2003 | Naqvi: Amnesty for War Crimes - Defining the limits of international recognition
This article does not touch on reparations as such, but studies national and international practice concerning the granting of amnesties to alleged war criminals. The prosecution of war crimes is often - rightly - considered part of the reparatory process following armed conflict. The granting of amnesties is plainly at odds with achieving that goal. It is in this context that we find it sufficiently relevant to include this interesting analysis on our website.
Amnesties for war crimes and other international crimes are mainly brokered in transitional processes wherein states are recovering from war or extreme political upheaval. In such precarious phases, amnesties may prevent violence from flaring up, help to put in place democratic civilian regimes or aid the process of reconciliation. At the same time, victims’ right to justice is served by the prosecution of those accused of committing war crimes. This article sets out the parameters for internationally accepted amnesties that may preclude criminal prosecution for war crimes, and examines whether amnesties for war crimes are binding on foreign or international courts and if not, whether these courts may yet recognize them.
Valid amnesties under International Law
Based on state practice and the decisions of national and international courts, the author defines the following cumulative parameters for acceptable amnesties for war crimes:
- the amnesty is prescribed and limited to achieving certain objectives, in particular, the objectives of securing peace and initiating or furthering reconciliation;
- the amnesty is accompanied by other accountability measures such as truth commissions, investigatory bodies, or lustration;
- the amnesty is not self-proclaimed, but results from negotiations between the outgoing and incoming regimes or of a peace deal brokered by international parties, such as the United Nations;
- the amnesty only applies to lower ranking members of armed forces or groups or those considered “least responsible” for the perpetration of international crimes.
Are amnesties binding?
The work explains that an amnesty which is brokered within a state, for instance a peace deal between the government and a rebel group, is not formally binding on other states. Amnesties brokered between two or more states, are only binding on those states and not on third states unless the amnesty is negotiated (or given approval) by the United Nations (UN) Security Council for the purpose of securing international peace and initiating/furthering reconciliation, in accordance with the purposes and principles of the UN Charter and the fundamental principles of international law. Where non-recognition of the amnesty would require a third state to act in contravention of its obligations under the UN Charter – for example, thereby threatening international peace and security – it will be constrained to give effect to the amnesty. That unlimited prosecution of international crimes may amount to a threat to peace and security is, according to the author, also reflected in Article 16 of the Statutes of the International Criminal Court (ICC) which gives the UN Security Council the power to defer proceedings before the Court for twelve months by passing a resolution under Chapter VII of the UN Charter.
Can foreign and international courts recognize of give effect to amnesties?
The work explains that, whether foreign and international courts can recognize amnesties (e.g. acknowledge their legal validity under international law) or give effect thereto, depends largely on whether States are under a positive obligation to prosecute persons accused of war crimes or merely are entitled to do so. The author argues that as a general rule, amnesties normally have no extraterritorial effect as they do not affect treaty obligations or entitlements under customary law to prosecute persons accused of war crimes and thus are normally not binding on foreign and international courts.
Duty to prosecute war crimes under conventional law
The Four Geneva Conventions of 1949 and Additional Protocol I of 1977 (AP I) list acts that amount to “grave breaches” of its provisions and determine that each contracting party to these conventions shall bring a person suspected of such breaches, wherever the commission of the crimes occurred and whatever his or her nationality, before its own courts. Amnesty for such person cannot be given legal effect in the state that brokered the amnesty nor could it be recognized in other states.
Duty to prosecute war crimes under customary law
Under customary international law, states may be either entitled or obliged to prosecute those accused of war crimes. Since the grave breaches listed in the Four Geneva Conventions are considered to have a customary law status, states are considered to have a duty to prosecute war crimes -mandatory universal jurisdiction- under customary law which leaves no room for accepting amnesties. Whether the “grave breaches” included in AP I have a customary law status as well, is debated although the author stipulates that there exist indications (such as the pre-ambule of the ICC Statutes) that customary law obliges states to prosecute all serious international crimes. In such case, amnesties could not be recognized in a court of law. However, should customary law not place a duty on states to prosecute persons accused of these crimes, then states might be able to give de facto effect to an amnesty by choosing not to exercise jurisdiction over perpetrators of such crimes.
Duty to prosecute war crimes committed in a non-international armed conflict?
Are states obligated to prosecute persons suspected of violations of Article 3 common to the Four Geneva Conventions addressing prohibited acts in internal wars? And are states obliged or rather entitled to prosecute other serious violations of the laws and customs of war committed in non-international armed conflicts? The author stipulates that serious violations of this nature have traditionally not been considered criminal offences attracting universal jurisdiction or a duty to prosecute and punish under international law. However, the statutes and judgments of recent international criminal courts arguably reveal a shift in the position on customary law, inferring a mandatory system of enforcement in cases of serious violations of common Article 3 and Additional Protocol II of 1977, and allowing no room for the acceptance of amnesties by international courts. Moreover, the work purports that Article 1 common to the Four Geneva Conventions on the duty to “respect and ensure respect for the Four Geneva Conventions” with its customary law status, is most effectively put into practice by (mandatory) prosecution and punishment of serious violations of the Geneva Conventions and its two Additional Protocols.
International Courts’ statutes
Although the legal principles set out here above will generally apply, the statutes of courts will often specify whether or not amnesties for certain crimes will or will not be recognized. Arguments have been made that the ICC Statutes may allow for accepting amnesties on an exceptional basis, for instance if a prosecution is not in the interests of justice. At the same time, the statutes of other (quasi) judicial international courts set up in recent years generally reject any possibility of recognition of amnesties for international crimes.
In conclusion, only those amnesties for war crimes which are limited to internationally acceptable parameters and which are not inconsistent with states’ fundamental obligations, should be accorded international validity. In so far as states have an obligation, whether under customary law or conventional law, to prosecute war crimes, foreign and international courts cannot recognize amnesties covering these crimes unless compelled under the Security Council exemption. In so far as customary law merely entitles the prosecution of war crimes, the aforementioned courts can de facto recognize the amnesty by not exercising jurisdiction.
 Whereas Additional Protocol I relates to the protection of victims of International Armed Conflicts, Additional Protocol II relates to the protection of victims of Non-International Armed Conflicts and grants a lower degree of protection than AP I.