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Can Genocide, Crimes Against Humanity and War Crimes Be Pardoned Or Amnestied? by Anees Ahmed and Merryn Quayle

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Can Genocide, Crimes Against Humanity and War Crimes Be Pardoned Or Amnestied? by Anees Ahmed and Merryn Quayle Can genocide, crimes against humanity and war crimes be pardoned or amnestied? by Anees Ahmed and Merryn Quayle This article is based on a lecture made on the same topic at the Institute of Advanced Legal Studies on January 28, 2008. INTRODUCTION FACTUAL BACKGROUND: PROSECUTING With the commencement of the first trial at the Khmer AN “AMNESTIED” PERSON AT THE KRT Rouge Tribunal (“KRT”), attention has once again been After overthrowing the Khmer Rouge’s Democratic focused on the crimes committed by the Khmer Rouge and Kampuchea regime on January 7, 1979, the Government the likelihood of successful prosecution of those most of the People’s Republic of Kampuchea established the People’s Revolutionary Tribunal (“PRT”) to “try the acts of responsible for those crimes. genocide committed by the Pol Pot-Ieng Sary clique.” The Ieng Sary, a senior figure in the Khmer Rouge, has been PRT indicted, prosecuted and convicted Pol Pot and Ieng charged by the KRT prosecutors with committing genocide, Sary in their absence of “genocide”, sentenced them to crimes against humanity and war crimes. He was the death and ordered the confiscation of their property. They Deputy Prime Minister and Foreign Minister of Democratic never served their sentences. Kampuchea from 1975 to 1979 and held several senior On July 15, 1994, the Government of Cambodia positions in the Khmer Rouge until his defection in 1996. enacted an “Outlawing Law” which made it a crime to be His lawyers have argued that an amnesty and pardon a member of the Khmer Rouge. Specifically, the granted to him by the King of Cambodia in 1996 effectively Outlawing Law outlawed being a member of the immunise him from prosecution by the KRT. “political organisation or the military forces of the Democratic Kampuchea Group”. This Outlawing Law This paper will focus on issues pertaining to the validity also empowered the King of Cambodia to grant an and applicability of an amnesty or a pardon granted to a amnesty or pardon to those who violated it. When Ieng perpetrator who has committed serious international Sary defected from the Khmer Rouge in 1996, the King crimes such as genocide, crimes against humanity and war granted him a pardon for his PRT conviction and an crimes. The authors will argue that neither pardon nor amnesty from any future prosecution under the amnesty can absolve serious violations of international Outlawing Law. criminal law (see Leila Nadya Sadat, “Exile, Amnesty and On October 27, 2004, following agreement between the International Law”, 81 Notre Dame Law Review 955 (2006) United Nations and the Government of Cambodia, the KRT (“Sadat”), p 957). There is a “crystallising international was established to prosecute crimes committed by the norm” against impunity which denies the legal possibility Khmer Rouge during the period of Democratic Kampuchea from 1975 to 1979 (“Agreement”)). The law governing the of pardon or amnesty for serious international crimes KRT (“KRT Law”) provides that the scope of any amnesty (Kallon v Kamara, case no SCSL-2004-15-AR72(E), SCSL- or pardon granted to an accused person prior to the creation 2004-16-AR72(E), decision on challenge to jurisdiction: of the KRT is a matter to be decided by that tribunal. Lome Accord Amnesty, March 13, 2004 (“Kallon decision”), para 82). Due to the grave nature of these Ieng Sary was arrested on November 12, 2007 pursuant to an arrest warrant from the KRT. He is charged with crimes, and their jus cogens status in international law as committing acts which may be legally classified as fundamental principles from which no derogation is genocide, crimes against humanity and grave breaches of permitted, an amnesty or pardon purporting to immunise the Geneva Conventions of August 12, 1949. In perpetrators of such crimes cannot be upheld under proceedings in October 2008 before the Pre-Trial international law, and should not bind international or Chamber of the KRT, that chamber was faced with the domestic courts trying offences of this nature. issue of whether, as Ieng Sary’s lawyers alleged, the royal 15 Amicus Curiae Issue 79 Autumn 2009 amnesty and pardon of 1996 are binding on the KRT such the process of discovering the truth about the crime/s that they prohibit Ieng Sary from being prosecuted by the through a trial; see Diane Orenlichter, “Settling Accounts: KRT for the above-mentioned offences. the Duty to Prosecute Human Rights Violations of a Prior The KRT’s prosecutors contended that the amnesty and Regime”, 100 Yale Law Journal 2537, 2604 (1991). pardon did not immunise Ieng Sary from being tried before In the context of a state’s obligation under international the KRT because, amongst other reasons, assuming that the law to bring to justice those who bear responsibility for royal pardon was issued in relation to the same crimes for international crimes, both amnesties and pardons may be which Ieng Sary is currently being charged before the KRT, viewed as running counter to this obligation. In re List and such pardon is not valid for these crimes as they have a jus Others the US Military Tribunal at Nuremberg defined an cogens status in international law. Even if the pardon is international crime as: “such act universally recognised as deemed valid, the KRT, being a special internationalised criminal, which is considered a grave matter of tribunal, is not bound by national pardons or amnesties. In international concern and for some valid reason cannot be its decision, the Pre-Trial Chamber of the KRT? without left within the exclusive jurisdiction of the State that would striking down the amnesty or pardon or laying down a have control over it under ordinary circumstances” general rule on their legality ? ruled that the application of (Kittichaisare, International Criminal Law (Oxford, 2001), p the amnesty on Ieng Sary’s current prosecution is 3 in Kallon decision, para 68). This issue? whether courts “uncertain” and it is not “manifest or evident” that the and tribunals are bound by amnesties and pardons amnesty/pardon will prevent his conviction on genocide. The bestowed on perpetrators responsible for crimes so Pre-Trial Chamber reached this conclusion by considering appalling that they are categorised as being “against that at the time the amnesty was issued, the death penalty humanity”? has become increasingly important in had been abolished in Cambodia and, in any event, the international human rights law. There is much debate language of the amnesty was “inconsistent”, both in itself and surrounding the modern use of amnesties and pardons, with the provision in the Constitution of Cambodia that which may be employed by a state to save lives in the short permits the King to grant amnesties and pardons. term ? for example, by ending a war ? at the expense of Against this background, the argument that genocide, injustice in the long term to the victims of those amnestied crimes against humanity and war crimes cannot be (see Kondewa decision, paras 15-25). pardoned or amnestied, with particular reference to Ieng Conventional wisdom holds that the morality and Sary’s case in the KRT, will be discussed in the remainder practicality of the “justice for peace” trade-off is a sufficient of this paper. argument in favour of amnesties (Sadat, p 955). This wisdom is, however, being increasingly challenged. There AMNESTIES AND PARDONS ARE NOT A BAR has been a change in the international community’s TO PROSECUTION OF SERIOUS approach to amnesty “from regarding it as the blessing of INTERNATIONAL CRIMES forgiveness to reproaching it as the curse of impunity” in the words of Geoffrey Robertson QC, in Crimes Against Trading justice for peace? The increasing Humanity: The Struggle for Global Justice, third ed, (2006) p unacceptability of amnesties and pardons for serious 304. The image of defiant leaders, credibly accused of some international crimes of the worst human rights violations imaginable, “living Amnesty and pardon have been “the prerogative of happily ever after, thanks to an amnesty” is socially, power from time immemorial” (Prosecutor v Kondewa, case politically and legally unpalatable. Recent experience also no SCSL-2004-14-AR72(E), Decision on Lack of indicates that warlords and political leaders committing Jurisdiction / Abuse of Process: Amnesty Provided by Lome human rights atrocities “are not deterred by the amnesties Accord, separate opinion of Justice Geoffrey Robertson, obtained, but rather emboldened (Sadat, p 966).” The Appeals Chamber, May 25, 2004 (“Kondewa decision”), situations in the former Yugoslavia and Sierra Leone suggest para 15). Amnesty usually refers to the act of a sovereign that amnesty deals, instead of resulting in peace, may in fact granting immunity from criminal prosecutions to a person assist in the creation of an impunity culture in which or a group for past criminal acts. A pardon, on the other violence becomes the norm, rather than the exception. hand, is granted after a person is prosecuted and found The United Nations Secretary General stated in his guilty of an offence by a court. Amnesty is the abolition and 2000 report on the establishment of the Special Court of forgetfulness of the offence; pardon is forgiveness. Sierra Leone (“SCSL”) that: However, despite these differences, the two acts are arguably legally indistinct. They have the same operative “While recognising that amnesty is an accepted legal concept legal effect in one important way: both shield a person and a gesture of peace and reconciliation at the end of a civil from criminal punishment or civil liability (Black’s Law war or an internal armed conflict, […] amnesty cannot be Dictionary, eighth ed, 2004, “Amnesty”). Consequently, granted in respect of international crimes, such as genocide, amnesty and pardons may be referred to interchangeably.
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