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ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN ______

Amnesties and International Humanitarian Law: Purpose and Scope

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 allegedly committed by their nationals or on their territory, and other war crimes over which they have jurisdiction, such as on the basis of , 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 , 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 study1), this excludes persons suspected of, accused of, or sentenced for war crimes in NIACs.

Definition of amnesty convictions already handed an offence from serving all or down and/or lift sentences part of their sentence. There is no legal definition of already imposed. Amnesties amnesty in may also take the form of a but it can be understood as an or political agreement.2 Purposes of amnesties official legislative or act whereby criminal An amnesty is generally In relation to a situation of investigation or prosecution of distinguished from a . A armed conflict, the aim of an an individual, a group or class pardon occurs post- amnesty is to encourage of persons and/or certain prosecution and revokes the reconciliation and contribute to offences is prospectively or penalty without absolving the restoring normal relations in retroactively barred, and any individual(s) concerned of the life of a nation affected by penalties cancelled. In such responsibility for the .3 In such a situation.4 As a tool of cases, an amnesty can halt other words, a pardon does not transitional they serve imminent or ongoing extinguish penal responsibility many functions, including (but prosecutions, quash but exempts those convicted of not limited to) encouraging the

1 See ICRC customary IHL study Review of the Red Cross, Vol. 90, Cross, Vol. 86, No. 856, December available at: https://ihl- No. 870, June 2008, pp. 327–341; 2004, pp. 837–851; and Yasmin databases.icrc.org/customary- Laura M. Olson, “Provoking the Naqvi, “Amnesty for war crimes: ihl/eng/docs/home dragon on the patio – Matters of Defining the limits of international 2 See ICRC, Commentary on the transitional justice: penal repression recognition”, International Review of Additional Protocols, 1987, vs. amnesties”, International Review the Red Cross, Vol. 85, No. 851, para. 4617; OHCHR, Rule-of-Law of the Red Cross, Vol. 88, No. 862, September 2003, pp. 583–625. Tools for Post-Conflict States: June 2006, pp. 275–294; Simon M. 3 See ICRC, Commentary on the Amnesties, 2009; Anne-Marie Meisenberg, “ of amnesties Additional Protocols, 1987, La Rosa and Carolin Wuerzner, in international humanitarian law: paras 4617–4618. “Armed groups, sanctions and the The Lomé Amnesty Decision of the 4 Idem. implementation of international Special for Sierra Leone”, humanitarian law”, International International Review of the Red establishment of the truth persons alleged to have Importantly, the corresponding and/or preventing resurgence committed, or to have ordered customary IHL rule applicable or protraction of an armed to be committed, grave in NIAC clarifies that persons conflict. breaches and bring such suspected of, accused of, or persons, regardless of their sentenced for war crimes are Provided that they are not nationality, before their own excluded from such an extended to war crimes, , or extradite them. In amnesty.7 amnesties can be an important addition, States Parties must incentive to respect IHL ‒ in take measures necessary for IHL does not address particular for non-State armed the suppression of all acts amnesties in IACs. However, groups in the context of NIACs. contrary to the Conventions combatant immunity would other than the grave breaches. preclude the prosecution of The UN Security Council, UN persons who are entitled to General Assembly, UN Furthermore, in both IACs and prisoner-of-war for Commission on NIACs, it has been established merely participating in (Res. 1996/71 and Res. under customary IHL that hostilities. 1996/73), NATO and the States must investigate all war European Union have all crimes allegedly committed by Amnesties, or any other encouraged the granting of their nationals or armed forces, measures that would, in effect, amnesties to those who have or on their territory, and, if preclude any genuine merely participated in appropriate, prosecute the investigation and prosecution hostilities.5 suspects. They must also cannot be extended to those investigate other war crimes suspected of having committed over which they have war crimes or ordering them to Obligation of States to jurisdiction and, if appropriate, be committed. This would be investigate and prosecute prosecute the suspects.6 incompatible with States’ war crimes committed in obligation to investigate and, if international and non- appropriate, prosecute alleged international armed Granting of amnesties offenders.8 conflicts under IHL The issue of amnesties for war Under the system of grave In NIACs, Article 6(5) of crimes has been addressed by breaches set out in the four Additional Protocol II of 1977 various international courts, Geneva Conventions of 1949 provides that at “the end of which have generally (Arts. 49, 50, 129 and 146, hostilities, the authorities in supported the proposition that respectively) and Additional power shall endeavour to grant war crimes may not be the Protocol I of 1977 (Art. 85) the broadest possible amnesty object of an amnesty.9 States Parties are obliged to to persons who have impose effective penal participated in the armed sanctions for persons conflict, or those deprived of Relationship between peace committing, or ordering to be their liberty for reasons related processes, transitional committed, any of those grave to the armed conflict, whether justice and amnesties breaches during an they are interned or detained”. international armed conflict Transitional justice can be (IAC). They must search for defined as the range of

5 For more information, see ‘Related ocumentId=3ED0B7D33BF425F3C12 and other international crimes before Practice’ under Rule 159 of the ICRC 57F7D00589C84 an international ; ii) the customary IHL study: https://ihl- Also, for example, the European Court Furundžija judgment (1998) of the databases.icrc.org/customary- of Human Rights (ECHR) held, via the International Criminal Tribunal for the ihl/eng/docs/v2_rul_rule159 Grand Chamber decision in Marguš v. former Yugoslavia, which dealt with the 6 See Rule 158 of the ICRC customary Croatia (27 May 2014), that criminal of torture, outlined that an IHL study: https://ihl- proceedings for charges of torture and amnesty covering crimes whose databases.icrc.org/customary- ill-treatment should not be time-barred prohibition had attained the status of ihl/eng/docs/v1_rul_rule158 or subject to an amnesty and that an jus cogens was invalid; and iii) the 7 See Rule 159 of the ICRC customary amnesty is generally incompatible with Extraordinary in the Courts IHL study: https://ihl- the duty to investigate and prosecute of Cambodia (in 2011) affirmed that an databases.icrc.org/customary- serious crimes, including war crimes. amnesty by royal could not ihl/eng/docs/v1_rul_rule159 9 For example: i) the Special Court for relieve Cambodia of its “absolute 8 See ICRC, Commentary on the First Sierra Leone, in the Decision on obligation to ensure the prosecution or Geneva Convention, 2nd edition, Challenge to jurisdiction: Lomé Accord punishment of perpetrators of grave 2016, para. 2845: https://ihl- Amnesty (2003), stated that the breaches of the 1949 Geneva databases.icrc.org/applic/ihl/ihl.nsf/Co granting of amnesties by a State did Conventions, and torture”. mment.xsp?action=openDocument&d not rule out prosecution for war crimes

processes and mechanisms NIAC. The Inter-American their orders, or owing to their that seek to address the legacy Court of Human Rights failure to prevent, repress or of a violent past linked to an (IACHR) held that “the report such acts.12 If they are armed conflict or other enactment of amnesty on suspected or found guilty of the situations of violence, and thus the conclusion of hostilities in commission of a war crime bring about major political non-international armed under one of these forms of changes in post-conflict conflicts are sometimes liability, then they may not societies. These processes justified to pave the way to a benefit from an amnesty. comprise both judicial and non- return to peace”.10 However, judicial mechanisms, the the IACHR interpreted particular aims of which are to: Article 6(5) of Additional Extension to crimes against (i) establish the truth about Protocol II to exclude humanity, genocide and gross violations of human amnesties that preclude the other international crimes rights and war crimes that investigation and prosecution occurred in the past; of war crimes. In addition to war crimes, (ii) strengthen the ; amnesties cannot apply to (iii) ensure for This case (as well as others genocide, crimes against victims; and (iv) impose mentioned above) illustrates humanity, torture and other sanctions on the perpetrators. that the right balance must be gross violations of international The investigation and struck between the pursuit of human rights law. prosecution of war crimes are peace and ensuring therefore essential accountability. Regional courts have held that components of transitional an amnesty cannot cover justice processes and mechanisms. Resulting limitations on generally,13 nor prevent the amnesties for war crimes investigation and punishment The granting of partial or of those responsible for gross conditional amnesties may be As noted above, amnesties, or violations of human rights, considered as part of a any other measures that such as torture,14 abduction, negotiated settlement to end a would, in effect, preclude any forced imprisonment, arson, NIAC, or in the broader context genuine investigation and destruction of , of any transitional justice prosecution cannot be kidnapping,15 extrajudicial, process. However, they must extended to those suspected summary or arbitrary not or hamper the of having committed war execution, and forced investigation of war crimes, or crimes or ordering them to be disappearance.16 the prosecution of alleged committed. This would be perpetrators. incompatible with States’ Such decisions are based on obligation to investigate and, if obligations under international Regional courts have dealt appropriate, prosecute alleged law, including existing regional with this issue in various offenders.11 human rights obligations.17 decisions. For example, the Masacre de El Mozote case In addition, commanders and Furthermore, international and was the first in which a court other superiors can be held regional human rights bodies, analysed an amnesty law for criminally responsible for war such as the UN Human Rights war crimes committed in a crimes committed pursuant to Committee and the Inter-

10 See Massacres of El Mozote and could not cover crimes against Human and Peoples’ Rights held that Nearby Places v. El Salvador (2012), humanity. an amnesty law adopted with the aim Inter-American Court of Human 14 In Abdülsamet Yaman v. Turkey of nullifying suits or other actions Rights. (2004), the ECHR highlighted that cannot shield the country from fulfilling 11 For more information, see ICRC, where a State agent is charged with its international obligations under the Commentary on the First Geneva crimes involving torture or ill-treatment, African on Human and Convention, 2nd edition, op. cit., note an amnesty or pardon should not be Peoples’ Rights; and ii) in Yeter v. 8. permissible. Turkey (2009), the ECHR reaffirmed 12 For more information, see the ICRC 15 See Zimbabwe Human Rights NGO that when an agent of the State is Advisory Service’s Command Forum v. Zimbabwe (2006), African accused of crimes that violate Article 3 Responsibility and Failure to Act Commission on Human and Peoples’ of the European Convention on Human factsheet: Rights. Rights, the granting of an amnesty or https://www.icrc.org/en/document/com 16 See the Barrios Altos case (2001), pardon should not be permissible. mand-responsibility-and-failure-act- Inter-American Court of Human factsheet Rights. 13 In Almonacid-Arellano et al v. Chile 17 For example: i) in Malawi African (2006), the Inter-American Court of Association and Others v. Mauritania Human Rights held that an amnesty (2000), the African Commission on American Commission on Crimes committed by In addition, the Special Human Rights, have stated children who have taken Representative of the UN that amnesties are part in hostilities Secretary-General for Children incompatible with the duty of and Armed Conflict has called States to investigate serious IHL establishes the obligation on States to consider crimes under international law for States to investigate and alternatives to prosecution and and violations of non- punish those responsible for detention of children on the derogable human rights law.18 committing war crimes. In grounds of their alleged or general, this obligation applies actual association with armed to all persons who commit such groups.22 Amnesties and of acts, and there is no exception international criminal for children. However, it is It is therefore necessary to essential to consider special consider alternatives to treatment for children who may when dealing Statutes of various face criminal prosecution for with children who have taken international criminal tribunals acts committed while taking part in hostilities and are have explicitly declared that part in hostilities, given their accused of having committed amnesties granted under age and limited capacity to war crimes. national law to any person make decisions in armed falling within the tribunal’s conflict. jurisdiction shall not be a bar to July 2017 prosecution.19 The ICRC’s Guiding Principles for the Domestic With respect to the Implementation of a International Criminal Court Comprehensive System of (ICC) and the principle of Protection for Children complementarity under the Associated with Armed Forces ICC , the effect of an or Armed Groups (2009) amnesty law will be assessed outline that children who are in light of Article 17 of the alleged to have committed war Statute, especially with regard crimes should be considered to a State’s unwillingness to primarily as victims and treated prosecute. as such.

The Paris Principles: Principles Legality/constitutionality of and Guidelines on Children amnesties (before national Associated with Armed Forces courts) and Armed Groups (2007) reflect a similar point: At the national level, courts in Paragraph 3.6 outlines that various jurisdictions have children “must be treated in declared amnesties void or accordance with international inapplicable in the case of law in a framework of various international crimes.20 restorative justice and social In addition, many amnesty rehabilitation, consistent with laws specifically exclude from international law which offers their scope persons suspected children special protection of having committed war through numerous agreements crimes under international and principles”. law.21

18 For example, see Juan Gelman et al. 20 For more information, see ‘Related and Law 1820 of 30 December 2016, v. Uruguay, Case 438-06, Report No. Practice’ under Rule 159 of the ICRC Colombia. 30/07, Inter-American Commission on customary IHL study, op. cit., note 5. 22 See Annual report of the Special Human Rights, OEA/Ser.L/V/II.130 21 For example, see Act No. 2003-309 Representative of the Secretary- Doc. 22, rev. 1 (2007). of 8 August 2003, Côte d’Ivoire; Act General for Children and Armed 19 See Article 10 of the Statute of the No. 08-020 of 13 October 2008, Conflict (A/HRC/28/54), Human Rights Special Tribunal for Sierra Leone, and Central African Republic; Council, twenty-eighth session, Article 6 of the Statute of the Special Act No. 014/006 of 11 February 2014, 29 December 2014. Tribunal for Lebanon. Democratic Republic of the Congo;