XI - Should We Ever Say Never?: Arguments against Granting Amnesty Tested

Summary

INTRODUCTION

Over the past decades the idea that serious perpetrators of international crimes – genocide, crimes against humanity and war crimes – can be amnestied has been severely challenged. According to Cherif Bassiouni (2002, 3): “The realpolitik of reaching political settlements without regard to a post-conflict justice component is no longer acceptable”. In its early peace-building efforts the United Nations has generally felt free of legal or moral constraints in endorsing amnesty-for-peace deals. In many of these cases such amnesties were accompanied by the parallel establishment of truth commissions, such as in El Salvador (1991), Haiti (1994), South Africa (1995) and Guatemala (1996) (Stahn 2002, 192–195). Over the last decades the United Nations and many other actors have shift ed to a more rigid doctrine that serious perpetrators of international crimes should always be prosecuted, no matter what accompanying activities are organised. It has led to the establishment of new (international) forums and mechanisms to prosecute perpetrators of international crimes. The United Nations argues that “carefully crafted amnesties” can help in the return and reintegration of displaced civilians and former fighters, but that “these can never be permitted to excuse genocide, war crimes, crimes against humanity or gross violations of human rights”. Likewise, other policy makers, scholars and international NGOs have taken a firm position opposing the granting of amnesties to any serious perpetrators of international crimes.

The consequences of this shifting position are not abstract. They are very real. It has for example led to the establishment of the International Criminal Court (ICC) with a Prosecutor's Office that can independently decide on the prosecution of the most serious suspects of international crimes. Once this office has issued an arrest warrant, there is no turning back. Recent history has taught the prosecutor's inflexible position regarding amnesties. After two years of serious negotiations between the Ugandan government and the rebels of the Lord's Resistance Army (LRA), LRA leader Joseph Kony considered making use of the government's offer for amnesty (Mukasa 2008). He however wanted existing ICC arrest warrants against the LRA leadership lifted before demobilising.