The nature, status and future of amnesties under international criminal law.

AuthorPerry, Robin

Abstract

The ultimate sovereign prerogative of States to begin and end wars and, in particular, to grant amnesties for crimes committed during those wars, has been significantly eroded by the expanding legal imperative to address crimes whose gravity compels prosecution. As this legal obligation continues to expand, the space for a non-legal accommodation of localised sociopolitical nuances of any given conflict is correspondingly diminished. Nevertheless, a cursory overview of legal and political philosophy challenges the assertion that prosecutions of international crimes are or ever can be exercises of pure, unadulterated legalism, uncontaminated by political influence. We should, on that basis, be willing to accept that there may, in some situations, be legitimate scope for utilising politics to address the perpetration of crimes during conflict beyond the courtroom. Ultimately, then, this article will seek to draw on contemporary legal and philosophical debate to map out the evolving position of international law with respect to amnesties and, on that basis, to identify international criminal law as a form of juridified international politics. This will provide a foundation for justifying recourse to amnesties, albeit in very limited circumstances, and to tentatively outline some practical guidelines for identifying those circumstances.

From such crooked lumber as humanity is made of, no straight thing was ever constructed. (1)

It is a very tough call whether to point the finger or try to negotiate with people. As a lawyer, of course, I would like to prosecute everybody who is guilty of these heinous things. As a diplomat or as a politician or as a statesman, I would also like to stop the slaughter, bring it to a halt. You have two things that are in real conflict here ... I don't know the proper mix. (2)

I Introduction

If we accept We proposition that, at least at its margins, international criminal law (ICL) could be viewed as an attempt to juridify politics, then the next question we must ask ourselves is: where do we draw the boundaries of the ICI, project? In other words, it is a fundamental question of identifying the point up to which we impose criminal penalties for abhorrent State behaviour and the point beyond which we allow international politics to operate unfettered by the law. The concept of amnesty for crimes committed by warring parties appears to be located on these boundary lines and so it is an issue to which ICI, has not yet given a definitive (or 'juridified') response. In short, this article is an attempt to go beyond the lofty rhetoric that pervades discussion of ICL in order to clarify the nature of amnesties and their status under international law, and to then make some suggestions as to the extent to which ICL should permit their operation as it continues to evolve as a system for addressing conflict-related atrocities.

The ultimate sovereign prerogative of Stares to begin and end wars (and to utilise long-established protocols of international diplomacy to do so) and, in particular, to grant amnesties For crimes committed during those wars, has been significantly eroded by the expanding legal imperative to address crimes whose gravity compels prosecution. As this legal obligation continues to expand the space for a non-legal accommodation or localised sociopolitical nuances of any given conflict is correspondingly diminished. The notion of justice is inherently constituted not only by legal considerations, but also by moral, social and political imperatives. Consequently, the search for a unifying blueprint for post-conflict justice is unending and futile. The bottom line is that justice is dependent on accountability, die mode of which will, in turn, be determined by the needs and exigencies of each post-conflict situation.

Nevertheless, only rarely, it ever will justice and the accountability on which it is founded be served by criminal trials alone. That is not to deny the legitimacy and effectiveness of the burgeoning body of universal ICI, principles and minimal standards that demand accountability for heinous acts of extreme violence. It is, on the contrary, an acknowledgement that if we are to succeed in developing an effective, lasting system of international accountability--and the progression of the international order to this point is far from inevitable--then it is essential for us to both recognise and understand the complacency of ICL's grandiose, universalising moral claims, and to engage directly with the political complexities that make it thus. In short, the project of constructing a sustainable edifice of international criminal justice demands that we resist, as Todorov puts it so succinctly, 'the certainties of people who claim always to know where good and evil are Found.' (3)

A cursory overview of legal and political philosophy gives the lie to the assertion that prosecution of international crimes, and the system of ICL, that mandates them, are or ever can he exercises of pure, unadulterated legalism, uncontaminated by political influence. We should, on that basis, be willing to accept that there may, in some situations, be legitimate scope for utilising, politics to address the perpetration of crimes during conflict beyond the courtroom, This id very much in keeping with the tenor of Beth Simmons' suggestion--made during her keynote address at the ANZSII, (Australia New Zealand Society of International Law) Conference in June 2011--to 'develop peripheral vision' and 'entertain alternative possibilities'. (4)

There is, therefore, significant scope for creative negotiation between the extreme poles fixed by realists' and legalists' antagonistic conceptions of international criminal justice and the manner in. which these competing visions might be realised. The dynamism and complexity of this policy space is reified in the range of mechanisms that are available to be applied in a variety of nuanced, interconnected ways in order to fulfill the demands of accountability, while facilitating sustainable peace settlements sensitive to local imperatives. Ultimately, then, this article will seek to draw on contemporary legal and philosophical debate to identify some tentative, practical guidelines and principles for determining when it is appropriate to stay the hand of the law, and cede solutions to politics by respecting amnesties, and when it should intervene, and thereby overrule amnesties. As the international community begins to grapple with allegations of international crimes committed in the Middle East, these issues are now as relevant as ever.

II Amnesties and the duty to prosecute under international Law

A What is an amnesty?

The notion of amnesty is derived from amniestia, the Greek word for 'forgetting'. (5) Hence, at its most basic, an amnesty can be described as a form of forgiveness granted by the State in respect of criminal acts. (6) Black's Law Dictionary explains that, '[u]nlike an ordinary pardon, amnesty is [usually] addressed to crimes against state sovereignty--that is, to political offenses with respect to which forgiveness is deemed more expedient for the public welfare than prosecution and punishment'. (7) In short, amnesties presuppose a breach of the law and provide immunity from the legal consequences of it. (8)

The power to grant amnesties, therefore, lies at the heart of what it means to be a State (9) and, according to political philosophers, a monopoly of the power of whether or not to punish is one of the defining characteristics of statehood. (10) This tenet of the international order comes into direct conflict with the evolving architecture of ICI, which purports to subject sovereignty to respect for human rights and, accordingly, requires the punishment of those acts that violate them in the extreme. ICI, is, consequently, highly ambivalent on the issue of amnesty. (11) Nevertheless, it is possible to discern a basic position which dictates that, put simply, 'qualified amnesties' are permissble under international Law, While 'biallket--that is, those which bar all type of investigation--are not. (12) Hence, the question now ought to focus on what type of amnesty is acceptable in a given situation. (13) The answer to this question is, of course, heavily influenced by the specific nature and source of the legal framework within which the issue arises.

B International treaties

Leaving aside the vexed and much exercised issue or whether a crime is one for which universal jurisdiction lies, it is clear, pursuant to the bedrock principle of pacta sunt servanda [agreements must be kept], that treaties can and do limit the prerogative Of a State to grant amnesties. Hence, article 27 of the Vienna Convention on the Law of Treaties stipulates that "a party may not invoke the provisions of its internal law as justification for failure to grant amnesties are largely imposed in relation to the duty to investigate and prosecute the particular crimes that are the subject of the treaty, rather than expressly addressing the applicability of amnesties per se.

I Rome Statute

The Rome Statate of International Criminal Court (15) does not explicitly address the issue of amnesties. The question of whether domestic amnesties would constitute a bar to prosecution at the International Criminal Court (ICC) was raised briefly by the Preparatory Committee prior to the Rome Conference and, subsequently, avoided at the Rome Conference itself. (16) Given the clear legal trend from the 1990s onwards towards criminal accountability, the omission is somewhat surprising. (17) Nevertheless, indications are that this avoidance was deliberate and reflects the recognised, but exceptional, utility of amnesties in peace negotiations within a framework of presumptive accountability. (18) Indeed, this lacuna could more broadly be described as reflecting fundamental debates amongst delegates as to what it is that constitutes law and politics in the...

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