced disappearance shall be offences under criminal law
punishable by appropriate penalties which shall take into account their extreme
seriousness”. Article 18 provides:
Persons who have or are alleged to have committed offences referred to in
article 4, paragraph 1, above, shall not benefit from any special amnesty law or
20
General Assembly, Model Treaty on Extradition, A/RES/45/116, 14 December 1990, para. 1.
General Assembly, Declaration on the Protection of All Persons from Enforced Disappearances,
A/RES/47/133, 18 December 1992.
21
123
Chapter V
similar measures that might have the effect of exempting them from any
criminal proceedings or sanction.
In the exercise of the right of pardon, the extreme seriousness of acts of
enforced disappearance shall be taken into account.
* Article 9 of the Declaration on the right and responsibility of individuals, groups
and organs of society to promote and protect universally recognized human rights
and fundamental freedoms, adopted by the General Assembly on 8 March 1999, in
paragraph 1 holds that “everyone has the right, individually and in association with
others, to benefit from an effective remedy and to be protected in the event of the
violation of those rights”. 22 Article 9(5) holds that “[t]he State shall conduct a
prompt and impartial investigation or ensure that an inquiry takes place whenever
there is reasonable ground to believe that a violation of human rights and
fundamental freedoms has occurred in any territory under its jurisdiction”. 23
* On 21 March 2006, the UN General Assembly adopted the Basic principles and
guidelines on the right to a remedy and reparation for victims of gross violations of
international human rights law and serious violations of international humanitarian
law (known as the Van Boven-Bassiouni Principles). 24 These Basic Principles
clearly provide a duty to prosecute in Principle 4:
In cases of gross violations of international human rights law and serious
violations of international humanitarian law constituting crimes under
international law, States have the duty to investigate and, if there is sufficient
evidence, the duty to submit to prosecution the person allegedly responsible for
the violations and, if found guilty, the duty to punish her or him. Moreover, in
these cases, States should, in accordance with international law, cooperate with
one another and assist international judicial organs competent in the
investigation and prosecution of these violations. 25
Principle 6 of the Van Boven-Bassiouni Principles elaborates on statutes of
limitations and states: “Where so provided for in an applicable treaty or contained
in other international legal obligations, statutes of limitations shall not apply to
gross violations of international human rights law and serious violations of
international humanitarian law which constitute crimes under international law”.
According to this principle, impunity conflicts with the duty to prosecute and
22
General Assembly, Declaration on the Right and Responsibility of Individuals, Groups and Organs
of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,
A/RES/53/144, 8 March 1999.
23
Ibid.
24
General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, A/RES/60/147, 21 March 2006. The Principles and Guidelines were drafted by the
independent experts Mr. Theo van Boven and Mr. M. Cherif Bassiouni and adopted by the UN
Commission on Human Rights on 19 April 2005 in Resolution 2005/35.
25
See ibid.
124
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
punish the perpetrators of gross violations of human rights, which is inherent in the
entitlement of victims to obtain from the state the right to justice and reparation but
also satisfaction of the right to know or, more precisely, the right to the truth. 26
From the resolutions presented in this section, it may be concluded that
according to the General Assembly, serious human rights violations should be
prosecuted and are not eligible for amnesty. Besides, victims of serious human
rights violations have a right to reparation and a right to justice. 27
3 SECURITY COUNCIL
The United Nations Security Council is one of the principal organs of the United
Nations, charged with the responsibility for the maintenance of international peace
and security in accordance with the principles and purposes of the United Nations. 28
The UN Charter holds that “[t]he parties to any dispute, the continuance of
which is likely to endanger the maintenance of international peace and security,
shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice”. 29 In Chapter VII of the UN Charter, on Action
with respect to threats to the peace, breaches of the peace, and acts of aggression,
Article 39 provides that “[t]he Security Council shall determine the existence of any
threat to the peace, breach of the peace, or act of aggression and shall make
recommendations, or decide what measures shall be taken in accordance with
Articles 41 and 42, to maintain or restore international peace and security”. 30
Another power of the Security Council derives from the ICC Statute.
Notwithstanding the fact that the International Criminal Court is not part of the UN
system, under the ICC Statute, the Security Council, acting under Chapter VII of
the UN Charter, may refer to the ICC Prosecutor a situation in which one or more of
26
Chapter VI outlines the right to the truth and other victims’ rights.
See ibid.
28
The Security Council consists of fifteen members of the United Nations. The Republic of China,
France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern
Ireland, and the United States of America are the permanent members of the Security Council. The
General Assembly elects ten other members of the United Nations to be non-permanent members of the
Security Council for two-year terms.
29
Article 33 UN Charter
30
Articles 41 and 42 provide:
Article 41: “The Security Council may decide what measures not involving the use of armed force
are to be employed to give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.”
Article 42: “Should the Security Council consider that measures provided for in Article 41 would
be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as
may be necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United
Nations.”
27
125
Chapter V
the crimes referred to in Article 5 of the ICC Statute 31 appears to have been
committed. 32 In addition, the Security Council has the power to defer an
investigation or prosecution. Article 16 reads: “No investigation or prosecution may
be commenced or proceeded with under this Statute for a period of 12 months after
the Security Council, in a resolution adopted under Chapter VII of the Charter of
the United Nations, has requested the Court to that effect; that request may be
renewed by the Council under the same conditions.” 33 The Security Council may
adopt such a resolution halting investigations and prosecutions in the interest of
international peace and security.
After the end of the Cold War, the role of the Security Council in disputesettlement increasingly came to the fore. Overall, the approach of the Security
Council is that those responsible for human rights violations should be brought to
justice. For instance, in Resolution 935 (1994) the Security Council recognized
“that all persons who commit or authorize the commission of serious violations of
international humanitarian law are individually responsible for those violations and
should be brought to justice”. 34
An example of a situation in which the Security Council took the position that
those responsible should be brought to justice is that of Rwanda (1994) where the
Security Council condemned impunity for serious violations of human rights and
humanitarian law. In Resolution 955 of 8 November 1994, the Security Council
established the ICTR 35 and “represented the culmination of a series of resolutions in
which the Council had condemned the systematic and widespread violations of
international humanitarian law in Rwanda and, in particular, the mass killing of tens
of thousands of civilians with impunity”. 36 The Security Council’s standpoint is
reflected in the Statute of the ICTR. The Statute provides that the Security Council
is:
Determin[ed] that this situation continues to constitute a threat to international
peace and security,
Determined to put an end to such crimes and to take effective measures to bring
to justice the persons who are responsible for them,
31
The crime of genocide, crimes against humanity and war crimes.
Article 13 ICC Statute.
33
Article 16 ICC Statute.
34
Security Council, Security Council Resolution 935 (1994) [requesting the secretary-general to
establish a commission of experts to examine violations of international humanitarian law committed in
Rwanda], S/RES/935(1994), 1 July 1994.
35
See Chapter IV, Section 5.3 on the ICTR. The ICTR was established for the sole purpose of
prosecuting persons responsible for genocide and other serious violations of international humanitarian
law committed in the territory of Rwanda and Rwandese citizens responsible for genocide and other
such violations committed in the territory of neighbouring states, between 1 January 1994 and 31
December 1994.
36
Security Council, Report of the Secretary-General pursuant to paragraph 5 of Security Council
Resolution 955 (1994), S/1995/134, 13 February 1995, para. 1.
32
126
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
Convinced that in the particular circumstances of Rwanda, the prosecution of
persons responsible for serious violations of international humanitarian law
would enable this aim to be achieved and would contribute to the process of
national reconciliation and to the restoration and maintenance of peace,
Believing that the establishment of an international tribunal for the prosecution
of persons responsible for genocide and the other above-mentioned violations
of international humanitarian law will contribute to ensuring that such
violations are halted and effectively redressed.
In continuation of Resolution 935 (1994), the Security Council emphasized the need
to prosecute those responsible for breaches of human rights and humanitarian law in
two Presidential Statements. It noted that the Security Council “stresses the
obligation of all States to prosecute those responsible for grave breaches of
international humanitarian law”, 37 and “affirms the need to bring to justice, in an
appropriate manner, individuals who incite or cause violence against civilians in
situations of armed conflict or who otherwise violate international humanitarian and
human rights law”. 38
In Resolution 1674 (2006), on the protection of civilians in armed conflict, the
Security Council “reaffirms the provisions of paragraphs 138 and 139 of the 2005
World Summit Outcome Document regarding the responsibility to protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity”. 39 These two paragraphs, regarding the responsibility to protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity, read as follows:
138. Each individual State has the responsibility to protect its populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. This
responsibility entails the prevention of such crimes, including their incitement,
through appropriate and necessary means. We accept that responsibility and will act
in accordance with it. The international community should, as appropriate,
encourage and help States to exercise this responsibility and support the United
Nations in establishing an early warning capability. 40
139. The international community, through the United Nations, also has the
responsibility to use appropriate diplomatic, humanitarian and other peaceful means,
in accordance with Chapters VI and VIII of the Charter, to help to protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity. In this context, we are prepared to take collective action, in a timely and
decisive manner, through the Security Council, in accordance with the Charter,
37
Security Council, Presidential Statement [on the item entitled "children and armed conflict"],
S/PRST/1998/18, 29 June 1998.
38
Security Council, Presidential Statement [on the item entitled "protection of civilians in armed
conflict"], S/PRST/1999/6, 12 February 1999.
39
Security Council, Security Council Resolution 1674 (2006) [on protection of civilians in armed
conflict], S/RES/1674(2006), 28 April 2006, para. 4.
40
General Assembly, 2005 World Summit Outcome, A/RES/60/1, 24 October 2005, para. 138.
127
Chapter V
including Chapter VII, on a case by case basis and in cooperation with relevant
regional organizations as appropriate, should peaceful means be inadequate and
national authorities are manifestly failing to protect their populations from genocide,
war crimes, ethnic cleansing and crimes against humanity. We stress the need for
the General Assembly to continue consideration of the responsibility to protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity and its implications, bearing in mind the principles of the Charter and
international law. We also intend to commit ourselves, as necessary and appropriate,
to helping States build capacity to protect their populations from genocide, war
crimes, ethnic cleansing and crimes against humanity and to assisting those which
are under stress before crises and conflicts break out. 41
Further on in Resolution 1674 (2006), the Security Council:
7. Reaffirms that ending impunity is essential if a society in conflict or
recovering from conflict is to come to terms with past abuses committed against
civilians affected by armed conflict and to prevent future such abuses, draws
attention to the full range of justice and reconciliation mechanisms to be
considered, including national, international and “mixed” criminal courts and
tribunals and truth and reconciliation commissions, and notes that such
mechanisms can promote not only individual responsibility for serious crimes,
but also peace, truth, reconciliation and the rights of the victims; 42
8. Emphasizes in this context the responsibility of States to comply with their
relevant obligations to end impunity and to prosecute those responsible for war
crimes, genocide, crimes against humanity and serious violations of
international humanitarian law, while recognizing, for States in or recovering
from armed conflict, the need to restore or build independent national judicial
systems and institutions; 43
9. Calls on States that have not already done so to consider ratifying the
instruments of international humanitarian, human rights and refugee law, and to
take appropriate legislative, judicial and administrative measures to implement
their obligations under these instruments; 44
In the 2006 Agreement between the United Nations and the Lebanese Republic on
the establishment of a Special Tribunal for Lebanon (STL), it was agreed in Article
16 that, “[t]he Government undertakes not to grant amnesty to any person for any
crime falling within the jurisdiction of the Special Tribunal. An amnesty already
granted in respect of any such persons and crimes shall not be a bar to
prosecution”. 45 In the Statute of the STL, it was affirmed in Article 6 that “[a]n
41
See ibid., para. 139.
Security Council, Security Council Resolution 1674(2006) [on protection of civilians in armed
conflict], S/RES/1674(2006), 28 April 2006, para. 7.
43
See ibid., para. 8.
44
See ibid., para. 9.
45
Security Council, Report of the Secretary-General on the establishment of a special tribunal for
Lebanon, S/2006/893, 15 November 2006, Annex I. Agreement between the United Nations and the
42
128
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
amnesty granted to any person for any crime falling within the jurisdiction of the
Special Tribunal shall not be a bar to prosecution”. 46
When acting under Chapter VII, regarding situations jeopardizing international
peace and security, the Security Council in some situations approved of, tolerated
and even suggested amnesty. Examples of such situations are Haiti (1993), Croatia
(1996), Papua New Guinea (1998) and Sierra Leone (2000), which will be outlined
next.
* In the situation of Haiti, the Security Council approved an amnesty without
restrictions. After the September 1991 coup d'état in Haiti, a protocol of agreement
was signed on 23 February 1992 between President Jean-Bertrand Aristide and the
parliamentary negotiating commission to find a definitive solution to the Haitian
crisis. 47 They agreed to “prevent any attempts at revenge or settling of accounts” 48
and they recognized the need to “[p]roclaim a general amnesty, save for common
criminals”. 49
On 10 January 1993, an article written by Haitian President Jean-Bertrand
Aristide, in exile in the United States of America, was published in The Washington
Post. In this article he stated that, in order to put the country back together, several
conditions had to be met, one of which was the removal of the small group of coup
d'état leaders. In order to ease the removal, Aristide stated that he was “ready to
grant general amnesty to the army”. 50 Acting under Chapter VII, the Security
Council imposed a trade embargo against Haiti on 16 June 1993 because the
situation threatened the international peace and security in the region. 51 The
embargo was suspended after the conclusion of two agreements. 52 On 3 July 1993,
an agreement was signed between President Jean-Bertrand Aristide and the
Commander-in-Chief of the Armed Forces of Haiti, Lieutenant-General Raoul
Cédras. In this Agreement of Governors Island, they agreed that a number of
arrangements should be made in order to resolve the Haitian crisis. One of these
arrangements was the granting of an amnesty by the President of the Republic. 53 In
Lebanese Republic on the establishment of a Special Tribunal for Lebanon, 15 November 2006, Article
16.
46
Security Council, Report of the Secretary-General on the establishment of a special tribunal for
Lebanon, S/2006/893, 15 November 2006, Attachment. Statute of the Special Tribunal for Lebanon,
Article 6.
47
Commission on Human Rights, Report on the situation of human rights in Haiti submitted by Mr.
Marco Tulio Bruni Celli, Special Rapporteur, in accordance with Commission resolution 1992/77,
E/CN.4/1993/47, 4 February 1993, Annex I, p. 41.
48
See ibid., Article I.
49
See ibid., Article V.
50
Jean-Bertrand Aristide, “A Safe Harbor for Haiti; Aristide: How Clinton Should Help My Country”,
in The Washington Post, Sunday 10 January 1993, p. C1.
51
Security Council, Security Council Resolution 841 (1993) [on sanctions against Haiti],
S/RES/841(1993), 16 June 1993.
52
Security Council, Security Council Resolution 861 (1993) [on suspension of the sanctions against
Haiti], S/RES/861(1993), 27 August 1993.
53
Agreement of Governors Island, 3 July 1993, para. 6.
129
Chapter V
a subsequent agreement, the New York Pact, signed at the United Nations
Headquarters in New York on 16 July 1993, it was agreed that “[t]he political
forces and parliamentary blocs undertake to ensure that” an Amnesty Act is passed
“on the basis of an emergency procedure”. 54 On 13 August 1993, the SecretaryGeneral reported to the General Assembly and the Security Council on the situation
of democracy and human rights in Haiti. He noted that “the signatories of the Pact
have ... undertaken to ensure the passage by Parliament of a series of bills under an
emergency procedure, including ... an amnesty”. 55 On 27 August 1993, the Security
Council approved the Governors Island Agreement. On 23 September 1993, the
Security Council considered “that there is an urgent need to ensure conditions for
the full implementation of the Governors Island Agreement and the political
accords contained in the New York Pact”. 56 The Security Council thus approved the
amnesty contained in both documents. The President of the Security Council made
the following statement on behalf of the Security Council on 30 October 1993:
The Security Council continues to insist on full and unconditional compliance
with the Governors Island Agreement and the early return of President Aristide
and full democracy to Haiti, in accordance with relevant resolutions and
statements by the President of the Council. It reaffirms that the Governors
Island Agreement remains fully in force as the only valid framework for the
solution of the crisis in Haiti which continues to threaten peace and security in
the region [emphasis added].
The Security Council is deeply concerned by the suffering of the Haitian people
which results directly from the refusal by the military authorities to comply
with the Governors Island process. 57
The Security Council considered the granting of amnesty a part of the only valid
framework for the solution of the crisis in Haiti. It did not state that amnesty should
not be granted to those responsible for serious human rights violations, or that there
is a duty to prosecute these crimes. This, notwithstanding the fact that the Security
Council was aware of the fact that serious human rights violations had been
committed in Haiti.
* On 22 May 1996, the President of the Security Council made a statement on
behalf of the Security Council on the situation in Croatia in which he “calls upon
54
New York Pact, 16 July 1993, para, 4.
General Assembly/Security Council, Report of the Secretary-General on the Situation of Democracy
and Human Rights in Haiti, A/47/1000-S/26297, 13 August 1993, para. 5.
56
Security Council, Security Council Resolution 867 (1993) [on establishment of the UN mission in
Haiti], S/RES/867(1993), 23 September 1993.
57
Security Council, Note by the President of the Security Council [transmitting statement by the
President of the Security Council concerning the item entitled "the question concerning Haiti" and
calling for full compliance with the Governors Island Agreement], S/26668, 30 October 1993; See also,
General Assembly, The situation of democracy and human rights in Haiti, A/RES/48/27, 10 December
1993, para. 5
55
130
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
the Government of the Republic of Croatia to grant amnesty to all persons who,
either voluntarily or by coercion, served in the civil administration, military or
police forces of the local Serb authorities in the former United Nations Protected
Areas with the exception of those who committed war crimes as defined in
international law”. 58
In a statement by the President of the Security Council on the situation in
Croatia on 15 August 1996, it is recalled that the Security Council:
again urges the Government of Croatia to adopt a comprehensive amnesty law
concerning all persons who, voluntarily or by coercion, served in the civil
administration, military or police forces of the local Serb authorities in the
former United Nations Protected Areas, with the exception of those who
committed war crimes as defined in international law. The Council notes with
concern that the amnesty law and the action subsequently taken by the
Government of Croatia, as described by the Secretary-General in his report of 5
August, have been insufficient to create confidence among the local Serb
population in Eastern Slavonia. The Council notes the general agreement
reached by President Tudjman and President Milosevic in Athens on 7 August
1996 that a general amnesty is an indispensable condition for the safe return of
refugees and displaced persons. It expects this agreement to be followed up by
corresponding concrete measures [emphasis added]. 59
On 5 October 1996, a Law on General Amnesty was adopted in Croatia. Article 1
grants general amnesty “from criminal prosecution and criminal procedure ... to the
perpetrators of criminal acts committed during the aggression, armed rebellion or
armed conflicts, and related to aggression, armed rebellion or armed conflicts in the
Republic of Croatia”. 60 This entails the period from 17 August 1990 to 23 August
1996. Article 3 exempts from the amnesty referred to in Article 1 the perpetrators of
the most serious violations of humanitarian law having the character of war
crimes. 61
58
Security Council, Statement by the President of the Security Council [on the item entitled "the
situation in Croatia"], S/PRST/1996/26, 22 May 1996.
59
Security Council, Statement by the President of the Security Council, S/PRST/1996/35, 15 August
1996.
60
Law on General Amnesty, Croatia, 5 October 1996, Article 1.
61
Specifically; acts of genocide (Article 119), war crimes against civilian population (Article 120), war
crimes against the wounded and sick (Article 121), war crimes against prisoners of war (Article 122),
organization of instigation of genocide and war crimes (Article 123), unlawful killings and wounding of
the enemy (Article 124), illegal seizure of possessions of killed and wounded persons on the battlefield
(Article 125), use of prohibited combat means (Article 126), violation of envoys (Article 127), cruel
treatment of the wounded. sick and prisoners of war (Article 128), unjustified delay in repatriation of
the prisoners of war (Article 129), destruction of cultural and historic heritage (Article 1310),
instigation of the war of aggression (Article 131), abuse of international signs (Article 131), racial and
other discrimination (Article 133), imposition of slavery and transport or enslaved persons (Article
134), international terrorism (Article 135), endangerment of persons Under international protection
(Article 136), taking hostages (Article 137), of the Basic Penal Code of the Republic of Croatia
(Official Gazette No. 31/93-consolidated text, 35/93, 108/95, 16/96 and 28/96) and act of terrorism
regulated by the provisions of the international law.
131
Chapter V
In the situation of Croatia, the Security Council called for a comprehensive
amnesty, but it was stressed that the amnesty should not be granted to those who
committed war crimes as defined in international law.
* Another general amnesty supported by the Security Council is the one contained
in the Lincoln Agreement on Peace, Security and Development on Bougainville of
23 January 1998. In this agreement, the parties agreed that “[t]he Papua New
Guinea National Government will:
(a) Grant amnesty to persons involved in crisis-related activities on all
sides;
(b) Following receipt of advice from the Advisory Committee on the
Power of Mercy, recommend pardons for persons convicted of crisisrelated offences.” 62
A few months later, in April 1998, the Security Council stated that it “strongly
supports the Agreement on Peace, Security and Development on Bougainville”. 63 It
did not, however, remind the parties to the agreement that they should not provide
amnesty or pardon to those who committed serious crimes under international
human rights law.
* In Resolution 1315 (2000), on the establishment of a Special Court for Sierra
Leone, the Security Council:
Recall[ed] that the Special Representative of the Secretary-General appended to
his signature of the Lomé Agreement 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,
Reaffirm[ed] the importance of compliance with international humanitarian
law, and reaffirm[ed] further that persons who commit or authorize serious
violations of international humanitarian law are individually responsible and
accountable for those violations and that the international community will exert
every effort to bring those responsible to justice in accordance with
international standards of justice, fairness and due process of law,
Recogniz[ed] that, in the particular circumstances of Sierra Leone, a credible
system of justice and accountability for the very serious crimes committed there
would end impunity and would contribute to the process of national
reconciliation and to the restoration and maintenance of peace,
62
Security Council, Letter dated 31 March 1998 from the Chargé d’Affaires a.i. of the Permanent
Mission of Papua New Guinea to the United Nations addressed to the President of the Security
Council, S/1998/287, 31 March 1998, Attachment I: Lincoln Agreement on Peace, Security and
Development on Bougainville, 23 January 1998, Article 10.
63
Security Council, Statement by the President of the Security Council [on the development of the
Bougainville conflict], S/PRST/1998/10, 22 April 1998.
132
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
Article 10 of the Statute of the SCSL specifically holds that “[a]n amnesty granted
to any person falling within the jurisdiction of the Special Court in respect of the
crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to
prosecution”. 64 The Security Council thus approved of an amnesty in the Sierra
Leonean situation, but not for the international crimes of genocide, crimes against
humanity, war crimes and other serious violations of international humanitarian
law.
4 INTERNATIONAL COURT OF JUSTICE
The International Court of Justice (ICJ) is the principal judicial organ of the United
Nations. 65 The ICJ may consider two types of cases: legal disputes between states
submitted to it by them (contentious cases) and requests for advisory opinions on
legal questions referred to it by United Nations organs and specialized agencies
(advisory proceedings). 66 The General Assembly or the Security Council may
request the ICJ to give an advisory opinion on any legal question. 67 Other organs of
the United Nations and specialized agencies, which may at any time be so
authorized by the General Assembly, may also request advisory opinions of the
Court on legal questions arising within the scope of their activities. 68
The ICJ never considered the issue of amnesty for serious violations of human
rights. However, there is one judgment that may be of relevance for this research,
the judgment in the case concerning the arrest warrant of 11 April 2000 in
Democratic Republic of the Congo v. Belgium.
In the judgment of this case, the ICJ concluded that, based on customary
international law, there exists no “exception to the rule according immunity from
criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs,
where they are suspected of having committed war crimes or crimes against
humanity”. 69 Therefore, the arrest warrant issued:
against Mr. Abdulaye Yerodia Ndombasi of … 11 April 2000, and its
international circulation, constituted violations of a legal obligation of the
Kingdom of Belgium towards the Democratic Republic of the Congo, in that
they failed to respect the immunity from criminal jurisdiction and the
inviolability which the incumbent Minister for Foreign Affairs of the
Democratic Republic of the Congo enjoyed under international law. 70
64
Statute SCSL, Article 10.
The Court was established in June 1945 by the Charter of the United Nations and began functioning
in April 1946. All Members of the United Nations are ipso facto parties to the Statute of the
International Court of Justice; See also, Article 92 and 93 UN Charter.
66
International Court of Justice, How the Court works, accessible via <http://www.icjcij.org/homepage/index.php?PHPSESSID=c77b66f8cfe1a2387534af64e1d2eaf1>
67
Article 96 UN Charter.
68
Ibid.
69
International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), Judgment of 14 February 2002, para. 58.
70
See ibid., para. 78.
65
133
Chapter V
The ICJ highlighted, though,
that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign
Affairs does not mean that they enjoy impunity in respect of any crimes they
might have committed, irrespective of their gravity. Immunity from criminal
jurisdiction and individual criminal responsibility are quite separate concepts.
While jurisdictional immunity is procedural in nature, criminal responsibility is
a question of substantive law. Jurisdictional immunity may well bar prosecution
for a certain period or for certain offences; it cannot exonerate the person to
whom it applies from all criminal responsibility. 71
According to the ICJ, immunity does not foreclose criminal prosecution in certain
circumstances. 72The Court lists four cases where an incumbent or former Minister
may be prosecuted, despite his immunities under customary international law:
(1) he can be prosecuted in his own country;
(2) he can be prosecuted in other states if the state whom he represents
waives immunity;
(3) he can be prosecuted after he ceases being a Minister for Foreign
Affairs; and
(4) he can be prosecuted before an international court. 73
Judge ad hoc Van den Wyngaert appended a dissenting opinion to the judgment of
the Court. According to Van den Wyngaert, the Court’s proposition that immunity
does not necessarily lead to impunity is wrong. The four instances listed by the ICJ
71
See ibid., para. 60.
See ibid., para. 61. “First, such persons enjoy no criminal immunity under international law in their
own countries, and may thus be tried by those countries' courts in accordance with the relevant rules of
domestic law.
Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent
or have represented decides to waive that immunity.
Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer
enjoy al1 of the immunities accorded by international law in other States. Provided that it has
jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs
of another State in respect of acts committed prior or subsequent to his or her period of office, as
wel1as in respect of acts committed during that period of office in a private capacity.
Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings
before certain international criminal courts, where they have jurisdiction. Examples include the
International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for
Rwanda, established pursuant to Security Council resolutions under Chapter VI1 of the United Nations
Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter's
Statute expressly provides, in Article 27, paragraph 2, that "[i]mmunities or special procedural rules
which may attach to the official capacity of a person, whether under national or international law, shall
not bar the Court from exercising its jurisdiction over such a person".”
73
International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), Judgment of 14 February 2002, Dissenting Opinion of Judge Van den Wyngaert, para. 34.
72
134
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
are highly hypothetical. 74 Notwithstanding the fact that immunity is not equal to
impunity, immunity leads to de facto impunity. 75
According to the ICJ, in the third case, an incumbent or former Minister may be
prosecuted after he has ceased to hold the office of Minister for Foreign Affairs for
“acts committed prior or subsequent to his or her period of office, as well as in
respect of acts committed during that period of office in a private capacity”. 76 The
Court does not state, with respect to crimes committed in a private capacity while in
office, whether this category includes war crimes and crimes against
humanity. 77Van den Wyngaert claims that “[i]mmunity should never apply to
crimes under international law, neither before international courts nor national
courts”. 78
With respect to the fourth case of ‘prosecution despite immunity’ presented by
the ICJ, an incumbent or former Minister may be prosecuted “before certain
international criminal courts, where they have jurisdiction”. In Van den Wyngaert’s
opinion, “[t]he Court grossly overestimates the role an international criminal court
can play”. 79 “[E]ven where … [the] willingness [to prosecute] exists, the
International Criminal Court, like the ad hoc international tribunals, will not be able
to deal with all crimes that come under its jurisdiction.” 80
Van den Wyngaert concludes that there is no basis in customary international
law for immunity for incumbent Ministers for Foreign Affairs. 81 This
notwithstanding, this immunity is “certainly ... not ‘full’ or absolute and does not
apply to war crimes and crimes against humanity”. 82
The Court’s position on amnesty has yet to be formed. Out of the jurisprudence
of the Court so far, it is not clear what the position of the International Court of
Justice will be.
74
Ibid.
See ibid., para. 35: Van den Wyngaert explains her view: “Prosecution in the first two cases
presupposes a willingness of the State which appointed the person as a Foreign Minister to investigate
and prosecute allegations against him domestically or to lift immunity in order to allow another State to
do the same. This, however, is the core of the problem of impunity: where national authorities are not
willing or able to investigate or prosecute, the crime goes unpunished. And this is precisely what
happened in the case of Mr. Yerodia. The Congo accused Belgium of exercising universal jurisdiction
in absentia against an incumbent Foreign Minister, but it had itself omitted to exercise its jurisdiction in
presentia in the case of Mr. Yerodia, thus infringing the Geneva Conventions and not complying with a
host of United Nations resolutions to this effect [original footnote omitted].”
76
International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), Judgment of 14 February 2002, para. 61.
77
See ibid., Dissenting Opinion of Judge Van den Wyngaert, para. 36.
78
Ibid.
79
See ibid., para. 37.
80
Ibid.
81
See ibid., para. 39.
82
Ibid.
75
135
Chapter V
5 SECRETARY-GENERAL
The United Nations Secretary-General is the chief administrative officer of the
United Nations. 83 The Secretary-General may bring to the attention of the Security
Council any matter that in his opinion may threaten the maintenance of
international peace and security. 84 Secretary-General Kofi Annan (1997-2006)
spoke out clearly against the granting of amnesty for genocide, war crimes, crimes
against humanity or gross violations of human rights. Over the years, Kofi Annan
repeatedly paid attention to the issue of impunity and amnesty in his reports. The
incumbent Secretary-General, Ban Ki-moon, pursues this policy. In “We the
peoples: the role of the United Nations in the twenty-first century” (2000), Kofi
Annan noted that “[t]o strengthen protection, we must reassert the centrality of
international humanitarian and human rights law. We must strive to end the culture
of impunity - which is why the creation of the International Criminal Court is so
important”. 85 He strongly urged “all countries to sign and ratify the Rome Statute of
the International Criminal Court, so as to consolidate and extend the gains we have
achieved in bringing to justice those responsible for crimes against humanity”. 86
The Lomé Peace Agreement between the Government of Sierra Leone and the
armed opposition RUF granted amnesty in order to end the human rights violations
and to secure the commitment of all parties to the peace process. 87 Given the reality
of the conflict, the Sierra Leone TRC views the amnesty granted as necessary in the
circumstances that prevailed at the time. 88 It was accepted, at the time of the signing
of the Lomé Peace Agreement, that the RUF would not have signed the agreement
if there had been any prospect of legal action being taken against its members. 89
The TRC was seen as an alternative mechanism for accountability.
In his 2000 report on the establishment of a Special Court for Sierra Leone six
months later, the Secretary-General recapitulated the United Nations position on
amnesty:
While recognizing that amnesty is an accepted legal concept and a gesture of
peace and reconciliation at the end of a civil war or an internal armed conflict,
the United Nations has consistently maintained the position that amnesty cannot
83
Article 97 UN Charter. The General Assembly appoints the Secretary-General upon the
recommendation of the Security Council for a period of five years. This period may be renewed.
84
Article 99 UN Charter.
85
General Assembly, We the peoples: The role of the United Nations in the twenty-first century. Report
of the Secretary-General, A/54/2000, 27 March 2000, para. 211.
86
See ibid., para. 330.
87
See also Chapter IV, Section 5.5.
88
Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone
Truth & Reconciliation Commission, Vol. 2, 5 October 2004, p. 110, para. 583.
89
Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone
Truth & Reconciliation Commission, Vol. 3b, 5 October 2004, p. 364, para. 6.
136
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
be granted in respect of international crimes, such as genocide, crimes against
humanity or other serious violations of international humanitarian law. 90
In line with this position, the Special Representative of the Secretary-General for
Sierra Leone was “instructed to append to his signature [of the Lomé Peace
Agreement] on behalf of the United Nations a disclaimer to the effect that the
amnesty provision contained in article IX of the Agreement (‘absolute and free
pardon’) shall not apply to international crimes of genocide, crimes against
humanity, war crimes and other serious violations of international humanitarian
law”. 91 In Resolution 1315 (2000), the Security Council requested the SecretaryGeneral “to negotiate an agreement with the Government of Sierra Leone to create
an independent special court”. 92 In one of the preambular paragraphs of Resolution
1315, the Security Council recalled the statement the Special Representative of the
Secretary-General appended to his signature of the Lomé Peace Agreement. In
addition, the Security Council:
[r]eaffirm[ed] the importance of compliance with international humanitarian
law, and reaffirm[ed] further that persons who commit or authorize serious
violations of international humanitarian law are individually responsible and
accountable for those violations and that the international community will exert
every effort to bring those responsible to justice in accordance with
international standards of justice, fairness and due process of law,
Recogniz[ed] that, in the particular circumstances of Sierra Leone, a credible
system of justice and accountability for the very serious crimes committed there
would end impunity and would contribute to the process of national
reconciliation and to the restoration and maintenance of peace 93
The Sierra Leonean TRC stated the following about the disclaimer: “[S]tating that
the amnesty provisions shall not apply to certain international crimes, may have
sent a message to combatants and leaders of armed factions that the amnesty
provided by the Lomé Peace Agreement was not a secure amnesty”. 94 The TRC
also stated “that in repudiating the amnesty clause in the Lomé Peace Agreement,
both the United Nations and the Government of Sierra Leone may have sent an
unfortunate message to combatants in future wars that they cannot trust peace
agreements that contain amnesty clauses. The Commission subscribes to the general
90
Security Council, Report of the Secretary-General on the establishment of a Special Court for Sierra
Leone, S/2000/915, 4 October 2000, para. 22.
91
See ibid., para. 23.
92
Security Council, Security Council Resolution 1315 (2000) [on establishment of a Special Court for
Sierra Leone], S/RES/1315(2000), 14 August 2000, para. 1.
93
See ibid., preambular paragraphs.
94
Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone
Truth & Reconciliation Commission, Vol. 2, 5 October 2004, p. 110, para. 585.
137
Chapter V
proposition that there will be circumstances where a trade of peace for amnesty
represents the least bad of the available alternatives.” 95
In 2009, the High Commissioner for Human Rights reported that the position
taken by the United Nations in Sierra Leone “has subsequently been upheld in
Angola, the Sudan and Uganda, where United Nations representatives have first
attempted to limit the scope of amnesties and, if unsuccessful, have appended a
reservation to their signatures”. 96 In Angola, in signing the Memorandum of
Understanding between the FAA (Angolan Armed Forces) and UNITA (Union for
the Total Independence of Angola), Special Representative of the Secretary-General
Ibrahim Gambari “entered a reservation concerning the non-recognition of any
general amnesty that included genocide, crimes against humanity and war
crimes”. 97 UNITA’s Secretary-General General, Paulo Lukamba ‘Gato’, and the
leader of the FNLA (National Front for the Liberation of Angola), Holden Roberto,
“considered Gambari’s intervention unwelcome and as potentially destabilizing of
the prevailing positive mood”. 98 Gambari himself, in briefing the Security Council
on the matter, said that the reservation “had left some apprehension in the minds of
UNITA and some segments of civil society, who felt it may undermine the peace
process, because some combatants might believe it negated the Amnesty Law
recently passed by the National Assembly”. 99 In the Sudan, “the Government
agreed to delete a blanket amnesty clause from the 2004 Agreement between the
Government and the Sudan People’s Liberation Movement”. 100 In Uganda, “[t]he
Government of Uganda and LRA similarly removed a blanket amnesty clause from
the 2008 agreement on disarmament, demobilization and reintegration”. 101
In the Report of the Secretary-General to the Security Council on the protection
of civilians in armed conflict of 30 March 2001, the Secretary-General recommends
“that the Security Council consider the establishment of arrangements addressing
impunity and, as appropriate, for truth and reconciliation, during the crafting of
peacekeeping mandates, in particular where this response has been triggered by
widespread and systematic violations of international humanitarian and human
95
See ibid., p. 110, para. 586.
Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights
and Reports of the Office of the High Commissioner and the Secretary-General. Analytical study on
human rights and transitional justice,A/HRC/12/18, 6 August 2009, para. 54.
97
UN Security Council, Secretary-General’s Special Adviser briefs Security Council on Angola; Says
Recent Agreement Creates Brighter Prospects for Lasting Peace, Press Release, SC/7372, 23 April
2002.
98
Guus Meijer, From Military Peace to Social Justice? The Angolan Peace Process, Conciliation
Resources: London 2004, p. 27.
99
UN Security Council, Secretary-General’s Special Adviser briefs Security Council on Angola; Says
Recent Agreement Creates Brighter Prospects for Lasting Peace, Press Release, SC/7372, 23 April
2002.
100
Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights
and Reports of the Office of the High Commissioner and the Secretary-General. Analytical study on
human rights and transitional justice,A/HRC/12/18, 6 August 2009, para. 54.
101
Ibid.
96
138
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
rights law”. 102 Besides, he “encourage[s] Member States to introduce or strengthen
domestic legislation and arrangements providing for the investigation, prosecution
and trial of those responsible for systematic and widespread violations of
international criminal law”. 103 The Secretary-General emphasizes that “the granting
of amnesties to those who committed serious violations of international
humanitarian and criminal law is not acceptable. The experience of Sierra Leone
has confirmed that such amnesties do not bring about lasting peace and
reconciliation.” 104
In 2001, the Secretary-General addressed the issue of impunity in several reports
concerning the situation in Afghanistan. 105 In one of his 2001 reports to the Security
Council on the situation in Afghanistan and its implications for international peace
and security, the Secretary-General stresses that “[g]iven a well-established pattern
of repeated and systematic violations that perpetuate the prevailing climate of
impunity, concerted action is needed to hold to account all those responsible for war
crimes, breaches of international humanitarian law and gross violations of human
rights”. 106 Later that year, the Secretary-General emphasized “the importance of
addressing the issue of impunity in Afghanistan and of bringing a halt to the
systematic violations of human rights”. 107 Further on, he claims that “[g]iven the
persistent allegations of serious violations of human rights and international
humanitarian law by all parties to the conflict in Afghanistan, it is important that the
international community urgently take steps to address the issue of impunity”. 108 In
December 2001, the Secretary-General noted that “[s]ustainable peace,
reconciliation, reconstruction and development cannot be built on a foundation of
impunity. Hence, the Afghan people and their international partners must commit
themselves to addressing the problems of the past by ending impunity and ensuring
accountability for past abuses, including gross and systematic violation of human
rights.” 109
102
Security Council, Report of the Secretary-General to the Security Council on the protection of
civilians in armed conflict, S/2001/331, 30 March 2001. Annex I. Recommendations and Generic
Policy Directions, para. 2.
103
Security Council, Report of the Secretary-General to the Security Council on the protection of
civilians in armed conflict, S/2001/331, 30 March 2001. Annex I. Recommendations and generic policy
directions, para. 3.
104
See ibid., para. 10.
105
For more on Afghanistan, see also Section 7 of this chapter.
106
General Assembly/Security Council, The situation in Afghanistan and its implications for
international peace and security. Report of the Secretary-General, A/55/907-S/2001/384,19 April
2001, para. 52.
107
General Assembly/Security Council, The situation in Afghanistan and its implications for
international peace and security. Report of the Secretary-General, A/55/1028-S/2001/789, 17 August
2001, para. 46.
108
See ibid., para. 50.
109
General Assembly/Security Council, The situation in Afghanistan and its implications for
international peace and security. Report of the Secretary-General, A/56/681-S/2001/1157, 6 December
2001, para. 83.
139
Chapter V
In 2002, the Commission on Human Rights asked Secretary-General Kofi
Annan to gather the opinions of governments, NGOs and intergovernmental
organizations on the Set of Principles for the protection and promotion of human
rights through action to combat impunity. 110 In his conclusion on the replies, 111 he
notes that there is broad agreement that there should be no impunity for human
rights violations, war crimes, crimes against humanity and genocide. 112 In addition,
“[t]he contributions highlighted the importance of pursuing prosecutions; finding
and publicizing the truth; assisting and protecting victims, witnesses and other
participants in the proceedings; and providing reparation and remedies”. 113
In his 2003 report on the situation in the Central African Republic, the
Secretary-General expressed that he is:
gravely concerned by the re-emergence of acts of rape, holdups, and violations
of the right to life perpetrated in the country’s hinterland and in Bangui. As
indicated in my previous report to the Security Council, and as recognized
unanimously by delegates to the national dialogue, control of the security
situation remains an essential prerequisite for the normal functioning of the
State, a smooth transition, and the holding of the upcoming elections. With this
in mind, I would urge the authorities of the Central African Republic to ensure
that these violations do not go unpunished, by bringing their perpetrators to
justice. 114
In his 2004 report on the rule of law and transitional justice in conflict and postconflict societies, the Secretary-General noted that peace agreements approved by
the UN can never promise amnesties for genocide, war crimes, crimes against
humanity or gross violations of human rights. 115 He underlines that “[c]arefully
crafted amnesties can help in the return and reintegration of both groups [displaced
civilians and former fighters] and should be encouraged, although, ..., these can
110
Commission on Human Rights, Commission on Human Rights resolution 2002/79: Impunity,
E/CN.4/RES/2002/79, 25 April 2002, para. 12.
111
Commission on Human Rights, Impunity. Report of the Secretary-General, E/CN.4/2003/97, 9
January 2003, para 2: “[I]nformation was received from the Governments of Argentina, Canada, Chile,
and Portugal. The Organization for Economic Co-operation and Development as well as the following
non-governmental organizations also provided their comments: the Europe-Third World Centre,
International Commission of Jurists, International Federation of Human Rights Leagues, Pax Christi
International and World Organization against Torture.”
112
Commission on Human Rights, Impunity. Report of the Secretary-General, E/CN.4/2003/97, 9
January 2003, para 33.
113
See ibid., para 34.
114
Security Council, The situation in the Central African Republic and the activities of the United
Nations Peace-building Support Office in the Central African Republic. Report of the SecretaryGeneral, S/2003/1209, 29 December 2003, para. 36.
115
Security Council, The rule of law and transitional justice in conflict and post-conflict societies.
Report of the Secretary-General, S/2004/616, 23 August 2004, para. 10; see also: Security Council,
Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, S/2000/915,
4 October 2000, para. 22.
140
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
never be permitted to excuse genocide, war crimes, crimes against humanity or
gross violations of human rights”. 116The Secretary-General points out that:
domestic justice systems should be the first resort in pursuit of accountability.
But where domestic authorities are unwilling or unable to prosecute violators at
home, the role of the international community becomes crucial. The
establishment and operation of the international and hybrid criminal tribunals of
the last decade provide a forceful illustration of this point. These tribunals
represent historic achievements in establishing accountability for serious
violations of international human rights and humanitarian law by civilian and
military leaders. They have proved that it is possible to deliver justice and
conduct fair trials effectively at the international level, in the wake of the
breakdown of national judicial systems. More significantly still, they reflect a
growing shift in the international community, away from a tolerance for
impunity and amnesty and towards the creation of an international rule of law.
Despite their limitations and imperfections, international and hybrid criminal
tribunals have changed the character of international justice and enhanced the
global character of the rule of law. 117
One of the conclusions of the Secretary-General in his 2004 report is that it must be
ensured “that peace agreements and Security Council resolutions and mandates ...
[r]eject any endorsement of amnesty for genocide, war crimes, or crimes against
humanity, including those relating to ethnic, gender and sexually based
international crimes, ... [and] that no such amnesty previously granted is a bar to
prosecution before any United Nations-created or assisted court”. 118
In his 2004 report on the United Nations Stabilization Mission in Haiti
(MINUSTAH), the Secretary-General observed that a persistent climate of impunity
impedes respect for human rights. 119 He claimed that the restoration of law and
order in Haiti is necessary in the interest of basic human rights and the rule of law.
The Secretary-General emphasized that the government, in particular its law
enforcement structures, needs to demonstrate a genuine and consistent adherence to
human rights and the rule of law in dealing with those responsible for the recent
violence. 120
For a number of years, the situation in Afghanistan has received special
attention from the Secretary-General. Annually, the Secretary-General issues a
number of reports on the situation in Afghanistan and its implications for
international peace and security. In early 2007, in Afghanistan the lower and upper
houses of Parliament adopted a resolution on national reconciliation. The SecretaryGeneral describes:
116
Security Council, The rule of law and transitional justice in conflict and post-conflict societies.
Report of the Secretary-General, S/2004/616, 23 August 2004, para. 32.
117
See ibid., para. 40.
118
See ibid., para 64.
119
Security Council, Report of the Secretary-General on the United Nations Stabilization Mission in
Haiti, S/2004/908, 18 November 2004, para. 41.
120
See ibid., para. 60.
141
Chapter V
On 31 January, a commission of the lower house of Parliament circulated a
resolution on national reconciliation, which highlighted the need for
reconciliation and, among other issues, declared that all political parties and
belligerent groups associated with the two and a half decades of conflict should
be immune from prosecution. The resolution, which passed the lower house
with a majority vote, was approved by the upper house on 20 February 2007.
President Karzai stated that he would not approve any bill that was
unconstitutional or against sharia law, and affirmed that only victims of human
rights violations have the right to forgive. 121
The then United Nations High Commissioner for Human Rights, Louise Arbour,
expressed her concern over the adoption of the resolution. 122 UN Secretary-General
Ban Ki-moon, in office since 1 January 2007, expressed his concerns in one of his
reports to the Security Council during 2007:
While meaningful progress was made in the field of transitional justice, it could
be jeopardized by the adoption in both houses of Parliament of the resolution on
national reconciliation, which could lead to amnesty for those prosecutable for
human rights violations. I welcome President Karzai’s launch of the Action
Plan on Peace, Justice and Reconciliation in December, which states that no
amnesty should be provided for war crimes, crimes against humanity and other
gross violations of human rights, and outlines a clear road map for the future. I
urge the Afghan Government to maintain this momentum. 123
In September 2007, the Secretary-General, with regard to the situation in
Afghanistan, reported that there was almost no progress in implementing the Action
Plan on Peace, Reconciliation and Justice. 124 He observed that “[p]olitical support
for transitional justice in Afghanistan is almost non-existent. This was exemplified
by the adoption of an amnesty law in March 2007 that seriously undermines the
Action Plan.” 125 In 2008, the Secretary-General reported that there was still a lack
of respect for human rights in Afghanistan, “as a result of, inter alia, the impact of
an escalating conflict on civilians, a pervasive atmosphere of impunity, absence of
official impetus for the transitional justice process, a weak judicial system and
threats to the media from both State and non-State actors”. 126 According to the
Secretary-General, a climate of impunity “undermines efforts to uphold the rule of
121
General Assembly/Security Council, The situation in Afghanistan and its implications for
international peace and security. Report of the Secretary-General, A/61/799-S/2007/152, 15 March
2007, para. 14.
122
See ibid., para. 39; See also Section 7 of this chapter on the OHCHR.
123
See ibid., para. 79.
124
Adopted by the Afghan government in December 2005 and due for completion by end 2008.
125
General Assembly/Security Council, The situation in Afghanistan and its implications for
international peace and security. Report of the Secretary-General, A/62/345-S/2007/555, 21 September
2007, para. 47.
126
General Assembly/Security Council, The situation in Afghanistan and its implications for
international peace and security. Report of the Secretary-General, A/63/372-S/2008/617, 23 September
2008, para. 46.
142
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
law, including redress for victims of human rights violations as well as access to
judicial processes that are just and credible”. 127
6 COMMISSION ON HUMAN RIGHTS / HUMAN RIGHTS COUNCIL
This section will discuss the Human Rights Council, which is a Charter-based
subsidiary body of the General Assembly, and its predecessor, the Commission on
Human Rights. The relevant treaty-based bodies, i.e. the Human Rights Committee
and the Committee against Torture, have already been discussed in Chapter IV.
Based on chronology, first the Commission on Human Rights will be elaborated on,
and then the Human Rights Council.
6.1 Commission on Human Rights
The Commission on Human Rights was a subsidiary body of the UN Economic and
Social Council (ECOSOC). 128 The UN Human Rights Council succeeded the
Commission in 2006. 129 The Commission on Human Rights was assisted in its
work by the Sub-Commission on the Promotion and Protection of Human Rights, 130
a number of working groups and a network of individual experts, representatives
and rapporteurs mandated to report to it on specific issues, and it was also assisted
in its work by the Office of the United Nations High Commissioner for Human
Rights. In 2006, the Sub-Commission on the Promotion and Protection of Human
Rights was axed. The Human Rights Council assumed all mandates, mechanisms,
functions and responsibilities of the Sub-Commission.
Given that all documents relevant to this part of the research that were issued
under the in 1999 renamed Sub-Commission on Prevention of Discrimination and
Protection of Minorities 131 have been revised or updated under the SubCommission on the Promotion and Protection of Human Rights, the focus in this
section on the Human Rights Commission will be on the period from 1999 until
2006.
In 1999, the Commission on Human Rights adopted a resolution on impunity in
which it stated that “the practice and expectation of impunity for violations of
127
See ibid., para. 47.
The Commission on Human Rights developed the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights.
129
On 15 March 2006, the General Assembly adopted Resolution A/RES/60/251 to establish the Human
Rights Council. On 27 March 2006, the Commission on Human Rights concluded its sixty-second and
final session.
130
The United Nations Sub-Commission on the Promotion and Protection of Human Rights, the main
subsidiary body of the former Commission on Human Rights, was established in 1947 with 12
members. The original name was the Sub-Commission on Prevention of Discrimination and Protection
of Minorities, but the Sub-Commission was renamed in 1999.
131
See ibid.
128
143
Chapter V
international human rights or humanitarian law encourage such violations”. 132 The
Commission on Human Rights is aware that the existence of impunity influences all
society. 133 In Resolution 2001/46 on the Question of enforced or involuntary
disappearances, the Commission on Human Rights “[e]mphasiz[ed] that impunity
is simultaneously one of the underlying causes of enforced disappearances and one
of the major obstacles to the elucidation of cases thereof and that there is a need for
effective measures to combat the problem of impunity”. 134 In Resolution 2002/38,
the Commission on Human Rights stated that “States shouldabrogate legislation
leading to impunity for those responsible for grave violations of human rights such
as torture and prosecute such violations, thereby providing a firm basis for the rule
of law”, and “[u]rge[d] all Governments to promote the speedy and full
implementation of the Vienna Declaration and Programme of Action
(A/CONF.157/23), in particular Part II, section B.5, relating to freedom from
torture”, in which this is stated. 135 The Commission repeated its request in
Resolution 2003/32. 136 In Resolution 2003/53 on Extrajudicial, summary or
arbitrary executions, the Commission on Human Rights: 137
2. Notes with deep concern that impunity continues to be a major cause of the
perpetuation of violations of human rights, including extrajudicial, summary or
arbitrary executions;
…
4. Reiterates the obligation of all States to conduct exhaustive and impartial
investigations into all suspected cases of extrajudicial, summary or arbitrary
executions, to identify and bring to justice those responsible, while ensuring the
right of every person to a fair and public hearing by a competent, independent
and impartial tribunal established by law, to grant adequate compensation
within a reasonable time to the victims or their families and to adopt all
necessary measures, including legal and judicial measures, in order to bring an
end to impunity and to prevent the recurrence of such executions, as stated in
the Principles on the Effective Prevention and Investigation of Extralegal,
Arbitrary and Summary Executions;
132
Commission on Human Rights, Commission on Human Rights resolution 1999/34; Impunity,
E/CN.4/RES/1999/34, 26 April 1999.
133
Ibid.
134
Commission on Human Rights, Commission on Human Rights resolution 2001/45: Question of
enforced or involuntary disappearances, E/CN.4/RES/2001/46, 23 April 2001. See also, Commission
on Human Rights, Commission on Human Rights resolution 2003/38: Question of enforced or
involuntary disappearances, E/CN.4/RES/2003/38, 23 April 2003.
135
Commission on Human Rights, Commission on Human Rights resolution 2002/38: Torture and
other cruel, inhuman or degrading treatment or punishment, E/CN.4/RES/2002/38, 22 April 2002,
para. 3.
136
Commission on Human Rights, Commission on Human Rights resolution 2003/32: Torture and
other cruel, inhuman or degrading treatment or punishment, E/CN.4/RES/2003/32, 23 April 2003,
para. 3.
137
Commission on Human Rights, Commission on Human Rights resolution 2003/53: Extrajudicial,
summary or arbitrary executions, E/CN.4/RES/2003/53, 24 April 2003. See also, Commission on
Human Rights, Commission on Human Rights resolution 2001/45: Extrajudicial, summary or arbitrary
executions, E/CN.4/RES/2001/45, 23 April 2001.
144
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
…
8. Stresses the importance of States taking effective measures to end impunity
with regard to extrajudicial, summary or arbitrary executions, inter alia through
the adoption of preventive measures, and calls upon States to ensure that such
measures are included in post-conflict peace-building efforts;
In Resolution 2003/72 on Impunity, the Commission on Human Rights recognizes
the importance of combating impunity for all human rights violations that constitute
crimes. 138 In this resolution, the Commission on Human Rights:
[recognizes] that accountability of perpetrators, including their accomplices,
for grave human rights violations is one of the central elements of any effective
remedy for victims of human rights violations and a key factor in ensuring a
fair and equitable justice system and, ultimately, reconciliation and stability
within a State.
...
Convinced of the need for Governments to combat impunity by addressing past
or ongoing violations, taking measures aimed at preventing their recurrence,
1. Emphasizes the importance of combating impunity to the prevention of
violations of international human rights and humanitarian law and urges States
to give necessary attention to the question of impunity for violations of
international human rights and humanitarian law, including those perpetrated
against women and children, and to take appropriate measures to address this
important issue;
2. Also emphasizes the importance of taking all necessary and possible steps to
hold accountable perpetrators, including their accomplices, of violations of
international human rights and humanitarian law, recognizes that amnesties
should not be granted to those who commit violations of international
humanitarian and human rights law that constitute serious crimes and urges
States to take action in accordance with their obligations under international
law;
9. Welcomes in this regard the establishment in some States of commissions of
truth and reconciliation to address human rights violations that have occurred
there, welcomes the publication in those States of the reports of those
commissions and encourages other States where serious human rights
violations have occurred in the past to establish appropriate mechanisms to
expose such violations, to complement the justice system;
10. Recognizes that crimes such as genocide, crimes against humanity, war
crimes and torture are violations of international law and that perpetrators of
such crimes should be prosecuted or extradited by States, and urges all States to
take effective measures to implement their obligations to prosecute or extradite
perpetrators of such crimes.
138
Commission on Human Rights, Commission on Human Rights resolution 2003/72: Impunity,
E/CN.4/RES/2003/72, 25 April 2003.
145
Chapter V
13. Encourages States in their efforts to strengthen their domestic capacity to
combat impunity and requests the High Commissioner for Human Rights to
provide, upon request, technical and legal assistance in developing national
legislation and institutions to combat impunity in accordance with international
standards of justice, fairness and due process of law. 139
One year later, in Resolution 2004/72 on Impunity, the Commission on Human
Rights reaffirmed:
the duty of all States to put an end to impunity and to prosecute, in accordance
with their obligations under international law, those responsible for all
violations of human rights and international humanitarian law that constitute
crimes, including genocide, crimes against humanity and war crimes, in order
to promote accountability, respect for international law and justice for the
victims, deter the commission of such crimes and fulfil the responsibility of
States to protect all persons from such crimes.
Convinced that impunity for violations of human rights and international
humanitarian law that constitute crimes encourages such violations and is a
fundamental obstacle to the observance and full implementation of human
rights and international humanitarian law,
Convinced also that exposing violations of human rights and international
humanitarian law that constitute crimes, holding their perpetrators, including
their accomplices, accountable, obtaining justice and an effective remedy for
their victims, as well as preserving historical records of such violations and
restoring the dignity of victims through acknowledgement and commemoration
of their suffering, are integral to the promotion and implementation of human
rights and international humanitarian law and to the prevention of future
violations and a key factor in ensuring a fair and equitable justice system and,
ultimately, reconciliation and stability within a State. 140
In the same resolution, the Commission on Human Rights further emphasized that
for the prevention of violations of human rights and international humanitarian law
impunity must be combated. It urged states to end impunity for such crimes by
bringing the perpetrators, including accomplices, to justice in accordance with
international law. 141 The Commission on Human Rights “[r]ecognizes that States
must prosecute or extradite perpetrators of international crimes such as genocide,
crimes against humanity, war crimes and torture in accordance with their
international obligations, and urges all States to take effective measures to
139
Ibid.
Commission on Human Rights, Commission on Human Rights resolution 2004/72: Impunity,
E/CN.4/RES/2004/72, 21 April 2004.
141
See ibid., para. 1. See also, Commission on Human Rights, Commission on Human Rights resolution
1999/34; Impunity, E/CN.4/RES/1999/34, 26 April 1999.
140
146
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
implement these obligations”. 142 Besides, the Commission on Human Rights holds
that amnesty should not be granted to perpetrators of “violations of human rights
and international humanitarian law that constitute crimes, urges States to take action
in accordance with their obligations under international law and welcomes the
lifting, waiving, or nullification of amnesties and other immunities”. 143
In 2004, the Commission on Human Rights published the Independent study on
best practices, including recommendations, to assist states in strengthening their
domestic capacity to combat all aspects of impunity, by Professor Diane
Orentlicher, commissioned after a request thereto in Resolution 2003/72. 144 In her
study, Orentlicher also took into account “how they [the Set of Principles] have
been applied, reflecting recent developments and considering the issue of their
further implementation, and also taking into account the information and comments
received pursuant to” Resolution 2003/72. 145The study reveals that the Set of
Principles has already had a deep impact on efforts to combat impunity:
They have become a key reference in decisions by the supervisory bodies for
the American Convention on Human Rights, which, in turn, have prompted
national Governments to dismantle seemingly impregnable barriers to justice.
The Principles have also been cited directly by national authorities in support of
measures to combat impunity.
Recent experience, as well as the jurisprudence of human rights treaty bodies,
reinforce a central premise of the Principles: the need for a comprehensive
approach towards combating impunity. An effective policy requires a
multifaceted strategy, with each component playing a necessary but only partial
role. By way of illustration, there previously was a widespread perception that
truth commissions were a “next best” response to mass atrocities when an
amnesty or de facto impunity foreclosed prosecutions. Today, truth
commissions, prosecutions and reparations are widely seen as complementary,
each playing a distinctly important role [original footnote omitted]. 146
In 2005, the Set of Principles for the protection and promotion of human rights
through action to combat impunity, originally drafted by Louis Joinet in 1997, was
updated by Independent Expert Diane Orentlicher pursuant to Resolution 2004/72
of the Commission on Human Rights. This was deemed necessary, in order to
include developments in international law and practice and the Independent study
on best practices (E/CN.4/2004/88). 147The preamble of the updated Set of
142
Commission on Human Rights, Commission on Human Rights resolution 2004/72: Impunity,
E/CN.4/RES/2004/72, 21 April 2004, para. 2.
143
See ibid., para. 3.
144
Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004.
145
Commission on Human Rights, Commission on Human Rights resolution 2003/72: Impunity,
E/CN.4/RES/2003/72, 25 April 2003.
146
Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, paras. 8, 10.
147
Commission on Human Rights, Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
147
Chapter V
Principles for the protection and promotion of human rights through action to
combat impunity notes:
Considering that the duty of every State under international law to respect and
to secure respect for human rights requires that effective measures should be
taken to combat impunity,
Aware that there can be no just and lasting reconciliation unless the need for
justice is effectively satisfied,
Equally aware that forgiveness, which may be an important element of
reconciliation, implies, insofar as it is a private act, that the victim or the
victim’s beneficiaries know the perpetrator of the violations and that the latter
has acknowledged his or her deeds,
...
Pursuant to the Vienna Declaration and Programme of Action, the following
principles are intended as guidelines to assist States in developing effective
measures for combating impunity. 148
Principle 24 of the updated Set of Principles for the protection and promotion of
human rights through action to combat impunity is specifically dedicated to the
issue of amnesty. It reads:
RESTRICTIONS AND OTHER MEASURES RELATING TO AMNESTY
Even when intended to establish conditions conducive to a peace agreement or
to foster national reconciliation, amnesty and other measures of clemency shall
be kept within the following bounds:
(a) The perpetrators of serious crimes under international law may not benefit
from such measures until such time as the State has met the obligations to
which principle 19[149] refers or the perpetrators have been prosecuted before a
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005, Preamble.
148
Ibid.
149
Principle 19. Duties of states with regard to the administration of justice:
“States shall undertake prompt, thorough, independent and impartial investigations of violations of
human rights and international humanitarian law and take appropriate measures in respect of the
perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious
crimes under international law are prosecuted, tried and duly punished.
Although the decision to prosecute lies primarily within the competence of the State, victims, their
families and heirs should be able to institute proceedings, on either an individual or a collective basis,
particularly as parties civiles or as persons conducting private prosecutions in States whose law of
criminal procedure recognizes these procedures. States should guarantee broad legal standing in the
judicial process to any wronged party and to any person or non-governmental organization having a
legitimate interest therein.”
148
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
court with jurisdiction - whether international, internationalized or national outside the State in question;
(b) Amnesties and other measures of clemency shall be without effect with
respect to the victims’ right to reparation, to which principles 31 through 34
refer, and shall not prejudice the right to know;
...
The Set of Principles also contains principles on the right to know, the right to
justice and the right to reparation. These rights fall within the scope of Chapter VI
of this thesis and will be elaborated on there.
6.2 Human Rights Council
The General Assembly created the United Nations Human Rights Council
(UNHRC) on 15 March 2006 as a replacement of the Human Rights
Commission. 150 The Council is responsible for strengthening the promotion and
protection of human rights. Its main purpose is to address situations of human rights
violations and give recommendations on them. 151 The Human Rights Council is a
charter-based body and a subsidiary organ of the General Assembly. 152 The Council
consists of 47 states. 153
In its first year, the Human Rights Council recalled Commission on Human
Rights resolution 2005/81. The Council:
150
The Human Rights Commission had been widely criticized for ignoring human rights violations in
some countries. According to former Secretary-General Kofi Annan, “the Commission’s capacity to
perform its tasks has been increasingly undermined by its declining credibility and professionalism. In
particular, States have sought membership of the Commission not to strengthen human rights but to
protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed,
which casts a shadow on the reputation of the United Nations system as a whole.” He continued to state
that “[i]f the United Nations is to meet the expectations of men and women everywhere - and indeed, if
the Organization is to take the cause of human rights as seriously as those of security and development then Member States should agree to replace the Commission on Human Rights with a smaller standing
Human Rights Council.” - General Assembly, Follow-up to the outcome of the Millennium Summit, In
larger freedom: towards development, security and human rights for all. Report of the SecretaryGeneral, A/59/2005, 21 March 2005, para. 182.
151
Pursuant to Resolution 5/1 of the Human Rights Council on Institution-building of the United
Nations Human Rights Council, the Human Rights Council Advisory Committee was established. The
Human Rights Council Advisory Committee functions as a think-tank for the Human Rights Council,
resembling the Sub-Commissions function as a think-tank for the Commission on Human Rights, and is
composed of 18 independent experts.
152
General Assembly, Human Rights Council, A/RES/60/251, 15 March 2006.
153
Angola, Argentina, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Brazil, Burkina
Faso, Cameroon, Chile, China, Cuba, Djibouti, Egypt, France, Gabon, Ghana, Hungary, India,
Indonesia, Italy, Japan, Jordan, Kyrgyzstan, Madagascar, Mauritius, Mexico, Netherlands, Nicaragua,
Nigeria, Norway, Pakistan, Philippines, Qatar, Republic of Korea, Russian Federation, Saudi Arabia,
Senegal, Slovakia, Slovenia, South Africa, Ukraine, United Kingdom of Great Britain and Northern
Ireland, United States of America, Uruguay, Zambia.
149
Chapter V
1. Requests the United Nations High Commissioner for Human Rights to
continue to ensure the wide dissemination of the updated Set of Principles for
the protection and promotion of human rights through action to combat
impunity (E/CN.4/2005/102 and Add.1), to continue to support judicial
mechanisms and commissions of inquiry and to provide, upon request,
technical and legal assistance in developing national legislation and institutions
to combat impunity in accordance with international standards of justice,
fairness and due process of law;
2. Welcomes the efforts of the Office of the High Commissioner to strengthen
its capacity and expertise to provide support for international and national
commissions of inquiry and fact-finding missions upon request or in
accordance with its mandates, and encourages its continued endeavours;
3. Requests the High Commissioner to continue to report to the Human Rights
Council on the latest developments in international law and practice relevant to
combating impunity, including international jurisprudence and State practice,
and on the work of the High Commissioner for Human Rights and other parts
of the United Nations system.
In 2008, the Human Rights Council called upon states not to grant amnesties for the
most serious crimes against children. 154 It urged states to “end impunity for
perpetrators of crimes against children, and to investigate and prosecute such acts of
violence and impose appropriate penalties”. 155With respect to torture and other
cruel, inhuman or degrading treatment or punishment, the Human Rights Council in
2008 urged states to criminalize all acts of torture under domestic criminal law. 156
In 2010, with respect to the human rights situation in Palestine and other
occupied Arab territories, the Human Rights Council stressed “the need to ensure
accountability for all violations of international humanitarian law and international
human rights law in order to prevent impunity, ensure justice, deter further
violations and promote peace”. 157
In sum, since the Human Rights Council succeeded the Commission on Human
Rights, it has continued its position regarding impunity and amnesty.
7 OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
154
Human Rights Council, Rights of the Child, A/HRC/RES/7/29, 28 March 2008.
See ibid., para. 14(f).
156
Human Rights Council, Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
A/HRC/RES/8/8, 18 June 2008, para. 6(f); The Human Rights Council “emphasizes that acts of torture
are serious violations of international human rights law and humanitarian law and can constitute crimes
against humanity and war crimes and that the perpetrators are liable to prosecution and punishment.”
157
Human Rights Council, Follow-up to the Report of the United Nations Independent International
Fact-Finding Mission on the Gaza Conflict, Draft Resolution. Bolivia (Plurinational State of), El
Salvador*, Morocco*, Pakistan (on behalf of the Organization of the Islamic Conference), Palestine*,
Sudan* (on behalf of the Group of Arab States), Venezuela (Bolivarian Republic of), A/HRC/13/L.30,
22 March 2010.
155
150
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
On 20 December 1993, the General Assembly created the post of United Nations
High Commissioner for Human Rights. 158 The High Commissioner for Human
Rights is the principal human rights official of the United Nations. The High
Commissioner has “principal responsibility for United Nations human rights
activities under the direction and authority of the Secretary-General”. 159 The High
Commissioner heads the Office of the High Commissioner for Human Rights
(OHCHR), which supports the work of the experts and the different monitoring
bodies within the UN system. The High Commissioner leads the United Nations
human rights efforts for promotion and protection of human rights, including
transitional justice. 160 The OHCHR is part of the United Nations Secretariat.
The High Commissioner in her 2001 Report emphasized “[t]he SecretaryGeneral’s position that there can be no granting of amnesty to those who commit
serious violations of international criminal law such as genocide, war crimes and
crimes against humanity” and stated that this position “provides an essential
guidance for the United Nations in this regard”. 161
The UN Independent Expert in 2004 on the situation of human rights in
Afghanistan, Cherif Bassiouni, “expressed serious concerns about the human rights
situation. Mr. Bassiouni identified a number of priority issues for immediate
action,” among which “the need to address the continuing impunity of human rights
violators, particularly local commanders”. 162
In 2006, the OHCHR published a series of documents called ‘Rule of law tools
for post-conflict states’. These ‘rule of law tools’ are intended to “provide practical
guidance to field missions and transitional administrations in critical transitional
158
The current United Nations High Commissioner for Human Rights is Ms. Navanethem Pillay from
South Africa. She took up the post on 1 September 2008. Previous High Commissioners were: Mrs.
Louise Arbour from Canada, 2004-2008, Mr. Bertrand Ramcharan from Guyana, 2003-2004, Mr.
Sergio Vieira de Mello from Brazil, 2002-2003, Mrs. Mary Robinson from Ireland, 1997-2002 and the
First High Commissioner Mr. José Ayala-Lasso from Ecuador, 1994-1997 .
159
General Assembly, High Commissioner for the promotion and protection of all human rights,
A/RES/48/141, 7 January 1994.
160
General Assembly/Security Council, Uniting our strengths: Enhancing United Nations support for
the rule of law. Report of the Secretary-General, A/61/636-S/2006/980, 14 December 2006, para.
13.OHCHR provides support and guidance on transitional justice issues, including the development of
policy tools and assistance in the design, establishment and implementation of transitional justice
mechanisms. The rule of law-related initiatives of OHCHR include activities to enhance the ratification
of human rights treaties, improve the administration of justice at the national level and record
violations, including through mechanisms created by the Human Rights Council, in areas such as
arbitrary detention, independence of the judiciary and torture. OHCHR also provides expert support for
international commissions of inquiry and the establishment and strengthening of national human rights
institutions.
161
General Assembly, Report of the UN High Commissioner for Human Rights, A/56/36, 28 September
2001, para. 71.
162
General Assembly/Security Council, The situation in Afghanistan and its implications for
international peace and security. Emergency international assistance for peace, normalcy and
reconstruction of war-stricken Afghanistan. Report of the Secretary-General, A/59/581-S/2004/925, 26
November 2004, para. 39.
151
Chapter V
justice and rule of law-related areas”. 163 The tools may be used separately or
together. The rule of law tools contain principles in the areas of mapping the justice
sector, prosecution initiatives, truth commissions, vetting and monitoring legal
systems. 164In 2008, two additional tools on maximizing the legacy of mixed courts
and reparations programs were added to the five tools that were already in place.
The OHCHR supported the result of numerous standard setting documents,
including the Updated Set of Principles for the protection and promotion of human
rights through action to combat impunity (2005) 165 and the Van Boven-Bassiouni
Principles (2006). 166 The OHCHR also published a study on the right to the truth in
2006. 167 Relevant for this section is that:
[t]he study concludes that the right to the truth about gross human rights
violations and serious violations of human rights law is an inalienable and
autonomous right, linked to the duty and obligation of the State to protect and
guarantee human rights, to conduct effective investigations and to guarantee
effective remedy and reparations. This right is closely linked with other rights
and has both an individual and a societal dimension and should be considered
as a non-derogable right and not be subject to limitations. 168
In addition, the OHCHR holds that “[a]mnesties or similar measures and
restrictions to the right to seek information must never be used to limit, deny or
impair the right to the truth. The right to the truth is intimately linked with the
States’ obligation to fight and eradicate impunity.” 169 The right to the truth will be
elaborated on further in Chapter VI of this thesis.
Under the Commission on Human Rights and currently the Human Rights
Council, mechanisms may be established under the general heading ‘special
procedures’. These mechanisms may address either specific country situations
worldwide or thematic issues. 170 The OHCHR is responsible for the staffing,
programming, research and logistical support. The experts work independently. 171
163
UN OHCHR, Rule-of-Law Tools for Post-Conflict States. Vetting: An Operational Framework, New
York 2006, p. v.
164
Ibid.
165
Commission on Human Rights, Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005; See also Section 6.1 of this chapter.
166
General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, A/RES/60/147, 21 March 2006; See also Section 2 of this chapter.
167
Commission on Human Rights, Study on the right to the truth.Report of the Office of the United
Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006.
168
See ibid., p. 2.
169
See ibid., para. 60.
170
Currently, there are 33 thematic and 8 country mandates; See, UN OHCHR, Special Procedures of
the
Human
Rights
Council,
accessible
via
<http://www2.ohchr.org/english/bodies/chr/special/index.htm>
171
Ibid.; “Mandate holders are appointed to “examine, monitor, advise and publicly report on human
rights situations in specific countries or territories, known as country mandates, or on major phenomena
152
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
The experts working for the Commission on Human Rights were given various
titles. Worth mentioning are Special Rapporteurs, independent experts,
representatives of the Secretary-General and representatives of the Commission.
The Human Rights Council uses this same system. 172For reasons of unity, the term
Special Rapporteur will be used for the remainder of this thesis. It should be kept in
mind that this title is interchangeable with the terms Independent Experts,
representatives of the Secretary-General or representatives of the Commission.
However, when discussing a specific mandate in which another title was agreed to,
that title will be used.
Special Rapporteurs are appointed to monitor and report on the protection and
violation of human rights. One of the rapporteurs is the Special Rapporteur on
torture. The Commission on Human Rights in Resolution 1985/33 decided to
appoint an expert to examine questions relevant to torture and other cruel, inhuman
or degrading treatment or punishment. The mandate was last extended for three
years in 2011. 173 The mandate applies to all countries, also those that did not ratify
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, due to the fact that the prohibition of torture has been recognized as
a peremptory norm of international law. 174
In the clarification of states’ responsibility in combating impunity of the
Progress report on the question of the impunity of perpetrators of violations of
human rights (civil and political rights), prepared by Special Rapporteur Mr. Joinet,
pursuant to Sub-Commission Resolution 1994/34:
[t]he Special Rapporteur wishes ... [that States] take greater account of the
important contribution at the international level of the jurisprudence of the
jurisdictional (or parajurisdictional) bodies competent in the area of human
of human rights violations worldwide, known as thematic mandates. Various activities are undertaken
by special procedures, including responding to individual complaints, conducting studies, providing
advice on technical cooperation at the country level, and engaging in general promotional activities.
Special procedures are either an individual ... or a working group usually composed of five members
(one from each region). The mandates of the special procedures are established and defined by the
resolution creating them. Mandate-holders of the special procedures serve in their personal capacity,
and do not receive salaries or any other financial compensation for their work. The independent status
of the mandate-holders is crucial in order to be able to fulfill [sic] their functions in all impartiality.”
172
The background of this diversity is explained in Human Rights Fact Sheet 27: “These different titles
neither reflect a hierarchy, nor are they an indication of the powers entrusted to the expert. They are
simply the result of political negotiations. The most important issue is the mandate given to the expert
as it is formulated in the resolutions of the Commission on Human Rights. These mandates could focus
on reporting on violations, or on analysing a problem, or on assisting in the provision of technical
assistance or on a combination of one or more of these features.”; UN OHCHR, Human Rights Fact
Sheet 27. Seventeen Frequently Asked Questions about the United Nations Special Rapporteurs, April
2001, p. 6.
173
Human Rights Council, Torture and other Cruel, Inhuman or Degrading Treatment or Punishment:
mandate of the Special Rapporteur, A/HRC/RES/16/23, 12 April 2011, para. 3.
174
Human Rights Council, Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
A/HRC/RES/8/8, 18 June 2008; and UN OHCHR, Statement by Manfred Nowak, Special Rapporteur
on Torture at the 18th session of the Commission on Crime Prevention and Criminal Justice, Vienna,
24 April 2009.
153
Chapter V
rights, such as the Human Rights Committee or, at the regional level, the InterAmerican Commission on Human Rights and the Inter-American Court of
Human Rights, among others, because of the originality of their jurisprudence
concerning the obligation placed on States to investigate and prosecute
perpetrators of violations of human rights. 175
In August 2009, the Office of the High Commissioner for Human Rights published
an inventory of human rights and transitional justice aspects in post-2000 peace
agreements after a request from the Human Rights Council. 176
In March 2010, the United Nations human rights office in Afghanistan called for
the repeal of the ‘Reconciliation and general amnesty law’. 177 The High
Commissioner on Human Rights noted that the law:
relieves Afghan authorities of their obligation to investigate and prosecute, on
their own initiative, those allegedly responsible for gross violations of human
rights. It contravenes Afghanistan’s obligations under international law and it
green-lights impunity and continued human rights violations. It ignores the
grievances of victims and denies them access to justice. This Law also sends
the wrong message to victims who have repeatedly called for justice and the
removal of human rights violators from public office.
The Law is likely to undermine efforts to secure genuine reconciliation which
is of course about bringing together different elements of a fractured society in
a manner that allows them to overcome, or deal with, harmful and divisive
policies, practices, and experiences. At the very minimum, there must be an
acknowledgment of the grave injustices that have occurred if the long and
notorious pattern of abuse is to end in this country. 178
This Law was adopted in 2007 by the lower and upper houses of parliament in
Afghanistan, but never signed by President Karzai. Late 2009, it appeared that the
law was gazetted in December 2008, as a result of which it came into force. 179
175
Commission on Human Rights, Progress report on the question of the impunity of perpetrators of
violations of human rights (civil and political rights) / prepared by Mr. Joinet, pursuant to
subcommission resolution 1994/3, E/CN.4/Sub.2/1995/18, 28 June 1995, para. 14.
176
Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights
and Reports of the Office of the High Commissioner and the Secretary-General, Office of the United
Nations High Commissioner for Human Rights Analytical Study on Human Rights and Transitional
Justice, Addendum. Inventory of Human Rights and Transitional Justice Aspects of Recent Peace
Agreements, A/HRC/12/18Add.1, 21 August 2009.
177
See also Section 5 of this chapter.
178
United Nations Assistance Mission in Afghanistan, Press conference in Kabul by Norah Niland,
Representative of the UN High Commissioner for Human Rights in Afghanistan, 25 March 2010,
accessible
via
<http://unama.unmissions.org/Default.aspx?tabid=1741&ctl=Details&mid=1882&ItemID=8250>
179
Ibid.
154
The United Nations’ position and practice on impunity, amnesties and
the duty to prosecute
8 CONCLUSION
The General Assembly recognizes the effective punishment of war crimes and
crimes against humanity as an important element in putting an end to and
preventing such crimes. The General Assembly is of the opinion that all war
criminals should be punished. The refusal by states to cooperate in the arrest,
extradition, trial and punishment of persons guilty of war crimes and crimes against
humanity is contrary to the purposes and principles of the Charter of the United
Nations and to generally recognized norms of international law. Those responsible
for war crimes and crimes against humanity shall be subject to tracing, arrest, trial
and, if found guilty, to punishment. In no circumstances should blanket immunity
from prosecution be granted to any person allegedly involved in extra-legal,
arbitrary or summary executions. All acts of enforced disappearance shall be
offences under criminal law punishable by appropriate penalties and shall not
benefit from any special amnesty law or similar measures. According to the General
Assembly, there exists a duty to prosecute gross violations of international human
rights law and serious violations of international humanitarian law constituting
crimes under international law.
With regard to the victims, the General Assembly consistently emphasizes the
right to an effective remedy for victims of human rights violations. The right to a
remedy as well as the right to reparation will be focussed on in more detail in
Chapter VI.
In general, all UN bodies take a unanimous stand on the issue of impunity and
amnesty for human rights violations. This notwithstanding, in practice considering
situations in a transition to democracy, the Security Council has taken a more
lenient approach to facilitate this process.
The Security Council condemned impunity in numerous documents not related
to a country situation and in, for example, Rwanda and Lebanon. In the situations of
Haiti (1993), Croatia (1996), Papua New Guinea (1998) and Sierra Leone (2000),
the Security Council approved of amnesty measures. In the situation of Croatia, the
Security Council even suggested them, although with the exception of those who
had committed war crimes as defined in international law. In the situations of Haiti
and Papua New Guinea, the Security Council did not emphasize that amnesty
should not be granted to those who committed serious human rights violations
under international law. In the situation of Sierra Leone, the Security Council
specifically mentioned that the amnesty provisions of the Lomé Peace Agreement
should not apply to international crimes of genocide, crimes against humanity, war
crimes and other serious violations of international humanitarian law. Possibly,
there has been a shift of policy since the ICC Statute was adopted on 17 July 1998.
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Chapter V
The International Court of Justice has thus far not ruled that amnesty, impunity
or immunity should not be granted to those who have committed serious crimes
under international law.
The UN Secretary-General is convinced of the need to end cultures of impunity.
The Secretary-General recognizes that amnesty is an accepted legal concept for less
serious crimes, but condemns the granting of amnesty for genocide, war crimes,
crimes against humanity or gross violations of human rights, and emphasizes that
amnesty for these crimes is not acceptable. According to the Secretary-General,
such amnesty measures do not contribute to lasting peace and reconciliation. The
Secretary-General urges authorities to make sure violations of internationally
recognized human rights do not go unpunished and to prosecute the perpetrators.
The Commission on Human Rights to some extent initiated the focus on the
topic of impunity and amnesty within the United Nations. From the 1980s on, the
Commission continued to pay attention to this issue and developed the (Updated)
Set of Principles for the protection and promotion of human rights through action to
combat impunity. The Commission on Human Rights is of the opinion that states
must prosecute or extradite perpetrators of international crimes such as genocide,
crimes against humanity, war crimes and torture in accordance with their
international obligations. The Human Rights Council carries on the work of the
Commission.
The Office of the United Nations High Commissioner for Human Rights pursues
the general UN approach on impunity and amnesty. Several useful instruments are
provided by the Office to promote and protect human rights and the rule of law,
such as the ‘Rule of law tools for post-conflict states’.
Overall, it may be concluded that in theory, the United Nations position on
impunity, amnesties and the duty to prosecute is in theory quite consistent in that
impunity and amnesty laws for serious violations of human rights are rejected, and
that those responsible for these crimes should be prosecuted to strengthen the rule
of law. However, in practice, the United Nations has a much less consistent
position, as shown for example in the situation of Haiti. As former SecretaryGeneral Kofi Annan said: “Nowhere is the gap between rhetoric and reality between declarations and deeds - so stark and so deadly as in the field of
international humanitarian law.” 180 This difference between theory and practice
shows that in practice, it is extremely difficult to hold on to the position that there is
no place for amnesty. It also shows that the United Nations is willing to adapt its
policy when confronted with a situation in which amnesty may do more good for
the human rights situation than would impunity.
180
General Assembly, Follow-up to the outcome of the Millennium Summit, In larger freedom: towards
development, security and human rights for all. Report of the Secretary-General, A/59/2005, 21 March
2005, para. 134.
156
CHAPTER VI
AMNESTY AND THE RIGHTS OF VICTIMS
1 INTRODUCTION
In every post-conflict society, perpetrators, bystanders and victims have to find a
new balance in which they can live together peacefully. Perpetrators will often
claim that they obeyed superiors’ orders to avoid punishment. Bystanders may
argue that they did not know. To be able to heal, victims want their suffering to be
recognized, the perpetrators to be punished and the bystanders to know what
happened to them. In addition to recognition, bringing to justice those responsible,
and reparation for the harm done will contribute to healing the wounds of the
victims. Healing the wounds of victims amounts to healing the wounds of society
and therefore contributes to the process of reconciliation by means of transitional
justice.
From this perspective, victims are the core of transitional justice efforts.
Therefore, victims should have the primal attention after a period of human rights
violations and they should be the focal point of processes of reconciliation and
transitional justice. If the victims are overlooked, and the crimes that they fell
victim to are not investigated and the perpetrators prosecuted, it is argued that
“impunity … [will be] a new aggression that amounts to a crime against
humanity”. 1 Rojas Baeza holds that, apart from the fact that impunity is in and of
itself a violation of human rights, an amnesty granted or an amnesty measure left in
place after democracy is restored may be regarded as a new violation in addition to
the crimes already committed. 2 Meant as a means to facilitate and smoothen a
1
See, for example, Paz Rojas Baeza, “Impunity: An Impossible Reparation”, Nordic Journal of
International Law, vol. 69 no. 1 2000, pp. 27-34, p. 28.
2
See ibid., p. 31, 32. See, for example, Dieu-Donné Wedi Djamba, Central Africa: We want our dignity
back, 12 July 2007, accessible via <http://allafrica.com/stories/200707121174.html>
"Horrific acts of violence were committed against women and children during and after the wars in the
Great Lakes region... [I]n the Great Lakes region, while the perpetrators and bystanders are living
peacefully and comfortably, the victims, particularly women and girls, continue to experience the same
nightmares. They have paid a heavy price for the deadly wars, which have caused hundreds of
thousands of deaths, refugees and displacements, mass human rights violations such as rape, torture,
and other atrocities, burning of houses and the looting of national resources by the different armed
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Chapter VI
transition, the granting of amnesty may have the opposite effect. This is especially
the case when the decision to grant amnesty is taken without accompanying
counterbalancing measures to secure the rights of victims. 3
Since this chapter discusses the rights of victims, it is useful to define who is
considered to be a victim. The Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power (1985) provides a definition of victims in Principles 1
and 2, which encompasses both direct and indirect victims and is quite similar to the
use of the term “victim” in this chapter:
1. "Victims" means persons who, individually or collectively, have suffered
harm, including physical or mental injury, emotional suffering, economic loss
or substantial impairment of their fundamental rights, through acts or omissions
that are in violation of criminal laws operative within Member States, including
those laws proscribing criminal abuse of power.
2. A person may be considered a victim ... regardless of whether the perpetrator
is identified, apprehended, prosecuted or convicted and regardless of the
familial relationship between the perpetrator and the victim. The term “victim”
also includes, where appropriate, the immediate family or dependants of the
direct victim and persons who have suffered harm in intervening to assist
victims in distress or to prevent victimization. 4
From a victims’ point of view, the “[s]tate cannot forgive breaches of
international human rights law. It is powerless so to do because the rights in
question are the property of the victims of those particular breaches, and victims
-
groups. An aftermath does not seem to exist for them. Indeed, the post-conflict period is the equivalent
of the period of the actual conflict.”
3
The International Centre for Transitional Justice distinguishes the following initiatives as the basic
approaches to transitional justice:
Criminal prosecutions. They are judicial investigations of those responsible for human rights violations.
Prosecutors frequently emphasize investigations of the "big fish": suspects considered most responsible
for massive or systematic crimes.
Truth commissions. These commissions of inquiry have the primary purposes of investigating and
reporting on key periods of recent past abuse. They are often official state bodies that make
recommendations to remedy such abuse and to prevent its recurrence.
Reparations programs. They are state-sponsored initiatives that help repair the material and moral
damages of past abuse. They typically distribute a mix of material and symbolic benefits to victims,
benefits which may include financial compensation and official apologies.
Gender justice. These efforts challenge impunity for sexual- and gender-based violence and ensure
women's equal access to redress of human rights violations.
Security system reform. These efforts seek to transform the military, police, judiciary and related state
institutions from instruments of repression and corruption into instruments of public service and
integrity.
Memorialization efforts. They include museums and memorials that preserve public memory of victims
and raise moral consciousness about past abuse, in order to build a bulwark against its recurrence.
4
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES 40/34, 29
November 1985, Principles 1 and 2.
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Amnesty and the rights of victims
never pass title of those rights to the State.” 5 Ben Chigara claims that national
amnesty laws or impunity measures therefore violate the rights of victims whose
title never passes on to the state. Consequently, the state is not able to trade those
rights off by means of an amnesty law or a similar measure granting impunity. 6
This is also recognized by Special Rapporteur Louis Joinet. In his final report on the
Question of the impunity of perpetrators of human rights violations, he affirms that
“[a]mnesty cannot be accorded to perpetrators before the victims have obtained
justice by means of an effective remedy”. 7 In Principle 19 of the original Set of
Principles for the protection and promotion of human rights through action to
combat impunity annexed to the report, Joinet calls for safeguards against the use of
reconciliation or forgiveness to further impunity. Principle 19 provides: that “[t]here
can be no just and lasting reconciliation without an effective response to the need
for justice; an important element in reconciliation is forgiveness, a private act which
implies that the victim knows the perpetrator of the violations and that the latter has
been able to show repentance”. 8 In line with this, the Preamble of the Updated Set
of Principles (2005) states the following:
Considering that the duty of every State under international law to respect and
to secure respect for human rights requires that effective measures should be
taken to combat impunity,
Aware that there can be no just and lasting reconciliation unless the need for
justice is effectively satisfied,
Equally aware that forgiveness, which may be an important element of
reconciliation, implies, insofar as it is a private act, that the victim or the
victim’s beneficiaries know the perpetrator of the violations and that the latter
has acknowledged his or her deeds,
…
Convinced, therefore, that national and international measures must be taken for
that purpose with a view to securing jointly, in the interests of the victims of
violations, observance of the right to know and, by implication, the right to the
5
Ben Chigara, Amnesty in International Law, The Legality under International Law of National
Amnesty Laws, Pearson Education: Harlow 2002, p. 16; See also Zbigniew Herbert in his poem ‘The
envoy of Mr Cogito’:
“and do not forgive truly it is not in your power to forgive in the name of those betrayed at dawn”
6
See ibid., Chigara 2002, p. 13.
7
Commission on Human Rights, Question of the impunity of perpetrators of human rights violations
(civil and political). Final report prepared by Mr. Joinet pursuant to Sub-Commission decision
1996/119, E/CN.4/Sub.2/1997/20, 26 June 1997, para. 32.
8
See ibid., Principle 19; See also: Office of the United Nations High Commissioner for Human Rights,
Making Peace our Own. Victims’ Perceptions of Accountability, Reconciliation and Transitional
Justice in Northern Uganda, United Nations: 2007, p. 29: “for most people who have suffered harm,
forgiveness is not automatic but rather a conscious choice shaped by a range of individual and
communal factors.” And at p. 30: “forgiveness is far from an inherent or primordial aspect of society
but rather a deliberate, often reluctant, choice.”
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Chapter VI
truth, the right to justice and the right to reparation, without which there can be
no effective remedy against the pernicious effects of impunity,
Expecting victims to forgive may cause more distress, especially for victims of
brutal, severe and intimate crimes. Martha Minow states that “[f]undamentally,
forgiveness must remain a choice by individuals; the power to forgive must be
inextricable from the power to choose not to do so. It cannot be ordered or
pressured.” 9 In sum, it may be stated that when a state usurps the individual
victims’ right to forgive the perpetrator(s), it fails to fully acknowledge the pain of
those who have suffered. 10
A basis for combating impunity and thus amnesty are the rights of victims of
serious human rights violations. 11 When amnesty is considered as the only option,
the rights of victims should nevertheless be safeguarded as much as possible. In the
Updated Set of Principles, Principle 24 on ‘Restrictions and other measures relating
to amnesty’ exactly describes the restrictions that states are bound to when granting
amnesty:
Even when intended to establish conditions conducive to a peace agreement or
to foster national reconciliation, amnesty and other measures of clemency shall
be kept within the following bounds:
(a) The perpetrators of serious crimes under international law may not benefit
from such measures until such time as the State has met the obligations to
which principle 19[ 12] refers or the perpetrators have been prosecuted before a
9
Martha Minow, Breaking the Cycles of Hatred: Memory, Law and Repair, Princeton University Press:
Princeton/Oxford 2002, p. 18.
10
Aryeh Neier, quoted in Danielle Celermajer, From the Levinasian Apology to The Political Apology;
Reflections on Ethical Politics, Refereed paper presented to the Australasian Political Studies
Association conference, University of Newcastle, 25-27 September 2006, p. 3.
11
See, for example, Updated Set of Principles for the protection and promotion of human rights through
action to combat impunity, Section I on Combating impunity: general obligations. Principle 1. General
obligations of states to take effective action to combat impunity: “Impunity arises from a failure by
states to meet their obligations to investigate violations;
To take appropriate measures in respect of the perpetrators, particularly in the area of justice, by
ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished;
To provide victims with effective remedies and to ensure that they receive reparation for the injuries
suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary
steps to prevent a recurrence of violations.”
12
(Footnote added) Updated Set of Principles, Principle 19 provides:
Duties of states with regard to the administration of justice:
States shall undertake prompt, thorough, independent and impartial investigations of violations of
human rights and international humanitarian law and take appropriate measures in respect of the
perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious
crimes under international law are prosecuted, tried and duly punished. Although the decision to
prosecute lies primarily within the competence of the State, victims, their families and heirs should be
able to institute proceedings, on either an individual or a collective basis, particularly as parties civiles
or as persons conducting private prosecutions in States whose law of criminal procedure recognizes
these procedures. States should guarantee broad legal standing in the judicial process to any wronged
party and to any person or non-governmental organization having a legitimate interest therein.
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Amnesty and the rights of victims
court with jurisdiction - whether international, internationalized or national outside the State in question;
(b) Amnesties and other measures of clemency shall be without effect with
respect to the victims’ right to reparation, to which principles 31 through 34
refer, and shall not prejudice the right to know;
(c) ... 13
These restrictions imply rights on the side of the victims; (a) implies the right to
justice, (b) implies the right to reparation and the right to truth. Every right that
victims have, consequently entails a duty towards the victims on the side of the
state. These duties coincide with the restriction found in Principle 24 of the Updated
Set of Principles. Juan Mendez identifies four duties on the side of the state:
1. to investigate, prosecute, and punish the perpetrators;
2. to disclose to the victims, their families, and society all that can be
reliably established about those events;
3. to offer the victims adequate reparations; and
4. to separate known perpetrators from law enforcement bodies and
positions of authority. 14
These duties should be interpreted as distinct duties. The rights that match these
obligations are:
1.
2.
3.
4.
the right to justice;
the right to know the truth;
the right to reparation; and
the “right to new, reorganized, and accountable institutions”. 15
This chapter discusses the first three rights. Amnesty laws may violate the right to
reparation, the right to truth and the right to justice. Vetting, being part of the fourth
mentioned right, will be discussed in Section 4 of this chapter on the right to justice.
In the following sections, the victims’ rights to truth, reparation and justice will be
elaborated upon. Identifying whether victims actually do have these rights is
important when one wants to determine the acceptability of an amnesty law. It is
important to determine whether amnesty laws may be counterbalanced by
additional transitional justice mechanisms, such as a truth commission, in order to
minimize the violation of victims’ rights by an amnesty measure. This too will be
touched upon in the sections to come. The transitional justice mechanisms that will
13
Commission on Human Rights, Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005, Principle 24.
14
Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255282, p. 261.
15
Ibid.
161
Chapter VI
be discussed are truth (and reconciliation) commissions, reparation,
memorialization efforts and vetting. These initiatives most directly affect the
victims’ rights to truth, reparation and justice.
To determine the scope and content of the right to the truth, the right to
reparation and the right to justice, literature on the subject is analysed in addition to
an examination of the legal documents discussed in Chapter IV. With respect to
case law, the examples given in this chapter are mostly of Latin and South
American origin. This is not only due to the fact that the continent has a history
which provides many examples to enrich this chapter, but also because, in contrast
with other parts of the world where similar violations have taken place, this
continent has a well-functioning supervisory body for human rights violations on
the continent in the form of the Inter-American Commission and Court of Human
Rights. The Inter-American Commission and Court provide much valuable insight
into the rights of victims of serious human rights violations. In addition, documents
of UN origin are taken into account. In particular, the following sources provide
valuable information: the Updated Set of Principles for the protection and
promotion of human rights through action to combat impunity, the Basic principles
and guidelines on the right to a remedy and reparation for victims of gross
violations of international human rights law and serious violations of international
humanitarian law, and the 2006 OHCHR Study on the right to the truth.
2 THE RIGHT TO KNOW THE TRUTH
2.1 Introduction
So long as justice is not obtained and we do not know what happened, this is not just an
issue of the past. We are also talking about the present. 16
An amnesty law in principle violates the right to the truth and the right to know
because, by waiving prosecutions and not investigating the crimes committed,
victims, survivors, the victims’ relatives and society are left in the dark. For
example, in Massacre of the Jesuits in El Salvador (1999) the IAComHR concluded
“that application of the amnesty decree eliminated the possibility of undertaking
any further judicial investigations through the courts to establish the truth and it
denied the right of the victims, their relatives and society as a whole to know the
truth”. 17 The IAComHR further concluded that “[t]he Salvadoran State has violated
the right to know the truth to the prejudice of the victims’ relatives, the members of
the religious and academic community to which the victims belonged, and
16
Quote from Estela de Carlotto, President of the Grandmothers of the Plaza de Mayo, whose newly
born grandson was taken from her daughter during the Dirty War. Quoted in: L. Rohter, “Letter from
South America; Now the Dirtiest of Wars Won't Be Forgotten”, The New York Times, 18 June 2003,
A4.
17
IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El
Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 232. To date, the Salvadoran
amnesty law is still in force.
162
Amnesty and the rights of victims
Salvadoran society as a whole”. 18 In its 1999 Annual Report, the IAComHR
reiterated that:
[r]egardless of the problem of eventual responsibilities, which in any case must
always be individual and must be established by due process through a preexisting tribunal imposing punishment consistent with the law existing at the
time the crime was committed, every society has the inalienable right to know
the truth about what has occurred, as well as the reasons and circumstances in
which those crimes came to be committed, so as to avoid a repetition of such
events in the future. In turn, no one can prevent the victims’ relatives from
learning what has happened to their loved ones. Access to the truth presupposes that freedom of expression must be unrestricted… 19
The right to the truth is the individual right of victims directly affected by a human
rights violation to know what has happened. In the 2006 OHCHR Study on the right
to the truth, the right to the truth is described as follows: “The right to the truth
implies knowing the full and complete truth as to the events that transpired, their
specific circumstances, and who participated in them, including knowing the
circumstances in which the violations took place, as well as the reasons for
them.” 20To prevent history from repeating itself, it is important to know the reasons
and circumstances in which crimes came to be committed. 21 Therefore, the right to
the truth is also a collective right, referred to as the right to know.22 The IACtHR
holds the position “that every person, including the next of kin of the victims of
grave violations of human rights, has the right to the truth. Therefore, the next of
kin of the victims and society as a whole must be informed of everything that has
happened in connection with said violations.” 23 The purpose and aim of the right
“of a society to have full knowledge of its past is not only a mode of reparation and
clarification of what has happened, but is also aimed at preventing future
violations”. 24 In 2007, Kai Ambos noted that the right to know on both the
18
See ibid., para. 240.
IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on the Massacre of the Jesuits in El
Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para 226.
20
Commission on Human Rights, Study on the right to the truth.Report of the Office of the United
Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, para. 3.
21
See IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99,
OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 155. “The right of a society to
know, in full, its past is not only to be found in the methods of reparation and elucidation of the
incidents which have occurred, but in the objective of preventing future violations.”
22
See, for instance, Commission on Human Rights, Impunity: Report of the independent expert to
update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of
Principles for the protection and promotion of human rights through action to combat impunity,
E/CN.4/2005/102/Add.1, 8 February 2005, Principles 2, 3.
23
IACtHR, Myrna Mack Chang v. Guatemala, Series C No. 101, Judgment of 25 November 2003
(Merits, Reparations and Costs), para 274.
24
IAComHR, Monsignor Oscar Arnulfo Romero y Galdámez v. El Salvador, Case 11.481, Report No.
37/00, 13 April 2000, para. 148; See also: IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report
on theMassacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999,
para. 228.
19
163
Chapter VI
individual and the collective level “is an emerging customary norm and a general
principle of law”. 25 The OHCHR claims that for all gross human rights violations
and serious breaches of international humanitarian law there exists a right to the
truth. 26 Often, the right to the truth comes to the fore with regard to serious
violations of human rights and grave breaches of humanitarian law. Especially in
cases of enforced disappearance, missing persons, abducted children, torture and
summary executions, victims demand to know what happened to them or their
relatives.
With respect to terminology, the right of individual victims to the truth is also
referred to as the right to know, or the right to information. 27 For instance, Amnesty
International holds that the right to information applies not only to the relatives of
the victims directly affected by a human rights violation, but also to society in
general. 28 In the revised final report on the Question of the impunity of perpetrators
of human rights violations, Joinet clarifies the difference between the right to the
truth and the right to know. 29 The right to know:
25
Kai Ambos, The legal framework of Transitional Justice, Study prepared for the International
Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, pp. 19-21.
26
Commission on Human Rights, Study on the right to the truth.Report of the Office of the United
Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, para. 34. Para 33
reads: International human rights instruments, as well as the Additional Protocol I to the Geneva
Conventions, of 12 August 1949, give indications of the material scope of the right to the truth. In terms
of the human rights violations for which the question of the right to the truth arises, international human
rights bodies have recognized the right to the truth in cases of gross violations of human rights - in
particular enforced disappearances, extrajudicial executions and torture - and serious violations of
international humanitarian law. This is supported by the jurisprudence of international and regional
human rights bodies and courts.26
27
Human Rights Council, The Right to Development. Draft Resolution. China, Cuba (on behalf of the
Non-Aligned Movement), A/HRC/9/L.12, 18 September 2008, p. 3.
28
Amnesty International, Peace-keeping and Human Rights, AI Index: IOR 40/01/94, January 1994, p.
38. See also, IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99,
OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 153.
29
See also, Kai Ambos, The legal framework of Transitional Justice, Study prepared for the
International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p.
19, 20: Victims have a right to [the] … [t]ruth, i.e., “the clarification of the illegal facts and the
corresponding responsibilities”; this is both ‘‘a collective right that ensures society access to
information that is essential for the workings of democratic systems, and … a private right for relatives
of the victims, which affords a form of compensation, in particular, in cases where amnesty laws are
adopted.’’; And: IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No.
1/99, OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 151: “The "right to the
truth" is a collective right which allows a society to gain access to information essential to the
development of democratic systems, and also an individual right for the relatives of the victims,
allowing for a form of reparation, especially in cases where the Amnesty Law is enforced. The
American Convention protects the right to gain access to and obtain information, especially in cases of
the disappeared, in regard to which the Court and the Commission have established that the State is
obligated to determine the person’s whereabouts.”; And: IAComHR, Ignacio Ellacuria et al. v. El
Salvador (Report on theMassacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22
December 1999, para. 224: “The right to know the truth is a collective right that ensures society access
to information that is essential for the workings of democratic systems, and it is also a private right for
relatives of the victims, which affords a form of compensation, in particular, in cases where amnesty
laws are adopted.”
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Amnesty and the rights of victims
is not simply the right of any individual victim or closely related persons to
know what happened, a right to the truth. The right to know is also a collective
right, drawing upon history to prevent violations from recurring in the future.
Its corollary is a “duty to remember”, which the State must assume, in order to
guard against the perversions of history that go under the names of revisionism
or negationism; the knowledge of the oppression it has lived through is part of a
people's national heritage and as such must be preserved. These, then, are the
main objectives of the right to know as a collective right. 30
Especially in cases of missing or disappeared persons, the right to the truth is of
importance with regard to the fate of those persons. 31 This is because “[t]he practice
of disappearances often involves secret execution without trial, followed by
30
Commission on Human Rights, Question of the impunity of perpetrators of human rights violations
(civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision
1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 17.
31
IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits),
paras. 155 and 156 elaborate on the crime of enforced disappearance:
155. The forced disappearance of human beings is a multiple and continuous violation of many rights
under the Convention that the States Parties are obligated to respect and guarantee. The kidnapping of a
person is an arbitrary deprivation of liberty, an infringement of a detainee's right to be taken without
delay before a judge and to invoke the appropriate procedures to review the legality of the arrest, all in
violation of Article 7 of the Convention which recognizes the right to personal liberty by providing that:
"1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons and under the conditions
established beforehand by the constitution of the State Party concerned or by a law established pursuant
thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly
notified of the charge or charges against him.
5. Any person detained shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to be released without
prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his
appearance for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that
the court may decide without delay on the lawfulness of his arrest or detention and order his release if
the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes
himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in
order that it may decide on the lawfulness of such threat, this remedy may not be restricted or
abolished. The interested party or another person in his behalf is entitled to seek these remedies."
156. Moreover, prolonged isolation and deprivation of communication are in themselves cruel and
inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the
right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore,
violates Article 5 of the Convention, which recognizes the right to the integrity of the person by
providing that:
"1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel inhuman, or degrading punishment or treatment. All
persons deprived of their liberty shall be treated with respect for the inherent dignity of the human
person."
In addition, investigations into the practice of disappearances and the testimony of victims who have
regained their liberty show that those who are disappeared are often subjected to merciless treatment,
including all types of indignities, torture and other cruel, inhuman and degrading treatment, in violation
of the right to physical integrity recognized in Article 5 of the Convention.
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Chapter VI
concealment of the body to eliminate any material evidence of the crime and to
ensure the impunity of those responsible”. 32 International and national courts,
human rights bodies and state practice have recognized this. 33 Initially, the right to
the truth was only referred to in cases of enforced or involuntary disappearances. 34
For instance, in María del Carmen Almeida de Quinteros et al. v. Uruguay (1983),
the Human Rights Committee noted that the failure of the authorities of Uruguay to
inform the mother about the situation of her adult daughter who disappeared after
being taken into custody not only violated her rights, but constituted
(psychological) torture and therefore violated Article 7 ICCPR. 35 Currently, the
right to the truth is also acknowledged for other serious human rights violations,
such as torture and extrajudicial executions, 36 both in international and noninternational conflicts. 37 Consequently, the right to the truth entitles victims:
to seek and obtain information on: the causes leading to the person’s
victimization; the causes and conditions pertaining to the gross violations of
international human rights law and serious violations of international
humanitarian law; the progress and results of the investigation; the
circumstances and reasons for the perpetration of crimes under international
32
IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), para.
157. Article 2 of the International Convention for the Protection of All Persons from Enforced
Disappearance contains a description of the crime of enforced disappearance:
For the purposes of this Convention, “enforced disappearance” is considered to be the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the law.
33
Kai Ambos, The legal framework of Transitional Justice, Study prepared for the International
Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 20.
34
Commission on Human Rights, Study on Amnesty Laws and Their Role in the Safeguard and
Promotion of Human Rights, Preliminary Report by Mr. Louis Joinet, Special Rapporteur,
E/CN.4/Sub.2/1985/16, 21 June 1985, para. 81.
35
“… has the right to know what has happened to her daughter. In these respects, she too is a victim of
the violations of the Covenant suffered by her daughter in particular, of article 7” - Human Rights
Committee, María del Carmen Almeida de Quinteros et al. v. Uruguay, Comm. No. 107/1981,
CCPR/C/OP/2 at 138 (1990), 21 July 1983, para. 14. See also: Human Rights Committee, Concluding
Observations of the Human Rights Committee: Uruguay, CCPR/C/79/Add.90, 8 April 1998, para. 7;
Human Rights Committee, Mariya Staselovich v. Belarus, Comm. No. 887/1999,
CCPR/C/77/D/887/1999, 24 April 2003, para. 9.2; Human Rights Committee, Validzhon Khalilov v.
Tajikistan, Comm. No. 973/2001, U.N. Doc. CCPR/C/83/D/973/2001, 13 April 2005, para. 7.7;
ECtHR, Taş v. Turkey, Application no. 24396/94, Judgment of 14 November 2000, paras. 79, 80;
ECtHR, Cyprus v. Turkey, Application No. 25781/94, Judgment of 10 May 2001, paras. 155-158;
African Commission on Human and Peoples’ Rights, Amnesty International and others v. Sudan,
Comm. No. 48/90, 50/91, 52/91, 89/93 (1999), para 54; and IAComHR, Annual Report 1978,
OEA/Ser.L/V/II.47, Doc. 13 rev.1, 29 June 1979, Section 2 Part II; IAComHR, Annual Report 198283, OEA/Ser.L/V/II.61, Doc. 22 rev. 1, 27 September 1983, Chapter III.
36
IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El
Salvador), Report No. 136/99, Case 10.488, 22 December 1999, paras. 221, 237, 240.
37
See, for example, Commission on Human Rights, Study on the right to the truth.Report of the Office
of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, para.
7.
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Amnesty and the rights of victims
law and gross human rights violations; the circumstances in which violations
took place; in the event of death, missing or enforced disappearance, the fate
and whereabouts of the victims; and the identity of perpetrators. 38
To make it possible for victims, their relatives and society to find out the truth, it is
essential that states preserve archives and other evidence concerning serious
violations of human rights. This may be seen as being part of the right to an
effective remedy, since it enables victims to corroborate their stories.
2.2 The development of the right to know the truth
The right to truth can be traced back to Articles 32 and 33 of Additional Protocol I 39
to the Geneva Conventions of 1949. 40 Article 32 holds the right of families to know
the fate of their relatives; 41 Article 33 lays down certain duties for the state with
respect to missing persons. 42
38
See ibid., para. 38.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol 1). Adopted on 8 June 1977 by the Diplomatic
Conference on the Reaffirmation and Development of International Humanitarian Law applicable in
Armed Conflicts, entry into force 7 December 1979.
40
Kai Ambos, The legal framework of Transitional Justice, Study prepared for the International
Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 20.
41
Article 32. - General principle
In the implementation of this Section, the activities of the High Contracting Parties, of the Parties to the
conflict and of the international humanitarian organizations mentioned in the Conventions and in this
Protocol shall be prompted mainly by the right of families to know the fate of their relatives.
42
Article 33. - Missing Persons
As soon as circumstances permit, and at the latest from the end of active hostilities, each Party to the
conflict shall search for the persons who have been reported missing by an adverse Party. Such adverse
Party shall transmit all relevant information concerning such persons in order to facilitate such searches.
In order to facilitate the gathering of information pursuant to the preceding paragraph, each Party to the
conflict shall, with respect to persons who would not receive more favourable consideration under the
Conventions and this Protocol:
(a) Record the information specified in Article 138 of the Fourth Convention in respect of such persons
who have been detained, imprisoned or otherwise held in captivity for more than two weeks as a result
of hostilities or occupation, or who have died during any period of detention;
(b) To the fullest extent possible, facilitate and, if need be, carry out the search for and the recording of
information concerning such persons if they have died in other circumstances as a result of hostilities or
occupation.
Information concerning persons reported missing pursuant to paragraph I and requests for such
information shall be transmitted either directly or through the Protecting Power or the Central Tracing
Agency of the International Committee of the Red Cross or national Red Cross (Red Crescent, Red
Lion and Sun) Societies. Where the information is not transmitted through the International Committee
of the Red Cross and its Central Tracing Agency, each Party to the conflict shall ensure that such
information is also supplied to the Central Tracing Agency.
The Parties to the conflict shall endeavour to agree on arrangements for teams to search for, identify
and recover the dead from battlefield areas, including arrangements, if appropriate, for such teams to be
accompanied by personnel of the adverse Party while carrying out the missions in areas controlled by
the adverse Party. Personnel of such teams shall be respected and protected while exclusively carrying
out these duties.
39
1.
2.
3.
4.
167
Chapter VI
The right to the truth gained prominence in the 1980s and 1990s after several
regime changes, when victims, their relatives and society demanded to know what
happened during a former regime. The Mothers of the Plaza del Mayo in Buenos
Aires (Argentina) is just one example. Special Rapporteur Louis Joinet emphasized
the importance of respecting the right to know and the right to truth in all
circumstances during the 1995 Meeting of experts on rights not subject to
derogation during states of emergency and exceptional circumstances. 43 In 1997,
Joinet included these rights in the Set of Principles for the protection and promotion
of human rights through action to combat impunity. 44 As described above, this Set
of Principles was updated in 2005. Principles 2 and 4 of the Updated Set of
Principles contain the individual and the collective right to the truth:
Principle 2:
THE INALIENABLE RIGHT TO THE TRUTH
Every people has the inalienable right to know the truth about past events
concerning the perpetration of heinous crimes and about the circumstances and
reasons that led, through massive or systematic violations, to the perpetration of
those crimes. Full and effective exercise of the right to the truth provides a vital
safeguard against the recurrence of violations. 45
Principle 4:
THE VICTIMS’ RIGHT TO KNOW
Irrespective of any legal proceedings, victims and their families have the
imprescriptible right to know the truth about the circumstances in which
violations took place and, in the event of death or disappearance, the victims’
fate. 46
The right to the truth and the right to know imply a duty for the state to ensure these
rights. This duty is laid down in Principle 3 of the updated Set of Principles:
THE DUTY TO PRESERVE MEMORY
A people’s knowledge of the history of its oppression is part of its heritage and,
as such, must be ensured by appropriate measures in fulfilment of the State’s
duty to preserve archives and other evidence concerning violations of human
rights and humanitarian law and to facilitate knowledge of those violations.
43
Commission on Human Rights, Eighth annual report and list of States which, since 1 January 1985,
have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro Despouy,
Special Rapporteur appointed pursuant to Economic and Social Council resolution 1985/37. Annex 1,
Report of the meeting of experts on rights not subject to derogation during states of emergency and
exceptional circumstances Geneva 17-19 May 1995,E/CN.4/Sub.2/1995/20, 26 June 1995, para. 39.
44
Commission on Human Rights, Question of the impunity of perpetrators of human rights violations
(civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision
1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, Principles 1-4.
45
Commission on Human Rights, Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005, Principle 2.
46
See ibid., Principle 4.
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Amnesty and the rights of victims
On 21 March 2006, the General Assembly adopted the Basic principles and
guidelines on the right to a remedy and reparation for victims of gross violations of
international human rights law and serious violations of international
humanitarian law, referred to earlier and known as the Van Boven-Bassiouni
Principles. 47 These Principles provide the following on the right to the truth.
Paragraph 22(b) states:
Satisfaction should include, where applicable, any or all of the following:
…
(b) Verification of the facts and full and public disclosure of the truth to the
extent that such disclosure does not cause further harm or threaten the safety
and interests of the victim, the victim’s relatives, witnesses, or persons who
have intervened to assist the victim or prevent the occurrence of further
violations”.
Section X of the Van Boven-Bassiouni Principles, on access to relevant information
concerning violations and reparation mechanisms, states in its sole Paragraph 24:
States should develop means of informing the general public and, in particular,
victims of gross violations of international human rights law and serious
violations of international humanitarian law of the rights and remedies
addressed by these Basic Principles and Guidelines and of all available legal,
medical, psychological, social, administrative and all other services to which
victims may have a right of access. Moreover, victims and their representatives
should be entitled to seek and obtain information on the causes leading to their
victimization and on the causes and conditions pertaining to the gross violations
of international human rights law and serious violations of international
humanitarian law and to learn the truth in regard to these violations.
From the above, it may be concluded that the collective’s right to know is
recognized as a separate right.
The conclusions of the 2006 OHCHR Report on the right to the truth represent
the core of the right to the truth, and read as follows:
55. The right to the truth about gross human rights violations and serious
violations of humanitarian law is an inalienable and autonomous right,
recognized in several international treaties and instruments as well as by
national, regional and international jurisprudence and numerous resolutions of
intergovernmental bodies at the universal and regional levels.
56. The right to the truth is closely linked to the State’s duty to protect and
guarantee human rights and to the State’s obligation to conduct effective
investigations into gross human rights violations and serious violations of
humanitarian law and to guarantee effective remedies and reparation. The right
47
General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, A/RES/60/147, 21 March 2006.
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Chapter VI
to the truth is also closely linked to the rule of law and the principles of
transparency, accountability and good governance in a democratic society.
57. The right to the truth is closely linked with other rights, such as the right to
an effective remedy, the right to legal and judicial protection, the right to family
life, the right to an effective investigation, the right to a hearing by a competent,
independent, and impartial tribunal, the right to obtain reparation, the right to be
free from torture and ill-treatment; and the right to seek and impart information.
Truth is fundamental to the inherent dignity of the human person.
58. In cases of gross human rights violations - such as torture, extrajudicial
executions and enforced disappearance - serious violations of humanitarian law
and other crimes under international law, victims and their relatives are entitled
to the truth. The right to the truth also has a societal dimension: society has the
right to know the truth about past events concerning the perpetration of heinous
crimes, as well as the circumstances and the reasons for which aberrant crimes
came to be committed, so that such events do not reoccur in the future.
59. The right to the truth implies knowing the full and complete truth as to the
events that transpired, their specific circumstances, and who participated in
them, including knowing the circumstances in which the violations took place,
as well as the reasons for them. In cases of enforced disappearance, missing
persons, children abducted or during the captivity of a mother subjected to
enforced disappearance, secret executions and secret burial place, the right to
the truth also has a special dimension: to know the fate and whereabouts of the
victim.
60. The right to the truth as a stand-alone right is a fundamental right of the
individual and therefore should not be subject to limitations. Giving its
inalienable nature and its close relationship with other non-derogable rights,
such as the right not to be subjected to torture and ill-treatment, the right to the
truth should be treated as a non-derogable right. Amnesties or similar measures
and restrictions to the right to seek information must never be used to limit,
deny or impair the right to the truth. The right to the truth is intimately linked
with the States’ obligation to fight and eradicate impunity.
61. International criminal tribunals, truth commissions, commissions of inquiry,
national criminal tribunals, national human rights institutions and other
administrative bodies and proceedings may constitute important tools for
ensuring the right to the truth. Judicial criminal proceedings, with a broad legal
standing in the judicial process for any wronged party and to any person or nongovernmental organization having a legitimate interest therein, are essential to
ensuring the right to the truth. Judicial remedies, such as habeas corpus, are also
important mechanisms to protect the right to the truth. 48
As Paragraph 60 of the 2006 OHCHR Study on the right to the truth points out, an
amnesty measure should not lead to a violation of the right to the truth.
48
Commission on Human Rights, Study on the right to the truth.Report of the Office of the United
Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, paras. 55-61.
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Amnesty and the rights of victims
2.3 The right to know the truth in international human rights law
The right to the truth is found in one of the human rights documents discussed in
Chapter IV. The International Convention for the Protection of All Persons from
Enforced Disappearance (2006) in its Preamble affirms “the right of any victim to
know the truth about the circumstances of an enforced disappearance and the fate of
the disappeared person, and the right to freedom to seek, receive and impart
information to this end”. Article 24(2) reads: “Each victim has the right to know the
truth regarding the circumstances of the enforced disappearance, the progress and
results of the investigation and the fate of the disappeared person. Each State Party
shall take appropriate measures in this regard.” In addition, Article 9(4) of the
Convention on the Rights of the Child explicitly recognizes the right to the truth. It
recognizes the right of children who have become separated from family members
because of detention, imprisonment, exile or death in detention to information about
the absent family member. 49
The Inter-American Commission on Human Rights recognizes the existence of a
right to the truth based on Articles 1(1) (on the obligation to respect rights), 50 8 (on
the right to a fair trial) and 25 (on the right to judicial protection), 51 and 13 (on
freedom of thought and expression) 52 of the American Convention on Human
Rights. 53 In Parada Cea et al. v. El Salvador (1999) the IAComHR concludes that
“the ‘right to the truth’ arises as a basic and indispensable consequence for all states
parties, given that not knowing the facts related to human rights violations means
that, in practice, there is no system of protection capable of guaranteeing the
identification and possible punishment of those responsible”. 54 The IAComHR also
mentions that the existence of obstacles, de facto or de iure, “to accessing and
49
Article 9(4) of the Convention on the Rights of the Child provides: “Where such separation results
from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or
death (including death arising from any cause while the person is in the custody of the State) of one or
both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if
appropriate, another member of the family with the essential information concerning the whereabouts
of the absent member(s) of the family unless the provision of the information would be detrimental to
the well-being of the child. States Parties shall further ensure that the submission of such a request shall
of itself entail no adverse consequences for the person(s) concerned.”
50
IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on the Massacre of the Jesuits in El
Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 223: “The interpretations of the
Inter-American Court in the Castillo Páez case and other cases relating to the generic obligations of
Article 1.1 of the Convention point to the conclusion that "the right to know the truth" arises as a basic
and indispensable consequence for every State party to that instrument, since lack of knowledge of the
facts relating to human rights violations means, in practice, that there is no system of protection capable
of guaranteeing the identification and eventual punishment of those responsible.”
51
IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99,
OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 152: The right to the truth is also
related to Article 25 of the Convention which establishes the right to have a simple and prompt remedy
for the protection of the rights enshrined in it.
52
Article 13 of the American Convention protects the right of access to information.
53
IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99,
OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 148.
54
See ibid., para. 150.
171
Chapter VI
obtaining important information regarding the facts and circumstances surrounding
the violation of a fundamental right” such as an amnesty law, constitutes “an open
violation to the right established” in Article 25, “and hampers the establishment of
domestic remedies which allow for judicial protection of the fundamental rights
established in the Convention, the Constitution and domestic laws”. 55
2.4 Mechanisms to guarantee the right to know the truth
The right to the truth may be ensured by national courts, truth (and reconciliation)
commissions, national or international commissions of inquiry, 56 international
criminal tribunals, national human rights institutions and other administrative
bodies and proceedings. 57 The state itself may also disclose the facts surrounding
crimes it has information on. These different mechanisms are all able to establish
(parts of) the truth, although they may reach various conclusions and cover various
parts of the truth. This is caused by the fact that a court will focus on those parts of
the truth that are necessary to decide whether the suspected perpetrator is guilty or
not, and a truth commission may focus more on the story of the victim. Because of
this, truth commissions will always have an added value next to criminal
proceedings. A truth commission is a mechanism to exercise the right to the truth
and the right to know. It is an official, temporary, public, non-judicial fact-finding
body that investigates a pattern of human rights crimes committed within a set
period. Generally, a truth commission is established to determine the truth “about
what has taken place; to facilitate the reconciliation process; to contribute to the
fight against impunity; and to reinstall or to strengthen democracy and the rule of
law”. 58Truth commissions take a victim-centred approach and usually complete
their task with a final report of findings of fact and recommendations.
It is not feasible to establish the truth about what happened regarding every
human rights crime that has been perpetrated. Even the combination of trials and a
national commission of inquiry does not guarantee the whole truth. For example, in
Argentina, the relatives of victims of forced disappearances continue to demand an
‘individualized truth’ in addition to the collective truth uncovered by the National
55
See ibid., para. 152.
Examples are: Argentina’s Commission on the Disappeared (1983), Chad’s Commission of Inquiry
into the crimes and misappropriations committed by ex-president Habré, his accomplices and/or
accessories (1990), Guatemala’s Commission for the historical clarification of human rights violations
and incidents of violence that have caused suffering to the Guatemalan population (1994), the
International Commission of Inquiry on Darfur (2005).
57
Commission on Human Rights, Study on the right to the truth.Report of the Office of the United
Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, para. 61.
58
See ibid., para. 14. See for instance Article XXVI (1) of the Peace agreement between the government
of Sierra Leone and the Revolutionary United Front of Sierra Leone, which reads: A Truth and
Reconciliation Commission shall be established to address impunity, break the cycle of violence,
provide a forum for both the victims and perpetrators of human rights violations to tell their story, get a
clear picture of the past in order to facilitate genuine healing and reconciliation. Another example:
Government of Chile, Executive Branch, Ministry of Justice, Undersecretary of the Interior, Supreme
Decree No. 355, Creation of the Commission on Truth and Reconciliation, Santiago, 25 April 1990.
56
172
Amnesty and the rights of victims
Commission on the Disappearance of Persons (CONADEP) and by the Junta
trials. 59 Acknowledging the importance of establishing the truth in individual cases,
Chile and Panama introduced a follow-up modality, through which the process of
truth seeking continues even though the respective commission of inquiry and truth
commission have finished their terms. 60
When an amnesty law is issued, national courts are ruled out to contribute to
establish the truth. In Argentina,
[a] decision by the Argentine Supreme Court rendered on 13 August 1998,
which ruled that courts lacked jurisdiction to hold the proceedings as a result of
the amnesty laws, led to submission of a case before the Inter-American
Commission. In a friendly settlement resolving this case, the Government of
Argentina accepted and undertook to guarantee “the right to the truth, which
involves the exhaustion of all means to obtain information on the whereabouts
of the disappeared persons”. As a result, Argentine courts were allowed to carry
on truth trials and an ad hoc Prosecutor’s Commission on truth proceedings was
established to investigate cases. In July 2001, approximately 3,570 human
rights cases were being investigated. 61
The truth trials, the establishment of truth commissions and truth and reconciliation
commissions in countries where human rights violations have taken place shows
that the importance of knowing what happened is also recognized by countries in
transition. 62
Truth commissions are not established to provide justice. The Argentine
CONADEP in its report noted that it “was set up not to sit in judgment, because that
is the task of the constitutionally appointed judges, but to investigate the fate of the
people who disappeared during those ill-omened years of” the nation’s life. 63
59
Juan E. Méndez, “The Human Right to Truth”, in: Borer, T.A. (ed.), Telling the Truths. Truth Telling
and Peace Building in Post-Conflict Societies, University of Notre Dame Press: Notre Dame (Indiana)
2006, pp. 115-150, p. 121.
60
See ibid., p. 133.
61
Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 16.
62
In Commission on Human Rights resolution 2005/66: Right to the truth, E/CN.4/RES/2005/66, 20
April 2005, The Commission on Human Rights:
1.Recognizes the importance of respecting and ensuring the right to the truth so as to contribute to
ending impunity and to promote and protect human rights;
2.Welcomes the establishment in several States of specific judicial mechanisms, as well as other
non-judicial mechanisms such as truth and reconciliation commissions that complement the justice
system, to investigate violations of human rights and violations of international humanitarian law, and
appreciates the elaboration and publication of the reports and decisions of these bodies;
3.Encourages the States concerned to disseminate, implement, and monitor implementation of, the
recommendations of non-judicial mechanisms such as truth and reconciliation commissions, and
provide information regarding compliance with the decisions of judicial mechanisms;
4.Encourages other States to consider establishing specific judicial mechanisms as well as, where
appropriate, truth and reconciliation commissions to complement the justice system, to investigate and
address gross violations of human rights and serious violations of international humanitarian law;
63
Nunca Más. The Report of the Argentine National Commission on the Disappeared, New York: Farrar
Straus Giroux in association with Index on Censorship London 1986, p. 1.
173
Chapter VI
A truth commission establishes a record of the crimes and the context in which
they were committed. In addition, it may provide a background and explanation of
the causes. A truth commission may also recommend cases for prosecution, as was
the case in Peru, 64 or grant amnesty for politically motivated crimes in return for a
genuine confession, as happened in South Africa.
Before a truth commission, the victim is given more attention and may tell his or
her story. The opportunity to relate what happened to them is a form of reparation.
For the victims, a truth commission may contribute to a sense of closure. 65 For
example in South Africa, the opportunity to tell one’s story was one of the
foundations of the TRC’s model for reconciliation. 66
John Dugard proposes a set of minimum requirements for truth commissions. 67
These are the conditions that should be met:
1.
2.
3.
4.
5.
6.
7.
8.
The Commission should be established by the legislature or executive of
a democratically elected regime;
The Commission should be a representative and independent body;
The Commission should have a broad mandate to enable it to make a
thorough investigation. It should not, for example, be restricted to
deaths and disappearances (as with Chile) but should be permitted
instead to investigate all forms of gross human rights violations;
The Commission should hold public hearings at which victims of
human rights abuses are permitted to testify;
The perpetrators of gross human rights violations should be named,
provided adequate opportunity is given to them to challenge their
accusers before the Commission;
The Commission should be required to submit a comprehensive report
and recommendations within a reasonable time;
The Commission should be empowered to recommend reparations for
victims of gross human rights violations; and
Amnesty should be denied to perpetrators of gross human rights abuses
who refuse to co-operate with the Commission or who refuse to make a
full disclosure of their crimes.
As with trials or a commission of inquiry, a truth commission is also no guarantee
to establish the whole truth. In El Salvador for instance, as a result of the limitations
64
Juan E. Méndez, “The Human Right to Truth”, in: T.A. Borer (ed.), Telling the Truths. Truth Telling
and Peace Building in Post-Conflict Societies, University of Notre Dame Press: Notre Dame (Indiana)
2006, pp. 115-150, p. 137.
65
Christopher C. Joyner, “Redressing Impunity for Human Rights Violations: The Universal
Declaration and the Search for Accountability”, Denver Journal of International Law and Policy, vol.
26 no. 4 1998, pp. 591-624, p. 610.
66
Christopher J. Colvin, ‘We are Still Struggling’: Storytelling, Reparations and Reconciliation after
the TRC, Centre for the Study of Violence and Reconciliation in collaboration with Khulumani
(Western Cape) Victims Support Group and the Cape Town Trauma Centre for Survivors of Violence
and Torture: December 2000, p. 24.
67
John Dugard, “Dealing with Crimes of a Past Regime. Is Amnesty Still an Option?”, Leiden Journal
of International Law, vol. 12 1999, pp. 1001-1015, p. 1012.
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Amnesty and the rights of victims
imposed on the truth commission’s mandate, it was not able to investigate all of the
cases of violations of human rights which had occurred between 1980 and 1992, but
only the most serious and notorious cases of that period. 68 The truth commission in
its report did not mention crimes that were not investigated. 69 Concerning the
Salvadorian truth commission, the IAComHR stated that “given the non-judicial
nature of the investigations and actions of that Commission, they could not relieve
the State of its mandatory obligation to investigate in order to gain a knowledge of
the truth, and prosecute and punish those responsible; all within the imperative need
to combat impunity”. 70
In cases of extrajudicial executions and disappearances, it is not unusual for the
perpetrators to try to cover up and conceal their crimes. Not only at the moment of
committing the crime, but also afterwards. This makes it extremely difficult for the
relatives to find out the truth about what happened. Examples hereof are the arrest
or abduction of persons resulting in their disappearance (e.g. Argentina, Uruguay),
the massacres of whole villages (e.g. Cambodia, Rwanda), more specifically the
Argentinean death flights, and one concrete example is the Salvadoran case of the
murder of six Jesuits priests, a woman and her daughter.
The Massacre of the Jesuits in El Salvador
A short description of the facts of the murder of the six Jesuit priests, a woman and her
daughter as established by the Salvadorian Truth Commission reads as follows:
In the early hours of 16 November 1989, a group of soldiers from the Atlacatl Battalion
entered the campus of José Simeón Cañas Central American University (UCA) in San
Salvador. They made their way to the Pastoral Centre, which was the residence of Jesuit
priests Ignacio Ellacuría, Rector of the University; Ignacio Martín-Baró, Vice-Rector;
Segundo Montes, Director of the Human Rights Institute; and Amando López, Joaquín
López y López and Juan Ramón Moreno, all teachers at UCA.
The soldiers tried to force their way into the Pastoral Centre. When the priests realized
what was happening, they let the soldiers in voluntarily. The soldiers searched the building
and ordered the priests to go out into the back garden and lie face down on the ground.
The lieutenant in command, José Ricardo Espinoza Guerra, gave the order to kill the
priests. Fathers Ellacuría, Martín-Baró and Montes were shot and killed by Private Oscar
Mariano Amaya Grimaldi, Fathers López and Moreno by Deputy Sergeant Antonio Ramiro
Avalos Vargas. Shortly afterwards, the soldiers, including Corporal Angel Pérez Vásquez,
found Father Joaquín López y López inside the residence and killed him. Deputy Sergeant
68
IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99,
OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 156.
69
See ibid., para. 157.
70
See ibid., paras. 146, 157. Paragraph 146 reads: The IACHR considers that, despite the importance of
the Truth Commission in establishing the facts related to the more serious violations and in promoting
national reconciliation, the functions it carried out cannot be considered to be an appropriate substitute
for the judicial process. Neither does it replace the State’s obligation to investigate the violations which
were committed within the scope of its jurisdiction, as well as to identify those responsible, impose
sanctions, and assure the victim appropriate reparation.
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Tomás Zarpate Castillo shot Julia Elva Ramos, who was working in the residence, and her
16-year-old daughter, Celina Mariceth Ramos. Private José Alberto Sierra Ascencio shot
them again, finishing them off.
They fired a machine gun at the façade of the residence and launched rockets and
grenades. Before leaving, they wrote on a piece of cardboard: “FMLN executed those who
informed on it. Victory or death, FMLN.”
In this case, those responsible for ordering the murder did everything in their power
to conceal the truth. Many people were accessory to the cover up. Eventually, in
this case, the truth was revealed by the Commission on the Truth for El Salvador.
The Commission on the Truth for El Salvador reveals the cover-up:
During the early hours of the morning of 16 November 1989, Major Carlos Camilo
Hernández Barahona and Lieutenant José Vicente Hernández Ayala went in person to
Colonel Ponce's office to report on everything that had happened at UCA. They reported
that they had a small suitcase with photographs, documents and money which the soldiers
had stolen from the Jesuits a few hours earlier. Colonel Ponce ordered it destroyed because
it was evidence of the armed forces' responsibility. They destroyed the suitcase at the
Military College. On returning to his unit, Lieutenant Espinoza Guerra informed the
Commander of the Atlacatl Battalion, Lieutenant Colonel Oscar Alberto León Linares, of
what had happened. President Cristiani entrusted the investigation of the crime to the
Commission for the Investigation of Criminal Acts (CIHD). Colonel Benavides told
Lieutenant Colonel Manuel Antonio Rivas Mejía, Head of CIHD, what had happened and
asked him for help. Mejía recommended that the barrels of the weapons which had been
used be destroyed and replaced with others in order to prevent them from being identified
during ballistic tests. This was later done with the assistance of Lieutenant Colonel Oscar
Alberto León Linares. Lieutenant Colonel Rivas Mejía also advised Colonel Benavides to
make sure that no record remained of those entering and leaving the Military College that
would make it possible to identify the culprits. Subsequently, Colonel Benavides and Major
Hernández Barahona ordered that all Military College arrival and departure logs for that
year and the previous year be burned. Shortly after the investigation began, Colonel René
Emilio Ponce arranged for Colonel Nelson Iván López y López, head of unit I of the
General Staff, who had also been in charge of the General Staff Tactical Operations Centre
during the entire night of 15 to 16 November, to join CIHD in order to assist in the
investigation of the case. In November, CIHD heard two witnesses, Deputy Sergeant
Germán Orellana Vázquez and police officer Victor Manuel Orellana Hernández, who
testified that they had seen soldiers of the Atlacatl Battalion near UCA that night; they later
changed their statements. Another witness also retracted her initial statement. Lucía Barrera
de Cerna, an employee at the University, said that she had seen, from a building adjacent to
the Jesuits' residence, soldiers in camouflage and berets. In the United States, where she
went for protection, she was questioned by the Federal Bureau of Investigation (FBI) and
retracted her earlier statement. Lieutenant Colonel Rivas Mejía, Head of CIHD, was present
when she was questioned. Subsequently, she confirmed her original statement. CIHD did
not take a statement from Colonel Benavides, even though the incident had occurred within
176
Amnesty and the rights of victims
his command zone. According to the court dossier, the first statement Benavides made was
on 11 January 1990 to the Special Honour Commission. On 2 January 1990, a month and a
half after the murders, Major Eric Warren Buckland, an officer of the United States Army
and an adviser to the armed forces of El Salvador, reported to his superior, Lieutenant
Colonel William Hunter, a conversation he had some days previously with Colonel Carlos
Armando Avilés Buitrago. During that conversation, Avilés Buitrago had told him that he
had learnt, through Colonel López y López, that Benavides had arranged the murders and
that a unit from the Atlacatl Battalion had carried them out. He also said that Benavides had
asked Lieutenant Colonel Rivas Mejía for help. Lieutenant Colonel William Hunter
informed the Chief of the United States Military Mission, Colonel Milton Menjívar, who
arranged a meeting in Colonel Ponce’s office where Buckland and Avilés were brought
face to face. Avilés denied having given Buckland such information. A few days after
Buckland's statements were reported, the Minister of Defence established a Special Honour
Commission, consisting of five officers and two civilians, to investigate the murders. On
learning what CIHD had found out, the Honour Commission questioned some 30 members
of the Atlacatl Battalion, including Lieutenant Espinoza Guerra and Second Lieutenant
Guevara Cerritors, and a number of officers of the Military College, including Colonel
Benavides and Lieutenant Mendoza Vallecillos. Lieutenants Espinoza and Mendoza and
Second Lieutenant Guevara, as well as the soldiers who had participated in the murders,
confessed their crime in extrajudicial statements to the Honour Commission. A civilian
member of the Commission, Rodolfo Antonio Parker Soto, legal adviser to the General
Staff, altered their statements in order to delete any reference to the existence of orders
from above. He also deleted the references to some officers, including the one to Major
Carlos Camilo Hernández Barahona. On 12 January, the Commission submitted its report to
President Cristiani. The report identified nine people as being responsible for the murders,
four officers and five soldiers; they were arrested and later brought to trial. Subsequently,
newly promoted Lieutenant Colonel Carlos Camilo Hernández Barahona was included in
the trial. The pre-trial proceedings took nearly two years. During this time, Colonel (now
General) René Emilio Ponce, Colonel (now General) Juan Orlando Zepeda, Colonel
Inocente Orlando Montano and Colonel (now General) Gilberto Rubio Rubio pressured
lower-ranking officers not to mention orders from above in their testimony to the court.
Finally, the trial by jury took place on 26, 27 and 28 September 1991 in the building of the
Supreme Court of Justice. The identity of the five members of the jury was kept secret. The
accused and the charges were as follows:
• Colonel Guillermo Alfredo Benavides Moreno, Lieutenant José Ricardo Espinoza Guerra
and Second Lieutenant Gonzalo Guevara Cerritos: accused of murder, acts of terrorism,
acts preparatory to terrorism and instigation and conspiracy to commit acts of terrorism.
• Lieutenant Yusshy René Mendoza Vallecillos: accused of murder, acts of terrorism, acts
preparatory to terrorism, instigation and conspiracy to commit acts of terrorism and of
being an accessory.
• Deputy Sergeant Antonio Ramiro Avalos Vargas, Deputy Sergeant Tomás Zarpate
Castillo, Corporal Angel Pérez Vásquez and Private Oscar Mariano Amaya Grimaldi:
accused of murder, acts of terrorism and acts preparatory to terrorism.
• Private Jorge Alberto Sierra Ascencio: tried in absentia for murder. Lieutenant Colonel
Carlos Camilo Hernández Barahona: accused of being an accessory.
The jury had to decide only with respect to the charges of murder and acts of terrorism. The
other charges were left to the judge to decide. Only Colonel Guillermo Alfredo Benavides
177
Chapter VI
Moreno and Lieutenant Yusshy René Mendoza Vallecillos were found guilty of murder.
The judge gave them the maximum sentence, 30 years in prison, which they are currently
serving. The judge also found Colonel Benavides and Lieutenant Mendoza guilty of
instigation and conspiracy to commit acts of terrorism. Lieutenants Espinoza and Guevara
Cerritos were sentenced to three years for instigation and conspiracy to commit acts of
terrorism. Lieutenant Colonel Hernández was also sentenced by the judge to three years for
being an accessory and Mendoza Vallecillos was also convicted on that charge. Espinoza,
Guevara and Hernández were released and continued in active service in the armed forces.
The Commission on the Truth makes the following findings and recommendations:
1. There is substantial evidence that on the night of 15 November 1989, then Colonel René
Emilio Ponce, in the presence of and in collusion with General Juan Rafael Bustillo, then
Colonel Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel Francisco
Elena Fuentes, gave Colonel Guillermo Alfredo Benavides the order to kill Father Ignacio
Ellacuría and to leave no witnesses. For that purpose, Colonel Benavides was given the use
of a unit from the Atlacatl Battalion, which two days previously had been sent to search the
priest's residence.
2. There is evidence that, subsequently, all these officers and others, knowing what had
happened, took steps to conceal the truth. There is sufficient evidence that General Gilberto
Rubio Rubio, knowing what had happened, took steps to conceal the truth.
3. There is full evidence that:
(a) That same night of 15 November, Colonel Guillermo Alfredo Benavides informed the
officers at the Military College of the order he had been given for the murder. When he
asked whether anyone had any objection, they all remained silent.
(b) The operation was organized by then Major Carlos Camilo Hernández Barahona and
carried out by a group of soldiers from the Atlacatl Battalion under the command of
Lieutenant José Ricardo Espinoza Guerra and Second Lieutenant Gonzalo Guevara
Cerritos, accompanied by Lieutenant Yusshy René Mendoza Vallecillos.
4. There is substantial evidence that:
(a) Colonel Oscar Alberto León Linares, Commander of the Atlacat Battalion, knew of the
murder and concealed incriminating evidence.
(b) Colonel Manual Antonio Rivas Mejía of the Commission for the Investigation of
Criminal Acts (CIHD) learnt the facts and concealed the truth and also recommended to
Colonel Benavides measures for the destruction of incriminating evidence.
(c) Colonel Nelson Iván López y López, who was assigned to assist in the CIHD
investigation, learnt what had happened and concealed the truth.
5. There is full evidence that Rodolfo Antonio Parker Soto, a member of the Special
Honour Commission, altered statements in order to conceal the responsibility of senior
officers for the murder.
6. The Commission believes that it is unfair that Colonel Guillermo Alfredo Benavides
Moreno and Lieutenant Yusshy René Mendoza Vallecillos should still be in prison when
the people responsible for planning the murders and the person who gave the order for the
murder remain at liberty. In the Commission's view, the request by the Society of Jesus that
Colonel Guillermo Alfredo Benavides Moreno and Lieutenant Yusshy René Mendoza
Vallecillos be pardoned should be granted by the relevant authorities. 71
71
United States Institute of Peace, From Madness to Hope: the 12-year war in El Salvador:Report of
the Commission on the Truth for El Salvador, S/25500, 1993, pp. 43-47.
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Amnesty and the rights of victims
In Almonacid-Arellano et al v. Chile (2006), the IACtHR highlighted the fact that
the various Chilean Commissions significantly contributed in trying to collectively
build the truth of what occurred between 1973 and 1990. 72 This notwithstanding,
the Court emphasized the important distinction between the (individual) right to the
truth and the (collective) right to know:
the “historical truth” included in the reports of the above mentioned
Commissions is no substitute for the duty of the State to reach the truth through
judicial proceedings. In this sense, Articles 1(1), 8 and 25 of the Convention
protect truth as a whole, and hence, the Chilean State must carry out a judicial
investigation of the facts related to Mr. Almonacid-Arellano’s death, attribute
responsibilities, and punish all those who turn out to be participants. Indeed, the
Report of the Comisión Nacional de Verdad y Reconciliación (National Truth
and Reconciliation Commission) concludes that:
From the standpoint of prevention alone, this Commission believes
that for the sake of achieving national reconciliation and preventing
the recurrence of such events it is absolutely necessary that the
government fully exercise its power to mete out punishment. Full
protection of human rights is conceivable only within a state that is
truly subject to the rule of law. The rule of law means that all citizens
are subject to the law and to the courts, and hence that the sanctions
contemplated in criminal law, which should be applied to all alike,
should thereby be applied to those who infringe the laws which
safeguard human rights. 73
This is an important conclusion, because if it is held that truth commissions and
other similar institutions can only contribute to the establishment of the collective
right to know, then the only way to guarantee the individual right to the truth is
through a judicial investigation. Here, the clash between the result of issuing
amnesty and the rights of victims becomes very clear.
Some truth commissions have the power to grant amnesty, for example those in
South Africa and East Timor. Such an amnesty is conditional. 74The Commission for
Reception, Truth and Reconciliation in East Timor 75 only granted amnesty for
violations not amounting to serious human rights crimes, and only after a public
expression of remorse. 76 That way, the amnesty that is granted becomes more
acceptable. Examples of truth commissions that positively complemented criminal
procedures are found in Argentina, Peru, Timor-Leste and Sierra Leone. 77
72
IACtHR, Almonacid-Arellano et al v. Chile, Series C No. 154 Judgment of 26 September 2006
(Preliminary Objections, Merits, Reparations and Costs), para. 149.
73
See ibid., para. 150.
74
See Section 3.1.4 of Chapter III.
75
Official name: Comissão de Acolhimento, Verdade e Reconciliação de Timor-Leste (CAVR).
76
Lars Waldorf, “Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice”,
Temple Law Review, vol. 79 no. 1 (2006), pp. 1-88, p. 24.
77
Security Council, The rule of law and transitional justice in conflict and post-conflict societies.
Report of the Secretary-General, S/2004/616, 23 August 2004, para 26.
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Chapter VI
2.5 Interrelationship with other victims’ rights
The right to the truth is also a fundamental part of the right to justice. When crimes
are investigated and trials take place, the truth, or part of it, may be established.
When an amnesty law is issued, and consequently no investigations or trials take
place, it is unlikely that victims will find out the truth themselves. A state may
establish a commission for that purpose, and open up archives and other
information concerning the crimes committed. However, according to Amnesty
International, after the Uruguayan government established the Comisión para la Paz
(Peace Commission), 78 the truth might be partly established, but the right to justice
was still violated by the 1986 amnesty law that “grants exemption from punishment
to all police and military personnel who committed human rights violations for
political motives or to obey orders before 1 March 1985”. 79 The IAComHR took
the political and ethical dimensions of the measure adopted by the Uruguayan
government into consideration, but nevertheless “reached a conclusion different
from that of the Government as to whether, with the law, the Government's highest
mission according to the obligations of the American Convention, which is to
defend and promote human rights, is being served”. The IAComHR has concluded
that the Uruguayan Expiry Law violates the American Convention on Human
Rights, especially Articles 1, 8 and 25. 80 In 2002, the IACtHR declared “the
continued denial of the truth about the fate of a disappeared person … a form of
cruel, inhuman and degrading treatment for the close family”. It considered “that
the delivery of the mortal remains in cases of detained-disappeared persons is, in
itself, an act of justice and reparation”. 81 The Court stipulated that the state should
satisfy the right to truth in the interests not only of the next of kin but also of society
as a whole. 82
Although the right to the truth and the right to reparation are discussed as two
separate rights here, the right to the truth is sometimes referred to as being part of
the right to reparation, for example in Paragraph 22(b) of the Van Boven-Bassiouni
Principles and Guidelines. In cases before the Inter-American Commission and
Court on Human Rights, the right to the truth was also referred to as a form of
reparation. In Monsignor Oscar Arnulfo Romero y Galdámez v. El Salvador
(2000),the IAComHR stated that, recognized and exercised in a concrete situation
78
Established in August 2000 to clarify the fate of all those who disappeared between 1973 and 1985.
Amnesty International, End Impunity. Justice for the victims of torture, Amnesty International
Publications: London 2001, p. 86.
80
IAComHR, Mendoza et. al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373,
10.374 and 10.375, Report No. 29/92, OEA/Ser.L/V/II.83 Doc. 14 at 154 (1993), 2 October 1992,
Conclusion para. 1.
81
IACtHR, Trujillo-Oroza v. Bolivia, Series C No. 92, Judgment of 27 February 2002 (Reparations and
Costs), para. 115. The Court continues: “It is an act of justice to know the whereabouts of the
disappeared person and it is a form of reparation because it allows the victims to be honored, since the
mortal remains of a person merit being treated with respect by their relatives, and so that the latter can
bury them appropriately.”
82
See ibid., para. 114.
79
180
Amnesty and the rights of victims
or individual case, to know the full, complete, and public truth as to the events that
transpired, their specific circumstances, and who participated in them is an
important means of reparation. 83 In Myrna Mack Chang v. Guatemala (2003), a
case concerning extrajudicial execution, the IACtHR found that the right of
relatives to the truth and the right of society to know everything that happened in
connection with the violations constitutes an important means of reparation. 84 In
Bámaca-Velásquez v. Guatemala (2002), the IACtHR held that “the possibility of
the victim’s next of kin knowing what happened to the victim and, if that be the
case, the whereabouts of the victim’s mortal remains, is a means of reparation” for
both the relatives of the victim and society as a whole. Therefore, the state should
provide this right. 85
That knowing the truth is also regarded as an important means of reparation
makes it all the more essential to respect this right.
2.6 Conclusion
As held in Chapter IV, amnesty and impunity are at odds with the obligation of
states to prosecute and punish the perpetrators of gross violations of human rights.
As a result, not only the right to justice, but also the opportunity for victims to claim
reparation and the possibility to retrieve the truth is taken away. For direct and
indirect victims of serious human rights violations, it is extremely important to
know the truth regarding such violations, to the fullest extent possible. The fate of
their loved ones and in case of their death the location of the remains, the identity of
the perpetrators, the causes and facts of such violations, and the circumstances
under which they occurred, are particularly relevant.
Various treaties and UN documents recognize the right to the truth. The Human
Rights Committee, the Working Group on Enforced or Involuntary Disappearances,
the European Court of Human Rights, the African Commission on Human and
Peoples’ Rights, and the Inter-American Commission on and Court of Human
Rights, among other, recognize the right to the truth in their respective
recommendations and judgments in several cases of human rights violations.
Another important observation is that truth commissions and truth and
reconciliation commissions may complement the justice system, but that they are
not a replacement in the sense that they cannot punish the perpetrators. In general,
truth commissions meet the collective/societies’ right to know, but not the
individual victims’ right to the truth. For individual victims, the most effective way
to find out the truth is through the justice system, complemented by a truth (and
reconciliation) commission.
83
IAComHR, Monsignor Oscar Arnulfo Romero y Galdámez v. El Salvador, Case 11.481, Report No.
37/00, 13 April 2000, paras. 147, 148.
84
IACtHR, Myrna Mack Chang v. Guatemala, Series C No. 101, Judgment of 25 November 2003
(Merits, Reparations and Costs), para. 274.
85
IACtHR, Bámaca-Velásquez v. Guatemala, Series C No. 91, Judgment of 22 February 2002
(Reparations and Costs), para. 76.
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Chapter VI
The 2006 UN Study on the right to the truth:
concludes that the right to the truth about gross human rights violations and
serious violations of human rights law is an inalienable and autonomous right,
linked to the duty and obligation of the State to protect and guarantee human
rights, to conduct effective investigations and to guarantee effective remedy and
reparations. This right is closely linked with other rights and has both an
individual and a societal dimension and should be considered as a nonderogable right and not be subject to limitations. 86
The right to the truth is a non-derogable right and should not be subject to
limitations. As the UN study on the right to the truth concluded, “[a]mnesties or
similar measures and restrictions to the right to seek information must never be used
to limit, deny or impair the right to the truth. The right to the truth is intimately
linked with the States’ obligation to fight and eradicate impunity.” 87 The right of
victims to know the truth implies a duty on the part of the state to provide the truth.
Knowing the truth contributes to a better understanding of the past, which may
contribute to the prevention of crimes. Therefore, it is not only in the interest of the
victims to know the truth, and make the truth known, but also in the interest of the
state.
Judicial investigations and trials are the most suitable way of retrieving and
establishing the truth. However, it is not possible to try every perpetrator. Besides,
criminal trials may not satisfy the need of victims to (publicly) tell their side of the
story. Therefore, even when amnesty is not granted, it is valuable to establish other
institutions to try to establish the truth in a more general way that amounts to the
right to know the truth. The right to the truth is interrelated to the rights of victims
to reparation and justice. These rights are the subject of the next sections.
3 RIGHT TO REPARATION
3.1 Introduction
The right to reparation is the second of the three victims’ rights discussed in this
chapter. The right of victims to reparation is an umbrella term for reparation that
may take the form of restitution, compensation, satisfaction, rehabilitation,
guarantees of non-repetition or memorialization efforts. 88 All these measures are
part of an obligation on the state, aimed to help the victims recover after a period in
which their human rights were violated. Recognition of the fact that human rights
86
Commission on Human Rights, Study on the right to the truth.Report of the Office of the United
Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, p. 2.
87
See ibid., para. 60.
88
See, for instance, Human Rights Council, Human Rights in Palestine and Other Occupied Arab
Territories, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25
September 2009, para. 1866: “Reparation can take the form of restitution, compensation or satisfaction,
but may also include measures of rehabilitation of victims and guarantees of non-repetition.”
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Amnesty and the rights of victims
violations took place is a first step in the process of reparation. The right to
reparation requires both individual and collective measures. 89
In 1989, the Sub-Commission on Prevention of Discrimination and Protection of
Minorities appointed Theo van Boven as Special Rapporteur assigned to undertake
a study concerning the right to restitution, compensation and rehabilitation for
victims of gross violations of human rights and fundamental freedoms and to draft
basic principles and guidelines on the issue. 90 In 1993, Special Rapporteur Van
Boven submitted his final report. 91 In this report, Van Boven stated that “it cannot
be ignored that a clear nexus exists between the impunity of perpetrators of gross
violations of human rights and the failure to provide just and adequate reparation to
the victims and their families or dependants”. 92 This indicates that in cases of
amnesty, reparation is rarely provided to the victims. The Special Rapporteur went
on to state that:
89
Commission on Human Rights, Question of the impunity of perpetrators of human rights violations
(civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision
1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 40. Paragraphs 41 and 42 read:
41. On an individual basis, victims including relatives and dependants must have an effective remedy.
The procedures applicable must be publicized as widely as possible. The right to reparation should
cover all injuries suffered by victims. According to the Basic Principles and Guidelines on the Right to
Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, drawn up by Mr.
Theo van Boven, Special Rapporteur for the Sub-Commission (E/CN.4/Sub.2/1996/17), this right
embraces three kinds of action:
(a) Restitution (seeking to restore victims to their previous state);
(b) Compensation (for physical or mental injury, including lost opportunities, physical damage,
defamation and legal aid costs); and
(c) Rehabilitation (medical care, including psychological and psychiatric treatment).
42. On a collective basis, symbolic measures intended to provide moral reparation, such as formal
public recognition by the State of its responsibility, or official declarations aimed at restoring victims'
dignity, commemorative ceremonies, naming of public thoroughfares or the erection of monuments,
help to discharge the duty of remembrance. In France, for example, it took more than 50 years for the
Head of State formally to acknowledge, in 1996, the responsibility of the French State for the crimes
against human rights committed by the Vichy regime between 1940 and 1944. Mention can be made of
similar statements by President Cardoso concerning violations committed under the military
dictatorship in Brazil, and more especially of the initiative of the Spanish Government, which recently
conferred the status of ex-servicemen on the anti-Fascists and International Brigade members who
fought on the Republican side during the Spanish civil war.
90
Commission on Human Rights, Question of the Violation of Human Rights and Fundamental
Freedoms, Including Policies of Racial Discrimination and Segregation and of Apartheid, in All
Countries, with Particular Reference to Colonial and Other Dependent Countries and Territories:
Report of the Sub-Commission under Commission on Human Rights Resolution 8 (XXIII),
E/CN.4/Sub.2/1989/13, 15 June 1989.
91
Commission on Human Rights, Study concerning the right to restitution, compensation and
rehabilitation for victims of gross violations of human rights and fundamental freedoms. Final report
submitted by Mr. Theo van Boven, Special Rapporteur, E/CN.4/Sub.2/1993/8, 2 July 1993; Preliminary
report (E/CN.4/Sub.2/1990/10). First progress report (E/CN.4/Sub.2/1991/7). Second progress report
(E/CN.4/Sub.2/1992/8).
92
Commission on Human Rights, Study concerning the right to restitution, compensation and
rehabilitation for victims of gross violations of human rights and fundamental freedoms. Final report
submitted by Mr. Theo van Boven, Special Rapporteur, E/CN.4/Sub.2/1993/8, 2 July 1993, para. 126.
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Chapter VI
[i]n many situations where impunity has been sanctioned by the law or where
de facto impunity prevails with regard to persons responsible for gross
violations of human rights, the victims are effectively barred from seeking and
receiving redress and reparation. In fact, once the State authorities fail to
investigate the facts and to establish criminal responsibility, it becomes very
difficult for victims or their relatives to carry on effective legal proceedings
aimed at obtaining just and adequate reparation. 93
In this final report, the Special Rapporteur proposed a Set of Basic Principles and
Guidelines concerning reparation to victims of human rights. Principle 5 of this set
provides that “[r]eparation for certain gross violations of human rights that amount
to crimes under international law includes a duty to prosecute and punish
perpetrators. Impunity is in conflict with this principle.” 94 In 1996, the Principles
and Guidelines were revised by Special Rapporteur Van Boven and received a new
title. Principle 2 of the Revised Set of Basic Principles and Guidelines on the right
to reparation for victims of gross violations of human rights and humanitarian law
states that the obligation to respect and to ensure respect for human rights and
humanitarian law includes the duty, amongst other things, to afford remedies and
reparation to victims. 95
Archbishop Desmond Tutu refers to the South African TRC report with regard to
victim compensation:
Zonder adequate schadeloosstelling en rehabilitatie kan er geen sprake zijn van
genezing en verzoening, noch op het individuele niveau, noch op dat van de
hele gemeenschap. ... Bovendien ... is schadeloosstelling van groot belang als
tegenwicht voor de amnestie. Het verlenen van amnestie onthoudt de
slachtoffers het recht een civiele procedure aan te spannen tegen daders. De
regering dient derhalve verantwoordelijkheid te aanvaarden voor
schadeloosstelling. 96
With this, Tutu emphasizes the need to counterbalance an amnesty measure by
means of reparation to the victims. Reparation is needed not only in the interest of
the victims, but also of society as a whole and the state itself.
93
See ibid., para 127.
See ibid., para 137.
95
Commission on Human Rights, Revised set of basic principles and guidelines on the right to
reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo
van Boven pursuant to Sub-Commission decision 1995/117, E/CN.4/Sub.2/1996/17, 24 May 1996.
96
Desmond Tutu, Geen toekomst zonder verzoening, De Bezige Bij: Amsterdam 1999, pp. 60, 61.
94
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Amnesty and the rights of victims
3.2 The development of the right to reparation
In 1998, the Commission on Human Rights appointed Mr. M. Cherif Bassiouni to
prepare a revised version of the revised basic principles and guidelines developed
by Special Rapporteur Van Boven with a view to their adoption by the General
Assembly. 97 This resulted in the 2005 Van Boven-Bassiouni Basic principles and
guidelines on the right to a remedy and reparation for victims of gross violations of
international human rights law and serious violations of international
humanitarian law. These principles and guidelines recognize the following forms
of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees
of non-repetition. 98 Section IX specifically provides principles and guidelines on
‘Reparation for harm suffered’. 99 Section IX clarifies that there are several ways of
97
Commission on Human Rights, The right to restitution, compensation and rehabilitation for victims
of gross violations of human rights and fundamental freedoms. Final report of the Special Rapporteur,
Mr. M. Cherif Bassiouni, submitted in accordance with Commission resolution 1999/33,
E/CN.4/2000/62, 18 January 2000.
98
General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, A/RES/60/147, 21 March 2006.
99
Section 9 on ‘Reparation for harm suffered’ contains the following principles and guidelines:
15. Adequate, effective and prompt reparation is intended to promote justice by redressing gross
violations of international human rights law or serious violations of international humanitarian law.
Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance
with its domestic laws and international legal obligations, a State shall provide reparation to victims for
acts or omissions which can be attributed to the State and constitute gross violations of international
human rights law or serious violations of international humanitarian law. In cases where a person, a
legal person, or other entity is found liable for reparation to a victim, such party should provide
reparation to the victim or compensate the State if the State has already provided reparation to the
victim.
16. States should endeavour to establish national programmes for reparation and other assistance to
victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their
obligations.
17. States shall, with respect to claims by victims, enforce domestic judgements for reparation against
individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal
judgements for reparation in accordance with domestic law and international legal obligations. To that
end, States should provide under their domestic laws effective mechanisms for the enforcement of
reparation judgements.
18. In accordance with domestic law and international law, and taking account of individual
circumstances, victims of gross violations of international human rights law and serious violations of
international humanitarian law should, as appropriate and proportional to the gravity of the violation
and the circumstances of each case, be provided with full and effective reparation, as laid out in
principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation,
satisfaction and guarantees of non-repetition.
19. Restitution should, whenever possible, restore the victim to the original situation before the gross
violations of international human rights law or serious violations of international humanitarian law
occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights,
identity, family life and citizenship, return to one’s place of residence, restoration of employment and
return of property.
20. Compensation should be provided for any economically assessable damage, as appropriate and
proportional to the gravity of the violation and the circumstances of each case, resulting from gross
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providing reparation, suitable for the individual and the collective rights to
reparation. The form of reparation required may depend on the society or culture
concerned and on the background of the conflict and the subsequent transition. 100 In
a research study in northern Uganda (2007), “[r]espondents commonly identified
compensation as a necessary response to harm, both as a form of accountability for
perpetrators and a means to improving the material conditions of affected
violations of international human rights law and serious violations of international humanitarian law,
such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and medical services, and psychological and
social services.
21. Rehabilitation should include medical and psychological care as well as legal and social services.
22. Satisfaction should include, where applicable, any or all of the following:
(a) Effective measures aimed at the cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure
does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives,
witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further
violations;
(c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and
for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in
accordance with the expressed or presumed wish of the victims, or the cultural practices of the families
and communities;
(d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of
the victim and of persons closely connected with the victim;
(e) Public apology, including acknowledgement of the facts and acceptance of responsibility;
(f) Judicial and administrative sanctions against persons liable for the violations;
(g) Commemorations and tributes to the victims;
(h) Inclusion of an accurate account of the violations that occurred in international human rights law
and international humanitarian law training and in educational material at all levels.
23. Guarantees of non-repetition should include, where applicable, any or all of the following
measures, which will also contribute to prevention:
(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by international standards of due process,
fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health-care professions, the media and other related
professions, and human rights defenders;
(e) Providing, on a priority and continued basis, human rights and international humanitarian law
education to all sectors of society and training for law enforcement officials as well as military and
security forces;
(f) Promoting the observance of codes of conduct and ethical norms, in particular international
standards, by public servants, including law enforcement, correctional, media, medical, psychological,
social service and military personnel, as well as by economic enterprises;
(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution;
(h) Reviewing and reforming laws contributing to or allowing Gross violations of international human
rights law and serious violations of international humanitarian law.
100
Ernesto Kiza, Corene Rathgeber & Holger Rohne, Victims of War. An Empirical Study on WarVictimization and Victims’ Attitudes towards Addressing Atrocities, Hamburger Edition: Hamburg
2006, p. 118.
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Amnesty and the rights of victims
communities”. 101In 2004, the UN Secretary-General issued a report on the Rule of
law and transitional justice in conflict and post-conflict societies. In this report, it is
held that: 102
[p]rogrammes to provide reparations to victims for harm suffered can be
effective and expeditious complements to the contributions of tribunals and
truth commissions, by providing concrete remedies, promoting reconciliation
and restoring victims’ confidence in the State. Reparations sometimes include
non-monetary elements, such as the restitution of victims’ legal rights,
programmes of rehabilitation for victims and symbolic measures, such as
official apologies, monuments and commemorative ceremonies.
No single form of reparation is likely to be satisfactory to victims. Instead,
appropriately conceived combinations of reparation measures will usually be
required, as a complement to the proceedings of criminal tribunals and truth
commissions. Whatever mode of transitional justice is adopted and however
reparations programmes are conceived to accompany them, both the demands
of justice and the dictates of peace require that something be done to
compensate victims. Indeed, the judges of the tribunals for Yugoslavia and
Rwanda have themselves recognized this and have suggested that the United
Nations consider creating a special mechanism for reparations that would
function alongside the tribunals.
Measures of reparation may also contribute in preventing human rights violations.
In the Updated Set of Principles for the protection and promotion of human rights
through action to combat impunity (2005), Section IV on the right to
reparation/guarantees of non-recurrence provides four general principles on the
right to reparation, Principles 31-34. 103 Principle 31 contains the right of victims to
reparation and the duty of the State to make reparation by stating that “[a]ny human
rights violation gives rise to a right to reparation on the part of the victim or his or
her beneficiaries, implying a duty on the part of the state to make reparation and the
possibility for the victim to seek redress from the perpetrator”.
101
Office of the United Nations High Commissioner for Human Rights, Making Peace our Own.
Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda,
United Nations: 2007, p. 47.
102
Security Council, The rule of law and transitional justice in conflict and post-conflict societies.
Report of the Secretary-General, S/2004/616, 23 August 2004, paras. 54 and 55. See also Security
Council, Letter dated 2 November 2000 from the Secretary-General addressed to the President of the
Security Council, S/2000/1063, 3 November 2000; and Security Council, Letter dated 14 December
2000 from the Secretary-General addressed to the President of the Security Council, S/2000/1198, 15
December 2000.
103
Commission on Human Rights, Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005.
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3.3 The right to reparation in international human rights law
Of the human rights conventions discussed in Chapter IV, the right to reparation is
explicitly recognized in Article 14 of the Convention against Torture (1984), 104
Article 63(1) of the American Convention on Human Rights (1948), 105 Article 9 of
the Inter-American Convention to Prevent and Punish Torture (1985) 106 and in
Article 24(4) and (5) of the International Convention for the Protection of All
Persons from Enforced Disappearance (2006). 107 Reparation as part of the right to a
remedy has been enshrined in Article 2(3) of the International Covenant on Civil
and Political Rights. 108 The ICC Statute provides for the right of victims to
reparations in Article 75. 109 Article 91 of Additional Protocol I to the Geneva
104
Article 14(1) of the CAT provides:
“Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and
has an enforceable right to fair and adequate compensation, including the means for as full
rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his
dependants shall be entitled to compensation."
105
Article 63(1) of the ACHR provides: “If the Court finds that there has been a violation of a right or
freedom protected by this Convention, the Court shall rule that the injured party be ensured the
enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the
consequences of the measure or situation that constituted the breach of such right or freedom be
remedied and that fair compensation be paid to the injured party.”
106
Article 9 of the Inter-American Convention to Prevent and Punish Torture provides: “The States
Parties undertake to incorporate into their national laws regulations guaranteeing suitable compensation
for victims of torture.”
107
International Convention for the Protection of All Persons from Enforced Disappearance Article
24(4) and (5) provides:
4. Each State Party shall ensure in its legal system that the victims of enforced disappearance have the
right to obtain reparation and prompt, fair and adequate compensation.
5. The right to obtain reparation referred to in paragraph 4 of this article covers material and moral
damages and, where appropriate, other forms of reparation such as:
(a) Restitution;
(b) Rehabilitation;
(c) Satisfaction, including restoration of dignity and reputation;
(d) Guarantees of non-repetition.
108
See, for example, Human Rights Council, Human Rights in Palestine and Other Occupied Arab
Territories, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25
September 2009, para. 1865; and, General Assembly, Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006, Principle 11:
Remedies for gross violations of international human rights law and serious violations of international
humanitarian law include the victim’s right to the following as provided for under international law:
(a) Equal and effective access to justice;
(b) Adequate, effective and prompt reparation for harm suffered;
(c) Access to relevant information concerning violations and reparation mechanisms.
109
Article 75(1), (2), and (3) of the ICC Statute provides:
1. The Court shall establish principles relating to reparations to, or in respect of, victims, including
restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon
request or on its own motion in exceptional circumstances, determine the scope and extent of any
damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.
2. The Court may make an order directly against a convicted person specifying appropriate reparations
to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate,
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Amnesty and the rights of victims
Conventions, 110 Article 39 of the Convention on the Rights of the Child 111 and
Article 6 of the International Convention on the Elimination of All Forms of Racial
Discrimination 112 also contain a provision on reparation.
The South African TRC acknowledged the existence of a right to reparation
based on international human rights instruments and treaties, echoed by state
practice and expert opinion in the TRC report. In its report, the South African TRC
noted that “reparations are a minimum requirement where ordinary access to the
courts is limited”. 113
If an amnesty law is issued as a result of which the right to justice is violated, it
is all the more important that reparation is provided to the victims. This is also true
for other situations of de facto or de iure impunity.
3.4 Mechanisms to guarantee the right to reparation
To provide reparation, it must be established who the victims are, what
happened to them and what kind of reparation best suits their needs. This implies
that a thorough investigation into the violations has to be conducted before
reparation is granted. 114 An independent and unbiased institution must carry out this
investigation. In the case of amnesty, as a result of which no legal investigations
will be conducted on the national level, and no trials will take place, the right to
reparation is violated if no other institution is entrusted with the investigations into
the Court may order that the award for reparations be made through the Trust Fund provided for in
article 79.
3. Before making an order under this article, the Court may invite and shall take account of
representations from or on behalf of the convicted person, victims, other interested persons or interested
States.
110
Article 91 Responsibility:
“A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the
case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons
forming part of its armed forces.”
111
Article 39 of the Convention on the Rights of the Child states:
“States Parties shall take all appropriate measures to promote physical and psychological recovery and
social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other
form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and
reintegration shall take place in an environment which fosters the health, self-respect and dignity of the
child.”
112
Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination:
“States Parties shall assure to everyone within their jurisdiction effective protection and remedies,
through the competent national tribunals and other State institutions, against any acts of racial
discrimination which violate his human rights and fundamental freedoms contrary to this Convention,
as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any
damage suffered as a result of such discrimination.”
113
Volume 6, p. 110, para. 43.
114
“Difficult questions include who is included among the victims to be compensated, how much
compensation is to be rewarded, what kinds of harm are to be covered, how harm is to be quantified,
how different kinds of harm are to be compared and compensated and how compensation is to be
distributed.” - Security Council, The rule of law and transitional justice in conflict and post-conflict
societies. Report of the Secretary-General, S/2004/616, 23 August 2004, para. 54.
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the alleged violations and the reparation that should be granted to the victims and/or
their relatives. For example, in Velásquez Rodríguez v. Honduras (1988) the
IACtHR ruled that Honduras had to pay fair compensation to the victims’ next of
kin. 115The Committee against Torture argues that every “State party should adopt
measures to regulate and institutionalize the right of victims of torture to fair and
adequate compensation”. 116
As discussed in Chapter III, amnesty may not only be granted when there is no
political will to prosecute, but also because of a lack of legal and law enforcement
institutions and professionally trained legal professionals to conduct fair trials. In
such a case, an international court that is established for the specific conflict may be
an option, or the International Criminal Court to try those most responsible for the
committed crimes. In case no efforts are made ensure of the right to justice, a state
may still ensure the right to the truth and the right to reparations by means of
establishing a truth (and reconciliation) commission. Principle 24 of the Updated
Set of Principles holds that “[a]mnesties and other measures of clemency shall be
without effect with respect to the victims’ right to reparation, to which principles 31
through 34 refer, and shall not prejudice the right to know”. In cases of amnesty, it
is often seen that a truth commission is established. Truth commissions may also be
assigned to recommend on reparation measures for the victims. This was the case in
for example Chile, 117 South Africa, 118 Sierra Leone 119 and Liberia. 120
Recommendations on reparations in the final report of the Liberian TRC
17.0. RECOMMENDATIONS ON REPARATIONS
The TRC hereby recommends that the Government of Liberia assumes its full
responsibility under international law principles and regimes and pursuant to its moral,
legal, social, political, cultural, economic, and security obligations to its citizens to
provide reparations for all those individuals and communities victimized by the years of
instability and war.
115
IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits),
para. 194(5), IACtHR, Velásquez Rodríguez v. Honduras, Series C No. 7, Judgment of 21 July 1989,
paras. 25-26. See also, IACtHR, “Las Dos Erres” Massacre v. Guatemala, Series C No. 211, Judgment
of 24 November 2009 (Preliminary Objection, Merits, Reparations, and Costs), paras. 223-227, 310(5).
116
Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of
the Convention, Conclusions and Recommendations of the Committee against Torture: Venezuela,
CAT/C/CR/29/2, 23 December 2002, para. 11(c).
117
Report of the Chilean National Commission on Truth and Reconciliation (1993), Part 4, Chapter 1,
pp. 1057-1074.
118
Report of the Truth and Reconciliation Commission of South Africa, Volume One (1998), pp. 285293, Volume Six (2003), Section Two, pp. 92-164.
119
Report of the Sierra Leone Truth & Reconciliation Commission (2004), Volume Two, Chapter 4, pp.
227-270.
120
Report of the Republic of Liberia Truth and Reconciliation Commission (2009), Volume I:
Preliminary findings and determinations, p. 59 and Volume II: Consolidated Final Report, Chapter 17,
pp. 378-381.
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Amnesty and the rights of victims
The TRC recommends a reparation program of approximately US$500m spanning a 30
year implementation period. Specifically the TRC recommends that within the first 5
years that is from July 1, 2009 - July 30, 2014 all direct victim support program must be
implemented including memorials, victim support and the process of prosecution.
Further that the program of compulsory free education must continue in operation for at
least 30 years. See annex 4 for somes and Application of Reparation Funds.
17.1 Addressing the Needs of Victims
The TRC recommends reparation in the form of psychosocial, physical, therapeutic,
counselling, medical, mental health and other health related services for all physically
challenged individuals who were incapacitated as a consequence of the civil war to
rehabilitate them in returning to normal live utilizing the full potentials of other human
resources
The TRC recommends that personal cash or material assistance be given other victims
who are today asking nothing more than assistance as li=le as a bundle of zinc or two
to put shelter over their heads of their burnt out or badly looted residential structures
to protect them from repeated sun beat and rain fall year in and year out. This shall be
done on a case by case basis as the managers of the Reparation Trust Fund may
determine.
17.2 The Reparation Trust Fund
The TRC recommends the resourcing of the reparation trust fund to ensure that the
reparation programme is well managed and timely executed to satisfy the post-war
objectives envisioned in the TRC Act and Policy on reparation.
Pursuant to this objective the TRC recommends that the E.J. Roye building which was
constructed by tax payers’ money for private purposes shall be nationalized and the
proceeds therefrom be utilized for reparation trust fund.
The TRC also recommends that considering the history of land disputes and the well
established fact that the colonialists of the ACS and pioneers of the Liberian Government
acquired land by force from the natives, that the JJ Roberts Trust Fund established by
former president JJ Roberts for the education of the “children of Monrovia” be
nationalized and the proceeds therefrom be utilized for the education of the “children of
Liberia”.
17.3. Reparation for Particular Groups, Individuals and Communities
The TRC further recommends that a reparation program for the empowerment of women
devastated by the civil war be extended to survivors to advance their academic and
economic pursuits in the form of soft micro credit economic programs, small enterprise
and marketing programs with education on small business management for
sustainability, including free education for themselves and children from primary to
secondary as well tertiary education.
The TRC recommends that the Central Bank, Ministry of Finance or the Government of
Liberia ensures that commercial banks and lending institutions expand existing micro
economic programs and government guaranteed lending schemes to women everywhere,
especially in the rural areas, and on very flexible terms and conditions suitable to poor
people. Training in management of funding shall be critical and imperative.
17.4 Memorials
The TRC recommends that in order to memorialize the dead and out of respect for the
survivors of the Liberian civil conflict, that there be established a national holiday for
that purpose to be observed once every year; preferably that National Unification Day be
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renamed National Unification and Memorial Day, and that memorial sites be built in the
capital cities of each county to include every site of massacres where the remains of our
people en masse have been buried from 1979 to 2003.
The TRC recommends that befitting programmes be held on that day and that the
Government assist the people to conduct proper cleansing ceremonies according to their
customs and traditions to cleanse the land and lay the spirits of the dead ones to rest.
That there be assistance to rebuild the shrines and holy places and rehabilitate desecrated
traditional, cultural and religious institutions.
17.4.1 Burial of former Presidents
The TRC recommends that appropriate national memorial ceremonies be held and a
befitting grave be erected with a tomb to honor the memory and loss of President
William R. Tolbert, Jr., the 19th President of Liberia who was buried in a mass grave in
Monrovia.
The TRC also recommends that appropriate national memorial ceremonies be held and a
befitting grave be erected with a tomb to honor the memory and loss of President Samuel
K. Doe who surrendered to Prince Y. Johnson and was killed while in his custody. Hon.
Prince Y. Johnson should be made to account for the remains of the late President,
especially the skull of the head of the President which was occasionally displayed by
Hon. Johnson as a “war trophy”.
17.4.2 Issuance of Death Certificates for war dead
The TRC recommends that certificates of death adorned in the National Colors, be issued
to the surviving heirs of all those who lost their lives during the period 1979 to 2003 as a
consequence of the national conflict and who to date remain unaccounted for, are
without a grave or other legal evidence of death. The Independent National Human
Rights Commission will verify and authenticate the conflict related deaths utilizing TRC
database and other reliable sources and will work of the Bureau of Vital Statistics in the
issuance of death certificates.
That all missing persons, that is, those who have not maintained any contact with relative
or friends for a period of more than seven years, be and are hereby declared dead.
17.4.3 Public Apology
The TRC recommends that the Government of Liberia issues public apology to the
people of Liberia for the dastardly nature of the Liberian conflict and the wanton loss of
human life and destruction of properties that ensued in its wake.
The TRC also recommends that the Government of Liberia issues public apology to the
Governments and peoples of West African nations and other foreign nations and their
peoples for the wanton, malicious, inhumane and willful deaths of their citizens during
the Liberian civil war. The TRC takes particular note of the death of journalists
Christopher Imodibe and Tayo Awotusin of the Guardian and Champion Newspapers
respectively and recommends that the Government of Liberia issues death certificates to
their memory and that the Press Union of Liberia hold appropriate memorial service in
their honor and that of all other journalists who fell during the Liberian crisis.
The TRC further recommends that the Government of Liberia issues public apologies to
each government that contributed troops to the various peace keeping missions deployed
in Liberia for the wanton, deliberate, and malicious killings of their soldiers in active
duty.
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Amnesty and the rights of victims
One of the reparation measures recommended by the Liberian TRC is on
memorials. Memorialization efforts meet the collective right to reparation. The
International Center for Transitional Justice (ICTJ) holds “that efforts to
collectively remember past human rights abuse and atrocity can contribute to a
more democratic, peaceful, and just future”. 121 To this end, the ICTJ has a program
on Memory, Memorials and Museums (MMM). MMM measures are, for instance,
public memorials, monuments and museums about past human rights abuse, crimes
against humanity, war crimes and genocide. With these MMM measures, it is aimed
to provide victims with “physical spaces that are places of mourning, and in some
cases healing”. 122 An example of a memorialization effort is the Escuela Superior
de Méchanica de la Armade (Navy School of Mechanics, ESMA) in Buenos Aires
(Argentina), which is now a memorial site. The ESMA was the most infamous
centre of illegal detentions, torture and the assassination of political dissidents
during the 1976-1983 military rule.
In general, what measures are needed and whether they should be individual or
collective should be based on victims’ wishes. 123 Most victims expect recovery of
the truth and reparation, particularly compensation. 124 Victims often ask for
compensation, especially when poverty resulted from the conflict. One victim of
violence in northern Uganda stated: “I want the Government to compensate me for
my properties that were destroyed by the rebels. It may not reverse the harms done
but it will help me re-establish my life.” 125 The role of victims in the process of
developing reparation programs is also acknowledged in the Updated Set of
Principles. The Updated Set of Principles contains two principles on reparation
procedures, Principles 32 and 33. 126In these principles, it is held that victims should
121
International Center for Transitional Justice, Memory, Memorials and Museums. MMM Program,
accessible via <http://es.ictj.org/en/>
122
Ibid.
123
See, for instance, Ernesto Kiza, Corene Rathgeber & Holger Rohne, Victims of War. An Empirical
Study on War-Victimization and Victims’ Attitudes towards Addressing Atrocities, Hamburger Edition:
Hamburg 2006, p. 121; See also Section 5 of this chapter, on victim participation.
124
Office of the United Nations High Commissioner for Human Rights, Making Peace our Own.
Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda,
United Nations: 2007, p. 70.
125
See ibid., p. 47.
126
Commission on Human Rights,Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005; Principle 32 on reparation procedures provides:
All victims shall have access to a readily available, prompt and effective remedy in the form of
criminal, civil, administrative or disciplinary proceedings subject to the restrictions on prescription set
forth in principle 23. In exercising this right, they shall be afforded protection against intimidation and
reprisals. Reparations may also be provided through programmes, based upon legislative or
administrative measures, funded by national or international sources, addressed to individuals and to
communities. Victims and other sectors of civil society should play a meaningful role in the design and
implementation of such programmes. Concerted efforts should be made to ensure that women and
minority groups participate in public consultations aimed at developing, implementing, and assessing
reparations programmes. Exercise of the right to reparation includes access to applicable international
and regional procedures.
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play a meaningful role in reparation processes and that knowledge of existence of
such processes should be widely disseminated.
The attitude of victims with regard to addressing atrocities varies per country or
region. This means that to best serve the interests of victims with regard to
reparation measures, the reparations offered should be adapted to the needs of the
victims. 127
Even when a state promises reparation in the form of compensation to the
victims, a state may still fail to actually pay this compensation. One of the members
of a South African victims support group stated the following, which provides an
example hereof:
They promised us reparations. I have a letter from President Nelson Mandela so
how can they say no? They must give us reparations because we will never
believe them again if we do not get reparations. It is because they don’t care
about us, I think. They know that many of our people are dying because they
don’t have these reparations. How many more of us must die before they do
what they say they should [would] do. 128
Not keeping a promise of reparation strengthens the negative feelings of victims
towards the state and will certainly not contribute to reconciliation or to trust in the
new government.
3.5 Interrelationship with other victims’ rights
The right to reparation is interwoven with the right to the truth and the right to
justice. As was elaborated on in Section 2.5 of this chapter, the right to reparation is
related to the right to truth in the sense that knowing the truth is regarded as an
important means of reparation. 129 Besides, before one may determine what
Principle 33 on publicizing reparation procedures provides:
Ad hoc procedures enabling victims to exercise their right to reparation should be given the widest
possible publicity by private as well as public communication media. Such dissemination should take
place both within and outside the country, including through consular services, particularly in countries
to which large numbers of victims have been forced into exile.
127
Ernesto Kiza, Corene Rathgeber & Holger Rohne, Victims of War. An Empirical Study on WarVictimization and Victims’ Attitudes towards Addressing Atrocities, Hamburger Edition: Hamburg
2006, p. 121.
128
Christopher J. Colvin, ‘We are Still Struggling’: Storytelling, Reparations and Reconciliation after
the TRC, Centre for the Study of Violence and Reconciliation in collaboration with Khulumani
(Western Cape) Victims Support Group and the Cape Town Trauma Centre for Survivors of Violence
and Torture: December 2000, p. 21.
129
IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El
Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 228: “An important part of the
right to compensation for human rights violations, in terms of providing satisfaction and ensuring that
there is no repetition, is the right of any person, and of society in general, to know the full, complete
and public truth about the events that have occurred, the specific circumstances surrounding them, and
those who participated in them.”
194
Amnesty and the rights of victims
reparation is just in the circumstances, it should first be determined what should be
repaired, i.e. the truth.
In cases of enforced or involuntary disappearances, the Human Rights
Committee argues that simply by offering money to the relatives of the victim, the
right to reparation is not fulfilled. The continuing uncertainty concerning the fate
and whereabouts of the victim in which the relatives find themselves must be
revealed first. 130 Therefore, in María del Carmen Almeida de Quinteros et al. v.
Uruguay (1983) the Human Rights Committee concluded:
that responsibility for the disappearance of Elena Quinteros falls on the
authorities of Uruguay and that, consequently, the Government of Uruguay
should take immediate and effective steps:
(a) to establish what has happened to Elena Quinteros since 28 June 1976, and
secure her release;
(b) to bring to justice any persons found to be responsible for her
disappearance and ill-treatment;
(c) to pay compensation for the wrongs suffered; and
(d) to ensure that similar violations do not occur in the future. 131
The enforced disappearance of Elena Quinteros Almeida
Maria del Carmen Almeida de Quinteros describes what happened to her daughter:
My daughter, Elena Quinteros Almeida (born on 9 September 1945), was arrested at her
home in the city of Montevideo on 24 June 1976. For four days she was being held
completely incommunicado. It appears that Elena misled her captors, and told them she had
a rendezvous with someone that they wanted to arrest. They took her to the place of the
alleged appointment, which was very close to the Embassy of Venezuela. 132
Believing that Elena was going to denounce someone, her captors brought her near to the
Embassy, allowing her freedom of movement so that she could go to the supposed
rendezvous. Elena, who had already given thought to the possibility, went into the house
130
Commission on Human Rights, Study concerning the right to restitution, compensation and
rehabilitation for victims of gross violations of human rights and fundamental freedoms. Final report
submitted by Mr. Theo van Boven, Special Rapporteur, E/CN.4/Sub.2/1993/8, 2 July 1993; Other
Special Rapporteurs familiar with this issue have supported this position; See, for instance,
Commission on Human Rights, Question of the impunity of perpetrators of violations of human rights
(civil and political rights): final report prepared by Mr. L. Joinet, pursuant to Subcommission
resolution 1995/35, E/CN.4/Sub.2/1996/18, 29 June 1996; See also, IAComHR, Lucio Parada Cea et
al. v. El Salvador, Case No. 10.480, Report No. 1/99, OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27
January 1999, para. 154: “[T]he Committee … insisted on the fact that the duty to redress the damage is
not satisfied solely by means of offering a quantity of money to the relatives of the victims. In the first
place, an end must be put to the state of uncertainty and lack of information in which ... [the direct
relatives of the victims] have been placed, i.e., provide complete and public knowledge of the truth.”
131
Human Rights Committee, María del Carmen Almeida de Quinteros et al. v. Uruguay, Comm. No.
107/1981, CCPR/C/OP/2 at 138 (1990), 21 July 1983, para. 16.
132
See ibid., para. 1.2.
195
Chapter VI
next to the Embassy. From there she managed to jump over the dividing wall, thus landing in
Venezuelan territory. She shouted “Asylum!” and stated her name and occupation. When
they realized what was happening, the policemen escorting her came through the gate giving
access to the gardens of the Embassy, without being stopped by the four policemen on
guard. When they heard Elena shouting, the Ambassador and his secretary, as well as other
officials, ran towards her and were able to see her being beaten and dragged by the hair by
the policemen who were trying to remove her by force from Venezuelan territory. The
Counsellor of the Embassy, Mr. Frank Becerra, and the Secretary, Baptista Olivares, tried to
prevent the woman seeking refuge from being removed from the Embassy garden before she
could enter the residence itself. While Elena was being dragged outside, the two diplomats
were grappling with the police, grabbing hold of Elena's legs. One of the policemen struck
Mr. Becerra, who fell, thus enabling them to take Elena away and put her in a greenish
Volkswagen ... 133
Maria del Carmen Almeida de Quinteros never heard from her daughter again. She did never
“obtain from the authorities any official information about her daughter's whereabouts, nor
was her detention officially admitted.” 134
The Human Rights Committee is of the opinion that with respect to violations of
the right to life, “the direct relatives of the victims have the right to be compensated
for these violations due, among other things, to the fact that the circumstances of
the death and the identity of those responsible for the crimes are unknown”. Here,
the interrelationship between the right to the truth and the right to reparation is
clear. The Updated Set of Principles also recognizes this interrelationship; Principle
34 on the Scope of the right to reparation refers to the right to the truth by stating
that in cases of enforced disappearances, “the family of the direct victim has an
imprescriptible right to be informed of the fate and/or whereabouts of the
disappeared person and, in the event of decease, that person’s body must be
returned to the family as soon as it has been identified, regardless of whether the
perpetrators have been identified or prosecuted”. 135
As with knowing the truth, justice being served may also be regarded as a form
of reparation. The IACtHR in its judgment in Almonacid-Arellano et al v. Chile
(2006) stated that “[t]his judgment is, in and of itself, a form of reparation”. 136The
Human Rights Committee remarked that reparation may, amongst other things,
consist of bringing to justice the perpetrators of human rights violations. 137 The
133
See ibid., para. 10.3.
See ibid., para. 1.4.
135
Commission on Human Rights, Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005, Principle 34.
136
IACtHR, Almonacid-Arellano et al v. Chile, Series C No. 154 Judgment of 26 September 2006
(Preliminary Objections, Merits, Reparations and Costs), para. 171(4).
137
Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation
Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 16.
134
196
Amnesty and the rights of victims
Human Rights Committee holds that reparation as part of the right to a remedy is
embodied by Article 2(3) of ICCPR: “Without reparation to individuals whose
Covenant rights have been violated, the obligation to provide an effective remedy,
which is central to the efficacy of Article 2, paragraph 3, is not
discharged.” 138Therefore, it may be held that when either the right to justice or the
right to the truth is violated, the right to reparation may also be violated. The
consequences may vary, however, depending on the victims’ needs. In the outcome
of a survey conducted in Nepal, 139 more than 99 percent of the respondents
favoured reparations for the victims. 140 Fifty-two percent of the respondents thought
that compensation should be provided to the victims and their families. 141
According to the ICTJ, “reparations are the most tangible form of recognition and
redress that states can provide to victims”. The ICTJ holds that “[i]n contrast to
other forms of criminal accountability that primarily deal with perpetrators or longterm institutional changes, reparations constitute very concrete and immediate
acknowledgment of the dignity of the victims and their status as citizens”. 142
The South African TRC in its 2003 report noted that the international legitimacy
of the amnesty process “depends on the provision of adequate reparations to the
victims of gross violations of human rights. Making good the injuries to victims of
gross violations of human rights where their ability to seek reparation has been
taken away from them is thus an inescapable moral obligation on the part of the …
state.” 143
3.6 Conclusion
Victims of gross violations of international human rights law and serious violations
of international humanitarian law have a right to reparation. Reparation is important
because it acknowledges the suffering of the victims. It may contribute in a very
important way to the healing of victims of human rights crimes. Healing the victims
contributes to the process of transition to a just society. As a result, reparation
measures also contribute to prevent new violations and to the healing of society as a
whole.
There are various forms of reparation measures. The Van Boven-Bassiouni
Basic Principles and Guidelines lay down the right to reparation for victims of gross
138
Ibid., “Article 2, paragraph 3, of the ICCPR requires that States Parties make reparation to
individuals whose Covenant rights have been violated. Without reparation to individuals whose
Covenant rights have been violated, the obligation to provide an effective remedy, which is central to
the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by
articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally
entails appropriate compensation.”
139
For more details, see Section 4.1 of this chapter.
140
International Center for Transitional Justice, Nepali Voices. Perceptions of Truth, Justice,
Reconciliation, Reparations and the Transition in Nepal, ICTJ and the Advocacy Forum: Kathmandu
March 2008, p. 45.
141
See ibid., p. 46.
142
Ibid.
143
Volume 6 (2003), p. 110, para. 44.
197
Chapter VI
violations of international human rights law and serious violations of international
humanitarian law, and define different kinds of reparation measures. Reparation
may constitute restitution, compensation, satisfaction, rehabilitation, guarantees of
non-repetition or memorialization efforts. Which form best suits the needs of
victims may depend on the nature of the conflict and the local customs. What is
needed exactly should be decided in collaboration with the victims.
The trial of the alleged prosecutor and justice being served may be seen as a
form of reparation as can be the confession of the perpetrator before a truth
commission. The next section goes more deeply into the right to justice.
4 RIGHT TO JUSTICE
4.1 Introduction
In 2008, the International Center for Transitional Justice issued the report Nepali
Voices. Perceptions of Truth, Justice, Reconciliation, Reparations and The
Transition in Nepal on a survey conducted in Nepal, of which the objectives were
to:
- Understand the immediate needs and concerns of victims after signing
of the CPA [Comprehensive Peace Agreement]
- Capture opinions and attitudes about specific transitional-justice
mechanisms, including justice, truth commissions, reconciliation,
amnesty and reparations. 144
This report produced some interesting results that are useful for this chapter.
One of these is that “[a]n overwhelming majority of the respondents (90 percent)
wanted trials and punishment for past human-rights violations”. 145 In addition, 93
percent felt that it was [very important (69%) or important (25%)] to have
accountability for past human-rights violations”. 146 Seventy-seven percent were of
the opinion that human-rights violators and perpetrators should not receive
amnesty. 147
The victims’ right to justice is the right of victims to an effective remedy. This
means that the state has the obligation to “investigate violations, to prosecute the
perpetrators and, if their guilt is established, to punish them”. 148 The right to a fair
and effective remedy is described by Joinet and:
144
International Center for Transitional Justice, Nepali Voices. Perceptions of Truth, Justice,
Reconciliation, Reparations and the Transition in Nepal, ICTJ and the Advocacy Forum: Kathmandu
March 2008, p. iii.
145
See ibid., p. 38.
146
Ibid.
147
See ibid., p. 43.
148
Commission on Human Rights, Question of the impunity of perpetrators of human rights violations
(civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision
1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 27. Also in para 27: “Although the
decision to prosecute is initially a State responsibility, supplementary procedural rules should allow
198
Amnesty and the rights of victims
implies that all victims shall have the opportunity to assert their rights and
receive a fair and effective remedy, ensuring that their oppressors stand trial
and that they obtain reparations. As pointed out in the preamble and in the set
of principles, there can be no just and lasting reconciliation without an effective
response to the need for justice; as a factor of reconciliation, forgiveness,
insofar as it is a private act, implies that the victim must know the perpetrator
of the violations and that the latter has been in a position to show repentance.
For forgiveness to be granted, it must first have been sought. 149
victims to be admitted as civil plaintiffs in criminal proceedings or, if the public authorities fail to do
so, to institute proceedings themselves.”
149
Commission on Human Rights, Question of the impunity of perpetrators of human rights violations
(civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision
1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 26. Paras. 30-39 entail:
“Restrictions justified by the desire to combat impunity
30. Restrictions may be applied to certain rules of law in order to support efforts to counter impunity.
The aim is to prevent the rules concerned from being used to benefit impunity, thus obstructing the
course of justice. The main restrictions are as follows.
(a) Prescription
31. Prescription is without effect in the case of serious crimes under international law, such as crimes
against humanity. It cannot run in respect of any violation while no effective remedy is available.
Similarly, prescription cannot be invoked against civil, administrative or disciplinary actions brought by
victims.
(b) Amnesty
32. Amnesty cannot be accorded to perpetrators of violations before the victims have obtained justice
by means of an effective remedy. It must have no legal effect on any proceedings brought by victims
relating to the right to reparation.
(c) Right to asylum
33. Neither political refugee status nor territorial asylum, nor diplomatic asylum may be granted.
(d) Extradition
34. The political nature of an offence may not be advanced as an argument against extradition, nor the
principle of non-extradition of nationals.
(e) Trial in absentia
35. Unlike most Roman law countries, common law countries do not acknowledge trial in absentia in
their legal systems. The absence of such a procedure significantly benefits impunity, especially when
the countries concerned refuse to cooperate with the courts (such as the International Criminal Tribunal
in the Hague). As a compromise, might trial in absentia not be admitted only after it has been legally
established that cooperation has been refused? If not, non-recognition of trial in absentia should be
limited to the judgement phase alone.
(f) Due obedience
36. Due obedience cannot exonerate a perpetrator from criminal responsibility; at most it may be taken
into consideration as a mitigating circumstance. Similarly, the fact that violations may have been
perpetrated by a subordinate may not exonerate his superiors if they did not use their authority to
prevent or stop the violation as soon as they knew or were in a position to know that a violation was
being or was about to be committed.
(g) Legislation on repentance
37. In cases where legislation on repentance has been adopted as part of the restoration of or transition
to democracy, such legislation may be advanced in mitigation of evidence but cannot completely
exonerate repentant perpetrators; a distinction must be drawn, depending on what risks the perpetrators
ran, between revelations made while grave violations were taking place and those made subsequently.
(h) Military courts
38. Because military courts do not have sufficient statutory independence, their jurisdiction must be
limited to specifically military infractions committed by members of the military, to the exclusion of
human rights violations, which must come within the jurisdiction of the ordinary courts.
199
Chapter VI
The UN Commission on Human Rights recognized “that accountability of
perpetrators of grave human rights violations is one of the central elements of any
effective remedy for victims of human rights violations and a key factor in ensuring
a fair and equitable justice system and, ultimately, reconciliation and stability
within a State”. 150 The right to justice for the victims should, just like the right to
know the truth and the right to reparation, not be sacrificed by the state without the
consent of the victims.
4.2 The development of the right to justice
In 1985, the UN General Assembly adopted the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power, of which Principle 4 recognizes
the right to justice. 151 In the 1995 Report of the Meeting of experts on rights not
subject to derogation during states of emergency and exceptional circumstances, the
Human Rights Committee held that,
while a State may have discretion to amnesty or pardon officials accused of
human rights violations, granting immunity from criminal responsibility may
not be done in such a way as to prejudice the right of victims to pursue a civil
remedy, nor does it relieve the State of its obligation to investigate
responsibility for human rights violations under article 2 of the International
Covenant. Article 2 sets forth the general obligations of States parties, and is
not subject to derogation. The Inter-American Commission on Human Rights
takes a stronger position, indicating the granting of immunity from criminal
prosecution violates the rights of the victim. Its decisions concern countries
which were not parties to applicable human rights treaties at the time the
violations occurred. ... The existence of concurring jurisprudence in these
systems and in the opinions of the pertinent United Nations rapporteurs
evidences the existence of a rule of customary international law. 152
The Van Boven-Bassiouni Basic Principles and Guidelines on the right to a remedy
and reparation for victims of gross violations of international human rights law and
(i) The principle of the irremovability of judges
39. Irremovability, though vital as a safeguard of the independence of judges, must not benefit
impunity. Judges appointed in conformity with an earlier legal regime may be confirmed in their
positions. Conversely, judges appointed unlawfully may be relieved of their functions in accordance
with the principle of parallelism, subject to appropriate safeguards.”
150
Commission on Human Rights, Commission on Human Rights resolution 1999/34; Impunity,
E/CN.4/RES/1999/34, 26 April 1999.
151
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985),
Principle 4: “Victims should be treated with compassion and respect for their dignity. They are entitled
to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for
the harm that they have suffered.”
152
Commission on Human Rights, Eighth annual report and list of States which, since 1 January 1985,
have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro Despouy,
Special Rapporteur appointed pursuant to Economic and Social Council resolution 1985/37. Annex 1,
Report of the meeting of experts on rights not subject to derogation during states of emergency and
exceptional circumstances Geneva 17-19 May 1995,E/CN.4/Sub.2/1995/20, 26 June 1995, para. 40.
200
Amnesty and the rights of victims
serious violations of international humanitarian law incorporate the right to a
remedy and justice in Sections VII and VIII: 153
VII. Victims’ right to remedies
11. Remedies for gross violations of international human rights law and serious
violations of international humanitarian law include the victim’s right to the
following as provided for under international law:
(a) Equal and effective access to justice;
(b) Adequate, effective and prompt reparation for harm suffered;
(c) Access to relevant information concerning violations and reparation
mechanisms.
VIII. Access to justice
12. A victim of a gross violation of international human rights law or of a
serious violation of international humanitarian law shall have equal access to an
effective judicial remedy as provided for under international law. Other
remedies available to the victim include access to administrative and other
bodies, as well as mechanisms, modalities and proceedings conducted in
accordance with domestic law. Obligations arising under international law to
secure the right to access justice and fair and impartial proceedings shall be
reflected in domestic laws. To that end, States should:
(a) Disseminate, through public and private mechanisms, information about all
available remedies for gross violations of international human rights law and
serious violations of international humanitarian law;
(b) Take measures to minimize the inconvenience to victims and their
representatives, protect against unlawful interference with their privacy as
appropriate and ensure their safety from intimidation and retaliation, as well as
that of their families and witnesses, before, during and after judicial,
administrative, or other proceedings that affect the interests of victims;
(c) Provide proper assistance to victims seeking access to justice;
(d) Make available all appropriate legal, diplomatic and consular means to
ensure that victims can exercise their rights to remedy for gross violations of
international human rights law or serious violations of international
humanitarian law.
13. In addition to individual access to justice, States should endeavour to
develop procedures to allow groups of victims to present claims for reparation
and to receive reparation, as appropriate.
14. An adequate, effective and prompt remedy for gross violations of
international human rights law or serious violations of international
humanitarian law should include all available and appropriate international
processes in which a person may have legal standing and should be without
prejudice to any other domestic remedies.
153
General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, A/RES/60/147, 21 March 2006.
201
Chapter VI
The Updated Set of Principles for the protection and promotion of human rights
through action to combat impunity not only recognizes the right to know and the
right to reparation/guarantees of non-recurrence, but also the duty to prosecute,
which is the consequence of the victims’ right to justice. Principle 19 on duties of
states with regard to the administration of justice holds that “[s]tates shall undertake
prompt, thorough, independent and impartial investigations of violations of human
rights and international humanitarian law and take appropriate measures in respect
of the perpetrators, … by ensuring that those responsible for serious crimes under
international law are prosecuted, tried and duly punished”. 154Principle 32 of the
Updated Set of Principles holds that “[a]ll victims shall have access to a readily
available, prompt and effective remedy in the form of criminal, civil, administrative
or disciplinary proceedings.” 155 Together with Principle 12 of the Basic Principles
and Guidelines on the right to a remedy and reparation for victims of gross
violations of international human rights law and serious violations of international
humanitarian law, these principles echo a deep-rooted rule of international human
rights law. 156 Also the Human Rights Committee stated that, in case of serious
violations, 157 victims must have recourse to judicial remedies.
4.3 The right to justice in international human rights law
Several of the international and regional human rights instruments examined in
Chapter IV stipulate the right to an effective remedy. The right is found in the
International Covenant on Civil and Political Rights (Article 2(3)), 158 the
154
Commission on Human Rights,Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the
protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1,
8 February 2005, Principle 19; Principle 19 continues: “Although the decision to prosecute lies
primarily within the competence of the State, victims, their families and heirs should be able to institute
proceedings, on either an individual or a collective basis, particularly as parties civiles or as persons
conducting private prosecutions in States whose law of criminal procedure recognizes these procedures.
States should guarantee broad legal standing in the judicial process to any wronged party and to any
person or non-governmental organization having a legitimate interest therein.”
155
See ibid., Principle 32
156
Commission on Human Rights, Impunity: Report of the independent expert to update the Set of
Principles to combat impunity, Diane Orentlicher, E/CN.4/2005/102, 18 February 2005, para. 58.
157
In Human Rights Committee, Coronel et al. v. Colombia, Comm. No. 778/1997,
CCPR/C/76/D/778/1997, 24 October 2002, the Human Rights Committee “recalled that, if the violation
that is the subject of the complaint is particularly serious, as is the case with violations of basic human
rights, particularly the right to life, remedies of a purely disciplinary and administrative nature cannot
be considered sufficient or effective.” Para. 6.2.
158
Article 2(3) of the International Covenant on Civil and Political Rights holds the right to an effective
remedy:
Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an
effective remedy, notwithstanding that the violation has been committed by persons acting in an official
capacity;
202
Amnesty and the rights of victims
Convention against Torture (Article 13) 159 and in the International Convention for
the Protection of All Persons from Enforced Disappearance (Preamble, Articles
8(2) 160 and 20(2)). 161 Regional instruments that embody the right to an effective
remedy are: the American Convention on Human Rights (Article 25), 162 the
(European) Convention for the Protection of Human Rights and Fundamental
Freedoms (Article 13), 163 the African Charter on Human and Peoples Rights
(Article 7(1)) 164 and the Arab Charter on Human Rights (Article 23). 165 The right to
a remedy is also found in the Universal Declaration of Human Rights (Article
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
159
Article 13 of the CAT reads:
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any
territory under its jurisdiction has the right to complain to and to have his case promptly and impartially
examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses
are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence
given.
160
Article 8(2) Each State Party shall guarantee the right of victims of enforced disappearance to an
effective remedy during the term of limitation.
161
Article 20(2) Without prejudice to consideration of the lawfulness of the deprivation of a person’s
liberty, States Parties shall guarantee to the persons referred to in article 18, paragraph 1, the right to a
prompt and effective judicial remedy as a means of obtaining without delay the information referred to
in article 18, paragraph 1. This right to a remedy may not be suspended or restricted in any
circumstances.
162
Article 25 of the American Convention on Human Rights contains the right to judicial protection:
1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent
court or tribunal for protection against acts that violate his fundamental rights recognized by the
constitution or laws of the state concerned or by this Convention, even though such violation may have
been committed by persons acting in the course of their official duties.
2. The States Parties undertake:
1. to ensure that any person claiming such remedy shall have his rights determined by the competent
authority provided for by the legal system of the state;
2. to develop the possibilities of judicial remedy; and to ensure that the competent authorities shall
enforce such remedies when granted.
163
Article 13 on the right to an effective remedy provides:
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation has been committed by persons
acting in an official capacity.
164
Article 7(1):
Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal
to competent national organs against acts of violating his fundamental rights as recognized and
guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed
innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the
right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an
impartial court or tribunal.
165
Article 23: Each State party to the present Charter undertakes to ensure that any person whose rights
or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity.
203
Chapter VI
8), 166and in the Universal Islamic Declaration on Human Rights (Preamble at
g(xiii) 167 and Article IV). 168
The Human Rights Committee applied the right to an effective remedy (Article
2(3) ICCPR) in F. Birindwa ci Bithashwiwa, E. Tshisekedi wa Mulumba v. Zaire
(1989). The Committee held that the state party is under an obligation “to take
effective measures to remedy the violations suffered by the authors, in particular to
ensure that they can effectively challenge these violations before a court of law, to
grant appropriate compensation to Mr. Tshisekedi and Mr. Birindwa, and to ensure
that similar violations do not occur in the future”.169 A few years later, in General
Comment No. 20 (1992), the Human Rights Committee laid down that “[a]mnesties
are generally incompatible with the duty of States to investigate ... acts [of torture];
to guarantee freedom from such acts within their jurisdiction; and to ensure that
they do not occur in the future”. 170 When granting amnesty, states should ensure the
right to an effective remedy, “including compensation and such full rehabilitation as
may be possible”. 171 In Rodriguez v. Uruguay (1994), the Committee gave its view
on a case concerning a torture victim who claimed that Uruguay had violated
Article 7 of the Covenant. 172 The Committee found:
that the facts as submitted sustain a finding that the military regime in Uruguay
violated article 7 of the Covenant. In this context, the Committee notes that,
166
Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law.
167
Preamble at g): in our obligation to establish an Islamic order:
xiii) wherein every individual shall have the right to bring legal action against anyone who commits a
crime against society as a whole or against any of its members;
Do hereby, as servants of Allah and as members of the Universal Brotherhood of Islam, at the
beginning of the Fifteenth Century of the Islamic Era, affirm our commitment to uphold the following
inviolable and inalienable human rights that we consider are enjoined by Islam.
168
IV. Right to Justice:
a) Every person has the right to be treated in accordance with the Law, and only in accordance with the
Law.
b) Every person has not only the right but also the obligation to protest against injustice; to recourse to
remedies provided by the Law in respect of any unwarranted personal injury or loss; to self-defence
against any charges that are preferred against him and to obtain fair adjudication before an independent
judicial tribunal in any dispute with public authorities or any other person.
c) It is the right and duty of every person to defend the rights of any other person and the community in
general (Hisbah).
d) No person shall be discriminated against while seeking to defend private and public rights.
e) It is the right and duty of every Muslim to refuse to obey any command which is contrary to the Law,
no matter by whom it may be issued.
169
Human Rights Committee,F. Birindwa ci Bithashwiwa, E. Tshisekedi wa Mulumba v. Zaire, Comm.
Nos. 241/1987 and 242/1987, CCPR/C/37/D/242/1987, 2 November 1989, para. 14.
170
Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other
Cruel, Inhuman or Degrading Treatment or Punishment),Replaces general comment 7, 10 March
1992,para. 15.
171
Ibid.
172
Article 7 ICCPR reads: No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without his free consent to medical or
scientific experimentation.
204
Amnesty and the rights of victims
although the Optional Protocol lays down a procedure for the examination of
individual communications, the State party has not addressed the issues raised
by the author as a victim of torture nor submitted any information concerning
an investigation into the author's allegations of torture. Instead, the State party
has limited itself to justifying, in general terms, the decision of the Government
of Uruguay to adopt an amnesty law. 173
Human Rights Committee, Rodriguez v. Uruguay (1994)
The victim, Hugo Rodriguez, submitted the following facts to the Human Rights Committee:
In June 1983, the Uruguayan police arrested the author [Hugo Rodriguez] and his wife,
together with several other individuals. The author was taken by plainclothes policemen to
the headquarters of the secret police (Dirección Nacional de Información e Inteligencia),
where he allegedly was kept handcuffed for several hours, tied to a chair and with his head
hooded. He was allegedly forced to stand naked, still handcuffed, and buckets of cold water
were poured over him. The next day, he allegedly was forced to lie naked on a metal
bedframe; his arms and legs were tied to the frame and electric charges were applied (picana
eléctrica) to his eyelids, nose and genitals. Another method of ill-treatment consisted in
coiling wire around fingers and genitals and applying electric current to the wire (magneto);
at the same time, buckets of dirty water were poured over him. Subsequently, he allegedly
was suspended by his arms, and electric shocks were applied to his fingers. This treatment
continued for a week, after which the author was relocated to another cell; there he remained
incomunicado [sic] for another week. On 24 June, he was brought before a military judge
and indicted on unspecified charges. He remained detained at the “Libertad Prison” until 27
December 1984.
The author states that during his detention and even thereafter, until the transition from
military to civilian rule, no judicial investigation of his case could be initiated. After the reintroduction of constitutional guarantees in March 1985, a formal complaint was filed with
the competent authorities. On 27 September 1985, a class action was brought before the
Court of First Instance (Juzgado Letrado de Primera Instancia en lo Penal de 4 Turno)
denouncing the torture, including that suffered by the author, perpetrated on the premises of
the secret police. The judicial investigation was not, however, initiated because of a dispute
over the court’s jurisdiction, as the military insisted that only military courts could
legitimately carry out the investigations. At the end of 1986, the Supreme Court of Uruguay
held that the civilian courts were competent, but in the meantime, the Parliament had
enacted, on 22 December 1986, Law No. 15,848, the Limitations Act or Law of Expiry (Ley
de Caducidad) which effectively provided for the immediate end of judicial investigation
into such matters and made impossible the pursuit of this category of crimes committed
during the years of military rule. 174
173
See ibid., para. 12.1.
Human Rights Committee, Rodriguez v. Uruguay, Comm. No. 322/1988, CCPR/C/51/D/322/1988, 9
August 1994, paras. 2.1, 2.2.
174
205
Chapter VI
The Human Rights Committee concluded that the Uruguayan amnesty law (Law
No. 15,848, 1986) seriously impeded victims’ right to an adequate remedy. 175
Uruguay defended itself by claiming that victims may still initiate private
investigations into crimes they were a victim of, despite the amnesty law. The
Human Rights Committee rejected this view and found “that the responsibility for
investigations falls under the state party’s obligation to grant an effective
remedy”. 176 The Human Rights Committee concluded that in the specific
circumstances of Rodriguez v. Uruguay, the victim did not have an effective
remedy.
The Committee moreover reaffirms its position that amnesties for gross
violations of human rights and legislation such as the Law No. 15,848, Ley de
Caducidad de la Pretensión Punitiva del Estado are incompatible with the
obligations of the State party under the Covenant. The Committee notes with
deep concern that the adoption of this law effectively excludes in a number of
cases the possibility of investigation into past human rights abuses and thereby
prevents the State party from discharging its responsibility to provide effective
remedies to the victims of those abuses. Moreover, the Committee is concerned
that, in adopting this law, the State party has contributed to an atmosphere of
impunity which may undermine the democratic order and give rise to further
grave human rights violations. 177
Another example of a violation of Article 2(3) ICCPR observed by the Human
Rights Committee is the Chilean amnesty law, which grants amnesty to persons
who committed offences between 11 September 1973 and 10 March 1978. 178
According to the Human Rights Committee, the amnesty law prevents Chile “from
complying with its obligation … to ensure an effective remedy to anyone whose
rights and freedoms under the Covenant have been violated”. 179 In Coronel et al. v.
Colombia (2002), the Human Rights Committee recognizes that states parties have
an obligation to provide the victims’ relatives with effective remedy, 180 including
compensation, based on Article 2(3) ICCPR. 181
The Inter-American Commission on Human Rights concluded that the
Argentinean amnesty laws 182 violate Article XVIII (right to a fair trial) of the
175
See ibid., para. 12.2.
See ibid., para. 12.3.
177
See ibid., para. 12.4.
178
Human Rights Committee, Concluding Observations of the Human Rights Committee: Chile,
CCPR/C/79/Add.104, 30 March 1999.
179
See ibid., para. 7.
180
(Footnote added) “In accordance with the Committee's case law and that of other international
human rights bodies, the military courts in Colombia cannot be considered an effective remedy for
dealing with human rights violations committed by members of the army.” in Human Rights
Committee, Coronel et al. v. Colombia, Comm. No. 778/1997, CCPR/C/76/D/778/1997, 24 October
2002, para. 5.7.
181
Human Rights Committee, Coronel et al. v. Colombia, Comm. No. 778/1997,
CCPR/C/76/D/778/1997, 24 October 2002, para. 10.
182
Laws No. 23,492 and No. 23,521 and Decree No.1002/89.
176
206
Amnesty and the rights of victims
American Declaration of the Rights and Duties of Man and Articles 1, 8 and 25 of the
American Convention on Human Rights.183 With reference to the same articles, the
IAComHR rejected the 1986 Uruguayan amnesty law. 184 In the eyes of the
Commission, “such laws remove the most effective measure for enforcing human
rights, i.e., the prosecution and punishment of the violators”. 185 With regard to the
human rights situation in Colombia, the IAComHR stated that a states parties to the
ACHR “cannot invoke the application of their domestic law, in this case amnesty
laws, in order to disregard their obligation to ensure the full and proper functioning
of justice for the victims”. 186This stipulation is internationally recognized and is
embodied in Article 27 of the Vienna Convention on the Law of Treaties, 1969. 187
In Barrios Altos v. Peru (2001) the Inter-American Court of Human Rights
considered that:
the amnesty laws adopted by Peru prevented the victims’ next of kin and the
surviving victims in this case from being heard by a judge, as established in
Article 8(1) of the Convention; they violated the right to judicial protection
embodied in Article 25 of the Convention; they prevented the investigation,
capture, prosecution and conviction of those responsible for the events that
occurred in Barrios Altos, thus failing to comply with Article 1(1) of the
Convention, and they obstructed clarification of the facts of this case. Finally,
the adoption of self-amnesty laws that are incompatible with the Convention
meant that Peru failed to comply with the obligation to adapt internal legislation
that is embodied in Article 2 of the Convention. 188
The Court considers that it should be emphasized that, in the light of the general
obligations established in Articles 1(1) and 2 of the American Convention, the
States Parties are obliged to take all measures to ensure that no one is deprived
of judicial protection and the exercise of the right to a simple and effective
recourse, in the terms of Articles 8 and 25 of the Convention. Consequently,
States Parties to the Convention which adopt laws that have the opposite effect,
such as self-amnesty laws, violate Articles 8 and 25, in relation to Articles 1(1)
and 2 of the Convention. Self-amnesty laws lead to the defenselessness of
victims and perpetuate impunity; therefore, they are manifestly incompatible
with the aims and spirit of the Convention. This type of law precludes the
183
IAComHR, Consuelo et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, 10.311,
Report No. 28/92, OEA/Ser.L/V/II.83 Doc. 14 at 41 (1993), 2 October 1992.
184
Uruguayan Law 15,848 of 22 December 1986; See also, IAComHR, Mendoza et. al. v. Uruguay, Cases
10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Report No. 29/92,
OEA/Ser.L/V/II.83 Doc. 14 at 154 (1993), 2 October 1992.
185
IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El
Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 200.
186
IACtHR, Almonacid-Arellano et al v. Chile, Series C No. 154 Judgment of 26 September 2006
(Preliminary Objections, Merits, Reparations and Costs), para. 125; IAComHR, Third Report on the
Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 345;
IACtHR, Loayza-Tamayo v. Peru, Series C No. 42, Judgment of 27 November 1998 (Reparations and
Costs), para. 168.
187
Article 27. Internal law and observance of treaties. A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty. …
188
IACtHR,Barrios Altos v. Peru, Series C No. 75, Judgment of 14 May 2001 (Merits), para. 42.
207
Chapter VI
identification of the individuals who are responsible for human rights
violations, because it obstructs the investigation and access to justice and
prevents the victims and their next of kin from knowing the truth and receiving
the corresponding reparation. 189
4.4 Mechanisms to guarantee the right to justice
To provide justice to the victims, it is essential that there is a well-functioning legal
system to conduct fair trials. Fair trials are important to both victims and
perpetrators. As the UN Secretary-General put it: “Without adequately resourced
and professionally trained judicial and law enforcement institutions, victims have
no legal recourse and perpetrators act with impunity.” 190The right to justice is
violated when sham trials are conducted. An example is the case known as the
Massacre of the Jesuits in El Salvador referred to above in Section 2.4. In its report
on the case, the IAComHR “concludes that the investigation undertaken by the
Salvadoran State with respect to the extra-judicial execution of the victims in this
case was not conducted seriously or in good faith, but was rather intended to protect
some of the material authors and all of the intellectual authors of the
crime”. 191Sham trials pretending that the right to a remedy is lived up to are
counterproductive to smooth progress of the transition. They will not bring justice
and the victims will feel abandoned again. Consequently, when the right to justice is
not respected, impunity prevails. No matter that the truth will be revealed or that
reparation will be provided to the victims or their relatives via other transitional
justice mechanisms, the perpetrators will not be punished and live in freedom.
Although not prosecuted, perpetrators may still be held accountable in some way
by barring them from public services. 192 For example, the Secretary-General claims
that “[i]n the context of Afghanistan’s fragile transition to peace, reform of the
justice sector is inseparable from security, and thus from commensurate reform of
the military, police, corrections, and disarmament, demobilization and
reintegration”. 193 There are also options of alternative justice, like the gaçaça courts
in Rwanda and the system of mato oput in Uganda.
189
See ibid., para. 43.
General Assembly/Security Council, The situation in Afghanistan and its implications for
international peace and security. Report of the Secretary-General, A/57/850-S/2003/754, 23 July 2003,
para. 39.
191
IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El
Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 141.
192
Commission on Human Rights, Question of the impunity of perpetrators of human rights violations
(civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision
1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 43, on Guarantees of non-recurrence,
(c) Removal from office of senior officials implicated in serious violations. These should be
administrative measures, of a preventive, not punitive, character, duly safeguarding the officials' rights.
193
General Assembly/Security Council, The situation in Afghanistan and its implications for
international peace and security. Report of the Secretary-General, A/57/850-S/2003/754, 23 July 2003,
para. 20.
190
208
Amnesty and the rights of victims
In the 1993 Vienna Declaration and Programme of Action, the World
Conference on Human Rights emphasized the importance of:
an effective framework of remedies to redress human rights grievances or
violations. The administration of justice, including law enforcement and
prosecutorial agencies and, especially, an independent judiciary and legal
profession in full conformity with applicable standards contained in
international human rights instruments, are essential to the full and nondiscriminatory realization of human rights and indispensable to the processes of
democracy and sustainable development. 194
4.5 Interrelationship with other victims’ rights
The right to justice is interrelated to the right to know the truth and the right to
reparation. It is related to the right to know the truth, because when establishing the
right to justice, the truth may also be found in the process of conducting
investigations and a trial. In addition, to establish certain aspects of the truth,
cooperation of the perpetrator is needed. Prosecutions may achieve such
cooperation. When the right to justice is deprived of the victims, their relatives and
society, it becomes very hard and probably even unfeasible to find out the truth
themselves. In that case, counterbalancing measures should be established to
enhance the chances of establishing the truth.
The right to justice is also interrelated to the right to reparation. The right of a
victim “to an effective remedy not only obligates the state to prevent, investigate,
and punish serious human rights violations, but also to provide reparations. Among
various reparations mechanisms, states should restore the right violated and provide
compensation for damages.” 195 A judgment by a court may be regarded as a form of
reparation in and of itself. 196 The Human Rights Committee “takes the view that the
right to an effective remedy may in certain circumstances require states parties to
provide for and implement provisional or interim measures to avoid continuing
194
World Conference on Human Rights, Vienna Declaration and Programme of Action,
A/CONF.157/23, 12 July 1993, para. I.27; Para I.27 continues: “In this context, institutions concerned
with the administration of justice should be properly funded, and an increased level of both technical
and financial assistance should be provided by the international community. It is incumbent upon the
United Nations to make use of special programmes of advisory services on a priority basis for the
achievement of a strong and independent administration of justice.”; In addition, the World Conference
on Human Rights stated that “[v]ictims of the abhorrent practice of ethnic cleansing are entitled to
appropriate and effective remedies.” para. II.24 and “The World Conference on Human Rights stresses
the importance of further concrete action within the framework of the United Nations with the view to
providing assistance to victims of torture and ensure more effective remedies for their physical,
psychological and social rehabilitation.” para. II.59
195
Human Rights Watch, Democratic Republic of Congo “We Will Crush You”. The Restriction of
Political Space in the Democratic Republic of Congo, Human Rights Watch: New York/Berlin/etc.
November 2008, p. 84.
196
IACtHR, Almonacid-Arellano et al v. Chile, Series C No. 154 Judgment of 26 September 2006
(Preliminary Objections, Merits, Reparations and Costs), para. 171(4).
209
Chapter VI
violations and to endeavour to repair at the earliest possible opportunity any harm
that may have been caused by such violations”. 197
4.6 Conclusion
Granting amnesty is a violation of ubi jus, ibi remedium. It should however be kept
in mind that whether amnesty was granted or not, in both situations not all victims
will see their perpetrator face justice. In a post-conflict situation, the number of
perpetrators is simply too high to accomplish the right to justice for all victims. In a
best-case scenario, only those who bear the most responsibility will stand trial.
When criminal investigations and prosecutions are not possible, accountability may
also be established by way of a truth commission. A truth commission will in any
case be a valuable complementary measure to criminal proceedings.
5 VICTIM PARTICIPATION
Not only is it important that victims’ rights are protected and guaranteed in the
process of transitional justice, it is also important that victims and other citizens
take part in the process of designing policies for dealing with the past. 198 They
should not just be focussed on, but actually take part in the process of decision and
policy-making, strategy and communication. It is of the utmost importance to pay
attention to the victims’ view on justice and their experience of injustice. According
to the Secretary-General, programs that emerge from national consultations and are
designed in close collaboration with the citizens, including the victims, are more
likely than those imposed from outside “to secure sustainable justice for the future,
in accordance with international standards, domestic legal traditions and national
aspirations”. 199 As may be concluded, outsiders should not impose a peace process
or agreement on the local population; peace that is not home grown tends to be
weak and short-lived. Victim participation is therefore of the utmost importance.
However, as Ben Chigara observes, “[t]he mechanisms or approach that … is
chosen will depend not only on perceptions of what is best for society [or on the
will of the people], but also on the balance of powers between the society and its
former offenders”. 200
Victim participation also helps to ensure that national policies respond to
victims’ actual needs. One South African victim said: “How can they do this thing
without asking us what we would like? They are not the victims so how can they
197
Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation
Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 19.
198
Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 11.
199
Security Council, The rule of law and transitional justice in conflict and post-conflict societies.
Report of the Secretary-General, S/2004/616, 23 August 2004, para. 17.
200
Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International:
The Hague/London/New York 2002, p. 70.
210
Amnesty and the rights of victims
say what should happen. I think this thing is very wrong.” 201 In South Africa,
according to many victims, the TRC was a perpetrator-friendly institution. 202 A
press statement given by the South African Khulumani (Western Cape) Victims
Support Group captures this sentiment:
What has become painfully evident is that the perpetrators are benefiting more
from the TRC. They have lawyers defending them free of charge, they receive
amnesty, and they either maintain their jobs or receive huge golden handshakes.
(We are still waiting for the public prosecution of those who did not request
amnesty to begin.) On the hand, survivors are insulted, kept in the dark, have no
work and continue to live with their pain and suffering. 203
Including victims also serves a deeper aim: it can help reconstitute the full civic
membership of those who were denied the protection of the law in the past. Their
participation in public deliberations may itself contribute to a process in which
victims reclaim control over their lives and may help restore their confidence in
government. 204 That the role of victims’ in designing programs is important is also
concluded in the study Victims of War: An Empirical Study on War-Victimization
and Victims’ Attitudes towards Addressing Atrocities, in which it is stated that
“[v]ictims affected by large scale violence and human rights violations should have
the opportunity to decide about future actions in order to achieve the best results in
peace building. In order to be able to choose from different possibilities the
available or appropriate concepts should be introduced through public debate.” 205
The Commission on Human Rights:
[u]rges States to provide the victims of violations of human rights and
international humanitarian law that constitute crimes, with a fair and equitable
201
O.H., 3 November 2000, quoted in Christopher J. Colvin, ‘We Are Still Struggling’: Storytelling,
Reparations and Reconciliation after the TRC, Centre for the Study of Violence and Reconciliation in
collaboration with Khulumani (Western Cape) Victims Support Group and the Cape Town Trauma
Centre for Survivors of Violence and Torture: December 2000, p. 23.
202
See ibid., p. 22.
203
Ibid.
204
Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 11; See also:
Office of the United Nations High Commissioner for Human Rights, Making Peace our Own. Victims’
Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda, United
Nations: 2007, p. 26: “In all regions, respondents also expressed a sense of betrayal by the Government
specifically for the failure to protect them from harm in line with the constitutional duty to protect the
population.”
205
Ernesto Kiza, Corene Rathgeber & Holger Rohne, Victims of War. An Empirical Study on WarVictimization and Victims’ Attitudes towards Addressing Atrocities, Hamburger Edition: Hamburg
2006, p. 109. In a research study in northern Uganda on themes of accountability, reconciliation and
transitional justice, “respondents emphasised that they needed more information regarding potential
mechanisms of accountability and reconciliation. In particular, many focus groups stated that they
wished to learn more about reconciliation processes used by different tribes and sub-regions affected by
the conflict.” - Office of the United Nations High Commissioner for Human Rights, Making Peace our
Own. Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern
Uganda, United Nations: 2007, p. 46.
211
Chapter VI
process through which these violations can be investigated and made public in
the interest of the victims and to encourage victims to participate in such a
process, including by taking measures to ensure the protection of, and support
and assistance to, victims and witnesses, that are appropriate and sensitive to
their needs, including contact points and child- and gender sensitive procedures
and attention to crimes of sexual violence, in judicial and truth and
reconciliation processes. 206
The Commission on Human Rights “[r]ecognizes the important role of civil society
in combating impunity and encourages States to involve, as appropriate, civil
society, including victims and human rights defenders, in efforts to combat
impunity, including judicial processes and the design of truth commissions, the
selection of commissioners and the drafting of relevant legislation”. 207 In the
process of victim involvement, especially those groups most affected by conflict,
such as minorities, the elderly, children, women, prisoners, displaced persons and
refugees, should be involved. 208 In the Updated Set of Principles for the protection
and promotion of human rights through action to combat impunity, Principle 32 on
reparation procedures provides that “[v]ictims and other sectors of civil society
should play a meaningful role in the design and implementation of … [reparation]
programmes. Concerted efforts should be made to ensure that women and minority
groups participate in public consultations aimed at developing, implementing, and
assessing reparations programmes.”
When the choices made by a state reflect the will of the people, including the
victims, chances are high that the past is dealt with in the right way, which provides
opportunities for a stable peace and future as well. In such a case, international
involvement risks destabilizing the processes of transitional justice. When the
involvement of an international court against the state’s wishes risks a continuation
of the conflict or an upheaval of the violence, the international court should
seriously consider whether the result of prosecuting one or a few of those alleged to
be most responsible outweighs the consequences this might have on the national
level.
6 CONCLUSION
Based on the findings in the previous sections, it may be concluded that victims of
human rights crimes indeed have a right to the truth, a right to reparation, and a
right to justice. Various international treaties and instruments recognize the rights
discussed as well as regional and international case law and several resolutions of
intergovernmental bodies at the regional and universal levels. Notwithstanding the
mere existence of these rights, providing the truth, reparation or justice will
206
Commission on Human Rights, Commission on Human Rights resolution 2004/72: Impunity,
E/CN.4/RES/2004/72, 21 April 2004, sub 11.
207
Ibid., sub 14.
208
Security Council, The rule of law and transitional justice in conflict and post-conflict societies.
Report of the Secretary-General, S/2004/616, 23 August 2004, para. 25.
212
Amnesty and the rights of victims
significantly contribute to stabilizing society and the rule of law. 209 Although they
are independent, the right to the truth, the right to reparation and the right to justice
are closely interwoven and partly overlap. The fact that they overlap makes it even
more important to recognize and comply with the corresponding duties of the state
in situations of transition. The obligations of the state in matching the three rights of
victims elaborated on in this chapter have a separate and distinct nature. This means
that if, for example, the right to justice through legal trials is foreclosed because of
an amnesty law, the other rights still need to be ensured.
An amnesty law in principle violates the rights of victims. However, a state may
try to guarantee the rights of victims through the establishment of counterbalancing
mechanisms. The duties of the state that correspond to the rights of victims are
“obligations of means, not of results”. 210 This means that the state may establish a
truth commission and reveal documents and open up archives related to the
violations, but this will not provide every victim or their relatives with the truth.
Likewise, a state complies with its duty to prosecute when it investigates and
prosecutes a crime in a fair trial, even if the trial results in acquittal because of a
lack of evidence. 211 In addition, it has to be acknowledged that a state will never be
able to prosecute all those responsible for the human rights violations committed.
The right to justice in the strict sense of the right remains a problem if amnesty is
granted. Truth and reparation may be provided to the victims through other
channels than the judicial one, but justice cannot be done without fair trials in a
court of law. Thinking of the Nepali survey amongst victims, justice being done is
very important to victims of human rights violations. Despite other possible
mechanisms of transitional justice, such as the vetting of public offices, the
perpetrators will not be punished in the legal sense of the word. This may be very
hard for victims who survived, their relatives and society as a whole.
In sum, in addition to the findings in Chapter IV, an amnesty law may not only
violate the duty to prosecute, it may also violate the rights of victims to the truth, to
reparation and to justice.
209
“Beyond the need to ensure a basic judicial remedy for the victims of impunity, there is the
obligation to prevent, at all costs, a recurrence of what has happened. ...” Luis Pérez Aguirre, “The
Consequences of Impunity in Society”, in: International Commission of Jurists, Justice. Not Impunity,
International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, p.
109.
210
Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255282, p. 264.
211
See, for example, IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July
1988 (Merits), para. 177: “In certain circumstances, it may be difficult to investigate acts that violate an
individual's rights. The duty to investigate, like the duty to prevent, is not breached merely because the
investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious
manner and not as a mere formality preordained to be ineffective.”
213
PART 4
FRAMEWORK FOR
THE LEGITIMATE USE OF AMNESTY
CHAPTER VII
FRAMEWORK FOR THE LEGITIMATE USE OF
AMNESTY
1 INTRODUCTION
In the previous chapters, several subjects came to the fore that are important when
reviewing an amnesty. In this chapter, all the relevant findings of the previous
chapters are put into a framework for the legitimate use of amnesty that may be
used as a tool when one wants to examine an amnesty. The framework is not only
useful when reviewing an amnesty measure. It may also be informative for and kept
in mind by states considering amnesty or actors involved in post-conflict processes
of reconciliation, transitional justice, and so on.
It can be said that, based on the international treaties and conventions in
existence, UN documents and UN practice, and the establishment of the ICC and
the number of ratifications of the Rome Statute, the international community agrees
that those responsible for the most serious violations of human rights should be
prosecuted and punished in a fair trial.
State practice, however, shows a long tradition of granting amnesty after violent
conflict, or as part of a peace agreement. Exclusion of the crimes mentioned in the
ICC Statute is rare. This contradiction shows that although states are willing to
prosecute and punish those responsible for core crimes, it is not always in their
power to do so, nor in the best interest of the nation. States introduce amnesty
measures out of necessity; it provides them with a way out.
It is often held by opponents of amnesty that without justice, there can be no
reconciliation. One should question, however, whether prosecutions are better
suited to promote reconciliation than amnesty. It is not realistic to view the amnesty
matter in a purely legal perspective. Abiding by the law is not a purpose in itself. It
is a means to realize a just society. However, sometimes the law alone is not
enough. For example, in post-conflict situations much more is needed than
investigations and prosecution of the perpetrators to heal a society and achieve
reconciliation. It may be concluded, based on the findings in this research, there is
not one single solution for all situations. Every situation needs its own approach.
Both prosecutions and amnesty may be important tools in conflict and post-conflict
situations. However, they both need to be accompanied by additional transitional
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justice measures to effectively address the past and meet the rights of victims.
Building confidence in a post-conflict situation or in a newly established democracy
often involves a trade-off between justice and reconciliation. The victims’ demand
for justice must be balanced with the need for reconciliation and peace within the
country. One should avoid a time-consuming and expensive process of prosecution
not contributing to peace and reconciliation.
Following the research done in the previous chapters, now is the time to apply
all the findings in a framework for the legitimate use of amnesty.
Amnesty granted to a specific group of prisoners, for instance the disabled, or
because of an overcrowding of the prison system is not relevant here because this in
fact is equivalent to the granting of a pardon. This is because in such cases, amnesty
is granted after the suspects were tried and found guilty, and as a means to
withdraw the sentence. Neither does it have to do with the aftermath of conflict or a
political transition.
2 CONSIDERATIONS FOR THE DRAFTING OF A FRAMEWORK
International law has not yet taken a position on the granting of amnesty (to
perpetrators of international crimes). Neither does it approve of amnesties, nor does
it prohibit them. In fact, nothing at all is regulated regarding the granting of
amnesty for serious human rights crimes. However, the existence of amnesty is
recognized in several legal instruments. A general duty to prosecute human rights
crimes under international law is not supported by state practice. On the contrary,
recent history is full of examples of cases in which successor regimes have granted
amnesty to officials of the previous regime who were guilty of human rights crimes,
rather than prosecute them. In some cases, the United Nations even welcomed such
a solution, as was elaborated on in Chapter V. As was established in Chapter IV on
the legality of national amnesty laws under international law, anti-impunity
components were integrated in human rights documents from the start of the
discipline. However, “for many years, these provisions and other like them were not
given the attention they required, perhaps due in part to the historic unease and
discomfort of the human rights movement with repressive criminal law”. 1The
notion that impunity must be combated has especially emerged since the end of the
Cold War. In 1992, in the opening speech of the International Meeting on Impunity
of Perpetrators of Gross Human Rights Violations, Adama Dieng remarked that “[a]
consensus appears to be emerging concerning the notion that total impunity –
whether as the result of an amnesty, clemency measures or simply the inefficiency
of the courts – constitutes a violation of international law”. 2 Since the end of the
Cold War, major developments have taken place to eradicate impunity. However, it
1
William A. Schabas, Impunity and Human Rights Defenders, Paper presented at the FrontLine
Conference: Dublin 17 January 2002, pp. 3, 4.
2
Adama Dieng, “Opening Speech”, in: International Commission of Jurists, Justice. Not Impunity,
International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, pp.
19-26, p. 21.
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is not yet possible to say there is a duty to prosecute. This may be due to the fact
that amnesty in several cases can be considered a success. Therefore, a total ban on
amnesty may have counterproductive effects, and so may have a duty to prosecute.
It is highly likely that if a victim of a crime or the relative of a victim is asked
whether they want the perpetrator and those responsible to be punished, the answer
will be ‘yes’. In the context of state repression, a violent conflict or the aftermath
thereof, the answer will be no different. In a 2006 empirical study on victims’
attitudes towards addressing atrocities, almost 80 percent of the respondents
answered that they favoured prosecution. 3
It is very easy to say that amnesty is not an option because of the gravity of the
crimes. However, there is not always a climate in which investigations and fair
proceedings are possible. Amnesty is often part of a political compromise. In these
cases, where amnesty or impunity is the sole option to end ongoing violations or
prevent the reigniting of conflict, it seems both harsh and unrealistic to condemn
this choice and demand prosecutions. When a state decides to grant amnesty,
because it judges that prosecutions for human rights abuses committed during a
recently ended conflict might reignite the conflict or hamper reconciliation, such a
decision only has domestic value. Although a national amnesty for serious
violations of human rights does not theoretically prevent prosecution before an
international court or tribunal or by means of universal jurisdiction, the state that
granted amnesty will not actively cooperate with such proceedings in the sense of
providing evidence, surrendering suspects or providing witnesses. Notwithstanding
the uncooperative attitude of the state, prosecutions in another country or by an
international court or tribunal may work against local amnesty measures, producing
a clash of interests. Prosecution should therefore not be a goal in itself. The threat of
prosecution may risk continuation of a violent conflict. Why stop fighting when you
risk being incarcerated, or worse? It is important to make a distinction between
what is prescribed by international law or legally possible, and what is realistic and
wise to do. In some situations, prosecution may be possible, or there may even be a
duty to prosecute, but if this causes further suffering, continuation or resumption of
the conflict or something similar, one should question what carries more weight. In
my opinion, the objective should always be to minimize suffering. Not only in the
short term, but also in the long term. If this means that amnesty be granted, actors
not directly involved in the process should respect this.
Obviously, if one assumes there is a duty to prosecute, granting amnesty is
incompatible with that duty. When amnesty is granted, this is because the state
wants to make an exception to the expectation that crimes should be punished. If it
did not deem prosecution to be in the line of expectations, the state could have
spared itself the effort of drafting an amnesty law. Maybe there is some comparison
with a ‘state of emergency’ that threatens the life of the nation. In a state of
emergency, a state may violate some rights of its citizens because it is deemed
3
Ernesto Kiza, Corene Rathgeber & Holger Rohne, Victims of War. An Empirical Study on WarVictimization and Victims’ Attitudes towards Addressing Atrocities, Hamburger Edition: Hamburg
2006, p. 97.
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necessary in the situation. If an amnesty law is regarded as emergency legislation, it
may be repealed when the conditions leading to the emergency do not longer exist.
One may argue that the prosecution of those who were first granted amnesty is
contrary to the fundamental principles of law. In line with this reasoning, when a
democratic government grants an amnesty to achieve peace or stabilize the country,
this country should bear the consequences of such a law and must not repeal this
law afterwards. However, in case of a de facto amnesty, crimes are still punishable
years later.
When amnesty is granted as part of a peace agreement, it is impossible to nullify
the amnesty later in order to prosecute those responsible anyway. When it is held
that trust is both a consequence and a condition of the rule of law, the institution of
proceedings after amnesty was arranged seriously violates this trust. It may risk
ruining the basis of trust that is necessary to achieve progress and reconcile the
nation, and the return of conflict.
In case of a de iure amnesty, one may argue that the amnesty may be repealed
later, because the amnesty should have never been granted in the first place, being
in violation of international law and norms. When an amnesty law is repealed, and
considered to be null and void from the start, prosecutions of those protected by the
amnesty law become possible. This happened for instance in Argentina. Granting
amnesty was deemed necessary at the time and granted by a democratically elected
president. After almost 20 years, the amnesty law was considered unconstitutional
and was repealed.
A divided nation needs reconciliation to unite. A new regime alone does not
make reconciliation happen. Prosecutions are not enough to generate reconciliation,
neither is amnesty. To achieve reconciliation, additional efforts are needed, not just
criminal trials and punishment of the guilty or granting amnesty. According to
Boraine, the ICTY, “with its major focus on prosecution, has not been able to
achieve any meaningful reconciliation in the former Yugoslavia”. 4 When making an
inventory of what is needed, it is of the utmost importance to include victims in the
process. An amnesty law may give victims and society the impression that the law
does not protect them, but does protect perpetrators. This may also delegitimize the
new government. If a new government shows little respect for the rule of law, it
may be hard for the people to have confidence in that new government. Public
condemnation of the crimes committed enhances the possibility of perpetrators
feeling guilty for the harm caused and showing remorse. By including the victims in
the process of decision-making in the aftermath of violence, it is much more likely
that they will respect the outcome. Even when the expected result is not achieved. It
may also provide them with insight into the possible benefits of amnesty.
Notwithstanding the benefits amnesty may have, prosecutions must be pursued
where possible.
4
Alexander Boraine, “Retributive Justice and Restorative Justice: Contradictory or Complementary?”,
in: Nanci Adler (ed.),Genocide and Accountability. Three Public Lectures by Simone Veil, Geoffrey
Nice and Alex Boraine, Vossiuspers UvA: Amsterdam 2004, p. 43.
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Framework for the legitimate use of amnesty
Reconciliation is of special importance after internal violent conflicts, because
the perpetrators will still live alongside the victims and their families. A process of
reconciliation takes years, even decades. It cannot be forced and neither should it
be. A South African victim named Kalukwe Mawila stated: “What really makes me
angry about the TRC and Tutu is that they are putting pressure on me to forgive…. I
don’t know if I will ever be able to do so. I carry this ball of anger within me and I
don’t know where to begin dealing with it. The oppression was bad, but what is
much worse, what makes me even angrier, is that they are trying to dictate my
forgiveness.” 5 Her words show that the road to reconciliation is a long and tough
one.
The possibility of granting amnesty should not be foreclosed in international
law. States should have the discretion to opt for amnesty when this is deemed
necessary. When amnesty is considered to be the only option to improve a situation,
other states or actors should not interfere with this process, unless this is necessary
or wanted by the state concerned. If this does happen, the interfering state or other
actor should not impose measures, but contribute to home-grown solutions. The
international community should respect exceptional solutions in exceptional
circumstances when these are in the interest of the human rights situation. Efforts to
prosecute nationals of a state against the will and interests of that state may have
counterproductive results and the victims in such a case will be the citizens.
It may be argued that there are two positions with regard to the use of amnesties.
People adhering to the first position hold that amnesty is not an option, whatever
the circumstances, and whatever the consequences. This position is very narrow,
and does not balance the demands of justice against those of reconciliation. The
second position maintains that amnesty is permissible under certain circumstances,
for example, when it is the only way to end a violent conflict and when it is
accompanied with counterbalancing measures. Advocates of both positions both try
to achieve a situation in which there is respect for human rights and the rule of law.
In a post-conflict situation, or after a regime change, it is very hard to guarantee
all victims’ rights. Mendez deems it “safe to say that there is no place where a full
measure of truth, justice, reconciliation, and peace has been achieved”. 6 Therefore,
it is worthwhile to take the framework for the legitimate use of amnesty into
account, to consider which measures fit a situation best and may achieve the effect
desired. Such measures may include amnesty when other solutions are foreclosed or
may have counterproductive effects.
There is no standard solution. Standardization runs the risk of ‘solutions’ not
adapted to the complex and specific nature of a situation. There is no one-size-fitsall response to serious violations of human rights. The exceptional legacy of each
5
Wilhelm Verwoerd, “Forgiving the torturer but not the torture”, Sunday Independent, 14 December
1998.
6
Juan E. Méndez, “The Human Right to Truth”, in: T.A. Borer (ed.), Telling the Truths. Truth Telling
and Peace Building in Post-Conflict Societies, University of Notre Dame Press: Notre Dame (Indiana)
2006, pp. 115-150, p. 120.
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society and people that has endured human rights violations will form its
understanding of justice and reconciliation.
There are several examples of countries that have overturned amnesty laws. The
amount of time that has elapsed in the meantime varies per situation. Forcing the
country to prosecute before it is ready to do so is not in the benefit of a country or
its people. In some instances, it has to be accepted that prosecution may endanger
peace and democracy and that it may take more time to create a situation in which
prosecution becomes possible. International help from, for instance, other countries,
the UN or NGOs may focus on the victims, and on society and the country to
recover right away.
What should be done when, according to international criminal law principles,
the perpetrators of crimes who were granted amnesty should be punished, but at the
moment of review, the amnesty has positive effects and the situation is more or less
stable? Every post-conflict situation is unique, and so must be the strategy for
recovery. Every society has its own specific needs, and therefore it cannot be held
that a strategy that is considered successful in one situation will be so in another.
Each state has to find its own way of dealing with the past, in consultation with its
people and if desired with international help. A newly obtained peace situation is
very fragile, especially when international actors try to change settled agreements.
International help should focus on support and strengthening of national processes.
This notwithstanding, it will take years to find out whether a state made the right
choices in the post-conflict period.
When an amnesty is under review, it is important to determine in what political
situation the state that granted amnesty is. This may correlate with the lapse of time.
Just after the end of a conflict and the granting of amnesty, there may still be a lot
of unrest and the state has not yet been able to show its commitment to the rule of
law. Several factors may play a role: is the peace still fragile; does the military still
have a lot of power or is there a situation of durable peace and democracy? These
are all important matters to take into account. There is no answer to the question as
to how much time a country should get to get things on track again. However, the
mere passing of time is not enough to reconcile a society. The legacy of the past
must be actively dealt with. Otherwise, the problem may grow. It is essential that if
a country grants amnesty, it nevertheless shows a commitment to respect human
rights and makes and effort to rebuild the rule of law. The state must show
denunciation of human rights violations. That way, the state shows the people and
the international community that the amnesty was just an exceptional non-recurrent
solution for an exceptional situation. Moreover, it should be kept in mind that
involvement in national processes is not necessarily in the best interests of the state.
It is preferable for a state to be able to recover from conflict on its own. Besides,
there is no statute of limitations for serious human rights crimes under international
law, which means that however much time has elapsed since their commission, it
will always be possible to prosecute and punish those responsible, and the rights of
the victims also continue to exist. For the reasons and risks mentioned in Chapter II
regarding cultures of impunity, it is however advisable to address the accountability
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issue as soon as possible. When international actors become involved in transitional
justice processes, they should support measures and efforts that are opted for by the
state itself in cooperation with the victims and society. Imposing methods or
services that are not needed would be simply a waste of resources. When reviewing
the outcome of an amnesty process, one should determine whether the measures the
state took provided the desired result. This question is very difficult to answer
though, since the effects may only become visible after years or even decades. This
also applies for the negative consequences.
When the amnesty under review is not considered acceptable after considering
the various factors embedded in the framework that is presented below, prosecution
is possible. One should wonder, however, what the dangers of international
involvement are. When one continues with prosecution, thereby neglecting the
amnesty that was granted on the national level, one should be aware of the
consequences this might have, and whether this prosecution outweighs these
consequences. In such a case, a risk analysis should be made, weighing the various
factors that accompany the sidestepping of a national amnesty.
In the framework of the legitimate use of amnesty, several parts of the research
come to the fore. The framework is subdivided into ten questions. The framework
provides no clear-cut answers, but rather indicates the focus points.
3 FRAMEWORK FOR THE LEGITIMATE USE OF AMNESTY
Having established what law is applicable, it is time to turn to the subject of
amnesty. First, one should determine whether in fact it is amnesty that is granted, or
whether it is some other form of impunity that allows perpetrators to walk off scotfree. Amnesty has certain characteristics, as described in Chapters II and III. In
short, an amnesty law is a law that grants amnesty to a group of people who have
committed crimes in a certain period. The law in effect shields the perpetrators from
being tried for the crimes they committed during a set period before the issuance of
the amnesty law. If indeed amnesty was granted, ten questions need to be answered:
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
Under what circumstances was amnesty granted?
At what moment was the amnesty granted?
Why was amnesty granted?
In what form was amnesty granted?
What crimes are covered by the amnesty?
Who took part in the process of deciding to grant amnesty?
How do victims and society feel about the granting of amnesty?
Are counterbalancing measures established to guarantee victims’ rights?
Was the international community involved in the granting of amnesty?
What is the state’s dedication to the rule of law?
I will now expand on these questions. The order of the questions does not indicate
their importance. All ten points are important to check and answer.
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I. Under what circumstances was amnesty granted?
Amnesty may be granted in a variety of circumstances. Amnesty, for instance, may
be part of a peace accord or granted in an effort to strengthen a fragile peace. For
example, a prior military regime may still have a lot of power and prosecutions may
jeopardize the newly established political situation. Amnesty may also be granted
by a regime to itself, for instance as a condition for stepping down. An amnesty that
is not absolutely necessary given the circumstances to create or maintain a situation
of peace cannot hope to receive international recognition.
II. At what moment was amnesty granted?
Amnesty may be granted at different moments in time. Was amnesty granted to end
the conflict, directly after the conflict or later? The moment amnesty was granted
often coheres with the circumstances under which amnesty was granted. When
amnesty is granted at a moment that does not influence improvement of the human
rights situation, it is difficult to justify its necessity.
III. Why was amnesty granted?
The motives which led to the decision to grant amnesty to perpetrators of human
rights crimes should be taken into account in international proceedings. Was
granting amnesty necessary under the circumstances at the time? Were there other
options? If there were other options, why were these not chosen? The law should
only extend to what is absolutely necessary to achieve the legitimate aim pursued.
A corresponding question is whether the nullification of the amnesty and the
prosecution of suspected perpetrators would jeopardize the newly established
situation of peace or democratic transition.
IV. In what form was amnesty granted?
Chapter III outlines the various forms of amnesty. The form of amnesty granted
influences the chances of it being considered legitimate. For instance, a selfamnesty is by definition not legitimate, but a conditional amnesty may be. The more
conditions appended to the amnesty, and especially when the amnesty does not
involve serious violations of international human rights law, the more international
actors may accept it.
V. What crimes are covered by the amnesty?
It is possible to exclude certain crimes from an amnesty, for instance grave human
rights crimes. This will certainly enhance the legitimacy of the amnesty. The fact
that a state issues an amnesty law confirms the fact that the state is aware that
crimes have been committed which would have been punishable without the
amnesty law. When, due to certain circumstances, a state prefers to grant amnesty
to those involved in the crimes in order to prevent further violence or to make
progress in the transition to democracy, the international community should not
condemn such a decision right away. However, international recognition of amnesty
for crimes within the ICC’s jurisdiction would be difficult. Right after the end of a
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conflict, the exclusion of crimes from the amnesty law may lead to de facto
impunity, since the state will probably not be able to prosecute within a short
period. This notwithstanding, it shows to the victims, society, the perpetrators and
the international community that the state is not intentionally granting amnesty to
those who committed horrific crimes, but leaves open the possibility to prosecute in
the future. To investigate the human rights violations committed and establish a
record of the past, it is advisable to establish a truth commission or a truth and
reconciliation commission.
VI. Who took part in the process of deciding to grant amnesty?
It is important to determine by whom amnesty was granted, and who were involved
in the process of deciding to grant amnesty. Was the amnesty a result of
negotiations to end the conflict? Did the victims play a role in the process? Victim
participation is very important for the process to be a success as well as for it to be
considered legitimate. The amnesty may well be a self-amnesty, but
notwithstanding the culpability of such a law, it may be deemed necessary at the
time, because the outgoing regime would not have given up power without such a
provision. Such an amnesty may be ranked alongside an amnesty that forms part of
a peace agreement. Did a democratic government issue the amnesty, or was the
amnesty granted in a transition to democracy? The problem with post-conflict
situations is that democracy is often in the process of formation. The aim should be
to include all the affected parties in the process. The needs of victims are important,
but so is the peaceful future of the country. Therefore, the concerns of all the parties
involved should be formed into a model that incorporates these views in the best
way possible.
VII. How do victims and society feel about the granting of amnesty?
This question may be especially relevant when the victims and society did not take
part in the process of granting amnesty. How were the opinions of victims and
society determined? Does the method chosen to determine the opinions of victims
lead to a representative outcome? The opinions of victims and society on the
granting of amnesty is very important when determining whether the aims that are
pursued by granting amnesty may be achieved. If the victims or society do not back
the states’ decision to grant amnesty, the amnesty may have counterproductive
effects.
VIII. Are counterbalancing measures established to guarantee victims’ rights?
With the issuance of an amnesty law, it is not the victims that are protected, but the
perpetrators. By relinquishing prosecutions, the victims’ rights are sacrificed. Not
by the victims themselves, however, but by the state. To compensate this, measures
should be established to counterbalance the effects the amnesty has for the victims’
rights. A corresponding question is: is the granting of amnesty counterbalanced by
the establishment of other mechanisms for revealing the truth and for providing
reparation to the victims of the crimes that are revealed? Amnesty laws that are not
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accompanied by any counterbalancing measures are considered unacceptable.
Victims are reliant on the state with regard to their rights. Therefore, it should be
determined: are the rights of victims safeguarded satisfactorily? Victims’ rights are
important in every post-conflict situation, not only in those cases where amnesty
was granted. When an amnesty is not accompanied by counterbalancing measures,
it should be examined why they were not established. This may be caused by, for
instance, a lack of resources, the political situation or the power of the army. It may
also be that the state is unwilling, or that there is no need for counterbalancing
measures. When there is still a need for counterbalancing measures on the side of
the victims, it is important to examine what measures need to be established and
whether international help is needed. International help may help establish or
support counterbalancing measures. After a conflict, it may take a state many years
to comply with the victims’ needs. For such processes, international involvement
may be a solution to increase the pace. One should be careful, however, not to
alienate those involved in the process by imposing measures not in line with actual
needs. Research into the needs of victims is therefore essential. To achieve a just
society, it is essential that more is done than to prosecute. Transitional justice
embraces more than punishing the guilty. Even in cases where no amnesty is
granted it is not possible to capture the real intent of justice by criminal
prosecutions alone. Therefore, it is essential to pay full attention to additional
measures to guarantee victims’ rights as much as possible. It will not be possible to
guarantee the rights of all victims. The first difficulty is to determine who the
victims are, and what happened to them. When the victims are known, in many
instances, it will be very hard to recover the truth, if it is possible at all. In addition,
resources to provide reparation may be lacking immediately after a conflict or
regime change. If the state is willing but it is just not feasible to guarantee the rights
of victims, it is important to communicate this to the victims. In any case, the state
should not make promises it cannot keep. This may cause further harm to the
victims.
IX. Was the international community involved in the granting of amnesty?
If an international organization, for example the United Nations, was involved in
the process, this is a clear indication the amnesty should be considered legitimate.
X. What is the state’s dedication to the rule of law?
What effort did the state responsible make to fulfil its obligations? If a state has no
interest in rebuilding the rule of law, maybe the state has chosen the easy way out,
amnesty was not necessary and prosecutions are possible after all. If this is
considered to be the case, this means that the state is unwilling to prosecute, and in
such a case suspects may be tried before an international court or tribunal, or in a
third-party state by means of universal jurisdiction.
As may be evident from the findings of this research, there is no clear-cut answer to
the research question as defined in Chapter I. Instead, a case by case approach is
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needed. In view of the practice concerning amnesty measures and the fact that
international law does not require states to take any action that poses a threat to vital
national interests, the framework above may be a valuable tool to determine the
legitimacy of an amnesty by highlighting themes that should not be neglected, and
therefore is an answer to the research question on a case by case approach.
227
SAMENVATTING (DUTCH SUMMARY)
Steeds opnieuw wordt de wereld geconfronteerd met situaties waarin de rechten van
de mens systematisch ernstig worden geschonden. Bekende voorbeelden zijn ZuidAfrika, Joegoslavië en Rwanda. Wanneer in een dergelijke situatie een einde komt
aan het geweld en de schending van mensenrechten, dan staat een land voor de
keuze: berechten of niet berechten van de vermeende daders en degenen die
verantwoordelijk zijn. Het land moet een afweging maken tussen de verschillende
belangen die spelen, waaronder het verantwoordelijk houden van de daders, maar
ook met verzoening en de wederopbouw van het land. Het berechten van de
vermeende daders en verantwoordelijken kan negatieve neveneffecten hebben,
waaronder een oplaaiing van het conflict of een staatsgreep. Wanneer het risico
daarop aannemelijk is, en daarmee gepaard gaand het risico op nieuwe misdaden,
dan kan een land kiezen om de vermeende daders niet of deels niet te berechten en
amnestie te verlenen.
Het internationale recht ontwikkelt zich steeds meer in een richting waarin
straffeloosheid niet wordt geaccepteerd. Tegelijkertijd wordt amnestie in de praktijk
niet verworpen. De statenpraktijk laat zien dat amnestieverlening nog steeds een
gebruikelijk middel is na een conflict of gedurende een politieke transitie. Gezien
het feit dat de internationale gemeenschap niet alleen belang heeft bij respect voor
mensenrechten en de rechtsstaat, maar ook bij het herstellen en het bewaren van de
vrede en de openbare orde, luidt de centrale vraag van dit onderzoek als volgt:
Wat voor soort amnestieverlening kan als legitiem worden beschouwd in het licht
van de noodzaak om respect voor mensenrechten en de rechtsstaat te combineren
met de noodzaak om de vrede en de openbare orde te herstellen en te bewaren?
Het doel van het onderzoek is om de factoren vast te stellen die van belang zijn bij
het beoordelen van een amnestiemaatregel, en op basis daarvan een toetsingskader
te ontwikkelen, waarmee de centrale vraag van dit onderzoek kan worden
beantwoord.
In hoofdstuk II wordt een beschrijving gegeven van het fenomeen
straffeloosheid en de gevolgen die een situatie van straffeloosheid kan hebben. Er
zijn twee vormen van straffeloosheid. Van de iure straffeloosheid spreekt men,
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Samenvatting (Dutch summary)
wanneer de straffeloosheid wordt vastgelegd, bijvoorbeeld in een wet of
vredesovereenkomst; van de facto straffeloosheid spreekt men, wanneer de
straffeloosheid resulteert uit de omstandigheden. Dit kan zowel bedoeld als
onbedoeld gebeuren, bijvoorbeeld wanneer berechting niet mogelijk is door een
verzwakt rechtssysteem. Voor slachtoffers en nabestaanden kan het onbegrijpelijk
zijn dat de daders vrijuit gaan en dit kan leiden tot een gebrek aan vertrouwen in de
regering. Dit onbegrip en het gebrek aan vertrouwen kunnen leiden tot een nieuw
conflict, of tot gevolg hebben dat mensen het recht in eigen hand gaan nemen.
Daarnaast kan een cultuur van straffeloosheid ontstaan, waarin burgers er van uit
gaan dat geen berechting zal plaatsvinden wanneer zij een criminele daad begaan.
Straffeloosheid wordt als één van de hoofdoorzaken gezien van het opnieuw
plaatsvinden van misdaden.
Hoewel straffeloosheid onverenigbaar lijkt met de rechtsstaat, kan de eis dat de
verantwoordelijken aansprakelijk moeten worden gehouden betekenen dat een
gewelddadig
conflict
voortduurt
en
dit
kan
leiden
tot
meer
mensenrechtenschendingen. Ook kan het de verwording tot een democratische staat
in gevaar brengen. Gesteld zou kunnen worden dat het uiteindelijke doel om leed te
beperken het middel, te weten de amnestieverlening, heiligt.
Amnestieverlening is een vorm van de iure straffeloosheid. Amnestie dient
overigens niet verward te worden met het verlenen van pardon. Wanneer amnestie
wordt verleend betekent dit dat geen berechting zal plaatsvinden van een groep
verdachten die in een bepaalde periode in een bepaald gebied misdaden hebben
gepleegd. Een voorbeeld zijn de Argentijnse amnestiewetten van 1986 en 1987
waarin aan zowel de verantwoordelijken als aan de ondergeschikten amnestie werd
verleend voor hun misdaden begaan tijdens het militaire regime (ook wel bekend
als de Vuile Oorlog, 1976-1983).
Hoofdstuk III gaat over amnestieverlening. Er zijn verschillende doelen die
kunnen worden nagestreefd met het verlenen van amnestie. Bijvoorbeeld kan
amnestieverlening deel uitmaken van een vredesovereenkomst; door middel van
amnestieverlening kunnen binnenlandse spanningen worden verlicht; maar ook kan
amnestie bijdragen aan verzoening. Er zijn verschillende vormen waarin amnestie
kan worden verleend, zoals de algehele amnestie en de amnestie onder
voorwaarden, bijvoorbeeld de voorwaarde dat degene die amnestie wenst te
verkrijgen openheid van zaken geeft over de door hem of haar begane misdaden aan
een waarheidscommissie, zoals dat is gebeurd in Zuid-Afrika in de jaren ’90. Een
amnestie kan ook door een regime aan zichzelf worden verleend, zoals dat is
gebeurd in Chili door Pinochet in 1978. De vormen van amnestie en de mate waarin
deze als legitiem zouden kunnen worden aangemerkt worden besproken in
Hoofdstuk III. Ook wordt ingegaan op de voordelen die berechting heeft. Amnestie
kan worden verleend als middel om een conflict te beëindigen, maar ook na
beëindiging van een conflict, bijvoorbeeld om orde op zaken te stellen, onrust te
voorkomen en de vrede te bewaren. Na het beschrijven van de verschillende
vormen van amnestie en het moment en de manier waarop amnestie verleend kan
worden, worden de argumenten voor en tegen het gebruik van amnestie besproken.
230
Samenvatting (Dutch summary)
De meest voorkomende argumenten voor amnestie zijn: amnestie kan vrede en
verzoening bevorderen; amnestie kan een middel zijn om een vredesovereenkomst
te bereiken; door middel van amnestie kan een militair regime worden overtuigd
afstand te doen van de macht, of rebellen worden overtuigd het vechten te staken;
amnestie kan binnenlandse onrust doen verminderen. Met het geld dat wordt
bespaard door amnestie te verlenen en niet te berechten kan bijvoorbeeld
schadevergoeding aan de slachtoffers worden verstrekt, of een waarheids- en
verzoeningscommissie worden ingesteld. Ook kan dit worden aangewend voor de
wederopbouw van het land en het rechtssysteem. De meest genoemde argumenten
tegen amnestie zijn: dat het verlenen van amnestie een schending is van de
internationale juridische verplichtingen van een staat; amnestie betekent
straffeloosheid (met de mogelijke gevolgen zoals besproken in Hoofdstuk II);
amnestie belemmert de wederopbouw van de rechtsstaat; amnestie verzwakt de
nieuwe regering; door amnestie te verlenen worden de rechten van slachtoffers
geschonden; amnestie ondermijnt het verwordingsproces van een staat tot een
democratie; amnestie kan verzoening in de weg staan.
Uit verschillende ontwikkelingen op internationaal strafrechtelijk gebied blijkt
dat straffeloosheid, en daarmee ook amnestie, minder en minder wordt getolereerd.
In Hoofdstuk IV wordt daarom onderzocht of amnestieverlening juridisch gezien
mogelijk is binnen het internationaal recht. De verdragen en conventies die
samenhangen met het onderwerp van dit onderzoek worden besproken, en ook de
rechtsopvattingen van de toezichthoudende organen. Daarnaast worden de
internationale straftribunalen van het voormalige Joegoslavië en Rwanda, het
Internationaal Strafhof en het Speciale Hof voor Sierra Leone besproken. De
statuten van deze tribunalen en hoven worden onderzocht, en er wordt nagegaan of
in de jurisprudentie van deze instellingen tegen het onderwerp amnestie ofwel
straffeloosheid is aangelopen en hoe daar dan mee is omgegaan. Het
Joegoslaviëtribunaal heeft niet hoeven te beslissen over een verdachte aan wie
amnestie was verleend, maar acht het verlenen van amnestie een nationale
aangelegenheid die internationaalrechtelijk geen betekenis heeft. Het statuut van het
Internationaal Strafhof bevat verschillende artikelen die zo geïnterpreteerd kunnen
worden dat zij de mogelijkheid van amnestie openlaten. Aan de aanklager van het
Internationaal Strafhof wordt bijvoorbeeld in Artikel 53 de ruimte gelaten geen
onderzoek te initiëren wanneer dit niet in het belang van gerechtigheid wordt
geacht.
Het Speciale Hof voor Sierra Leone kreeg wel te maken met verdachten die in
hun verdediging amnestie aanvoerden in Prosecutor v. Morris Kallon and Brima
Bazzy Kamara. Het Hof beredeneerde dat de amnestie die de verdachten
aanvoerden als verdediging deel uitmaakte van een vredesovereenkomst die slechts
binnenlandse gelding heeft in Sierra Leone, maar niet voor een internationaal hof en
voor het soort van misdaden waarover het hof rechtsmacht heeft, gezien voor deze
misdaden universele jurisdictie bestaat. Universele jurisdictie is gebaseerd op het
idee dat bepaalde misdaden zo ernstig zijn, dat ook andere landen rechtsmacht
hebben om de verdachten van deze misdaden te berechten, en in bepaalde gevallen,
231
Samenvatting (Dutch summary)
zoals bij schendingen van de Geneefse Conventies, zelfs daartoe verplicht zijn.
Echter kan het uitoefenen van universele jurisdictie over een verdachte waaraan op
nationaal niveau amnestie is verleend nogal wat stof doen opwaaien. Het lijkt dan
ook geboden deze mogelijkheid met voorzichtigheid uit te oefenen. Het in
Hoofdstuk VII gepresenteerde toetsingskader kan hierbij als richtsnoer dienen.
De Verenigde Naties (VN) speelt een grote rol in de ontwikkeling van het
internationale recht en om die reden wordt in Hoofdstuk V onderzocht welke positie
de verschillende VN organen innemen ten opzichte van straffeloosheid,
amnestieverlening en de plicht om te berechten, en hoe deze organen daarmee
omgaan in de praktijk. De Algemene Vergadering, de Veiligheidsraad en het
Internationaal Gerechtshof worden onderzocht als zijnde de relevante organen met
betrekking tot dit onderzoek. Daarnaast komen de Secretaris-Generaal van de VN,
de voormalige Commissie voor de Rechten van de Mens, de Mensenrechtenraad en
de Hoge Commissaris voor de Rechten van de Mens aan bod. Het blijkt dat theorie
en praktijk ver uit elkaar liggen, en geconstateerd moet worden dat de VN van geval
tot geval bepaalt welke aanpak geschikt is.
In Hoofdstuk VI wordt nagegaan welke rechten slachtoffers hebben. Dit is in
hoge mate van belang voor dit onderzoek, omdat een amnestiewet die niet gepaard
gaat met maatregelen die de gevolgen voor slachtoffers compenseert, de rechten
van slachtoffers schendt. De drie rechten van slachtoffers die van belang blijken
voor dit onderzoek zijn het recht op gerechtigheid, het recht om de waarheid te
weten, en het recht op herstel. De drie beschreven rechten van slachtoffers hangen
onderling nauw samen.
In een strafproces wordt onderzoek naar de feiten in op zichzelf staande gevallen
gedaan, en worden de omstandigheden van het geval, dat wil zeggen de waarheid,
voor zover deze van belang is voor het proces vastgesteld. Voor nabestaanden kan
het ondraaglijk zijn niet te weten wat er met hun familielid is gebeurd. Een
voorbeeld hiervan zijn de Argentijnse 'Moeders van het Plaza de Mayo', een
organisatie van moeders van slachtoffers van verdwijningen onder het Argentijnse
militaire regime (1976-1983) die sinds de oprichting in 1977 tot op heden elke
donderdag een stille demonstratie houdt op het centrale plein in Buenos Aires. Het
recht op de waarheid is niet alleen een recht van individuele slachtoffers, maar ook
van de samenleving. Niet alleen is het belangrijk de omstandigheden te kennen,
maar ook de redenen. Het instellen van een Waarheids(- en Verzoenings)
commissie is een manier om toch een onderzoek te doen naar dat wat heeft
plaatsgevonden en waarvoor amnestie is verleend. De bevindingen van een
dergelijke commissie worden gewoonlijk gepubliceerd in een rapport, een
voorbeeld is het rapport van de waarheidscommissie van El Salvador.
Het recht van de slachtoffers op herstel is een parapluterm en kan op
verschillende manieren worden vormgegeven. Het recht op herstel kan bestaan uit
bijvoorbeeld schadevergoeding of het teruggeven van verloren bezit, maar ook het
instellen van een gedenkdag of een plaats waar de doden herdacht kunnen worden,
kan bijdragen aan het herstel van de slachtoffers en nabestaanden. Het recht op
herstel hangt nauw samen met het recht op de waarheid. Het kennen van de
232
Samenvatting (Dutch summary)
misdaden en de omstandigheden waaronder deze hebben plaatsgevonden helpt de
slachtoffers het geschiedde een plek te geven en draagt zo bij aan het herstel. Door
amnestie te verlenen, wordt in de meeste gevallen zowel de strafrechtelijke als de
privaatrechtelijke aansprakelijkheid kwijtgescholden. Wanneer geen processen
plaatsvinden, dient het ‘herstel’ van de slachtoffers via een andere weg te
geschieden. Een Waarheids(- en Verzoening)scommissie kan bijvoorbeeld ook
aanbevelingen doen over schadevergoeding.
Het recht van de slachtoffers op gerechtigheid wordt geschonden door het
verlenen van amnestie. Het is een schending van het ubi jus, ibi remedium. Erkend
moet worden dat het niet mogelijk is na een conflict voor alle slachtoffers
gerechtigheid te bereiken, daarvoor is het aantal daders te groot. In het beste geval
worden de meest verantwoordelijke daders berecht. Door amnestie te verlenen
wordt echter aan alle slachtoffers het recht op gerechtigheid ontnomen.
De rechten van slachtoffers houden verplichtingen in aan de zijde van de staat.
Door het verlenen van amnestie komt een staat haar verplichtingen niet na, tenzij
aparte instellingen in het leven worden geroepen die aan de rechten van slachtoffers
tegemoetkomen. Het waarborgen van de rechten van slachtoffers draagt bij aan het
stabiliseren van de samenleving en de wederopbouw van de rechtsstaat.
Gerechtigheid verkrijgen in het geval dat amnestie is verleend is daarbij het meest
problematisch.
De legitimiteit van een amnestie kan beïnvloed worden door het participeren van
slachtoffers, nabestaanden en de samenleving in het besluitvormingsproces. Een
oplossing die op een dergelijke manier tot stand is gekomen, en aansluit bij de
behoeften van slachtoffers, heeft een veel grotere kans van slagen dan een
opgelegde oplossing waarbij de slachtoffers niet betrokken zijn geweest.
In Hoofdstuk VII wordt op basis van de bevindingen in de voorgaande
hoofdstukken bepaald welke factoren een rol spelen wanneer wordt gekeken naar de
legitimiteit van een amnestiemaatregel. Tien factoren komen hierbij naar voren:
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
De omstandigheden waaronder amnestie is verleend.
Het moment waarop amnestie is verleend.
De reden dat amnestie is verleend.
De vorm waarin amnestie is verleend.
Het soortmisdaden waarvoor amnestie is verleend.
De deelnemers in het besluitvormingsproces van het verlenen van
amnestie.
Het standpunt van slachtoffers en de samenleving aangaande het
verlenen van amnestie.
Maatregelen om de slachtoffers tegemoet te komen in hun rechten.
Betrokkenheid internationale gemeenschap.
Belang dat de staat in kwestie aan de rechtsstaat hecht.
Geformuleerd als tien vragen vormen deze factoren een toetsingskader waaraan een
specifiek geval van amnestieverlening kan worden getoetst. Dit toetsingskader is
233
Samenvatting (Dutch summary)
uitgewerkt in Hoofdstuk VII en een instrument om de centrale vraag van dit
onderzoek te beantwoorden van geval tot geval.
234
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