Amnesties and the Rome Statute--a legitimate bar to prosecution?

• Author: Garcia, Tristan

Abstract

In the wake of violent conflicts, amnesties continue to be granted for serious international crimes. This article focuses on the recognition that the International Criminal Court should afford such amnesties where they are intended to cover crimes which otherwise fall within the Court's jurisdiction. It is argued that a zero-tolerance policy is required on the basis of the text of the Rome Statute itself, and also on the grounds that such a stance is in accordance with the general trend of international law against recognising amnesties for serious international crimes. The shifting attitude towards amnesties is examined in light of the emerging body of international jurisprudence dealing with the issue, and a principled approach for the ICC to adopt in dealing with amnesties is put forward. This approach takes into account the inherent limitations of the ICC as a post-conflict mechanism and more accurately accords with the Court's unique mandate for securing accountability.

Introduction

The entry into force of the Rome Statute (1) on 1 July 2002 was heralded by many as signaling a new era of accountability for the perpetrators of international crimes. It was seen as a demonstration of the will of the international community to end the 'culture of impunity' and was 'in many ways the culmination of a series of international efforts in that direction'. (2) This article examines the ability of the International Criminal Court ('ICC or 'the Court') to adhere to the high expectations placed upon it by focusing on the recognition the Court should afford national amnesties that have been granted for crimes that would otherwise fall within the jurisdiction of the Court. Now is an important time to reflect on the approach that the ICC can and should adopt in relation to this difficult issue, considering that amnesty issues have already arisen in relation to the situation in Northern Uganda which is currently before the Court.

Part I of this article situates the practice of granting amnesties within post-conflict measures, before discussing the restrictions which international law currently places on this means of dealing with past atrocities. This section will focus on the extent to which an obligation to prosecute the crimes contained in the Rome Statute currently exists under international law.

Part II then examines the compatibility of amnesties with the text of the Rome Statute itself, and offers some concrete suggestions as to the most appropriate course for the ICC to adopt. The argument presented here is that amnesties should not form a bar to prosecution on the basis of the wording of the Rome Statute itself, and also on account of the fact that deferring to national amnesties is fundamentally incompatible with the role and purpose of the ICC in ensuring accountability and ending impunity. A principled approach for the ICC to adopt in dealing with amnesties is put forward, which not only recognises the inherent limitations of the ICC but also accords more accurately with its unique mandate.

PART I

1. The Granting of Amnesties and Shifting Attitudes--Achieving Peace and Justice?

   The term amnesty refers to 'an act of sovereign power immunising persons from criminal prosecutions for past offences', (3) and should be differentiated from a pardon which is generally granted post-conviction and is 'an act or an instance of officially nullifying punishment or other legal consequences of a crime'. (4) Andreas O'Shea dates the first recorded amnesty as occurring between Rameses II and the Hittites in 1286 BC and the practice has continued until the present day. (5) Amnesties have recently been granted in the wake of conflict in countries as diverse as Sierra Leone, Uganda, Cambodia, South Africa, El Salvador, Guatemala, Haiti, Chile, Angola and Togo, and were intended to serve a range of different purposes. (6) Despite their continued usage as a matter of State practice, there has been a discernible shift in the international community's stance as to the recognition they should be afforded under international law--as reflected in a 'sea-change in attitudes towards impunity' to use Justice Geoffrey Robertson's phrase. (7) Whilst sovereign powers may have previously been at liberty to proclaim amnesties with unfettered discretion, international law has evolved to the point where there are now restrictions on the types of amnesties that may be considered legitimate. (8)

   The shift away from according recognition to amnesties may be linked to several concurrent themes, of which GropengieBer & MeiBner highlight three of particular importance. (9) The first is a growing skepticism towards amnesties generally--and in particular to blanket or self-amnesties. (10) The second concerns the 'juridification' of amnesties whereby courts have more frequently been called upon to determine the legality or otherwise of an amnesty and its compliance with a State's constitutional and international legal obligations. (11) Similarly, international courts now have to grapple with the issue of national amnesties when determining the limits of their jurisdiction. The final trend relates to the 'internationalisation' of the practice of granting amnesties--which again emphasises the importance of international law in regulating the limits of State activity. (12)

   In addition, the increased attention now accorded to victims' rights (13) has further contributed to making the perceived legitimacy of amnesties 'limited and conditional' where it is acknowledged at all and 'an increasingly widespread view is that broader reconciliation processes are a desirable supplement to but no substitute for criminal prosecution' (Emphasis added). (14) The importance of victims' rights as forming a bar to the legal recognition of amnesties has been highly influential in the jurisprudence of the Inter-American Court of Human Rights in particular. (15) Article 53(2) (c) of the Rome Statute also explicitly provides for the 'interests of the victims' to be taken into account by the Prosecutor when deciding whether it is in the interests of justice to proceed with a prosecution. (16)

   This general trend away from the recognition of amnesties raises important questions as to the relationship between peace and justice. Whilst they are generally viewed as complementary objectives, in certain circumstances it has been suggested that justice must be forgone in order to achieve peace. (17) Forsaking justice in the name of peace may be seen as the only alternative for ending a bitter and protracted conflict, and prosecutions may be perceived as a destabilising factor. As will be further drawn out below, however, these are the very circumstances which the ICC was established to address in order to provide an alternative means of securing accountability in instances where a State is unwilling or unable to proceed such that 'justice' is no longer dispensed with in the name of peace. The former Secretary-General Kofi Annan saw peace and justice as fundamentally complementary objectives, such that they are 'indivisible' in all post-conflict situations 'where the dawn of peace must begin with the light of justice'. Furthermore, he saw the ICC as the 'symbol of our highest hopes for this unity of peace and justice'. (18)

   This is not to suggest that criminal prosecutions alone are capable of achieving these ends, but simply that prosecutions are an indispensable element for attaining both ends, especially where crimes of concern to the international community as a whole have been committed. One recent experiment which sought to unify the objectives of peace and justice was the establishment of a Truth and Reconciliation Commission ('TRC') in Sierra Leone alongside the Special Court. William Schabas, a member of the TRC, has written that 'the Sierra Leone experience may help us to understand that post-conflict justice requires a sometimes complex mix of therapies, rather than a unique choice of a single approach from a menu of alternatives'. (19) He further notes that the existence of the TRC alongside the Special Court did not have the expected result of discouraging perpetrators from testifying. (20) It is crucial that the ICC conduct its work alongside other post-conflict mechanisms, in recognition of the fact that the ICC 'will not be the panacea for all the ills of humankind'. (21) The Court is one part of an emerging system of international accountability and however important its role is, it must be remembered that the purpose of the Court is to secure the prosecution and punishment of individual perpetrators, not necessarily to promote reconciliation at a national level. Furthermore, the Court will not be capable of prosecuting all alleged perpetrators in circumstances where it has jurisdiction to do so when one has regard to practical and fiscal constraints. Therefore, the ICC does not replace the need for States to prosecute persons accused of international crimes where they are properly capable of doing so, indeed the entire Rome Statute is founded upon the notion of complementarity. (22) The question that this article seeks to raise, however, is whether the fact that an amnesty has been granted can or should be a taken into account by the ICC when determining whom to prosecute. (23)

   Before examining the scope for such recognition under the provisions of the Rome Statute itself it is necessary to elucidate the offences for which amnesties may not validly be granted under conventional and customary international law as this will provide part of the answer to the question posed directly above.

2. The Ability to Grant Amnesties under International Law

   Those seeking to buttress support for the validity of amnesties under international law most commonly cite article 6(5) of Additional Protocol II to the Geneva Conventions (24) in support of their position. (25) That provision, the only one to explicitly allow for amnesties in a major international instrument...