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When armed conflicts and armed violence subside, all parties involved and society at large need to decide how to reckon with past violations of human rights and international humanitarian law. Though there is no one size fits all approach, transitional justice offers a range of mechanisms and tools that can be adapted to local contexts. International law provides for a benchmark to assess compliance of the combination of mechanisms and tools chosen, in particular with respect to accountability and the question of amnesties for past wrongdoings.
Defined as ‘the full range of processes and mechanisms associated with society’s attempts to come to terms with a legacy of large scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’, the ends of transitional justice in the aftermath of an armed conflict are twofold: The first end is to ensure accountability and safeguard the rights and dignity of victims. The second end is to foster sustainable peace, reconciliation and the rule of law. Hence, transitional justice processes not only look towards the past, but serve a forward-looking purpose, namely to contribute to reconciliation and peace.
A combination of mechanisms and tools to ensure accountability while fostering peace
Transitional justice processes usually resort to different mechanisms and tools to achieve these two ends, incorporating elements of criminal, restorative, and social justice. Traditionally, transitional justice processes include four pillars: Prosecutions; truth commissions; reparations for victims; and reform of laws and institutions, including security sector reform. To take into account how men and women experience armed conflict differently, gender justice should be an integral part of these four pillars. Rather than a single mechanism or tool, a combination of such mechanisms and tools is required to address the multilayered roots and consequences of large-scale violations of human rights and international humanitarian law during armed conflict. Such mechanisms and tools may be both judicial and non-judicial. The choices to be made for transitional justice processes normally involve the consultation and active participation of victims and society at large. The consultation of victims is particularly important in order to safeguard victims’ rights to a remedy and reparation, including for the question of amnesties.
What are amnesties?
Though international law does not define amnesties, amnesties are generally understood as legislative or executive acts that bar the criminal investigation or prosecution of individuals or groups of individuals for offences, either retroactively or prospectively. They may take various forms, ranging from blanket amnesties for a broad group of alleged perpetrators or a broad range of crimes to limited or conditional amnesties, i.e. amnesties subject to requirements, such as participation in truth seeking exercises, acknowledgment of crimes committed or reparations.
The role of amnesties
Experience has shown that there are many practical difficulties when trying to address large scale past violations of human rights and international humanitarian law. In post conflict settings where the existing institutional framework tends to be weakened these difficulties are exacerbated. In particular, the question frequently arises how to deal with the potentially large number of perpetrators involved in violations of human rights and international humanitarian law with a view to ensure not only accountability and the rights of victims, but also to foster reconciliation and restoration of the social fabric. In this context, amnesties have historically been considered a valuable tool to end armed conflict and to contribute to reconciliation. Moreover, granting amnesties for acts in compliance with international humanitarian law provides an important incentive to respect the law. Indeed, customary international humanitarian law provides that ‘at the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty’ to those who participated in the armed conflict. Yet, international law also provides for restrictions in the scope amnesties that may granted.
The scope of amnesties
Although there is no explicit prohibition of amnesties under international law, blanket amnesties for international crimes are generally considered impermissible for two main reasons.
First, the obligations to investigate and prosecute war crimes as well as crimes against humanity, genocide, and other international crimes support the conclusion that international law prohibits the granting of blanket amnesties for such crimes. For example, when explaining its vote in favor of Article 6(5) of Additional Protocol II on the granting of amnesties to those who participated in hostilities, the then USSR pointed out that this provision is not to be construed to enable those guilty of war crimes to evade punishment. Similarly, the European Court of Human Rights concluded in 2014 that ‘a growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognized obligations of States to prosecute and punish grave breaches of fundamental human rights.’
Second, the prohibition of blanket amnesties for international crimes may also be inferred from victims’ rights to an effective remedy. The right to an effective remedy requires not only victim-specific remedies, including reparations, but also investigation and prosecution, if appropriate, for serious human rights violations. The 2005 Set of Principles to Combat Impunity expressly highlight that ‘amnesties and other measures of clemency shall be without effect with respect to the victims’ right to reparation, …, and shall not prejudice the right to know’.
Amnesties in practice: some level of discretion
There have been many examples of amnesties granted at the end of an armed conflict that exclude international crimes. For example, the Croatian 1996 General Law on Amnesty provides for amnesties to all those who participated in the rebellion, but excluded war crimes and other international crimes. Similarly, the authorities for Bosnia and Herzegovina passed amnesties laws covering the participation in the armed conflict, but excluding war crimes. However, while the trend in international law is to consider blanket amnesties for international crimes as impermissible, many peace agreements still resort to amnesties, including in some instances blanket amnesties for international crimes, in various forms as a way to bring armed conflicts to an end.
Though controversial, amnesties are not necessarily in violation of international law if victims’ rights and the duty to investigate are a safeguarded by other means. From a legal perspective, the duty to prosecute, whether as an obligation or part of victims’ rights to a remedy does not imply a duty to prosecute and convict under all circumstances. For example, prosecutorial strategies may use transparent and objective criteria for case selection and prioritization, which do not mean that all alleged perpetrators or all crimes have to be prosecuted. Particular circumstances may also play a role, provided that they apply. For example, in 2014, the European Court of Human Rights also pointed out that in light of the circumstances of the case, it was not necessary to decide if amnesties ‘are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims.’ Similarly, the UN Secretary General pointed out that ‘carefully crafted amnesties can help in the return and reintegration’ of displaced persons and former fighters in the aftermath of conflict, provided that they do not extend to international crimes. Finally, the 2014 Belfast Guidelines on Amnesty and Accountability advocate for the use of tailored conditional amnesties as a tool to accompany broader transitional justice processes. The guidelines also provide guidance on the design of such amnesties and highlight the importance of public consultations.
Amnesties need to comply with international law requirements providing for the duty to investigate and prosecute, as well as the rights of victims to an effective remedy and reparations.
When designing transitional justice processes, a holistic approach should be adopted that is based on broad, society wide consultations across all conflict lines. In particular for the question of amnesties, society’s views and perceptions need to be taken into account with a view to safeguard accountability and victims’ dignity as well as restoration of peace and reconciliation. Carefully designed amnesties may serve as a transitional justice tool when accompanied by other measures that ensure the rights and dignity of victims.