Can all be forgiven and forgotten in war? Amnesties can be a powerful tool to consolidate peace. Nevertheless, their application is rightly limited under international law and European policy. By Ivan Shalev
Our new article series "EIP explainers" focuses on mediation practices, the nature of conflicts and how conflicts can be solved. The aim is to cut through the jargon and provide readers with an overview of key concepts that are at the heart of what we do. This "EIP explainer" is written by Ivan Shalev and looks at amnesties.
It is difficult to imagine times when forgiving and forgetting serious crimes does not cause righteous indignation – let alone in the aftermath of the tragedies that accompany armed conflicts. But amnesties are often seen as necessary after violent political transitions. They provide incentives to disarm, demobilise and reintegrate combatants into their communities, like in Colombia or DR Congo. They allow reconciliation by encouraging people to publicly reveal the truth about their actions, as in South Africa. Amnesties may even be seen as preconditions to peace agreements, in order to bring particular factions and their leaders to compromise.
But an even greater necessity is combatting impunity and upholding the rights of those persons who were violated. It stems from legal and moral imperatives, and also a pragmatic consideration: peace cannot last upon injustice. International law therefore limits the extent to which amnesties are permissible or desirable. This is reflected in the expectations towards UN and EU mediators.
What is an amnesty?
Amnesties are legal measures that prevent the prosecution or legal liability of individuals or categories of individuals for criminal acts that have already occurred. They usually apply for a specific type of conduct during a specified period of time. Amnesties are extraordinary measures, and as such, tend to be adopted in political processes, like ceasefire agreements, presidential decrees or parliamentary bills. True to its Greek etymology, an “amnesty” implies not just the pardon, but the oblivion of a crime.
Not all amnesties are created equal
There are different types of amnesties, depending on their conditions or crimes and persons they cover. The United Nations classification distinguishes between:
- blanket amnesties, as measures which cover broad categories of people without preconditions. For example, Sri Lanka’s Indemnity Act (1982) barred any proceedings against a broad range of persons affiliated with law enforcement authorities;
- conditional amnesties, as measures which only exempt individuals who fulfil certain criteria. The famous South African Amnesty Program required full disclosure of all the relevant facts in order to qualify for violations associated with a political objective;
- de facto amnesties, as measures which do not explicitly bar prosecution but have that effect in practice. It happened with Argentina’s Ley de Punto Final (1986), which set the prohibitively short timeframe of 60 days to initiate criminal complaints; and
- disguised amnesties, as measures which rely on their interpretation by other regulations. For instance, the Ouagadougou Political Agreement (2007) envisaged an amnesty law which excludes war crimes and crimes against humanity. But when Ordinance 2007-475 implemented the provision, it removed this explicit exclusion by referring to Côte d'Ivoire’s penal code, which in turn does not list those categories.
Finally, in a quintessential example of impunity, authorities may promote self-amnesties for violations attributable to themselves or their allies. This was the case after the Barrios Altos and La Cantuta massacres in Peru.
Not all amnesties are permissible
International treaties do not prohibit amnesties. In fact, Additional Protocol II to the 1949 Geneva Conventions encourages them in relation to non-international armed conflicts. However, amnesties are incompatible with international customary and criminal law, if they relate to certain crimes. They also contravene human rights law, if they impede the obligation to provide a remedy for victims. Some also consider amnesties to be impermissible when they restrict the right to truth of society and individuals.
In short, amnesties must not apply for individuals liable for war crimes, genocide, crimes against humanity, and gross violations of human rights, including child- and gender-specific violations. A national amnesty to this effect will not be considered legitimate by regional courts, as seen across the Americas. Nor will it protect from investigation and prosecution in other states or the International Criminal Court, whose Rome Statute is clear: “the most serious crimes of concern to the international community as a whole must not go unpunished”. In addition, victims or their family members should not be denied the right to access justice, relevant information and remedies, including reparations. The Belfast Guidelines offer a balanced approach to amnesties and those competing state obligations after conflicts and repression.
Implication for mediators
To the extent that the pursuits of peace and justice may be perceived to contradict each other, mediators face many dilemmas in relation to amnesties. International organisations have developed relevant policies to offer at least basic guidance.
Those mandated by the United Nations are officially instructed that “United Nations-endorsed peace agreements can never promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights”. The internal Guidelines for UN Representatives on Certain Aspects of Negotiations for Conflict Resolution also contain directions to that effect. While it is now a widely accepted UN policy, it began with interesting diplomatic situations. When signing the Lomé Accord as a witness, the Special Representative of the Secretary General appended a handwritten reservation to the blanket amnesty contained in the agreement.
Mediators who work on behalf of the EU are not equipped with an official guidance on mediation, but relevant working documents exist. In addition, the more general Guidelines on Promoting Compliance with International Humanitarian Law rule out impunity for war crimes. Europe’s support for the Rome Statute should also indicate that amnesties for crimes under the Court’s jurisdiction must not be endorsed. At the 2008 Goma Talks, the European Union Special Representative therefore decided not to witness an agreement if it included the blanket amnesty that was requested by the National Congress for the Defence of the People (CNDP).
Some mediators may be displeased to find themselves with a more limited set of tools in negotiations. Indeed, the cessation of hostilities and consolidation of peace are legitimate reasons to promote amnesties. But appeasing those most responsible for the violence should not come at the expense of those who suffered its greatest impact. At least recent international developments recognise this.