The first recorded use of amnesty laws was in ancient Babylon and in the subsequent centuries they were used repeatedly by political elites responding coups d’état, insurrections, dictatorships and conflicts. However, definitions of amnesty in domestic legal systems diverge considerably, and as explored in the Beyond Legalism project, even within one country, domestic amnesty laws can take very different forms. Due to this diversity, at the international level, understandings of amnesty often lack clarity or precision. Nonetheless, drawing on the examples of amnesty in the Amnesty Law Database, some key characteristics of amnesty laws can be identified.
‘Amnesty’, like ‘amnesia’, comes from the Greek word ‘amnestia’, meaning ‘forgetfulness’ or ‘oblivion’. From a legal perspective, amnesty laws have traditionally been understood as extraordinary legal measures designed to eliminate the record of past crimes by barring criminal prosecutions and/or civil suits for designated persons or crimes.
During peacetime, amnesties are sometimes introduced for ordinary crimes such as illegal immigration, tax dodging, parking offences or even library fines. However, this research project focuses on amnesties that are introduced within transitional contexts. During transitions, amnesties are designed to fulfil political goals such as ending violent insurrections; facilitating the implementation of peace agreements; supporting disarmament, demobilisation, and reintegration initiatives; encouraging national unity; or releasing political prisoners.
Constitutions or domestic penal codes often provide rules on how amnesty laws can be enacted and on what offences can be amnestied. Such rules, together with transitional states’ obligations under international law, can limit the discretion of states enacting amnesty laws. However, the extent to which states take these legal rules into account varies. The political contexts and regulatory frameworks can influence the scope of amnesty laws. For example, states can exclude certain categories of crimes, such as serious human rights violations; or certain individuals, such as the leaders and intellectual authors of the policies of oppression and violence.
Depending on the objectives underpinning an amnesty processes, amnesty laws may be conditional on potential beneficiaries, either as groups or individuals, performing tasks. These tasks can include surrendering weapons, providing information on former comrades, admitting the truth about their actions, or showing remorse, to benefit from the amnesty. Where the amnesty is linked to truth-recovery mechanisms, particularly by granting amnesty in exchange for truth, it differs from the traditional understandings of the term, as rather than casting the crime into oblivion, it is investigated and the events are publicised in public hearings and official reports.
Amnesty laws are one form of impunity as they enable offenders to avoid legal sanctions. Other forms include pardons, sentence reductions, immunity for state officials, statutes of limitations, indemnity laws, or simply failure to pursue prosecutions. Under some legal systems, the distinctions between amnesty and other forms of impunity can become blurred, most commonly when the amnesty is granted to individuals who have already been convicted, together with those who are awaiting trial. However, amnesty laws raise unique issues for accountability and often give rise to the greatest controversy, and hence, merit separate study.
Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Hart Publishing, Oxford 2008)
Mark Freeman, Necessary Evils: Amnesties and the Search for Truth (Cambridge University Press, 2009)
William Bourdon, ‘Amnesty’, in Roy Gutman & David Rieff (eds), Crimes of War Book, (John Wiley and Sons Limited, 1999)
Andreas O’Shea, Amnesty for Crime in International Law and Practice (Kluwer Law International 2002)