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Amnesties and international humanitarian law: Purpose and scope

ICRC Advisory Service on International Humanitarian Law

Published online by Cambridge University Press:  29 November 2018

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Extract

States party to the 1949 Geneva Conventions and Additional Protocol I of 1977 have an obligation to take measures necessary to suppress all acts contrary to their provisions. Moreover, States must investigate war crimes allegedly committed by their nationals or on their territory, and other war crimes over which they have jurisdiction, such as on the basis of universal jurisdiction, and, if appropriate, prosecute the suspects. In accordance with these obligations and the limits they impose, States may adopt certain measures during and in the aftermath of armed conflicts to promote reconciliation and peace, one of which is amnesties. International humanitarian law (IHL) contains rules pertaining to the granting and scope of amnesties. Specifically, Article 6(5) of Protocol II additional to the Geneva Conventions relating to non-international armed conflicts (NIACs) provides that, at the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict. Importantly, under customary IHL (as identified in Rule 159 of the ICRC customary IHL study), this excludes persons suspected of, accused of, or sentenced for war crimes in NIACs.

Type
Reports and documents
Information
International Review of the Red Cross , Volume 101 , Issue 910: Memory and war , April 2019 , pp. 357 - 363
Copyright
Copyright © icrc 2018 

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References

1 See https://ihl-databases.icrc.org/customary-ihl/eng/docs/home.

2 See ICRC, Commentary on the Additional Protocols, 1987, para. 4617; OHCHR, Rule-of-Law Tools for Post-Conflict States: Amnesties, 2009; La Rosa, Anne-Marie and Wuerzner, Carolin, “Armed Groups, Sanctions and the Implementation of International Humanitarian Law”, International Review of the Red Cross, Vol. 90, No. 870, June 2008, pp. 327–341CrossRefGoogle Scholar; Olson, Laura M., “Provoking the Dragon on the Patio – Matters of Transitional Justice: Penal Repression vs. Amnesties”, International Review of the Red Cross, Vol. 88, No. 862, June 2006, pp. 275–294CrossRefGoogle Scholar; Meisenberg, Simon M., “Legality of Amnesties in International Humanitarian law: The Lomé Amnesty Decision of the Special Court for Sierra Leone”, International Review of the Red Cross, Vol. 86, No. 856, December 2004, pp. 837–851CrossRefGoogle Scholar; and Naqvi, Yasmin, “Amnesty for War Crimes: Defining the Limits of International Recognition”, International Review of the Red Cross, Vol. 85, No. 851, September 2003, pp. 583–625CrossRefGoogle Scholar.

3 See ICRC, Commentary on the Additional Protocols, 1987, paras 4617–4618.

4 Idem.

5 For more information, see “Related Practice” under Rule 159 of the ICRC customary IHL study.

6 See Rule 158 of the ICRC customary IHL study: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule158.

7 See Rule 159 of the ICRC customary IHL study: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule159.

8 See ICRC, Commentary on the First Geneva Convention, 2nd edition, 2016, para. 2845: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=3ED0B7D33BF425F3C1257F7D00589C84. Also, for example, the European Court of Human Rights (ECHR) held, via the Grand Chamber decision in Marguš v. Croatia (27 May 2014), that criminal proceedings for charges of torture and ill-treatment should not be time-barred or subject to an amnesty and that an amnesty is generally incompatible with the duty to investigate and prosecute serious crimes, including war crimes.

9 For example: i) the Special Court for Sierra Leone, in the Decision on Challenge to jurisdiction: Lomé Accord Amnesty (2003), stated that the granting of amnesties by a State did not rule out prosecution for war crimes and other international crimes before an international tribunal; ii) the Furundžija judgment (1998) of the International Criminal Tribunal for the former Yugoslavia, which dealt with the war crime of torture, outlined that an amnesty covering crimes whose prohibition had attained the status of jus cogens was invalid; and iii) the Extraordinary Chambers in the Courts of Cambodia (in 2011) affirmed that an amnesty by royal decree could not relieve Cambodia of its “absolute obligation to ensure the prosecution or punishment of perpetrators of grave breaches of the 1949 Geneva Conventions, genocide and torture”.

10 See Massacres of El Mozote and Nearby Places v. El Salvador (2012), Inter-American Court of Human Rights.

11 For more information, see ICRC, Commentary on the First Geneva Convention, 2nd edition, 2016, para. 2845: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=3ED0B7D33BF425F3C1257F7D00589C84.

12 For more information, see the ICRC Advisory Service's Command Responsibility and Failure to Act factsheet: www.icrc.org/en/document/command-responsibility-and-failure-act-factsheet.

13 In Almonacid-Arellano et al v. Chile (2006), the Inter-American Court of Human Rights held that an amnesty could not cover crimes against humanity.

14 In Abdülsamet Yaman v. Turkey (2004), the ECHR highlighted that where a State agent is charged with crimes involving torture or ill-treatment, an amnesty or pardon should not be permissible.

15 See Zimbabwe Human Rights NGO Forum v. Zimbabwe (2006), African Commission on Human and Peoples’ Rights.

16 See the Barrios Altos case (2001), Inter-American Court of Human Rights.

17 For example: i) in Malawi African Association and Others v. Mauritania (2000), the African Commission on Human and Peoples’ Rights held that an amnesty law adopted with the aim of nullifying suits or other actions cannot shield the country from fulfilling its international obligations under the African Charter on Human and Peoples’ Rights; and ii) in Yeter v. Turkey (2009), the ECHR reaffirmed that when an agent of the State is accused of crimes that violate Article 3 of the European Convention on Human Rights, the granting of an amnesty or pardon should not be permissible.

18 For example, see Juan Gelman et al. v. Uruguay, Case 438-06, Report No. 30/07, Inter-American Commission on Human Rights, OEA/Ser.L/V/II.130 Doc. 22, rev. 1 (2007).

19 See Article 10 of the Statute of the Special Tribunal for Sierra Leone, and Article 6 of the Statute of the Special Tribunal for Lebanon.

20 For more information, see “Related Practice” under Rule 159 of the ICRC customary IHL study: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule159.

21 For example, see Act No. 2003-309 of 8 August 2003, Côte d'Ivoire; Act No. 08-020 of 13 October 2008, Central African Republic; Act No. 014/006 of 11 February 2014, Democratic Republic of the Congo; and Law 1820 of 30 December 2016, Colombia.

22 See Annual report of the Special Representative of the Secretary-General for Children and Armed Conflict (A/HRC/28/54), Human Rights Council, twenty-eighth session, 29 December 2014.