Tilburg University Amnesty Justified? Vriezen, V

Tilburg University

Amnesty justified? Vriezen, V.

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Amnesty justified?

The need for a case by case approach in the interests of human rights

Amnesty justified? The need for a case by case approach in the interests of human rights

Vera Vriezen

Dissertation-edition. A commercial edition of this thesis will be published by Intersentia.

The research for this dissertation was financially supported by the Netherlands Organisation for Scientific Research (NWO).

Production: aolf Legal Publishers (WLP) P.O. Box 31051 6503 CB Nijmegen The Netherlands Tel: +31 13 582 13 66 Fax: +31 84 837 67 00 E-Mail: [email protected] www.wolfpublishers.com

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AMNESTY JUSTIFIED?

THE NEED FOR A CASE BY CASE APPROACH IN THE INTERESTS OF HUMAN RIGHTS

PROEFSCHRIFT ter verkrijging van de graad van doctor aan Tilburg University op gezag van de rector magnificus, prof.dr. Ph. Eijlander, in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie in de aula van de Universiteit op vrijdag 16 december 2011 om 14.15 uur

door

Vera Vriezen

geboren op 19 juni 1981 te Vleuten-De Meern

Promotiecommissie:

Promotores: prof.mr. W.J.M. van Genugten prof.mr. M.S. Groenhuijsen

Overige leden: prof.mr. C. Flinterman prof.mr. R.M. Letschert prof.mr. T.A. de Roos prof.mr. H.G. van der Wilt

To Reza, Twan and Olivia

VOORWOORD

Graag wil ik de mensen bedanken die mij op verschillende wijze hebben geholpen en gesteund deze dissertatie met succes te kunnen schrijven. Een aantal mensen wil ik hierbij graag in het bijzonder bedanken. Allereerst mijn twee promotores, professor Willem van Genugten en professor Marc Groenhuijsen. Willem wil ik bedanken voor zijn begeleiding, vertrouwen en steun, niet alleen gedurende het proefschrifttraject, maar ook in de aanloop daarnaartoe. Willem heeft een grote rol gespeeld in de weg van student naar aio. Marc wil ik bedanken voor zijn begeleiding, vertrouwen en enthousiasme vanaf de eerste dag. Na een bespreking met Marc kreeg ik altijd weer nieuwe energie. Marc wil ik ook bedanken voor het indienen van de subsidieaanvraag waardoor dit onderzoek mogelijk werd. De Nederlandse Organisatie voor Wetenschappelijk Onderzoek (NWO) wil ik bedanken voor het mogelijk maken van dit onderzoek. Dank gaat ook uit naar de leden van de promotiecommissie, de professoren Cees Flinterman, Rianne Letschert, Theo de Roos en Harmen van der Wilt, voor het lezen van het manuscript en hun waardevolle inzichten. Mijn collega’s van de vakgroep EIP wil ik bedanken voor hun bijdrage aan een plezierige werkomgeving. Heel graag wil ik hier ook mijn familie bedanken. Allereerst wil ik mijn ouders en mijn broer bedanken en voor hun liefde, steun en vertrouwen. Tot slot wil ik mijn gezin bedanken. Lieve Reza, bedankt voor alles. Ik hou van je. Twan en Olivia, jullie zijn mijn lieve schatjes. Bedankt voor jullie vrolijkheid, jullie hebben mij de energie gegeven deze dissertatie tot een goed einde te brengen. Wat ben ik gelukkig met jullie.

vii

CONTENTS

Voorwoord vii List of Abbreviations xv

PART 1 INTRODUCTION 1

Chapter I General introduction 3

1 Introduction 3 2 Research question 5 3 Objective of the study 5 4 Research approach 6

PART 2 IMPUNITY AND AMNESTY 9

Chapter II Impunity 11

1 Introduction 11 2 Impunity 13 3 Forms of de iure impunity 17 3.1 Amnesty laws 18 3.2 Pardons 18 4 Effects on society 20 5 From impunity to a culture of impunity 22 6 Conclusion 25

Contents

Chapter III Amnesty 27

1 Introduction 28 2 The purposes of amnesty and the benefits of prosecution 29 2.1 Purposes of amnesty 32 2.2 Benefits of prosecution 35 3 Forms of amnesty 39 3.1 De iure amnesty 39 3.1.1 Blanket amnesty 39 3.1.2 Self-amnesty 41 3.1.3 Limited/political amnesty 42 3.1.4 Conditional amnesty 43 3.1.5 Corrective amnesty 44 3.1.6 Internationally legitimized amnesty 45 3.2 De facto amnesty 46 4 Timing and method of granting the amnesty 47 4.1 Amnesty before a transition or the end of conflict 47 4.2 Amnesty in a period of transition 47 5 Arguments in favour and against amnesty 49 5.1 In favour 50 5.2 Against 53 6 Conclusion 58

PART 3 THE LEGALITY OF NATIONAL AMNESTY LAWS 61

Chapter IV The legality of national amnesty laws under international law 63

1 Introduction 63 2 The duty to prosecute in general international and regional human rights treaty law 66 2.1 International Covenant on Civil and Political Rights 1966 66 2.1.1 ICCPR 66 2.1.2 Human Rights Committee 68 2.2 American Convention on Human Rights 1969 71 2.2.1 ACHR 71 2.2.2 Inter-American Commission on Human Rights 73 2.2.3 Inter-American Court of Human Rights 76 2.3 Convention for the Protection of Human Rights and Fundamental Freedoms 1950 80

Contents

2.3.1 European Convention 80 2.3.2 European Court of Human Rights 80 3 The duty to prosecute in human rights conventions on specific crimes 83 3.1 Convention on the Prevention and Punishment of the Crime of Genocide 1948 83 3.2 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 1968 84 3.3 International Convention on the Suppression and Punishment of the Crime of Apartheid 1976 86 3.4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 87 3.4.1 Convention 87 3.4.2 Committee Against Torture 89 3.5 Inter-American Convention to Prevent and Punish Torture 1985 90 3.6 Inter-American Convention on Forced Disappearance of Persons 1994 91 3.7 International Convention for the Protection of All Persons from Enforced Disappearance 2006 92 4 The duty to prosecute in international humanitarian law 95 4.1 Geneva Conventions 1949 95 4.2 Additional Protocol II to the Geneva Conventions 1977 98 5 The duty to prosecute in statutes of international courts and tribunals 99 5.1 Introduction 99 5.2 International Criminal Tribunal for the former Yugoslavia 100 5.3 International Criminal Tribunal for Rwanda 102 5.4 International Criminal Court 103 5.5 Special Court for Sierra Leone 107 6 Universal jurisdiction 111 7 Conclusion 116

Chapter V The United Nations’ position and practice on impunity, amnesties and the duty to prosecute 119

1 Introduction 119 2 General Assembly 120 3 Security Council 125 4 International Court of Justice 133 5 Secretary-General 136 6 Commission on Human Rights/Human Rights Council 143 6.1 Commission on Human Rights 143

Contents

6.2 Human Rights Council 149 7 Office of the High Commissioner for Human Rights 150 8 Conclusion 155

Chapter VI Amnesty and the rights of victims 157

1 Introduction 157 2 The right to know the truth 162 2.1 Introduction 162 2.2 The development of the right to know the truth 167 2.3 The right to know the truth in international human rights law 171 2.4 Mechanisms to guarantee the right to know the truth 172 2.5 Interrelationship with other victims’ rights 180 2.6 Conclusion 181 3 The right to reparation 182 3.1 Introduction 182 3.2 The development of the right to reparation 185 3.3 The right to reparation in international human rights law 188 3.4 Mechanisms to guarantee the right to reparation 189 3.5 Interrelationship with other victims’ rights 194 3.6 Conclusion 197 4 The right to justice 198 4.1 Introduction 198 4.2 The development of the right to justice 200 4.3 The right to justice in international human rights law 202 4.4 Mechanisms to guarantee the right to justice 208 4.5 Interrelationship with other victims’ rights 209 4.6 Conclusion 210 5 Victim participation 210 6 Conclusion 212

PART 4 FRAMEWORK FOR THE LEGITIMATE USE OF AMNESTY 215

Chapter VII Framework for the legitimate use of amnesty 217

1 Introduction 217 2 Considerations for the drafting of a framework 218 3 Framework for the legitimate use of amnesty 223

xii

Contents

Samenvatting (Dutch summary) 229

Bibliography 235

xiii

LIST OF ABBREVIATIONS

ACHR American Convention on Human Rights AFRC Armed Forces Revolutionary Council (Sierra Leone) AI Amnesty International Art(t). Article(s) AZAPO Azanian Peoples Organisation (South Africa) CAT Committee against Torture CAVR Commission for Reception, Truth, and Reconciliation (East Timor) CDF Civil Defence Forces (Sierra Leone) CIDH Commission for the Investigation of Criminal Acts (El Salvador) CONADEP Comisión Nacional sobre la Desaparición de Personas [National Commission on the Disappearance of Persons] (Argentina) Comm. Communication CPA Comprehensive Peace Agreement (Nepal) Doc. Document ECCC Extraordinary Chambers in the Courts of Cambodia ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights ECOSOC Economic and Social Council ed(s). editor(s) e.g. exempli gratia [for example] et al. et alii/aliae [and others] etc. et cetera [and so on] ESMA Escuela Superior de Méchanica de la Armade [Navy School of Mechanics] (Argentina) EU European Union FAA Angolan Armed Forces

List of abbreviations

FMLN Frente Farabundo Martí para la Liberación Nacional [Farabundo Martí National Liberation Front] (El Salvador) FNLA National Front for the Liberation of Angola FBI Federal Bureau of Investigation (USA) GA General Assembly GC Geneva Convention HRC Human Rights Committee HRW Human Rights Watch IAComHR Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights Ibid. Ibidem [in the same place] ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICRC International Committee of the Red Cross ICTJ International Center for Transitional Justice ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia i.e. id est [that is] IST Iraqi Special Tribunal LRA Lord’s Resistance Army (Uganda) MINUSTAH United Nations Stabilization Mission in Haiti MMM Memory, Memorials and Museums NGO Non-Governmental Organization No(s). Number(s) OAS Organization of American States OEA Organización de los Estados Americanos[OAS] OHCHR Office of the United Nations High Commissioner for Human Rights p(p). page(s) para(s). paragraph(s) Res. Resolution rev. revised RUF(/SL) Revolutionary United Front (of Sierra Leone) SC (United Nations) Security Council SCSL Special Court for Sierra Leone SG Secretary-General SLA Sierra Leone Army STL Special Tribunal for Lebanon TRC Truth and Reconciliation Commission UCA José Simeón Cañas Universidad Centroamericana [Central American University] (El Salvador) UDHR Universal Declaration of Human Rights UN United Nations

xvi

List of abbreviations

UNHRC United Nations Human Rights Council UNITA Union for the Total Independence of Angola U.S./USA United States of America USSR Union of Soviet Socialist Republics v. versus Vol. Volume WCHR World Conference on Human Rights

xvii

PART 1

INTRODUCTION

CHAPTER I GENERAL INTRODUCTION

1 INTRODUCTION

The granting of amnesty to perpetrators of human rights crimes is an issue on which views vary tremendously. On the one hand, there are those who argue that justice must be achieved by means of prosecutions in all circumstances; on the other hand, there are those who claim that prosecution is not the only way to deal with a legacy of human rights crimes. Amnesty as such does not mean that the crime was not wrong, nor is it a denial of punishable acts or per se an excuse or a way of removing legal grounds. Amnesty proper only means that no criminal investigation or prosecution will take place despite the fact that crimes were committed. Amnesty laws are created mainly when states are going through a period of transition, often from war to peace, and of political upheaval, for example, when a democratic government replaces a military regime. One of the best-known examples of the use of amnesty in a transitional situation is that of South Africa. Notwithstanding the international support for the amnesty in South Africa, in Azanian Peoples Organisation (AZAPO) and Others v. President of the Republic of South Africa and Others, the applicants requested the Constitutional Court for an order declaring section 20(7)1 (on the granting of amnesty and effect thereof) of the Promotion of National Unity and Reconciliation Act (1995) unconstitutional. The Court refused. Deputy President of the Constitutional Court Ismail Mahomed explained this:

Every decent human being must feel grave discomfort in living with a consequence which might allow the perpetrators of evil acts to walk the streets of this land with impunity, protected in their freedom by an amnesty immune from constitutional attack, but the circumstances in support of this course require carefully to be appreciated. Most of the acts of brutality and torture

1 The Committee on Amnesty is allowed to grant amnesty in respect to any act, omission or offence if the applicant concerned has made a full disclosure of all relevant facts, and provided further that the relevant act, omission or offence was associated with a political objective and committed prior to 6 December 1993. Under section 20(7), as a result of the granting of amnesty, the perpetrator is relieved from criminal and civil liability. The State or any other body, organization or person that would ordinarily have been vicariously liable for the act, omission or offence is also relieved from liability.

Chapter I

which have taken place have occurred during an era in which neither the laws which permitted the incarceration of persons or the investigation of crimes, nor the methods and the culture which informed such investigations, were easily open to public investigation, verification and correction. Much of what transpired in this shameful period is shrouded in secrecy and not easily capable of objective demonstration and proof. Loved ones have disappeared, sometimes mysteriously and most of them no longer survive to tell their tales. … Secrecy and authoritarianism have concealed the truth in little crevices of obscurity in our history. Records are not easily accessible, witnesses are often unknown, dead, unavailable or unwilling. All that often effectively remains is the truth of wounded memories of loved ones sharing instinctive suspicions, deep and traumatising to the survivors but otherwise incapable of translating themselves into objective and corroborative evidence which could survive the rigours of the law.2

Recent history is full of examples of cases in which successor regimes have rather granted amnesties to officials of the previous regime who were guilty of international human rights crimes than prosecuted them. In some of these cases, particularly that of South Africa, the United Nations has welcomed such a solution. For example, in Sierra Leone, the state’s wish to grant amnesty was partly stalled by the United Nations and prosecution of those allegedly responsible for international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law was made possible by the establishment of the Special Court for Sierra Leone. The Sierra Leonean Truth and Reconciliation Commission holds that:

those who argue that peace cannot be bartered in exchange for justice, under any circumstances, must be prepared to justify the likely prolongation of an armed conflict. Amnesties may be undesirable in many cases. Indeed, there are examples of abusive amnesties proclaimed by dictators in the dying days of tyrannical regimes. The Commission also recognises the principle that it is generally desirable to prosecute perpetrators of serious human rights abuses, particularly when they ascend to the level of gravity of crimes against humanity. However, amnesties should not be excluded entirely from the mechanisms available to those attempting to negotiate a cessation of hostilities after periods of brutal armed conflict. Disallowing amnesty in all cases would be to deny the reality of violent conflict and the urgent need to bring such strife and suffering to an end.3

The Preamble of the Rome Statute of the International Criminal Court also confirms the development towards an international stand against impunity. The Preamble states that “the most serious crimes of concern to the international community as a whole must not go unpunished … their effective prosecution must be ensured …

2 South African Constitutional Court,Azanian Peoples Organisation (AZAPO) and others v. President of the Republic of South Africa and Others, CCT17/96, Judgment of 25 July 1996,para. 17. 3 Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. 3b, 5 October 2004, p. 365, Chapter 6, at 11.

General introduction

[and] it is the duty of every state to exercise criminal jurisdiction over those responsible for international crimes.” The International Criminal Court is an essential part of the international effort to fight impunity for serious international human rights crimes. The states parties agreed that such grave crimes threaten the peace, security and well-being of the world. Despite the growing number of member states to the ICC Statute, state practice does not nearly reflect the intentions of the ICC Statute. This may indicate that despite the fact that states agree that human rights crimes should not go unpunished, it is quite difficult to achieve this in transitional situations. In such situations, states need to balance the need to (re)build the rule of law with the need to end human rights violations. Therefore, it is worth examining whether it is advisable to foreclose the possibility to grant amnesty.

2 RESEARCH QUESTION

National efforts to establish peace and democracy often clash with international legal demands. It is obvious that some amnesties will not be recognized internationally. The kind of blanket, unconditional amnesty, such as the amnesty granted by the Pinochet regime to itself, cannot hope to receive international recognition. However, the same principle does not necessarily apply to conditional amnesties accompanied by, for instance, a thorough investigation by a truth and reconciliation commission like the South African one. If all amnesties for international human rights crimes in all circumstances were to be considered unacceptable and never to be accorded international recognition, this might seriously invalidate a useful tool for ending or preventing wars, facilitating the transition to democratic civilian regimes or aiding the process of reconciliation. Recognizing the still widespread state practice concerning amnesty, which, according to national governments and courts, do not necessarily harm international efforts to promote human rights, and given the fact that the international community has an interest in respect for human rights and the rule of law, as well as the restoration and maintenance of peace and public order and the ways in which human rights may be enhanced, the core question of this research is:

What kind of amnesty measures can be considered legitimate in the light of the need to combine respect for human rights and the rule of law with the need to restore and maintain peace and public order?

3 OBJECTIVE OF THE STUDY

Although human rights advocates often reject the option of amnesty, there may be good reasons for pursuing (conditional) amnesties. Granting amnesty may play a role in alleviating tensions within countries and improving the human rights situation. The study of theoretical arguments, amnesty laws, case law and state

Chapter I practice is deemed to uncover facts that cannot easily be neglected when taking decisions on this highly complex matter. The research will concentrate on the clash between the effort to eradicate impunity and the state practice of granting amnesty. How to balance two main aims: on the one hand, respect for human rights and the non-desirability of impunity; on the other hand, the need to go on, in one way or another, including the structural requirements needed for such a way, such as the neutralization of opposition groups, encouraging combatants to lay down their arms, the need to reach a peace agreement and the improvement of the human rights situation. The aim of this research is to develop a framework that can be used in international as well as national criminal proceedings in cases in which the legitimacy of an amnesty law, measure or judgment is questioned. To this end, the factors that play a role when examining the legitimacy of an amnesty have to be determined. The framework is not only useful when reviewing an amnesty already granted. It may also be informative for and kept in mind by states considering amnesty or actors involved in post-conflict processes of reconciliation, transitional justice, and so on.

4 RESEARCH APPROACH

This study examines international law, literature, case law, reports, studies of NGOs, and various kinds of United Nations’ documents in order to find an answer to the core research question. The research is composed of four parts: Part 1 contains this chapter and is a general introduction to the research containing a brief outline of the research subject, the research question, the objective of the study and the methodology. Part 2 will first outline the impunity matter in Chapter II. It is important to understand impunity and the effects impunity may have on a society, because impunity is the broader concept of which amnesty is a form. Chapter III addresses amnesty. The reasons behind and the circumstances under which states decide to grant amnesty are elaborated on. The purposes of amnesty will be outlined, as well as the benefits prosecution may have. In addition, the various forms in which amnesty may be granted will be presented. Arguments in favour and against amnesty will be discussed. Part 3 consists of three chapters relating to the legality of national amnesty laws. In Chapter IV the legality of national amnesty laws under international law will be discussed focusing on black-letter law as well as on judgments and views of international supervisory bodies. Is there a duty to prosecute, or is the possibility to grant amnesty foreclosed? In addition, the four international criminal courts and tribunals most relevant to this research will be discussed, in order to investigate what their opinion is on the granting of amnesty. Universal jurisdiction also forms part of this chapter, because, since amnesty laws only have domestic significance, other states may hold the perpetrators to account based on universal jurisdiction

General introduction when an amnesty covers international crimes. The United Nations, with 193 members states being a very prominent actor, is the subject of Chapter V. A close look will be taken at the United Nations’ position and practice on impunity, amnesty and the duty to prosecute. A factor of high relevance for the subject of this research is the victims. When the rights of victims are not respected, this may influence the legitimacy of an amnesty. Chapter VI will therefore identify the rights of victims related to the practice of granting amnesty, and set out these rights. Attention will also be paid to victim participation in the process of granting amnesty. In Part 4, Chapter VII, the findings of this research will be considered. Based on the findings in Part 2 and 3, the factors that are of significance when assessing whether an amnesty measure may be considered legitimate are determined. This culminates in a framework for the legitimate use of amnesty that can be used to answer the research question on a case by case basis. In the framework for the legitimate use of amnesty, the factors are put into questions. Confronted with a specific case, all questions should be answered to get a full picture of the legitimacy of an amnesty measure. Depending on the outcome of such an assessment, an amnesty measure may be considered legitimate or not.

PART 2

IMPUNITY AND AMNESTY

CHAPTER II IMPUNITY

1 INTRODUCTION

Over and over again, the world is confronted with grave and systematic human rights violations: Argentina, Cambodia, Chile, Iraq, the former Yugoslavia, Rwanda, Sierra Leone and South Africa are perhaps some of the most well-known. The reason that these countries are some of the best known countries to have violated human rights is because the international community paid attention to these violations. The attention given to these violations is not merely bringing it into the international news, but special attention. Special courts and tribunals were established and international arrest warrants were issued in order to prosecute the violators of the human rights crimes committed, at least those most responsible for those crimes. In the cases of Argentina and Chile, Spain is trying to prosecute those responsible for the violations committed during the military regimes in those countries, and since June 2005, Argentina itself has also been prosecuting Dirty War cases.1 On 14 June 2005, the Argentine Supreme Court in the Simón case declared the Full Stop and Due Obedience laws, which provided immunity from prosecution as being unconstitutional. The Supreme Court stated the following:

While it is certain that Article 75, sec. 20 of the National Constitution maintains the authority of the Legislative Power to decree general amnesty, this capacity has suffered important limitations in terms of its reach. In principle, laws of amnesty have been used historically as instruments of social pacification, with the declared objective of resolving the conflicts that remain after the end of armed civil struggles. In an analogous direction, laws 23.492 and 23.521 were intended to leave in the past the conflicts between “civilians and the military.” However, to the extent that they, like all amnesties, are oriented toward the “forgetting” of grave human rights violations, they are in opposition to the ordinances of the American Convention on Human Rights and the International

1 In June 2005, the Argentine Supreme Court struck down two amnesty laws and cleared the way for prosecution of Dirty War crimes.

Chapter II

Covenant of [sic] Civil and Political Rights and are, therefore, constitutionally intolerable.2

In their respective votes, the judges showed an appreciation for the international development of human rights law, citing diverse decisions that must necessarily be respected at the domestic level. The Supreme Court referred to the Barrios Altos case (2001) of the Inter-American Court of Human Rights, and held that:

[For] the purpose of fulfilling the international treatises on human rights, the suppression of the Full Stop and Due Obedience laws cannot be postponed and must be carried out in such a way that no normative obstacle to the prosecution of events like those that constitute the object of the present case may be derived from such laws. This means that those who benefited from such laws cannot invoke the prohibition of the retroactivity of the most serious penal law or the principle of res judicata. Thus, in accordance with what has been established by the Inter-American Court in the cases cited, such principles cannot become an impediment in the annulment of the aforementioned laws, either for the prosecution of cases that were closed because of these laws, or for that of any other case that may have been opened and never finalized. In other words, the subjection of the Argentine State to the Inter-American jurisdiction impedes the invocation of the principle of “irretroactivity” of the penal law in order to disregard the duties assumed in relation to the prosecution of grave human rights violations.3

In December 2003, the Iraqi Special Tribunal (IST) was established to prosecute Saddam Hussein and any Iraqi national or resident of Iraq accused of the crime of genocide, crimes against humanity, war crimes, or violations of certain Iraqi laws listed in Article 14 of the Statute.4 After the internal conflicts in the former Yugoslavia and Rwanda, two international criminal tribunals were established, the International Criminal Tribunal for the former Yugoslavia (ICTY, 1993) and the International Criminal Tribunal for Rwanda (ICTR, 1994). The ICTY has “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the … Statute”.5 The ICTR has “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January

2Argentina Supreme Court of Justice, Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc., Causa No. 17.768, Judgment of 14 June 2005. Opinion Judge Petracchi, para. 16, p. 244, translation by K. Beamish-Brown in J.A. Montes, “The right to truth in the recent history of Argentina”, in: A. Forcinito and F. Ordonéñez (eds.), Human Rights and Latin American Cultural Studies, Vol. 4 Hispanic Issues On Line 2009, pp. 137-149, p. 145. 3Argentina Supreme Court of Justice, Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc., Causa No. 17.768, Judgment of 14 June 2005, para. 31, p. 120; Translation by K. Beamish-Brown see footnote 2 above, pp. 145-146. 4 IST Statute, Article 10. 5 ICTY Statute, Article 1.

Impunity

1994 and 31 December 1994, in accordance with the provisions of the … Statute”.6 A Tribunal for Cambodia (Extraordinary Chambers in the Court of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, ECCC) was established to try former Khmer Rouge leaders. In Sierra Leone, the Special Court for Sierra Leone (SCSL) started in 2004 to prosecute persons who bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.7 Less well known maybe, but nonetheless no less important or serious are cases that were not given the abovementioned ‘special attention’ and where impunity continues to exist. One can mention here the case of Burma. Human rights crimes are daily events for the citizens of this country. Crimes such as enforced relocation of population, forced labour and the use of child soldiers are common practice. Another region that may be mentioned in this respect is Tibet. Human rights crimes such as coercive abortion, involuntary sterilization and torture are committed on the Tibetan people on a large scale. As a result of the fact that the perpetrators of these crimes are not charged, punished and prosecuted, a climate arises in which impunity persists.8

2 IMPUNITY

Impunity may appear in various forms, which may differ from place to place. Impunity means that violations of the law are not punished. In this research, impunity means the failure to hold perpetrators of human rights crimes accountable and the inherent denial of the victims’ rights to justice, truth and reparation. In order to prevent impunity and to achieve justice, it is required “that the perpetrators of human rights violations be brought to account through a process which includes investigation of the facts, indictment, trial sentencing and determination of reparation for the victim of the offence”.9 The absence or inadequacy of this process implies impunity.10 In 1995, Special Rapporteur Leandro Despouy indicated some negative and positive trends regarding human rights and states of emergency.11 Among those

6 ICTR Statute, Article 1. 7 SCSL Statute, Article 1. 8 The human rights situations in these two countries are the result of cultures of impunity. Up to today no international efforts are made to make an end to these cultures of impunity concerning human rights violations. 9 Geneviève Jacques, Beyond Impunity. An Ecumenical Approach to Truth, Justice and Reconciliation, World Council of Churches Publications: Geneva 2000, p. 3. 10 Commission on Human Rights, Final Report on the Question of the Impunity of Perpetrators of Human Rights Violations (Economic, Social and Cultural Rights), prepared by Mr. El Hadji Guissé, Special Rapporteur, pursuant to Sub-Commission resolution 1996/24, E/CN.4/Sub.2/1997/8, 27 June 1997, para. 20. 11 Commission on Human Rights, Eighth annual report and list of States which, since 1 January 1985, have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro Despouy,

Chapter II trends are two that relate to the issue of impunity for gross violations of human rights.

A negative trend is the persistence of immunity from prosecution for the perpetrators of human rights violations which characterizes such situations, and which persists even after the state of emergency has been lifted and even when the country has returned to normal. Frequently, in many countries that have experienced long periods during which their institutions have operated under a state of emergency and there have been gross and systematic human rights violations, Governments adopt measures of clemency or amnesty laws, on the grounds of realpolitik or national reconciliation. A number of non- governmental organizations have expressed deep concern to the Special Rapporteur about such situations, as they represent a dangerous trend that facilitates or encourages future violations.12

A positive trend is

[t]he progress made in drawing up the draft code of crimes against the peace and security of mankind, and the establishment of the International Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991[. These] are indications of the international community’s determination to set up machinery to punish gross and large-scale violations of human rights, even in the most extreme circumstances.13

In August 1991, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights decided to conduct a study on the impunity of perpetrators of human rights violations. Special Rapporteurs Louis Joinet and El Hadji Guissé wrote the final reports on this issue. Mr. Joinet prepared the one on the violation of civil and political rights and Mr. Guissé the one on the violation of economic, social and cultural rights. The Joinet report was submitted to the Sub-Commission in June 1997 and contains a Set of Principles for the protection and promotion of human rights to combat impunity.14Pursuant to the Vienna Declaration and Programme of Action, this Set

Special Rapporteur appointed pursuant to Economic and Social Council resolution 1985/37, E/CN.4/Sub.2/1995/20, 26 June 1995. 12See ibid., para. 15. 13Ibid. 14 Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political). Final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20, 26 June 1997; and Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997. In response to a request by the Commission on Human Rights in Resolution 2002/79 Secretary- General obtained the views of Governments and non-governmental organizations on the Set of Principles. The International Commission of Jurists (ICJ) “considered the problem of impunity as a core issue for the full observance of all human rights and the rule of law. It noted that the phenomenon of impunity is incompatible with the international obligations of States and is a major obstacle to the full

Impunity of Principles is intended as a guideline to assist states in developing effective measures to combat impunity.15 In 2005, the Set of Principles was updated by Diane Orentlicher.16 In the Set of Principles for the protection and promotion of human rights to combat impunity, impunity is defined as “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account - whether in criminal, civil, administrative or disciplinary proceedings - since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.”17 This definition indicates that there are two kinds of impunity, de iure and de facto. De iure impunity can result out of an amnesty (law), a pardon, an exemption or another legal measure to prevent accountability (e.g. based on ordinary law such as prescription or mitigating circumstances).18 In regulations amounting to de iure impunity, laws or regulations providing immunity or amnesty make it difficult or impossible to prosecute a perpetrator for human rights abuses.19 enjoyment of human rights. Furthermore, ICJ pointed out that international human rights bodies and procedures have repeatedly stated that impunity is a violation of international human rights law and, in particular, of the obligations to investigate violations and to prosecute and punish their perpetrators. They have also stated that impunity is the main factor which allows a recurrence of human rights violations”. 15Commission on Human Rights,Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Preamble, p. 5. 16Commission on Human Rights,Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005.Pursuant to Commission resolution 2004/72, the Set of Principles for the protection and promotion of human rights through action to combat impunity (the Principles) have been updated“to reflect recent developments in international law and practice, including international jurisprudence and State practice, and taking into account the independent study” on impunity (E/CN.4/2004/88) commissioned by the Secretary-General pursuant to resolution 2003/72. The independent study, in turn, identified best practices in combating impunity, using the Principles as a framework for assessment. 17Commission on Human Rights,Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Definitions, p. 6. 18 Especially the 1980s showed a real outbreak of the issuing of amnesty laws and impunity measures, particularly in Latin and South America. For example Argentina’s Self amnesty law no. 22.294 (22 September 1983)18, Full Stop law (Ley de Punto Final) no. 23.492 (12 December 1986)18 and Due obedience law (Ley de Obediencia Debida) no. 23.521 (5 June 1987)18, Uruguay’s Expiration of the punitive power of the state, Act 15.848 (22 December 1986), El Salvador’s Decree 805 (1987), Chile’s Legislative decree 2.191 (1987) granting self-amnesty. 19 Human Rights Watch, India. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir, Human Rights Watch 2006 vol. 18 no. 11(C), p. 27. India has several such provisions in its laws, aimed at shielding its military personnel and civilian officials from legal accountability. In May 2008, the Committee on Economic, Social and Cultural Rights noted with concern that there is “national security legislation which grants impunity to state officials who violate human rights, including economic, social and cultural rights.”; See also, Committee on Economic, Social and Cultural Rights, Consideration of

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If no legal measure is taken, impunity can also result from the circumstances. This occurs when no action is taken after a period of serious violations. De facto impunity may occur intentionally or unintentionally, for example because of a lack of resources or a weak judicial system. Intentional de facto impunity means that the state willingly fails to prosecute and punish. In such a case, the state may want to protect its own members or the military, or it may decide so for safety reasons.20 This means that the institutions responsible fail to properly investigate the crimes committed and therefore do not punish the perpetrators. It is also possible that the fact that crimes were committed is denied or that a state for its own reasons decides that no legal action will be taken. Human Rights Watch claims that both de iure and de facto impunity will weaken confidence and trust in the government and security forces and will cause more human rights violations.21 According to Ratner, “[p]art of the impunity problem today is that states too readily err on the side of presuming trials will lead to instability and hurt the country.”22 The new regime may fear the possible influence and power the old regime still has, may assume that impunity is a condition for reconciliation and the healing of social wounds, or underestimate the people’s wish to see justice done.23 This presumption may establish peace in the short term, but it is unclear what the consequences of impunity are in the long term. It is possible, that such a ‘bad’ example, will lead to civil unrest in the long term, or may be a reason for a return to conflict. Principle 1 of the updated Set of Principles on general obligations of states to take effective action to combat impunity states:

reports submitted by states parties under articles 16 and 17 of the covenant: Concluding observations of the committee on economic, social and cultural rights: India, E/C.12/IND/CO/5, 8 August 2008, para. 12. 20De facto impunity has been rampant in Jammu and Kashmir state, where in even well-documented abuse cases there is no political will to prosecute; Human Rights Watch, India. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir, Human Rights Watch 2006 vol. 18 no. 11(C), p. 27; See also, Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda, Human Rights Watch 2005 vol. 17 no. 12(A), pp. 42-44; In South-Africa, where “most applications for amnesty were denied … the lack of prosecution against perpetrators who were not granted amnesty has embittered victims and weakened the Commission’s legacy.” International Center for Transitional Justice, Challenging Legacies of Impunity, Annual Report Magazine 2006/2007, p. 26. 21 Human Rights Watch, India. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir, Human Rights Watch 2006 vol. 18 no. 11(C), p. 27. See also: Commission on Human Rights, Report of Working Group on Enforced or Involuntary Disappearances, E/CN.4/1990/13, 24 January 1990, para. 344: “Perhaps the single most important factor contributing to the phenomenon of disappearances may be that of impunity. The Working Group’s experience over the past 10 years has confirmed the age-old adage that impunity breeds contempt for the law. Perpetrators of human rights violations, whether civilian or military, will become all the more brazen when they are not held to account before a court of law. Impunity can also induce victims of these practices to resort to a form of self help and take the law into their own hands, which in turn exacerbates the spiral of violence.” 22 Steven R. Ratner, “New Democracies, Old Atrocities: An Inquiry in International Law”, Georgetown Law Journal, vol. 87 1999, pp. 707-748, p. 745. 23Ibid.

Impunity

Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.24

Notwithstanding the motives for impunity or its appearance, impunity may have very serious negative consequences for a country, as will be pointed out in Sections 4 and 5. First, three different forms of de iure impunity will be outlined in Section 3.

3 FORMS OF DE IURE IMPUNITY

There are various ways in which impunity can be provided for in a legal way. Section 2 elaborated upon the difference between impunity de iure and impunity de facto. In this section, three different forms of de iure impunity will be explained: amnesty laws, pardons and statutory limitations. Other forms of de iure impunity, such as immunity for state officials, lie beyond the reach of this research.25 A statute of limitations is a provision in domestic law that defines the period after a crime within which proceedings based on that crime must be started. After expiration of the set period, prosecution of the alleged offender becomes impossible. Several international instruments foreclose the possibility of statutes of limitation. For example, Article 29 of the Rome Statute and Article 1 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity state that no statutes of limitation shall apply to crimes against humanity or war crimes. It may be held that the ius cogens nature of the prohibition of torture excludes statutory limitations. The ICTY took the position that “other consequences [of the ius cogens character of the prohibition of torture under international law] include the fact that torture may not be covered by a statute of limitations.”26 This conclusion regarding the crime of torture may be extrapolated to other ius cogens crimes. The coming subsections outline amnesty laws and pardons, two forms of de iure impunity that are sometimes mistaken for one another. Statutory limitations are relevant to this research, because the fact that statutory limitations are foreclosed indicates the gravity of the crime concerned.

24 Commission on Human Rights,Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Principle 1, p. 7. 25 See, for example, Rosanne van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law, Oxford University Press: New York 2008. 26ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, para. 157.

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3.1 Amnesty laws

An amnesty law is a law that grants amnesty to a group of people who have committed crimes in a certain period. The law in effect shields the perpetrators from being tried for the crimes they committed during a set period before the issuance of the amnesty law. In the Study on amnesty laws and their role in the safeguard and promotion of human rights, amnesty is defined as follows:

[A]n amnesty is considered to be the juridical expression of a political act whose expected effects directly concern the promotion or protection of human rights and, in some instances, the return to, or consolidation of, democracy:

Because the amnesty encourages national consensus in the wake of a political change brought about in a democratic framework (elections …); Because it is the first act in the initiation of a demoncratic [sic] process or marks a return to democracy; or Because it is intended to block an internal crisis (non-international armed conflict) or mark the end of an international armed conflict.27

In the study, amnesty is “understood legally in the following sense: whether the persons amnestied have or have not been tried or convicted, or served a sentence, their conduct is deemed not to have constituted an offence and the penalty is considered never to have been enforced”.28Amnesties an sich do not include any form of truth or accountability. The impunity for the crimes provided for in the law is meant to be indefinite, but future governments may decide to abolish the amnesty law and start prosecutions. This happened for instance in Argentina, almost 20 years after amnesty was granted. Besides, when the amnesty covers international crimes, other states may hold the perpetrators to account based on universal jurisdiction, since amnesty laws only have domestic significance.29

3.2 Pardons

A pardon is the removal of a sentence or punishment “by the sovereign under the prerogative of mercy. Once a pardon is granted, the accused cannot be tried and if he has already been convicted, he cannot be punished”30 or must be released. Unlike an amnesty, a grant of pardon does not eradicate the breach for which punishment is remitted.

27 Commission on Human Rights, Study on Amnesty Laws and Their Role in the Safeguard and Promotion of Human Rights, Preliminary Report by Mr. Louis Joinet, Special Rapporteur, E/CN.4/Sub.2/1985/16, 21 June 1985, para. 7. 28 See ibid., para. 5. 29 See also Chapter IV, Section 6 on universal jurisdiction. 30 Elizabeth A. Martin (ed.), A Dictionary of Law, Oxford University Press: Oxford 2003.

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Pardons are often confused with amnesties, although they are quite different from them. A pardon is usually issued after the person who committed the crime is held accountable and thus lifts or reduces the punishment.31 This is, however, not always the case. Bronkhorst holds that practice differs from theory in the sense that pardons have been used before conviction and amnesties after conviction to relieve persons from punishment. Having said this, in principle a pardon is given after conviction. Here lies an important distinction with amnesty. Although a pardon releases the perpetrator, it does not interfere with the accountability and truth functions of justice, as amnesty does.32 Usually, amnesty implies both the annihilation or eradication of criminal prosecution and execution of a sentence, a pardon extinguishes only the execution of the sentence.33 Amnesties and pardons also have different goals and derive from other backgrounds. Amnesties achieve the promotion of peace and reconciliation, a pardon provides a discretionary mechanism to sidestep the courts.34 Slye points out that pardons raise many of the same issues as amnesties, as a result of which “[t]here are four justifications for pardons that are relevant for amnesties. Pardons are justified as: an expression of the official grace and wisdom of a leader of government; an expression of societal forgiveness for a transgression; a recognition of rehabilitation; and as a contribution towards social stability.”35 In general, amnesties are more controversial than pardons. This may be explained by the fact that impunity is provided for a whole group of people; amnesty often covers (serious) human rights violations (that were committed on a large scale); the perpetrators are not identified and therefore the beneficiaries of an amnesty are usually not publicly known; and the victims’ are denied their rights to truth, reparation and justice (unless there are established other mechanisms to provide victims or their relatives the truth and reparation). When a person is pardoned, the criminal record remains unchanged. The pardon only affects the

31 Daan Bronkhorst, Truth and Reconciliation, Obstacles and Opportunities for Human Rights, Amnesty International: Amsterdam 1995, p. 100. 32 Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43 2002, pp. 173-247, p. 236. 33 Christopher C. Joyner, “Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability”, Denver Journal of International Law and Policy, vol. 26 no. 4 1998, pp. 591-624, p. 612. 34 Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International: The Hague/London/New York 2002, p. 2. 35 Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43 2002, pp. 173-247, p. 236. Slye continues and provides examples of these justifications: “The justification of amnesty as an expression of the grace or wisdom of a leader is most prominent in the rhetoric surrounding the annual “amnesties” issued by many Asian countries to commemorate an important national event. The rhetoric surrounding the more modern and sophisticated South African amnesty reflects the justification of amnesty as a reflection of societal forgiveness. The utilitarian justification of contributing to social stability is raised with respect to amnesties issued in transitional contexts, from the amnesties issued at the end of the U.S. Civil War to those issued more recently in Chile, Argentina, and South Africa.”

Chapter II sentence. There are, however, also controversial pardons, such as the pardon granted by U.S. President Ford to Richard Nixon in 1974, just before criminal proceedings were initiated.

4 EFFECTS ON SOCIETY

Many newly formed democratic governments are … faced with the … problem of how to treat the perpetrators of serious human rights violations committed under the previous government. Often, the firm resolve of the new leaders to bring these criminals to justice is gradually weakened during the transition period. This provides many perpetrators of serious human rights violations a means of escaping justice. Such impunity hardly contributes to strengthening the people’s confidence in the new administration, especially when officials are allowed to remain in office in spite of their past crimes.36

For victims of human rights crimes, the lack of accountability as a result of impunity is tough. But not only victims and their families suffer from impunity, impunity affects the whole society. For instance, in Jammu and Kashmir (India), Human Rights Watch observed that “impunity has bred cynicism and distrust of authority. It has led to divisions in society that will take a long time to heal.” In research conducted by Human Rights Watch many Kashmiris told them “that impunity for human rights violations is the single biggest obstacle to restoration of normality in the state. They made it plain that no peace or cease-fire will be meaningful or enduring without an end to the almost complete impunity that the Indian security forces and the militants have enjoyed.”37 Another example is Uganda, where “[t]he process involves acceptance of perpetrators back into the community after certain rituals, but does not take into account the views of the individual victims who might not want to forgive serious crimes, nor does it require the perpetrators be punished or pay material damage to the victims.”38 As a result of impunity, it is not possible to separate the guilty from the innocent.39 Luis Pérez Aguirre exemplifies:

As soon as impunity takes root in a nation, all members of the armed forces and all members of the police who served during the reign of terror pass, without

36Adama Dieng, “Opening Speech”, in: International Commission of Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, pp. 19-26, pp. 20, 21. 37 Human Rights Watch, India. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir, Human Rights Watch 2006 vol. 18 no. 11(C), p. 8; Hannah Arendt wrote that “the first step on the road to total domination is to kill the juridical person in man”. Weschler explains this as “to make the attainment of justice appear hopeless and its pursuit pointless.” in Lawrence Weschler, A Miracle, A Universe. Settling Accounts with Torturers, Pantheon Books: New York 1990, p. 242. 38 Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda, Human Rights Watch 2005 vol. 17 no. 12(A), p. 56. 39 Luis Pérez Aguirre, “The Consequences of Impunity in Society”, in: International Commission of Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, p. 118.

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distinction, into the ranks of the guilty. Every single one. This is ominous for a human community, for when an amnesty law (under any of its various guises) is adopted, all citizens will tend to suspect and see as guilty anyone who wore a uniform during those years. This is bound to happen if society fails to provide the opportunity and the appropriate legal machinery to separate the guilty from the not guilty.40

According to Carlos Guzman “[t]he idea of impunity prevails in the collective conscience. It is precisely these acts of impunity combined with the misapplication of justice which promote the loss of control of public order.”41 People are expected to have faith in the new government while this government does not respect their rights. The Inter-American Court of Human Rights has stated that “impunity fosters chronic recidivism of human rights violations, and total defenselessness of victims and their relatives.”42 Several NGOs and UN bodies have an opinion on the issue of impunity and the consequences it might have. The UN Commission on Human Rights, for example, was convinced “that impunity for violations of human rights and international humanitarian law that constitute crimes encourages such violations and is a fundamental obstacle to the observance and full implementation of human rights and international humanitarian law”.43 The UN Human Rights Committee44 has condemned the practice of states granting amnesties on several occasions,45 and warns that pardons and general amnesties may foster a culture of impunity in which hostilities and human rights abuses may resume.46 The International Commission of Jurists considers “the problem of impunity as a core issue for the full observance of human rights and the rule of law. … [T]he phenomenon of impunity is incompatible with the international obligations of States and is a major obstacle to the full

40Ibid. 41 Cecilia Bailliet, Between Conflict & Consensus: Conciliating Land Disputes in Guatemala, Institute for Public & International Law: Oslo 2002, p. 357. 42 IACtHR, Paniagua Morales et al. v. Guatemala, Series C No. 37, Judgment of 8 March 1998 (Merits), para. 173. 43 Commission on Human Rights, Commission on Human Rights resolution 2004/72: Impunity, E/CN.4/RES/2004/72, 21 April 2004; In 1993, the UN Commission on Human Rights in Resolution 1993/43, stated “that the increasingly widespread practice of impunity for perpetrators of violations of human rights in various regions of the world is a fundamental obstacle to the observance of human rights.” 44 The United Nations Human Rights Committee monitors states parties’ compliance with their obligations under the ICCPR (1966). 45 For example, Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment),Replaces general comment 7, 10 March 1992; Human Rights Committee, Concluding Observations of the Human Rights Committee: Peru, A/51/40, paras. 339-364 (1996), para. 347; Human Rights Committee, Concluding Observations of the Human Rights Committee: Haiti, A/50/40, paras. 224-241 (1995), para. 230. 46 Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, A/50/40, paras. 144-165 (1995), para. 158; Human Rights Committee, Concluding Observations of the Human Rights Committee: Haiti, A/50/40, paras. 224-241 (1995), para. 230.

Chapter II enjoyment of human rights.”47 In its reply pursuant to Resolution 2002/79 of the Commission on Human Rights, the International Commission of Jurists agrees with this and “pointed out that international human rights bodies and procedures have repeatedly stated that impunity is a violation of international human rights law and, in particular, of the obligations to investigate violations and to prosecute and punish their perpetrators.”48The International Rehabilitation Council for Torture Victims stresses that impunity for torture hinders the rehabilitation of victims of torture, “particularly where such impunity creates the impression that the community in which the victim lives implicitly condones the violation.”49Human Rights Watch emphasizes that impunity “creates an atmosphere in which violators believe that they can get away with the most serious crimes”.50 According to Amnesty International, impunity denies the values of truth and justice and causes new violations to occur.51 All NGOs described here are convinced that impunity for human rights violations will lead to the occurrence of new violations. Human rights groups, NGOs and individual defenders hold that without ending the culture of impunity, a commitment to the protection and promotion of human rights is not fully complete.52

5 FROM IMPUNITY TO A CULTURE OF IMPUNITY

A culture of impunity arises when the state consistently fails to prosecute human rights violations. Hina Jilani, Special Representative of the UN Secretary-General on Human Rights Defenders, explains that “in reality it is the absence of political will on the part of Governments that allows impunity for human rights violations to prevail”.53 A culture of impunity can result from de iure or de facto impunity. Either way, a culture of impunity is claimed to be a serious cause of new violations of human rights. For example,

[a]ppalling outrages were committed during the Second World War by organized members of different ethnic groups in Yugoslavia against fellow citizens from other ethnic groups. Immediately following the war, however, in the name of the Tito regime’s policy of “brotherhood and unity”, all discussion of and attempts to come to terms with those acts were actively suppressed. This

47 Commission on Human Rights, Impunity. Report of the Secretary-General, E/CN.4/2003/97, 9 January 2003, para. 23. 48Ibid. 49 Commission on Human Rights, Impunity. Report of the Secretary-General, E/CN.4/2000/90, 23 December 1999, para. 11. 50 Human Rights Watch, India. “Everyone Lives in Fear”: Patterns of Impunity in Jammu and Kashmir, Human Rights Watch 2006 vol. 18 no. 11(C), p. 5-6. 51 Daan Bronkhorst, Truth and Reconciliation, Obstacles and Opportunities for Human Rights, Amnesty International: Amsterdam 1995, p. 100. 52 General Assembly, Human Rights Defenders, A/56/341, 10 September 2001, para. 17. 53 See ibid., para. 14.

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policy continued over the next four decades, and society’s trauma and bitterness left over from the horrors of the 1940s failed to heal.54

According to Jacob Finci, “[o]ne of the reasons for the atrocities committed in … Bosnia-Herzegovina is perhaps this failure to clarify the past, this attempt to sweep it under the carpet. After the Second World War, the only ones held accountable for their cruelty were the Germans; the role played by local collaborators was hidden from view.”55 Rigby claims that the wish of one generation to leave the violent past alone without clarification “does not mean that subsequent generations will remain satisfied with leaving it covered up”.56 The sooner the truth is known, the better. Therefore, it is never too late to establish the facts surrounding past violations. This is illustrated by the criminal trials in Argentina instituted after the amnesty laws were overturned (2005), and the establishment in 2003 of a hybrid tribunal in Cambodia, established to prosecute those most responsible for violations committed during the Khmer Rouge regime (1975-1979). During the existence of the UN Commission on Human Rights, the Special Rapporteurs reported on specific countries and topics, presented as reports to the Commission.57 Impunity is considered the primary cause of torture and summary and arbitrary executions in these reports.58 Another example of impunity being the cause of grave human rights violations is the case of Rwanda. In 1994, Bakuramutsa, the Rwandan Ambassador to the UN, expressed the view that the genocide in Rwanda resulted directly from impunity for earlier collective massacres:

Since 1959 Rwanda has repeatedly experienced collective massacres, which, as early as 1964, were described by Pope Paul VI and two Nobel Prize winners - Bertrand Russell and Jean-Paul Sartre - as the most atrocious acts of genocide this century after that of the Jews during the Second World War. But whenever such tragedies occurred the world kept silent and acted as though it did not understand that there was a grave problem of the violation of human rights.

Unfortunately, the perpetrators of these crimes were never brought to justice for their acts. The recent genocide in Rwanda, which awakened, shocked and saddened the universal conscience, is the direct result of this culture of impunity.59

54 Jacob Finci, “War and Accountability: One Bosnian’s view”, in: S. Fleming, D. Meddings and P. Perrin (eds.), Forum: War and Accountability, International Committee of the Red Cross: Geneva 2002, p. 66. 55Ibid. 56 Andrew Rigby, Justice and Reconciliation. After the Violence, Lynne Riener Publishers: Boulder/London 2001, p. 3. 57 In 2006, the UN Commission on Human Rights was replaced by the Human Rights Council. 58 Antoine Blanca, “Speech”, in: International Commission of Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, pp. 15-18, p. 17. 59 Security Council, Security Council, 49th year: 3453rd meeting, Tuesday, 8 November 1994, New York. The situation concerning Rwanda, S/PV.3453, 8 November 1994, pp. 13-14.

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Another example of the fact that impunity can lead to grave human rights crimes is that which Adolf Hitler allegedly encouraged in the run-up to World War II. It is suggested that the impunity with which the Turkish Government carried out the genocide against the Armenian people in the period 1915-1918 (during World War I) emboldened Hitler to carry out the genocide of the Jewish people.60 However, there is no empirical evidence of a causal connection. Up to today, impunity of past violations is a reason for the occurrence of new ones. In those cases, impunity is often so widespread and accountability so rare or totally absent, that victims of human rights crimes no longer even report the crimes. Sometimes, this is connected with the fact that the authorities take part in the crimes themselves. On other occasions it is out of fear of retribution, but overall, the crimes are not reported because people know the perpetrators will not be punished. The Special Representative of the Secretary-General on human rights defenders reported that “[t]he lack of transparency and accountability in the functioning of State institutions has added to the culture of impunity”. In particular, violations committed by the military and other security forces are rarely investigated or punished, and “[e]ven where there have been prosecutions, sentences have been light”.61 The Human Rights Committee has also expressed its concern over impunity for police, military and security forces.62 In 2001, Hina Jilani described military tribunals as “the cornerstones of impunity for perpetrators of human rights violations. Unacceptably light sentences imposed for gross violations of human rights cast doubt on the independence and impartiality of military tribunals and strengthen the perception that there is a deliberate design to conceal atrocities and shield members of the armed forces accused of committing them.”63 The experience of the Working Group on Enforced or Involuntary Disappearances and the UN Secretary-General confirm Jilani’s assertion.64 Joinet is of the opinion that human

60 It is said that eight days before Hitler invaded Poland, he turned to his inner circle and said something like, “Who, after all, speaks today of the annihilation of the Armenians?”; Ben Chigara, Amnesty in International Law, The Legality under International Law of National Amnesty Laws, Pearson Education: Harlow 2002, p. 54. 61 General Assembly, Human Rights Defenders, A/56/341, 10 September 2001, para. 15. 62 Human Rights Committee, Concluding Observations of the Human Rights Committee: Colombia, A/47/40, paras. 390-394 (1992), para. 393. See also Human Rights Committee, Coronel et al. v. Colombia, Comm. No. 778/1997, CCPR/C/76/D/778/1997, 24 October 2002, para. 3.6. 63 General Assembly, Human Rights Defenders, A/56/341, 10 September 2001, para. 47; See also, Commission on Human Rights, Report of Working Group on Enforced or Involuntary Disappearances, E/CN.4/1990/13, 24 January 1990, para. 345, p. 84, stating “[m]ilitary courts contribute significantly to impunity, in the Working Group's experience. A recurrent theme in times of internal crisis or under the doctrine of national security is that military personnel attested to have engaged in gross misconduct, are almost invariably acquitted or given sentences that are disproportionate to the crime committed. Subsequent promotions are even commonplace.” 64 Commission on Human Rights, Report of Working Group on Enforced or Involuntary Disappearances, E/CN.4/1990/13, 24 January 1990, para. 345; Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 42:“While specialized civilian courts may strengthen domestic efforts to combat impunity, human rights treaty bodies and a wide range of special mechanisms of the Commission on Human Rights have concluded that military courts should not be competent to try serious human rights violations (principle 31).”

Impunity rights violations committed by members of the armed forces must fall within the jurisdiction of the ordinary courts exclusively.65 Given the findings of the various actors, this seems the right approach.

6 CONCLUSION

Impunity appears to be an obstacle to the rule of law, but on the other hand, demand for accountability may cause endurance of the conflict resulting in additional human rights violations or endanger the political transformation into a democratic system. An example of how difficult accountability is to achieve is that of Cambodia. For decades, impunity prevailed in Cambodia. In 2003, the ECCC was set up to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.66 At the end of 2010, only two trials had commenced. In October 2010, Hun Sen, Cambodia’s Prime Minister, told United Nations Secretary- General Ban Ki-Moon that opening a third trial risked the country falling back into civil conflict and was therefore foreclosed. Hun Sen himself is a former Khmer Rouge officer. In a post-conflict society, impunity clashes with the need to (re)build the rule of law. Therefore, it is essential to establish counterbalancing measures to guarantee the rights of victims as much as possible in case amnesty is deemed unavoidable to establish or maintain a peaceful situation. It is easy to claim that impunity must be combated and human rights violations prosecuted by holding those responsible accountable, but this is far from easy in most cases. Overall, it may be stated that prosecution must be taken very seriously. Not only does the absence of prosecutions mean impunity, if the situation endures it also runs the risk of creating a culture of impunity that may lead to new violations. In a culture of impunity, victims have no opportunity to claim their rights. A culture of impunity must be differentiated from a situation in which impunity is part of a transitional justice program in which amnesty was granted accompanied with counterbalancing measures to respect the rights of victims as much as possible. In such a case, amnesty is granted, and as a result, impunity prevails for crimes committed in a certain period under certain specified circumstances. When prosecutions are conducted, they must be carried out after an investigation and in a fair trial. When these aspects are not complied with, the prosecution will not be considered legitimate.

65 Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 38. 66 Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea, Phnom Penh, 6 June 2003.

Chapter II

When amnesty is decided upon, this is often seen as an option of last resort. The reasons behind and the circumstances under which states decide to grant amnesty are elaborated on in Chapter III.

CHAPTER III AMNESTY

1 INTRODUCTION

An amnesty law is a form of impunity and a way of providing immunity from prosecution; it provides the perpetrator with immunity or protection from domestic prosecution and punishment. Amnesties, pardons and similar measures have shielded those responsible for war crimes, crimes against humanity and genocide from prosecution in numerous states for centuries. Despite the development of international law since the end of World War II, states continued and still continue to grant amnesty for international human rights crimes.1 The practice of granting amnesty even increased in the second half of this period. There is no clear definition of the concept of amnesty, in fact, an amnesty can differ from case to case, in the sense that “amnesties can have a range of characteristics and consequently, the definition of amnesty can differ substantially between jurisdictions”.2 Amnesty derives from the Greek word amnestia, which means an act of forgetting. It is an act which erases “from legal memory some aspect of criminal conduct by an offender. It is most frequently granted to groups of people in respect of political offences[, usually before conviction3,] and is wider than a pardon, which merely relieves an offender of punishment.”4 An amnesty applies only to acts committed before the law was passed and is thus retroactive.5 Because criminal and often also civil liability are extinguished, the granting of an amnesty presupposes that crimes were perpetrated.6 One of the characteristics of amnesty is the political context in which

1 Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 29. 2 See ibid., p. 2. 3 For example, in Argentina, Amnesty Laws were enacted after convictions were made en trials were taking place. 4 Elizabeth A. Martin (ed.), A Dictionary of Law, Oxford University Press: Oxford 2003, p. 25. For a description of pardon, see Section 3.2 of Chapter II. 5 Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 3. 6 Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International: The Hague/London/New York 2002, p. 2; Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the International Conference ‘Building a Future on Peace

Chapter III amnesty laws are issued.7 The circumstances in which amnesties are issued are often situations of political transition, or attempts to come to an agreement on a political transition. O’Shea also observes that the political context distinguishes amnesty from pardon.8 After political transitions or internal conflict, the national judiciary is usually too weak for criminal trials to take place in an effective and fair way.9 As a result, states may opt to do nothing at all about the crimes that were perpetrated, forget about the past and to focus on the future, opt to issue an amnesty law, to make clear no prosecutions will take place, opt to establish mechanisms to promote peace and reconciliation, possibly joined by an amnesty, or opt to endeavour to carry out criminal proceedings. Amnesty is something that can be decided for, when the prosecution of offenders jeopardizes peace and reconciliation. There are also other motives, which the next section outlines. This study only takes amnesty laws, regulations, measures and agreements into consideration, not the omission or decision by a government not to prosecute.

2 THE PURPOSES OF AMNESTY AND THE BENEFITS OF PROSECUTION

In a new democracy, the decision to prosecute perpetrators of human rights violations has to be balanced against the need to achieve other ends such as peace and reconciliation. Notwithstanding their obligations under international law, many states choose for some sort of amnesty measure, instead of prosecuting those responsible. It is very difficult to decide what the best option is in the long term, and states often opt for ‘instant’ stability by means of an amnesty law.10 The practice of some states has shown that prosecutions can still be carried out years after the end of the conflict and the granting of amnesty, as happened in Argentina.

and Justice’, Nuremberg, 25-27 June 2007, p. 2, 3; Florian Razesberger, The International Criminal Court: The Principle of Complementarity, Peter Lang: Frankfurt am Main 2006, p. 159. 7 Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 2. 8 Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International: The Hague/London/New York 2002, p. 2; See for ‘Pardons’ section 1.3.2. 9 See Diane F. Orentlicher, “The Future of Universal Jurisdiction in the New Architecture of Transitional Justice”, in: Stephen Macedo (ed.), Universal Jurisdiction, National Courts and the Prosecution of Serious Crimes under International Law, University of Pennsylvania Press: Philadelphia 2004, pp. 214-239. 10See Ben Chigara, Amnesty in International Law, The Legality under International Law of National Amnesty Laws, Pearson Education: Harlow 2002, p. 17, 18, for another opinion: “If sacrifice of victims’ equal treatment before the law is regarded as consideration for the better common good of achieving democracy, what should happen if the stability and democracy hoped for prove elusive? Does the amnesty become void, and its beneficiaries subject to investigation and prosecution for crimes against humanity? This makes the amnesty approach to resolution of crimes against humanity fickle. Amnesty laws are not the only means by which reconciliation can be achieved by a community emerging from State terror and atrocity. Provided that they do not cover atrocious crimes that international law obliges States to punish, they perhaps can be used to facilitate such reconciliation.”

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The liberty of states to enact amnesty legislation only has a domestic effect. In today’s world, states may interfere with each other’s decisions to grant amnesty for international human rights crimes as a result of the practice of universal jurisdiction, irrespective of the effects this might have for the state at issue.11 In addition, the ICC might have jurisdiction and sidestep the amnesty law. The government in a new democracy may also opt for prosecutions, with the idea that this will result in stability in the long term, but because of the risks involved, this option is not often chosen. Examples are Rwanda, where the ICTR is combined with the local justice practice of gaçaça, and Sierra Leone, where the government created a Special Court together with the UN, after prior efforts to establish peace, including one granting amnesty, did not work out. In 2007, Reiter, Olsen and Payne:

document a steady rate of impunity. Amnesties have remained a popular choice among transitional democracies, particularly in the early stages of consolidation, and many other countries choose to do nothing with regard to the past. We conclude that state choices are best characterized as a process of delayed justice whereby most countries pursue amnesties or do nothing in the early years and only later adopt accountability measures.12

In the following subsections, the purposes of amnesty and the benefits of prosecution will be elaborated upon.

2.1 Purposes of amnesty

Although the international community requires that justice prevails,13 and although victims generally have the right to see justice done by means of legal proceedings,14 national states often prefer amnesty to prosecution. When criminal prosecutions bring with them certain risks, amnesty may provide an opportunity at reconciliation, stability and peace. One of the main reasons for granting amnesty is that the prosecution of perpetrators may endanger the peaceful transition to democratic rule and even led to a coup d’état. Other motives for granting amnesty may be to prevent the continuation of hostilities and human rights abuses, the killing of civilians or politicians, or to prevent serious damage to the country’s economy.

11See also Chapter IV, Section 6 on universal jurisdiction. 12 Andrew G. Reiter, Tricia D. Olsen, and Leigh A. Payne, Amnesty in the Age of Accountability, Paper prepared for presentation at the 49th International Studies Association Convention: San Francisco, CA, March 26-29 2007, p. 11. 13 According to Article 7 of the Princeton Principles on Universal Jurisdiction, which were established by a group of international law experts in 2001: “Amnesties are generally inconsistent with the obligation of states to provide accountability for serious crimes under international law ...” 14 Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255- 282, pp. 276-277.

Chapter III

According to a 1985 UN report entitled “Study on amnesty laws and their role in the safeguard and promotion of human rights”, the goals most frequently set are:

- alleviating tensions; - aiding the transition to democracy; - neutralizing opposition groups; - encouraging combatants to lay down their arms;15 - trying to reach a peace agreement, and; - encouraging the return of exiles.16

Strikingly, human rights as such are missing from this list, while a major reason for granting amnesty may be to improve the human rights situation in the long run. The opposite argument, however, may also be defended, as the proposed research aims to show. Often, amnesty is the tool to persuade a military junta or putsch leader to relinquish power. By not requiring governments to risk provoking or continuing a civil war and by recognizing the importance of other objectives such as reconciliation, international law may be able to accommodate the transitional process through the mechanism of principled and limited amnesties. Besides amnesties granted for the reasons listed above, amnesty may also be granted for ordinary offences. This type of amnesty must be clearly distinguished from the amnesties covering political offence, which are the subject of this study. An amnesty for ordinary offences may be granted, for example, to deal with the overcrowding in prisons, for humanitarian purposes, or because of a national holiday. For prisoners, the possibility of a future amnesty for ordinary offences or a pardon may reduce the tension in prisons.17 In Turkey, amnesty laws are issued to make illegal buildings legal.18

15 Violators of human rights crimes do not easily give way to democratic processes without securing concessions, including amnesty. For them, an amnesty agreement is a precondition for peace. As a relative of a murder victim in northern Uganda said: “We should not take these rebels to court; otherwise those who are still in the bush will never come out. The best thing is to offer them amnesty as is being done.” In: Office of the United Nations High Commissioner for Human Rights, Making Peace our Own. Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda, United Nations: 2007, p. 48. 16 Commission on Human Rights, Study on Amnesty Laws and Their Role in the Safeguard and Promotion of Human Rights, Preliminary Report by Mr. Louis Joinet, Special Rapporteur, E/CN.4/Sub.2/1985/16, 21 June 1985, pp. 8-14. 17 See ibid., paras. 25-26: “25. Subsidiarily the authorities sometimes see in amnesty laws a means of dealing with the overcrowding of prisons, a situation which may prejudice the human rights of prisoners. The preambles of some amnesty laws explicitly refer to this consideration (e.g. Portugal, Decree Law No. 259/74 of 15 June 1974, providing for an amnesty for ordinary offences. See also the amnesty recently granted in the United Kingdom to reduce prison overcrowding). 26. In some cases, the purpose of an amnesty is strictly humanitarian. In Zaire, the act of 17 November 1981 covers disabled persons. In Syria, Act No. 26 of 12 March 1978 covers incurable or chronically ill prisoners. In the Eastern European countries, such humanitarian measures appear to be traditional, particularly in respect of children, women, the aged and the sick. In the USSR (Decrees of 19 October 1979 and 14 October 1981), in Bulgaria (1979) and in Hungary (Acts of 29 March 1975, measures of

Amnesty

Besides political motives, there may also be pragmatic reasons for not instituting proceedings in a new democracy. Many states do not have the power to enhance fair trials or lack the resources and legal tools to do so. There can be a lack of support from the citizens, because prosecutions might jeopardize the newly found democracy. Perpetrators may still hold high positions in the military or government and prosecuting them may threaten the new government. The judicial system/judiciary may be “too weak, unskilled, biased, or corrupt to carry out the difficult task of overseeing fair and expeditious trials”.19 In addition, when evidence is unavailable, witnesses are dead or missing, or when the system may not be able to grant fair and impartial trials because of the large number of perpetrators, a state may decide to grant amnesty. Louise Mallinder developed an Amnesty Law Database, which in July 2010 contained information on 529 amnesty processes in 138 countries since the end of World War II.20 Based on this database, she identifies the following categories of motives behind amnesty laws:

- alleviating internal pressure; - protecting state agents from prosecution; - promoting peace and reconciliation; - responding to international pressure; - providing reparations; - encouraging exiles to return; - adhering to cultural or religious traditions.

this kind have been adopted – in particular, to mark the International Year of the Child – for the benefit of minors, pregnant women and mothers of very young children.” 18 S. Kahraman, A. Saatci and S. Misir , “Effects of adding illegal storeys to structural systems”, Sadhana vol. 31 no. 5 2006, pp. 505-659, p. 515. 19 Stephan Landsman, “Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions”, Law and Contemporary Problems, vol. 59 no. 4 1996, pp. 81-92, p. 85. 20 Louise Mallinder, Outline of the Amnesty Law Database, accessible via

Chapter III

Mallinder provides a graph showing the motives of states that introduce amnesty laws:

States often have several motives for introducing an amnesty law and these motives may be connected to each other.21 For example, when an amnesty law is issued, a country may not have the means to prosecute and guarantee fair trials, but at the same time it is possible that violations continue to occur so that an amnesty may be granted as part of a peace agreement with combatants or to persuade a military regime to step down. Amnesty as part of a program of peace building may be regarded as an action “to strengthen and solidify peace in order to avoid a relapse into conflict”.22 The prospect of facing justice may well prevent a regime from handing over power. Additionally, the new government may fear jeopardizing the process of national reconciliation by prosecuting those responsible for the violations of the former regime. This same situation can apply to a self-amnesty, granted by the outgoing regime to itself just before leaving power. The new democratic government may consider the amnesty improper, but given the fragile democracy, keep the amnesty in place. In such a situation, the state may introduce counterbalancing mechanisms and for instance establish a truth commission as happened in Chile. A development that may be distilled from a comparison of the reasons listed by Joinet and those listed by Mallinder, is that there is distinguished a new category of amnesty that is granted in response to international pressure. Improving the human rights situation in the long run is not one of the motives mentioned by both Joinet and Mallinder, which indicates that this is not a major reason for the granting of an amnesty. If improving the human rights situation in the long run is not a common objective, amnesty is first and foremost granted to improve the (human rights) situation in the short term, and maybe even be merely

21 Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 8. 22 General Assembly/Security Council, An Agenda for Peace. Preventive diplomacy, peacemaking and peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, A/47/277-S/24111, 17 June 1992, para. 21.

Amnesty temporary. If this is true, and amnesty laws are just a kind of cease-fire, their enactment should be reconsidered. Notwithstanding the fact that it is important to bring an end to hostilities and to the violations of human rights, it is just as important that those violations do not reoccur in the future and that an amnesty law is not just a temporary solution. In case of an internal conflict, or a violent oppression by the government of (a group/part of) its people, those people will likely be living in the same country for the rest of their lives. The idea that the perpetrators, and especially those most responsible, can continue their lives without being punished can be unbearable for those who suffered, and does not contribute to an atmosphere of trust or strengthen the rule of law. However, Mallinder holds that “[i]n addition to the short-term objectives of simply ending the violence, it can be argued that in the longer term, amnesties can contribute to preventing a recurrence of the violations and promoting peaceful coexistence between former enemies.”23 One major reason to grant amnesty, categorized by Joinet but not by Mallinder, is to persuade combatants to lay down their arms, currently of high relevance for the situation in Uganda. Combatants may probably not be willing to lay down their arms if they risk investigations and prosecutions of the grave crimes they committed. Under these circumstances, an amnesty may provide a way to “end ongoing hostilities, to start a transition process and to finally obtain peace”.24 This is remarkable, since the objective of encouraging a military junta to leave power or to end hostilities is identified in other recent literature and practice.25 For instance, in 1999, in Sierra Leone an amnesty law was passed granting a blanket amnesty to Corporal Foday Sankoh and “all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present [Lomé Peace] Agreement”. Article IX.3 of the Peace Agreement between the government of Sierra Leone and the Revolutionary United Front of Sierra Leone states that:

To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of

23 Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 42. 24 Florian Razesberger, The International Criminal Court: The Principle of Complementarity, Peter Lang: Frankfurt am Main 2006, p. 159. 25 Yasmin Naqvi, “Amnesty for War Crimes: Defining the Limits of International Recognition”, International Review of the Red Cross, vol. 85 no. 851 2003, pp. 583-624, p. 588; Florian Razesberger, The International Criminal Court: The Principle of Complementarity, Frankfurt am Main: Peter Lang 2006, p. 159; Patrick Nduwimana, “Burundi Rebels Won’t Join Truce Team Without Amnesty”, Reuters: 1 April 2008, available at ; Leila N. Sadat, “Universal Jurisdiction, National Amnesties, and Truth Commissions: Reconciling the Irreconcilable”, in: Stephen Macedo (ed.), Universal Jurisdiction, National Courts and the Prosecution of Serious Crimes under International Law, University of Pennsylvania Press: Philadelphia 2004, pp. 193-211, p. 196; U.S. delegation paper on state practice regarding amnesties and pardons, Non- Paper/WG.3/No.7, 6 August 1997; Colombia Justice and Peace Law.

Chapter III

those organisations, since March 1991, up to the time of the signing of the present Agreement. In addition, legislative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality.

Many argue that amnesty is too high a price for peace, but the Truth and Reconciliation Commission (TRC) in Sierra Leone:

is unable to declare that it considers amnesty too high a price to pay for the delivery of peace to Sierra Leone, under the circumstances that prevailed in July 1999. It is true that the Lomé Agreement did not immediately return the country to peacetime. Yet it provided the framework for a process that pacified the combatants and, five years later at the time of writing, has returned Sierra Leoneans to a context in which they need not fear daily violence and atrocity.26

The Sierra Leonean TRC explicitly links the amnesty that was granted to the circumstances in which it was granted. The Sierra Leonean TRC implies that otherwise the granting of amnesty would have been unacceptable. Moreover, the Sierra Leonean TRC holds that:

This observation by the Sierra Leonean TRC captures very well the reality of the practice of using amnesty as a tool to achieve peace.

President Sanguinetti explained why an amnesty was chosen for in Uruguay:

First, ... accusations were going ... to disturb society ... Second, ... if we were going to have a settling of accounts for the left and the terrorists the military should be amnestied, too. ... Third, it was necessary to have a climate of

26 Truth & Reconciliation Commission Sierra Leone, Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. 3b, 5 October 2004, p. 365, Chapter 6, at 12. 27 See ibid., at 11.

Amnesty

stability so as to consolidate democracy. ... [F]inally, for historical reasons. Traditionally, after all great conflicts in a country the solution has been an amnesty for both sides.28

It is possible that Mallinder placed amnesties that encourage combatants to lay down their arms or to reach a peace agreement under the category of promoting peace and reconciliation, which is in return missing in Joinet’s list. However, amnesty is often used for the two goals set by Joinet but not by Mallinder.

2.2 Benefits of prosecution

The preamble to the Updated Set of Principles for the protection and promotion of human rights to combat impunity states: “there can be no just and lasting reconciliation unless the need for justice is effectively satisfied”.29 According to Jacob Finci, the trials conducted by the ICTY serve several purposes. The trials “provide victims with a sense of justice – a feeling that their grievances have been addressed on at least one level and can more easily be put to rest rather than smouldering in anticipation of the next round of conflict.” Secondly, Finci mentions the goal of deterrence. The trials before the ICTY show:

that the international community will not tolerate such atrocities and will hold future perpetrators accountable. The third and last goal is to demonstrate that individuals – not entire ethnic or religious or political groups – committed atrocities, for which they need to be held accountable. In so doing, it rejects the dangerous culture of collective guilt and retribution that could lead to further cycles of grievance and violence.30

Secretary-General Kofi Annan, in his report on the rule of law and transitional justice in conflict and post-conflict societies, emphasized the role criminal trials can play in transitional contexts and describes the underlying reasons:

Criminal trials can play an important role in transitional contexts. They express public denunciation of criminal behaviour. They can provide a direct form of accountability for perpetrators and ensure a measure of justice for victims by giving them the chance to see their former tormentors made to answer for their crimes. Insofar as relevant procedural rules enable them to present their views and concerns at trial, they can also help victims to reclaim their dignity. Criminal trials can also contribute to greater public confidence in the State’s ability and

28 Quote from President Sanguinetti of Uruguay, in: Lawrence Weschler, A Miracle, A Universe. Settling Accounts with Torturers, Pantheon Books: New York 1990, p. 188. 29Commission on Human Rights,Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Preamble. p. 5. 30 Jacob Finci, “War and Accountability: One Bosnian’s view”, in: S. Fleming, D. Meddings and P. Perrin (eds.), Forum: War and Accountability, International Committee of the Red Cross: Geneva 2002, p. 67.

Chapter III

willingness to enforce the law. They can also help societies to emerge from periods of conflict by establishing detailed and well-substantiated records of particular incidents and events. They can help to de-legitimize extremist elements, ensure their removal from the national political process and contribute to the restoration of civility and peace and to deterrence.31

There are several arguments in favour of prosecutions for a transitional society:32

- Rule of law. Prosecutions substantially enhance the prospects for the establishment of the rule of law. It is hard to reinstate the rule of law while perpetrators of serious human rights crimes are at large; - Victims. Bringing the perpetrators to account may help to restore the victims’ dignity. By performing trials, the victims’ right to justice is honoured. Prosecutions also contribute to the revelation of the state of affairs that led to the crime and serve to establish the truth. Besides, prosecution is one of the most effective ways of identifying and creating the basis for the compensation of victims; - Punishment. Prosecution can provide a means of punishing perpetrators for their criminal conduct. Punishing the perpetrators demonstrates that human rights crimes are not condoned. In addition, punishment is a way of retributive justice;33 - Denunciation. Prosecution and punishment for human rights violations symbolize the culpability felt by the people for the crimes committed;34 - Deterrence. Prosecuting those responsible for violations of human rights law may deter future violations of human rights (not only in the state at issue, but in other states as well);35

31 Security Council, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General, S/2004/616, 23 August 2004, para. 39. 32 See, for example, Stephan Landsman, “Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions”, Law and Contemporary Problems, vol. 59 no. 4 1996, pp. 81-92, pp.83, 84; Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, Case Research Paper Series in Legal Studies Working Paper 05-31, Case Western Reserve University: Cleveland August 2005, p. 10; Donald L.Hafner and Elizabeth B.L. King, “Beyond Traditional Notions of Transitional Justice: How Trials, Truth Commissions, and Other Tools for Accountability Can and Should Work Together”, Boston College International & Comparative Law Review, vol. 30 no. 1 2007, pp. 91-109, p. 92; International Council on Human Rights Policy, Negotiating Justice? Human Rights and Peace Agreements, International Council on Human Rights Policy: Versoix 2006, p. 76. 33 In post-conflict societies, it may be worth looking into alternative possibilities for punishment. Cavadino and Dignan suggest, that when it is decided that “punishment is to be inflicted, it is surely better that the punishment should directly benefit the victim or society than that it should merely hurt or restrict the offender.” – Michael Cavadino and James Dignan, The Penal System. An Introduction, Sage Publications: London/Thousand Oaks/New Delhi 2002, p. 45. 34 Michael Cavadino and James Dignan, The Penal System. An Introduction, Sage Publications: London/Thousand Oaks/New Delhi 2002, p. 43. 35 There is a distinction between individual deterrence and general deterrence. With individual deterrence, it is meant that the perpetrator him- or herself is deterred, which is an effect that does not often occur in reality. General deterrence means that although individual perpetrators are punished,

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- Truth finding. Prosecutions help establish the truth about the past through accepted legal means and therefore serve as a truth finding mechanism, which may function as a means of educating the citizenry to the nature and extent of the prior crimes; - Heal social wounds. Prosecution may be essential to heal the social wounds caused by serious human rights violations;36 - Prevent revenge. Prosecutions help to deter vigilante justice. When perpetrators are held accountable and are punished for the crimes they committed, feelings of revenge will diminish; - Culture of accountability. Prosecutions prevent impunity, and the effects impunity may have on a society as described in Chapter II;37 - Separate collective guilt from individual guilt. Prosecutions “remove the stigma of historic misdeeds from the innocent members of communities that are collectively blamed for the atrocities committed on other communities”;38 - Remove perpetrators from positions of authority. Prosecutions may prevent those perpetrators most responsible from remaining in or returning to positions of authority.

All these arguments correspond largely to the risks that an amnesty measure entails. It is difficult to (re)build the rule of law when those responsible are not brought to justice. Prosecuting at least those most responsible sets an example for the future. Without prosecutions, victims are left in the dark and may feel abandoned when those responsible for their suffering are not prosecuted and punished. Without prosecution and punishment, the denunciation of the crimes committed is not made clear and this does not deter any future perpetrators from committing crimes. As a result, a culture of impunity arises instead of a culture of accountability. Because the truth about violations and the circumstances in which they took place remains unknown, social wounds remain open and may ignite

others are deterred, which seems to have a more deterrent effect and is one of the justifications for punishment. Deterrent effects are however “limited and easy to overestimate.” See: Michael Cavadino and James Dignan, The Penal System. An Introduction, Sage Publications: London/Thousand Oaks/New Delhi 2002, p. 34-35. 36 See, for example, Luis Pérez Aguirre, “The Consequences of Impunity in Society”, in: International Commission of Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, p. 114: “The crimes did take place, and as long as they go unpunished, they will continue to gnaw at the collective national consciousness and unconscious.” 37 In northern Uganda, “[t]hose who favoured criminal trials often identified both preventing impunity and preventing further harm as the added-value of prosecution.” - Office of the United Nations High Commissioner for Human Rights, Making Peace our Own. Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda, United Nations: 2007, p. 50. 38 Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255- 282, p. 277; Richard Goldstone believes this argument is the only way the cycle of violence can be broken, see: Lawrence Weschler, “Inventing Peace”, The New Yorker, 20 November 1995, abstract available via

Chapter III feelings of revenge. Resulting from the fact that the perpetrators as individuals are not held responsible and separated from the group, community or institution they form part of, the whole group where they are a part of may be seen as perpetrators. As a result, revenge and blame may be aimed at the whole group they are part of, instead of on them as individual perpetrators. As stated in a population-based survey in Bosnia and Herzegovina, 86% of the victims (who survived) do not know personally the person who victimized them.39 Richard Goldstone points out the risk of not prosecuting international human rights crimes. He concludes:

that the failure of the international community to prosecute Pol Pot, Idi Amin, Saddam Hussein and Mohammed Aidid, among others, encouraged the Serbs to launch their policy of ethnic cleansing in the former Yugoslavia with the expectation that they would not be held accountable for their international crimes.40

Again, there is no empirical evidence of a causal connection to confirm this statement.41 This notwithstanding, the reasoning of Goldstone is something to keep in mind and may indeed be one of the major negative side effects of using amnesty as a bargaining tool to reach peace. The Centre for Justice and Reconciliation agrees with Goldstone and holds that “the prospect of amnesty … could serve to be an impetus to human rights violators to maintain power and keep the society hostage”.42 Notwithstanding the presumed positive effects of prosecution, the arguments in favour of prosecution do not necessarily provide the desired effect. For example, deterrence is not so much an effect of prosecution but much more, it is hoped that this will be an effect of prosecution. Trials may also end in acquittal of the suspect, as a result of which not only the truth remains unknown, but there may also be negative side effects. For example, the victims may feel abandoned again or it may foster feelings of revenge. Alphons Orie mentioned that people expected miracles from international justice and the tribunals, but these expectations are far too high. A thousand years ago, people murdered, and they still do. There is no evidence of improvement despite laws and punishments.43 Therefore, the presumed benefits of prosecution should be taken into account, but they are not guarantees. They merely point out the risks that correspond to the arguments in favour of prosecution when

39 Marta Valinas, Stephan Parmentier and Elmar Weitekamp, ‘Restoring Justice’ in Bosnia and Herzegovina. Report of a population based survey, Working paper No. 31, Katholieke Universiteit Leuven: Leuven 2009, p. 57. 40 Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, Case Research Paper Series in Legal Studies Working Paper 05-31, Case Western Reserve University: Cleveland August 2005, p. 10. 41 See Chapter I, Section 5. 42 Centre for Justice and Reconciliation, ‘Golden parachutes’ for powerful perpetrators?, accessible via 43 Alphons Orie, at the Hague Debate at the Paleiskerk “Justice for victims?”, The Hague: 13 November 2008.

Amnesty amnesty is granted. In this regard, they may be taken into account when considering amnesty. Dependent on the situation, they may also guide policymakers in transitional societies to decide what counterbalancing measures such as a truth commission or public apologies might be necessary.

3 FORMS OF AMNESTY

There are various classifications of amnesty practice, varying from dictatorial decrees to legitimate acts of parliament. For international recognition, it matters what form of amnesty is granted. Therefore, it is necessary to elaborate on the different forms of amnesty. Since the different forms of amnesty are not mutually exclusive, overlap is possible.

3.1 De iure amnesty

3.1.1 Blanket amnesty

A blanket amnesty covers all crimes committed during a certain period, without any conditions. This means that no distinction is made between common crimes, political crimes, and international crimes, unless they are specifically excluded, nor does it consider the motives for the crime.44 Because a blanket amnesty usually covers all crimes, states do not have to mention the crimes covered by the amnesty, for example torture or war crimes. Such an amnesty provision granting blanket amnesty may be formulated as to grant amnesty and “reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives”45 during the conflict. In this way, blanket amnesties “have the widest scope and the least legitimacy”.46 A blanket amnesty, when it is not accompanied by other transitional justice initiatives, for example a truth commission, does not in any way deal with the past. Blanket amnesty laws violate the rights of victims to the truth, reparation and justice. A blanket amnesty is usually granted in the form of an amnesty law or as part of a peace agreement and is often issued by the government that took part in the human rights violations itself. An example of a blanket amnesty is the one agreed upon in the Lomé Peace Agreement between the government of

44 William W. Burke-White, “Protecting the Minority: A Place for Impunity? An Illustrated Survey of Amnesty Legislation, Its Conformity with International Legal Obligations, and Its Potential as a Tool for Minority-Majority Reconciliation”, Journal on Ethnopolitics and Minority Issues in Europe,Issue2 2000, p. 5; See also, Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 22. 45Article IX on Pardon and Amnesty of the Peace Agreement between the government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 7 July 1999. 46 William W. Burke-White, “Protecting the Minority: A Place for Impunity? An Illustrated Survey of Amnesty Legislation, Its Conformity with International Legal Obligations, and Its Potential as a Tool for Minority-Majority Reconciliation”, Journal on Ethnopolitics and Minority Issues in Europe,Issue2 2000, p. 5.

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Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF).47 Amnesty was incorporated into the Peace Agreement, because the government thought that it was the only way to make the RUF end the violence.48Ambassador Francis G. Okelo, Executive Secretary of the United Nations Secretary-General, signed this peace agreement. However, he added a disclaimer to his signature on behalf of the United Nations, holding that the amnesty provision contained in Article IX of the Agreement should not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.49 The disclaimer is in line with the general UN opinion on amnesty and impunity, which will be outlined in Chapter V, but nevertheless, the exclusion of those who committed these crimes as beneficiaries of the amnesty, may carry with it certain risks, especially as granting amnesty was considered to be the only means to end the conflict. In 1993, the United Nations accepted unconditional amnesty for crimes committed in Haiti, because it considered the Governors Island Agreement, which contained an amnesty provision, the only viable solution to the conflict. The UN seems to decide on a case by case basis whether it supports a national initiative to grant amnesty or not. A blanket amnesty has no truth or justice function and fails to provide justice or relief for victims. Overall, blanket amnesties are considered illegitimate. Examples of blanket amnesties are found especially in Latin and South America, since the end of the 1970s.50 But also in Africa, there are examples of blanket amnesty laws, for instance in Mozambique51 and Uganda.52 In 1997, the Human Rights Committee

47Peace Agreement between the government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 7 July 1999. Article IX on Pardon and Amnesty reads as follows: “1. In order to bring lasting peace to Sierra Leone, the Government of Sierra Leone shall take appropriate legal steps to grant Corporal Foday Sankoh absolute and free pardon. 2. After the signing of the present Agreement, the Government of Sierra Leone shall also grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present Agreement. 3. To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF/SL, ex- AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organisations, since March 1991, up to the time of the signing of the present Agreement. In addition, legislative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality.” 48 “In all good faith, … [the Government] believed that the RUF would not agree to end hostilities if the Agreement were not accompanied by a form of pardon or amnesty.” Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. 3b, 5 October 2004, 514 pp, p. 365, Chapter 6, at 10. 49 Security Council, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, S/2000/915, 4 October 2000, para. 23. 50 Examples are the 1978 Chilean amnesty, the 1986 Argentinean Full Stop Law, and the 1993 El Salvadoran amnesty. 51 “The 1992 peace accord in Mozambique contained blanket amnesties for both sides of the civil war.” In: Alana Tiemessen, “Amnesties for Atrocities: Impunity or Accountability?”, Human Security

Amnesty noted “with concern [that] the amnesty granted to civilian and military personnel for human rights violations they may have committed against civilians during the civil war” is a “sweeping amnesty [that] may prevent the appropriate investigation and punishment of the perpetrators of past human rights violations, undermine efforts to establish respect for human rights, and constitute an impediment to efforts undertaken to consolidate democracy”.53

3.1.2 Self-amnesty

Before the Argentine military junta handed over power in 1983, they granted themselves amnesty.54 Such an amnesty, passed shortly before stepping down and acquitting their violations of human rights committed during the military regime, is a self-amnesty. A self-amnesty is often a blanket amnesty covering all crimes committed by the regime in a certain period. It is issued to avoid prosecution. Another well-known example of a self-amnesty is the one granted by the Chilean dictator Augusto Pinochet to himself and his military regime in 1978.55 In Peru, Fujimori also issued two self-amnesty laws in 1995 to foreclose prosecution for the atrocities committed by his regime. In Barrios Altos v. Peru (2001) the Inter- American Court of Human Rights said that these self-amnesty laws make victims defenceless and that they prolong impunity. It held that the laws violate the aims and spirit of the American Convention on Human Rights. The Court emphasized that “[t]his type of law precludes the identification of the individuals who are responsible for human rights violations, because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation”.56 Judge Augusto Cançado Trindade of the Inter-American Court of Human Rights, in his consideration of the Chilean Almonacid case (2006), explained the reasons for the inadmissibility of self-amnesty laws:

Bulletin, Centre of International Relations University of British Columbia: Vancouver 2008, pp. 7-10, p. 7. 52 “In 2000, the Uganda Parliament passed the Amnesty Act: it offers amnesty to all Ugandans engaged or engaging in acts of rebellion against the government since January 26, 1986, on condition that they report to a local authority, renounce and abandon the rebellion, surrender all weapons in their possession, and are issued a certificate of amnesty by the government. The Act has been promoted as a tool to promote peace and to encourage rebels from all parts of Uganda to come home.” - Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda, Human Rights Watch 2005 vol. 17 no. 12(A), p. 37. 53 Human Rights Committee, Concluding Observations of the Human Rights Committee: Lebanon, CCPR/C/79/Add.78, 1 April 1997, para. 12. 54 In Argentina, the self-accorded amnesty was nullified by the new democratic regime. However, since the power the military remained to have constituted a serious threat to the newly established democracy, a few years later the Full Stop Law (1986) and the Law of Due Obedience (1987) were issued to amnesty those responsible again. 55 Chilean Decree 2191. 56 IACtHR,Barrios Altos v. Peru, Series C, No. 75, Judgment of 14 May 2001 (Merits), para. 43.

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Ultimately, self-amnesties violate the right to know the truth and the right to justice. They callously disregard the terrible suffering of the victims and hinder the right to appropriate reparations. Their vicious effects, in my view, permeate the whole social body, with the ensuing loss of faith in human justice and true values and a perverse distortion of the purpose of the State. Originally created to serve the common good, the State becomes an entity that exterminates members of certain sectors of the population (the most precious constituent element of the State itself, its human substratum) with total impunity. From an entity designed to serve the common good, it becomes an entity responsible for truly criminal practices, undeniable State crimes.57

Guatemala shows another example of a military regime that granted itself amnesty. The new President, Vinicio Cerezo, did not repeal the amnesty. Juán Mendez claims that “at the end of Cerezo’s term, members of the military committed more violations of human rights with further impunity”.58 Self-amnesties have no legal value. Therefore, a succeeding regime may repeal such a law and prosecute those benefiting from the amnesty. Obviously, those responsible for the violations may also be tried in other countries by means of universal jurisdiction. Oppressors should not “gain benefits from having made the work of future accountability mechanisms difficult, especially not the benefits of traveling among humanity, the humanity that rightly considers them hostis humani generis”.59 Whenever they leave their home country, they risk being arrested and brought to trial. However, an amnesty law may have been a precondition for handing over power, and repealing a self-amnesty law may risk a return of violence or even a coup d’état. For this reason, for example, the Chilean self-amnesty law was not overturned.

3.1.3 Limited/political amnesty

Limited or political amnesties are those granted to specific groups or individuals for a specific set of crimes committed (with political objectives) in a certain period. In these circumstances, individuals are sometimes required to go through an amnesty application and process to provide evidence for their eligibility, as was the case in South Africa. Here, perpetrators had to apply for amnesty with the Amnesty

57 IACtHR, Almonacid-Arellano et al v. Chile, Series C No. 154 Judgment of 26 September 2006 (Preliminary Objections, Merits, Reparations and Costs), Concurring opinion of judge a.a. Cançado- Trindade,para. 21. 58 Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255- 282, p. 266. Mendez states: “A few days before Vinicio Cerezo was inaugurated, the military enacted a sweeping self-amnesty law. The newly-inaugurated Congress tries to repeal the law, but Cerezo prevailed upon his party members to defeat the bill. During his term there were at least two more amnesty laws, to immunize military and civilians who had plotted against him, but covering human rights abuses as well.” Cerezo actively impeded “any attempt to invalidate the shameless self-amnesty with which his military predecessors left office.” 59 Pablo de Greiff, “Comment: Universal Jurisdiction and Transitions to Democracy” pp. 121-130, in: Stephen Macedo (ed.), Universal Jurisdiction, National courts and the prosecution of serious crimes under international law, University of Pennsylvania Press: Philadelphia 2004, p. 130.

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Committee of the Truth and Reconciliation Commission (TRC). The South African TRC was entitled to grant amnesty to persons who committed politically motivated crimes, and excluded crimes committed out of racism and/or malice. Other examples of countries that have issued limited amnesties are East Timor and Rwanda. East Timor established the Commission for Reception, Truth, and Reconciliation (CAVR), and Rwanda uses the traditional process of gaçaça courts to grant amnesty to perpetrators of less serious crimes. When issuing an amnesty law, a state may also decide to exclude certain crimes from the amnesty law. In Sierra Leone, the amnesty agreed upon in the peace agreement between the Government and the RUF/SL was initially a blanket amnesty, covering all crimes, but it ended up as a limited amnesty, by excluding the international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law. In Romania, two general amnesty laws were issued in 1990.60 The first law granted amnesty to any crime for which a sentence of less than three years was prescribed. Several crimes, like murder, severe bodily injury and rape, were specifically excluded from the amnesty. The second law excluded all human rights crimes. Such exclusions are quite remarkable. By limiting the amnesty to ordinary crimes, those most responsible may still be held accountable. Whether this really happens is another question. But by limiting the amnesty, the state shows denunciation of the crimes and its commitment to international law. Besides, it shows the victims and society that it will not protect those responsible for serious human rights crimes. In the Arusha Peace and Reconciliation Agreement for Burundi it was agreed to establish a National Peace and Reconciliation Commission, which may also advise the national assembly on the granting of amnesty that is consistent with international law for political offences.61

3.1.4 Conditional amnesty

A conditional (or discrete, or compromise) amnesty is typically issued as part of a broader program of transitional justice mechanisms such as a truth commission or reparations program. Amnesty is granted by the new regime in exchange for an action by the perpetrator applying for amnesty. Such an action can be acknowledgement, truth, apology, and/or a form of reparation such as compensation or restitution. A conditional amnesty aims to facilitate a social transition and to promote reconciliation, “and also to further inquiry or revelation, either on their own or in combination with other government initiatives … [and] may be designed

60 Edwin Rekosh, “Romania: A persistent Culture of Impunity”, in Naomi Roht-Arriaza (ed.), Impunity and Human Rights in International Law and Practice, Oxford University Press: New York/Oxford 1995, p. 135. 61 Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General, Office of the United Nations High Commissioner for Human Rights Analytical Study on Human Rights and Transitional Justice, Addendum. Inventory of Human Rights and Transitional Justice Aspects of Recent Peace Agreements, A/HRC/12/18Add.1, 21 August 2009, pp. 3-4.

Chapter III to diminish an armed conflict or civil unrest”.62 It may also be the outcome of negotiations, as for example in South Africa. Blanket amnesties are sometimes conditional, such as the Ugandan Amnesty Act (2000), whereas conditional amnesties are almost always limited. Tiemessen notes that “[g]enerally speaking, the more limited and conditional the amnesty the more politically and legally … [acceptable] it is to the international community”.63 Besides, a conditional amnesty needs some support from society.64An example of a conditional amnesty is the amnesty granted by the TRC in South Africa to which Ratner refers as the “amnesty-for-confession law”.65 An amnesty as part of a peace agreement may also be considered conditional upon ending the violence. A return to conflict or reigniting of the violence is a breach of the peace agreement upon which the amnesty is made conditional.

3.1.5 Corrective amnesty

A corrective amnesty tries to correct the status of wrongly detained or punished individuals after a conflict. An example of a provision containing the possibility to grant amnesty is Article 6(5) of Additional Protocol II to the Geneva Conventions. This article provides that “[a]t 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, whether they are interned or detained”. This type of amnesty applies to acts of treason, sedition, rebellion, or other offences against the state and is often granted after a change in the social and political situation; for example the lifting of a state of emergency, or the end of an internal or international armed conflict. It is not intended to cover human rights violations, as explained in more detail in Section 4.4 of Chapter IV. Ronald Slye defines another type of corrective amnesty. This amnesty “is not strictly an amnesty, but the reversal of an injustice – an injustice created by an illegitimate law, or by mistaken or fabricated facts”.66 An example is the Brazilian Transitory Constitutional Provisions Act of 5 October 1988, Articles 8 and 9. Joinet disagrees with the use of amnesty to reverse an injustice: “On strict grounds of principle, granting amnesty to a prisoner of opinion is tantamount to an implicit

62 Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43 2002, pp. 173-247, p. 243. 63 Alana Tiemessen, “Amnesties for Atrocities: Impunity or Accountability?”, Human Security Bulletin, Centre of International Relations University of British Columbia: Vancouver 2008, pp. 7-10, p. 8. 64 Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43 2002, pp. 173-247, p. 243. 65 Steven R. Ratner, “New Democracies, Old Atrocities: An Inquiry in International Law”, Georgetown Law Journal, vol. 87 1999, pp. 707-748, p. 739. 66 Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43 2002, pp. 173-247, p. 244.

Amnesty acknowledgement that his conduct was criminal, whereas it is really the authority responsible for the penalty, being guilty of unlawful detention, [that] might be granted amnesty.”67 This reasoning may be questioned, and is not in line with the definition provided by Joinet himself in his 1985 Study.68 As explained in Section 3.1 of Chapter II, amnesty not only shields the perpetrator from prosecution and punishment, it nullifies the fact that a crime was perpetrated, which makes it an excellent way to reverse an injustice.

3.1.6 Internationally legitimized amnesty

In internationally legitimized amnesties, amnesty for serious and systematic human rights violations is specifically excluded, so that they cannot possibly be interpreted to apply to genocide, torture, rape and other crimes against humanity. Internationally legitimized amnesties should be combined with counterbalancing mechanisms to address the consequences of the violations for which amnesty is granted. Such mechanisms can be a truth commission or a reparations program. Amnesties that have international legitimacy are a relatively recent development, evolving from the mid-1990s on.69 William Burke-White notes that Guatemala, Croatia, and Bosnia and Herzegovina issued amnesty laws according to these criteria. An internationally legitimized amnesty must be the result of a democratic process. Ronald Slye identifies the following features as a prerequisite to internationally legitimate amnesties:

To qualify as accountable, an amnesty must have the following characteristics. First, it must be democratic in its creation. … The general involvement of the public and the involvement of more than one branch of a democratic government are two important indicators of the democratic nature of an amnesty. Second, it must not apply to those most responsible for war crimes, crimes against humanity, and other serious violations of international criminal law. Third, it must impose some form of public procedure or accountability on its recipients. … Fourth, it must provide an opportunity for victims to question and challenge an individual’s claim to amnesty. Fifth, it must provide some concrete benefit, usually in the form of reparations, to victims. Such a benefit could come either from the beneficiary or from the state. Sixth, …, it must be designed to facilitate a transition to a more human rights friendly regime, or as

67Ibid. 68 See Section 3.1 of Chapter II. 69 William W. Burke-White, “Protecting the Minority: A Place for Impunity? An Illustrated Survey of Amnesty Legislation, Its Conformity with International Legal Obligations, and Its Potential as a Tool for Minority-Majority Reconciliation”, Journal on Ethnopolitics and Minority Issues in Europe,Issue2 2000, pp. 21-22.

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part of a comprehensive program of reconciliation aimed at addressing long- standing and serious societal tensions and injustices.70

3.2 De facto amnesty

Even without the adoption of an amnesty law, perpetrators may benefit from impunity when the government simply fails to prosecute them.71 Such a de facto amnesty is thus undeclared. Besides unwillingness to prosecute on the part of the government, in a new democracy it may be impossible to prosecute those responsible for past human rights abuses because the system is incapable of giving the perpetrators a fair trial. Next to this, the costs of prosecution are high and in a newly found democracy, it could be argued that the money could be used for other imperative matters, such as to restore order, to strengthen democracy, to build up the economy and to rebuild infrastructure.

[T]he major problem confronting Afghanistan was not, in the first instance, accountability, but security, the return of refugees, food for those who were in danger of starving, and a measure of good governance so that law and order could be introduced and maintained. The same is true of Iraq. Whilst it is desirable to prosecute those who committed human rights violations during Saddam Hussein’s dictatorship, the first imperative was to stop the looting, to return to some measure of law and order, and to enable Iraqi leaders and people to begin taking part in future decision making, which will restore some semblance of stability and peaceful co-existence.72

Since the international community increasingly demands that justice is done, de facto amnesties will become rare and if amnesty is opted for, this will be a de iure amnesty. When a state plans to institute legal proceedings in the future, the situation of impunity is only temporary and may depend on rebuilding the judiciary. In a state that was torn apart by conflict, this may take a considerable amount of time.

70 Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43 2002, pp. 173-247, pp. 245, 246. 71 Leila N. Sadat, “Universal Jurisdiction, National Amnesties, and Truth Commissions: Reconciling the Irreconcilable”, in: Stephen Macedo (ed.), Universal Jurisdiction, National Courts and the Prosecution of Serious Crimes under International Law, University of Pennsylvania Press: Philadelphia 2004, pp. 193-211, 197. 72Alexander Boraine, “Retributive Justice and Restorative Justice: Contradictory or Complementary?”, in: Nanci Adler (ed.),Genocide and Accountability. Three Public Lectures by Simone Veil, Geoffrey Nice and Alex Boraine, Vossiuspers UvA: Amsterdam 2004, pp. 51, 52.

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4 TIMING AND METHOD OF GRANTING THE AMNESTY

Amnesties may be issued at various times surrounding conflict or accompanying the transition to democracy. The following sections will elaborate on the timing of granting the amnesty.

4.1 Amnesty before a transition or the end of conflict

An amnesty granted before a transition or the end of conflict may have several causes and may be a self-amnesty granted by a dictatorial regime to itself. The old government may fear prosecutions under the new regime, and as a precaution, issue an amnesty law that exonerates it from any crimes committed during its rule. It is also possible that amnesty is granted before a transition, as part of a peace agreement. In order to bargain an end to a violent internal conflict, states may choose to offer amnesty to combatants in exchange for ending the crimes and to promote peace and reconciliation.73 Combatants may not be willing to lay down their arms with the prospect of facing trial. In such a case, amnesty may be used as a condition for taking part in peace negotiations. These two situations are in fact very alike, since amnesty in both instances enhances chances of peace and may be agreed to in return for ending the violence. Both also risk a return to conflict when the amnesty, which was a precondition for peace, is repealed. Examples of such amnesties are the Lomé Peace Agreement and the Chilean Amnesty Law.

4.2 Amnesty in a period of transition

In case the outgoing regime did not ask for amnesty as a condition to step down, or issued a self-amnesty law, the new government may nevertheless decide that given the circumstances, an amnesty law for crimes committed under the previous regime will ease the transition. By not carrying out prosecutions, the new regime tries to promote peace and avoid possible civil unrest.74 The amnesty in South Africa (1994) is an example of a transitional amnesty, as well as the amnesties in Uruguay (1985), Argentina (1986/1987) and Haiti (1993). Mallinder examined the enactment methods of amnesty laws. It appears that most amnesties are granted either through executive decrees or by a promulgated law. About 14% of amnesties are part of a negotiated peace agreement. In approximately 3% of all amnesty laws, society was consulted.

73 Karen Gallagher, “No Justice, No Peace: The Legalities and Realities of Amnesty in Sierra Leone”, Thomas Jefferson Law Review,vol. 23 2000, pp. 149-198, p. 170. 74 See ibid., p. 169.

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The legitimacy of an amnesty law depends partially on the enactment method. When the victims and the rest of society are not involved in the process of granting amnesty, this influences the legitimacy of the amnesty. The public can be involved in the decision to grant amnesty either through a broad consultation program, an election campaign promise to introduce amnesty, or a referendum, either specifically on the amnesty law or on a new constitution that contains amnesty provisions.75 The amnesty is less likely to contribute to reconciliation and peace in the long term if victims and society were not involved in the process that led to the granting of amnesty. It is important that attention is given to the size of victim groups. When the victims represent only a small part of society, the outcome of a referendum may not necessarily reflect their opinion. Other difficulties may be that voters in a referendum may be intimidated, or that they base their vote on incorrect information. When amnesty is granted without any counterbalancing measures, this may seem to victims and society as if the perpetrators are compensated instead of the victims. In Uruguay, years after the enactment of the 1985 amnesty law, which granted amnesty to military officials involved in human rights violations during the 1973- 1985 dictatorship, a referendum was organized to ask the people whether the amnesty law should be repealed. A Uruguayan commented on the outcome of the referendum: “It’s not that people approve of impunidad – they emphatically don’t – but that they just don’t see any alternative.”76 Several people signed the petition leading up to the referendum, but voted against the referendum out of fear.77 “In this case, peace is justice.”78 In 2009, a second referendum was held in Uruguay. 48% of the people voted to overturn the amnesty law. This was not enough due to a minimum of 50%. However, the Uruguay Supreme Court found the amnesty law unconstitutional shortly thereafter, and in March 2011, the Inter-American Court of

75 Louise Mallinder, Exploring the Practice of States in Introducing Amnesties, Study submitted for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 14. 76 Lawrence Weschler, A Miracle, A Universe. Settling Accounts with Torturers, Pantheon Books: New York 1990, p. 211. 77 See ibid., p. 212. 78 See ibid., p. 234.

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Human Rights overturned the amnesty law in a case before the court regarding the abduction and disappearance of Maria Claudia Garcia Iruretagoyena de Gelman.

5 ARGUMENTS IN FAVOUR OF AND AGAINST AMNESTY

Despite all the arguments in favour of prosecutions, many new democracies in the last few decades have chosen not to prosecute. Both policy and practical reasons lie behind these decisions. These may be the same reasons that may lead states to grant amnesty, and are described in Section 2.1 of this chapter. If no criminal trials are held to hold those responsible for human rights crimes responsible, there are a number of other options to deal with the past. In those instances where prosecutions were foreclosed, it is possible that a truth commission was established to find out the truth about the past period of violations. Separately from or in addition to a truth commission, it is possible that amnesty was granted to the perpetrators of human rights crimes. Besides, it is possible that nothing was done about the past, which implicates an implicit de facto amnesty. Views on the issue of amnesty vary tremendously. On the one hand, there are those who argue that justice must be achieved by means of prosecutions in all circumstances; on the other hand, there are those who claim that prosecution is not the only way a transition to peace can take place, and that justice can also be achieved by other means. Consider, for instance, the view expressed by John Dugard that NGOs and Western activists often seem to neglect the circumstances in a country that prefers amnesty to prosecution. In his words “wounds are best healed at home, by national courts and truth commissions, rather than by foreign courts and international tribunals”.79 In between there are many other views. See, for instance, Peter Krapp, who is of the opinion that amnesty must be the exception and not the rule: “[A]mnesty as a political instrument must be carefully limited by legislation and jurisprudence to avoid abuse.” He also states that “… punishment secures the conditions for a free society that protects individual and collective rights”, and emphasizes that some crimes are so egregious that they must remain ineligible for amnesty, such as war crimes, crimes against humanity and genocide.80 Human Rights Watch agrees that amnesties may be granted to individuals for their participation in internal armed conflicts, but opposes in all circumstances amnesties for those allegedly responsible for war crimes, crimes against humanity and genocide.81 In South Africa, amnesty was granted in exchange for truth. Archbishop Tutu holds that “[d]e oplossing die gevonden werd was niet perfect, maar het was het

79 John Dugard, “Dealing with Crimes of a Past Regime. Is Amnesty Still an Option?”, Leiden Journal of International Law, vol. 12 1999, pp. 1001-1015, p. 1006. 80 Peter Krapp, “Amnesty: Between an Ethics of Forgiveness and the Politics of Forgetting”, German Law Journal, vol. 6 no. 1 2005, pp. 185-195, p. 194. 81 Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda, Human Rights Watch 2005 vol. 17 no. 12(A), p. 40.

Chapter III beste wat onder de heersende omstandigheden bereikt kon worden – de waarheid in ruil voor de vrijheid van de daders”.82 Aryeh Neier wants

to quarrel with the assumption that a principal reason for seeking justice, or criterion for evaluating its efficacy, should be the future stability of the reconstituted democracy. Such predictions are highly speculative. Who’s to say that clemency more simply further embolden the torturers, thereby inviting rather than preventing future abuses? And who is it precisely who’s to be authorised to make determinations regarding such larger considerations? El Salvador’s Duarte and Guatemala’s Cerezo both have insisted that the larger good required their staying in office and completing their terms - that was the foremost priority, and certain sacrifices in the human-rights field hence could well prove necessary. But who are they to say that? The human capacity to look backward is frail enough. The human capacity to look forward is frailer yet. Rather, punishment is the absolute duty of society to honor and redeem the suffering of the individual victim. In a society of law, we say it is not up to individual victims to exercise vengeance, but rather up to society to demonstrate respect for the victim, for the one who suffered, by rendering the victimiser accountable. As a matter of law we simply have to say we are not going to grant clemency to the most grotesque criminals. We may be forced to do so on the basis of force majeure, but we should never do so as a matter of law.83

Neier emphasizes the position of the victim in post-conflict societies. Victims are indeed central to the whole debate. For this reason, Chapter VI is dedicated to the victims of human rights crimes and their rights in post-conflict situations. The following subsections provide an overview of the arguments used by proponents and opponents of the use of amnesty in political transitions.

5.1 In favour

With regard to international human rights crimes, the arguments in favour of amnesties go along with the purposes amnesty is claimed to serve:

Promoting peace and reconciliation. In situations where criminal prosecutions are unlikely to promote peace and stability in a country, amnesty may offer an opportunity at reconciliation and social stability in the short term.84 This may be observed in for example Uruguay. Senator Flores Silva explains:

82 Desmond Tutu, Geen toekomst zonder verzoening, De Bezige Bij: Amsterdam 1999, p. 60. 83 Neil J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon With Former Regimes. Volume I: General Considerations, United States Institute of Peace Press: Washington 1995, pp. 497- 498. 84 Newman, Dwight G., “The Rome Statute, some reservations concerning amnesties, and a distributive problem”, American University International Law Review, no. 20 2005, pp. 293-357, p. 304; Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of Anglo- American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43 2002, pp. 173-247, p. 197.

Amnesty

The problem of amnesty cannot be understood out of the whole situation of our country. Uruguay lived through a transition from authoritarian rule which was not at all typical. We didn’t have the benefit of the classic situation in which the dictatorship suffers an external defeat, like Argentina in the Malvinas or the Greek generals in Cyprus, and therefore has to step down. We didn’t have the other classic way out, either, in which the dictatorship loses as a result of an internal war, as happened in Nicaragua with the downfall of Somoza. Our way was to mobilise civil society and gradually encircle the regime until it accepted the transition. That was accomplished through a series of steps – the votes in 1980 and 1982 and 1984, for example – all of which were imperfect, which is to say they were not completely democratic. But each step made it possible to advance, and we achieved two things that no one else has achieved: democracy – which, for instance, Chile still hasn’t – and a peaceful transition, without any deaths along the way.85

He continues:

We made a moral decision. I didn’t say it was an easy one. These abuses must never happen again. I can do nothing to change the fact that we lived under fascism. What I can do is prevent it from happening again. Listen, as far as I’m concerned they should all have gone to prison. There should never have been any dictatorship, never any coup. I am in favour of the Tupamaros’ never having existed. But we did have Tupamaros, and war, and the logic of war, and fascism – that’s what happens in war, that’s why you shouldn’t start shooting in the first place – and my job is to give my son a country where we will again have civil government and democracy. That takes time, and peace.86

Trying to reach a peace agreement. In cases of internal conflict, it is hard to achieve peace without some form of amnesty, because “combatants would be unlikely to lay down their weapons and dictators would be unwilling to hand over power” with the prospect of being put on trial.87 In Sierra Leone, “[t]he signatories to the 1999 Lomé Peace Agreement agreed to amnesty in order to secure the peace. It was accepted, at the time of the signing of the Lomé Peace Agreement, that the RUF would not have signed the agreement if there had been any prospect of legal action being taken against its members.”88Offering amnesty to reach a peace agreement may seem unjust for those who have been the victim of past human rights violations, but it can be justified because by reaching a peace agreement, future crimes will be prevented.

85 Lawrence Weschler, A Miracle, A Universe. Settling Accounts with Torturers, Pantheon Books: New York 1990, p. 183. 86 See ibid., p. 184. 87 Louise Mallinder, “Can Amnesties and International Justice Be Reconciled?”, 6th Annual Conference of the Association of Human Rights Institutes (AHRI)/A COST Action Conference: “Past, Current and Future Policies of the EU in the field of Human Rights, Peace and Security”, Irish Centre for Human Rights: Galway, 1 October 2005, p. 1. 88 Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. 3b, 5 October 2004, p. 364, para. 6.

Chapter III

Persuade a military regime to step down/combatants to lay down their arms. It is argued that amnesty may ensure better prospects for respect for human rights than its alternatives; since rebels and combatants may not be eager to end hostilities and surrender if they will face trial, the possibility of an amnesty may provide a way out.89 The same holds for dictators and their regimes; they will not surrender and transfer power to democrats unless they are sure prosecutions will not take place.90 Amnesty may be used as a bargain to persuade combatants and military regimes to lay down their arms and achieve peace.

Aiding the transition to democracy. Amnesty may be granted for the reason that the prosecution of perpetrators may jeopardize the peaceful transition to democratic rule and even led to a coup d’état or a civil war. Sometimes it is not possible to build a situation of peace and hold the perpetrators accountable at the same time. Any attempt by one side to punish its opponents or pursue prosecutions may reignite the conflict, because it is conceived as victor’s justice.91 By not requiring governments to risk provoking or continuing a civil war and by recognizing the importance of other objectives such as reconciliation, international law may be able to accommodate the transitional process through the mechanism of principled and limited amnesties.92 In this sense, “[a]mnesties are a means of reassuring former regime forces and their supporters that they continue to play a role within the new political system and need not overthrow it. … Following a path of punishment can, instead, serve to maintain rather than reconcile differences between groups in society.”93

Alleviating internal tensions. In the case of a military junta being overthrown, amnesties can have the effect of suppressing the need for vengeance of those who were subjugated, and thus stabilize the reconciliation process.94 An atmosphere of forgiveness may foster reconciliation more than prosecutions will, and enhance the chances of survival of the new democracy. This is particularly the case when the new government has to cooperate with elements of the old regime. Revealing the truth about past violations of human rights “still has the potential of inciting

89 Dwight G. Newman, “The Rome Statute, some reservations concerning amnesties, and a distributive problem”, American University International Law Review, no. 20 2005, pp. 293-357, p. 305. 90Ibid. 91 Louise Mallinder, “Can Amnesties and International Justice Be Reconciled?”, International Journal of Transitional Justice, vol. 1 2007, pp. 208-230, p. 209. 92 Yasmin Naqvi, “Amnesty for War Crimes: Defining the Limits of International Recognition”, International Review of the Red Cross, vol. 85 no. 851 2003, pp. 583-624, p. 588. 93 Andrew G. Reiter, Tricia D. Olsen, and Leigh A. Payne, Amnesty in the Age of Accountability, Paper prepared for presentation at the 49th International Studies Association Convention: San Francisco, CA, March 26-29 2007, pp. 7 and 9. 94 Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International: The Hague/London/New York 2002, p. 24.

Amnesty violence, as happened in Burundi where the government was overthrown in a coup the day the truth commission report was due to be released”.95

Adhering to cultural or religious traditions. Amnesty may fit into local restorative justice practices and traditional dispute resolution mechanisms. Amnesty is often justified by arguing that it fosters reconciliation. Reconciliation is an important element of the practice of restorative justice. Cultural or religious justice traditions may focus on the truth, healing, reintegration and reconciliation through community dispute resolution mechanisms. By means of an amnesty, these goals can be achieved. Examples of such local mechanisms are the Rwandan tradition of gaçaça, and the Ugandan traditions of mato oput, kayo cuk, tonu ci koka and culo kwor.

Amnesty saves expense. This argument is more a result of the granting of amnesty than a reason to opt for amnesty. If a legitimate amnesty is issued, the expense that is saved by not prosecuting can be used for a number of things that are necessary after conflict or regime change, for instance to strengthen the judiciary or rebuild the infrastructure. It may also be used for a program of reparations for the victims or a truth commission.

5.2 Against

The arguments against the use of amnesty are connected with the arguments in favour of prosecutions. In a situation where crimes are not punished, inconsistent with the fact that they are crimes punishable by law, a situation of impunity is created. This situation may have devastating consequences in the sense that future perpetrators are not deterred from committing crimes. Amnesty may thus constitute an incentive to new crimes. Chigara notes that amnesty can serve “to undermine law’s efficacy and integrity”.96 Opponents to the use of amnesty have various arguments against the use of amnesty. The most common arguments are listed below:

First and foremost, it is argued that granting amnesty for gross violations of human rights is a violation of the international law obligations of a state.97 Besides, there are several other reasons not to grant amnesties, which will be outlined below. These reasons do not necessarily apply in every situation, but are possible negative consequences of granting amnesty in post-conflict situations.

95 Andrew G. Reiter, Tricia D. Olsen, and Leigh A. Payne, Amnesty in the Age of Accountability, Paper prepared for presentation at the 49th International Studies Association Convention: San Francisco, CA, March 26-29 2007, p. 10. 96 Ben Chigara, Amnesty in International Law, The Legality under International Law of National Amnesty Laws, Pearson Education: Harlow 2002, p. 55. 97 See Chapter IV.

Chapter III

Amnesty provides impunity. An amnesty fails to provide for justice and does not confirm that serious human rights violations are intolerable. When perpetrators of human rights violations are not held accountable, this leads to impunity, as described in Chapter I.

Amnesties impede the establishment of the rule of law.98 After a period in which grave human rights violations were perpetrated, new or reinstated democracies should act legitimately. “It is difficult to foster respect for the rule of law and move from an absence of rule of law to its promotion, even symbolically, while serious human rights violators and abusers remain unpunished.”99 Prosecutions show the victims that serious human rights violations will not be tolerated and not condoned easily and strengthen respect for the rule of law.

Amnesties weaken the new government. The granting of amnesty may result in widespread public disappointment in and distrust of the new government. Amnesties may entrench the power of human rights violators by allowing them to stay in government or by leaving opponents of the government – particularly the military – with the power to undermine the new government.

Victims’ rights are violated. There is an obligation to victims to bring the perpetrators of crimes that caused their suffering to justice. Amnesty deprives victims of any sense of justice, particularly if not accompanied by some form of reparation, which undermines efforts at societal recovery and reconciliation. An amnesty does not recognize or remedy the suffering of the victims and their families. It does not restore the victims’ dignity as human beings and the feeling of being appreciated as citizens. The granting of amnesty disables truth seeking through legal trials and the opportunity to create a concrete and public record of events. Alex Boraine, Deputy Chair of the South African Truth and Reconciliation Commission until 1998, points out that:

[b]y lapsing into amnesia, the danger arises of leaving people in constant victimhood, instead of enabling them to become survivors who move forward with their lives. Victims have the right to know at whose hands they and their loved ones suffered. To delay and/or suppress the truth makes it difficult, if not impossible, to uphold the rule of law and develop a culture of human rights.100

98 Trumbull states that “if citizens perceive that criminals are not held accountable for their actions, they are more likely to disregard the law themselves, further undermining the establishment of the rule of law.” Charles P. Trumbull, “Giving Amnesties a Second Chance”, Berkeley Journal of International Law,vol. 25 2007, pp. 283-345, p. 308. 99 International Council on Human Rights Policy, Negotiating Justice? Human Rights and Peace Agreements, International Council on Human Rights Policy: Versoix 2006, p. 76. 100Alexander Boraine, “Retributive Justice and Restorative Justice: Contradictory or Complementary?”, in: Nanci Adler (ed.),Genocide and Accountability. Three Public Lectures by Simone Veil, Geoffrey Nice and Alex Boraine, Vossiuspers UvA: Amsterdam 2004, p. 40.

Amnesty

If not accompanied by counterbalancing measures, amnesty laws deny victims the rights to justice, to know the truth and to reparations. This denial of rights may intensify the suffering of victims. Victims may feel that their suffering is not recognized by the authorities and not known by society. Victims may feel abandoned, and may continue to live in the ‘past’.

Amnesty may undermine progress towards democracy. In the long run an amnesty may weaken efforts to establish a stable democracy that honours human rights and the rule of law.

Amnesty may embolden future perpetrators. Amnesties embolden future perpetrators by institutionalizing impunity and guaranteeing that they will be able to negotiate their way out of justice. When perpetrators are not punished and the state shows no denunciation of the crimes, the victims and society may lose confidence in the government. Ronald Slye argues that “amnesties send a signal to would be violators that if they are powerful enough to create enough uncertainty or instability, they may escape accountability”.101 Lawrence Weschler believes that “[a]ny form of amnesty invites a repetition of human rights abuses. Someone who has done such things and is not punished is inclined to do them again.”102 According to Aryeh Neier, amnesties “create a culture of impunity that only encourages further human rights violations”.103 According to Michael Scharf, especially when the international community encourages or negotiates an amnesty, as it did in Cambodia, El Salvador, Haiti, Sierra Leone and South Africa,104 “it sends a signal to other rogue regimes that they have nothing to lose by instituting repressive measures; if things start going badly, they can always bargain away their responsibility for crimes by agreeing to peace”.105 Ben Chigara points out that the “negligence of the United Nations in not enforcing its own laws in the face of nation States’ claims of the right to declare pardon for breaches of international law breeds confidence in would-be criminals that they can get away with it”.106 Amnesty laws may have positive results for the transitional state in the first instance, but according to Kenneth Roth, amnesty laws do not ensure long-lasting peace. He points out that in Haiti the opposite was true. Each self-amnesty by the military showed that there would be no serious price to pay for past political

101 Ronald C. Slye, “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, vol. 43 2002, pp. 173-247, p. 197. 102 Lawrence Weschler, A Miracle, A Universe. Settling Accounts with Torturers, Pantheon Books: New York 1990, p. 217. 103 Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice, Times Books: New York 1998, p. 12. 104 Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, Case Research Paper Series in Legal Studies Working Paper 05-31, Case Western Reserve University: Cleveland August 2005, p. 4. 105 See ibid., p. 10. 106 Ben Chigara, Amnesty in International Law, The Legality under International Law of National Amnesty Laws, Pearson Education: Harlow 2002, p. 11.

Chapter III violence and was a “licence for further bloodshed” which only led to further interruptions of democracy and to further atrocities.107 As Roth points out “Haiti illustrates the dangers of ignoring accountability for past abuse in the haste to secure a ‘transition to democracy’. Each time a supposedly reformist regime took power, Haitians were asked to forget the past, to look forward to a new era. Sooner or later, this impunity emboldened reactionary forces to resume political killing.”108

No healing of social wounds. Amnesty laws may hamper reconciliation. For victims, it is hard to see perpetrators going back into society without them being punished or having provided the truth about past violations of human rights. This will lead to problems in society that will not easily resolve and perhaps even result into renewed conflict. Alana Tiemessen questions the effectiveness of using amnesties to bring about peace and reconciliation: “While the provision of amnesties may bring about a temporary peace among political elites, reintegrating perpetrators back into the communities where their living victims remain can often incite revenge violence and population displacement.”109 Geneviève Jacques stipulates that impunity “engenders social frustration, despair, resignation and apathy, while feeding aggressiveness, violence, the collapse of moral restraints and the rejection of the values on which a cohesive society relies. It fosters a culture of violence devoid of ethical principles.”110

Amnesty may stir up vigilante justice. General amnesties remove any possibility of individualizing guilt. Impunity can also induce victims of these practices to resort to a form of self-help and take the law into their own hands, which in turn exacerbates the culture of violence. “The larger the number of victims, the greater the risk of hatred and revenge ... which will lead sooner or later to civil strife.”111

All the arguments against amnesty mentioned above should be considered in perspective. This means that the arguments against amnesty are not inevitable consequences, but merely possible consequences. A state may violate its international obligations when issuing an amnesty measure, but when it acts in the best interests of the state, there should be some leeway. It cannot be the purpose of international criminal law to force states to

107 Kenneth Roth, “Human rights in the Haitian transition to democracy”, in: Carla Hesse and Robert Post (eds.), Human Rights and Political Transitions: Gettysburg to Bosnia, Zone Books: New York 1999, pp. 93-131, p. 93. See also: Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255-282, p. 266. 108See ibid., Roth 1999, p. 126. 109 Alana Tiemessen, “Amnesties for Atrocities: Impunity or Accountability?”, Human Security Bulletin, Centre of International Relations University of British Columbia: Vancouver 2008, pp. 7-10, p. 9. 110 Geneviève Jacques, Beyond Impunity. An Ecumenical Approach to Truth, Justice and Reconciliation, World Council of Churches Publications: Geneva 2000, p. 4. 111 Richard Goldstone, “Exposing Human Rights Abuses - A Help or Hindrance to Reconciliation?”, Hastings Constitutional Law Quarterly, vol. 22 1995, pp. 607-621, p. 620.

Amnesty comply with its rules even when this means that, for example, a violent conflict may continue. Sometimes, when there is no other option, exceptions should be allowed and amnesty possible. Amnesty means impunity. It means that the perpetrators cannot be held criminally accountable. However, there may be a way to hold the perpetrators civilly accountable and demand reparation. Those responsible may also be denied functions of authority and public service. Prosecutions resulting from fair trials demonstrate that committing crimes is not tolerated and that perpetrators will be held accountable. This is based upon and reinstates the rule of law. When amnesty is presented as an exceptional measure, it does not necessarily lead to disrespect for the rule of law. When the amnesty is made conditional or when it is accompanied by counterbalancing mechanisms and is part of a program that is designed in consultation with victims and at least a substantial majority of society, the amnesty may be acceptable. Amnesties do not necessarily weaken the new government. When the state shows commitment to the rule of law and establishes counterbalancing measures for the victims, an amnesty may strengthen the new government. Besides, prosecuting those responsible may well weaken the new government as well. In Argentina, for example, prosecutions were halted, and those already convicted were released because holding those responsible destabilized the democracy as a result of the threat of the still powerful army. The truth that is established in criminal proceedings is not revealed when amnesty is granted by which criminal liability is foreclosed. However, archives and documents containing relevant information may be released and a truth commission will also contribute to uncovering the truth. Not granting amnesty for the sake of the victims is a very legitimate reason for refraining from issuing an amnesty measure. However, when such an amnesty measure provides the only way out of conflict and prevents new crimes in a continuation of the conflict, the victims and society may well agree on an amnesty as a trade-off for peace. If the right to justice is offered, the right to know the truth and the right to reparation may still be fulfilled by the state in the best way possible. It is important to recognize the suffering and strength of victims and their relatives. It is argued that amnesty undermines progress towards democracy, but as demonstrated in the situations in Argentina and Uruguay, prosecutions may do so as well. Risking a return to conflict or a coup d’état by prosecuting those most responsible is not worth sacrificing democracy. Amnesty may embolden future perpetrators, but prosecutions are no guarantee either of deterring future perpetrators. Prosecution and punishment exist for a long time, but crimes and violence still exist. That is not to say that there is no point in prosecution and punishment at all, but that exceptions to the general rule that crimes must be punished should be allowed when contributing to the goals justice means to serve itself. While it is true that victims may find it very hard to see perpetrators return to their normal lives without being held accountable because of an amnesty, this will

Chapter III also be the case when amnesty is not granted. A state will never be able to hold all those who participated in human rights crimes accountable. In a best-case scenario, those most responsible are brought to account. Many crimes will remain unpunished just because the legal system will not be able to handle the number of cases. This seems one of the bitter consequences of a regime change or the end of conflict, but it often is an inevitable price to pay when one wants peace and democracy. The victims should nevertheless be attended to in another way. Opponents of amnesty argue that it may stir up vigilante justice because the perpetrators are not individualized. This may be the case, but prosecution does not remove that risk either. As stated earlier, many perpetrators will remain unknown, and therefore there is always a risk of vigilante justice.

6 CONCLUSION

Amnesty is a concept used in political transitions or post-conflict situations to foreclose prosecution. The motives behind a decision to grant amnesty vary per situation and may be granted to benefit the country by fostering peace and reconciliation, or to benefit those who give up power. There are several forms of amnesty, which often reflect the situation a state is in. Some forms of amnesty are more likely to be accepted by victims, bystanders and society than others. The moment of the granting of the amnesty may reflect that amnesty was a precondition for achieving peace, or a means to embolden peace. If not accompanied by counterbalancing measures, and instituted after broad participation of victims and society in the process, the victims may feel neglected and abandoned, and this may weaken the prospects of the new government. In the last decades, international law has developed towards a situation in which impunity for human rights violations at national level is heavily criticized at international level. In this same period, however, more and more amnesty laws have been issued. Before, there was less interest from the international community punishing perpetrators after internal wars and, consequently, there was no need to issue an amnesty law. Nowadays, the interference of the international community influences national processes and choices after a political transition or in a post- conflict period. It appears that the increased use of amnesties is thus less a reflection of our increased tolerance of impunity and more an indicator of the growing force of the international human rights movement and international criminal law. The argument that future abuses must be prevented is used by both proponents and opponents of amnesty laws. It is difficult to measure the impact an amnesty has on a society and how it contributes to reconciliation. It is equally difficult to measure the effectiveness of the amnesty. This is particularly the case when the amnesty is part of a bigger program of transitional justice measures. Amnesty in principle, if not accompanied with a counterbalancing measure, violates the right to a remedy, the right to truth, the duty to prosecute and punish and the right to reparations. In both cases, this depends on the standard one uses. Regarding the impact, there are many factors that may be taken into account. A feature that is

Amnesty common to most amnesties is that the state or institution that granted the amnesty was convinced of its necessity, and saw no alternative. Examples are the amnesties in South Africa, Argentina and Sierra Leone.

PART 3

THE LEGALITY OF NATIONAL AMNESTY LAWS

CHAPTER IV THE LEGALITY OF NATIONAL AMNESTY LAWS UNDER INTERNATIONAL LAW

1 INTRODUCTION

There are arguments for and against amnesty, as Chapter III showed. During the 1993 United Nations World Conference on Human Rights (WCHR), the issue of impunity for human rights violations was discussed and rejected. In its report, the WCHR notes that “[s]tates should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law”.1Further, the WCHR emphasized its concern over “the issue of impunity of perpetrators of human rights violations, and supports the efforts of the [UN] Commission on Human Rights and the [UN] Sub-Commission on Prevention of Discrimination and Protection of Minorities to examine all aspects of the issue”.2 From the establishment and work of several international courts and tribunals and the ICC in the last two decades, it may be determined that the international community is uncomfortable with the endurance of impunity for serious human rights crimes. Many international crimes are criminalized in general and specific conventions. Some of these conventions contain provisions in which they oblige states to criminalize the respective crime in their national laws. To state, however, that there exists a duty to prosecute is a big step. According to the United Nations General Assembly, the responsibility and duty to protect, promote and implement human rights lies primarily with the state.3 This raises many questions that relate to the core of this research. For example, is the state obliged to initiate prosecutions against every single perpetrator when there is a duty to prosecute, or is it sufficient to try just a few exemplary cases? In case of the

1 World Conference on Human Rights, Report of the World Conference on Human Rights. Report of the Secretary-General, A/CONF.157/24 (Part I), 13 October 1993, sub 60. 2Ibid., sub 91. 33 General Assembly, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, A/RES/53/144, 8 March 1999, p. 3. See also, William A. Schabas, Impunity and Human Rights Defenders, Paper presented at the FrontLine Conference: Dublin 17 January 2002, p. 4.

Chapter IV latter, what cases should be chosen, and how many of them should be tried? What will happen to the rest of them? And, how to deal with the victims? They may feel abandoned by their own state since it is extremely important for victims that their voices are heard and that the truth about what happened to them is acknowledged. In case every suspected perpetrator should be tried, there is an enormous amount of work to be done: who are all the suspected perpetrators? They must be identified first. Evidence against each one of them should be collected. What institution is going to try all the suspects? The workload and capacity to try all of them will be enormous, not to mention the fact that fair trials must be conducted. As one may imagine, the answer to these questions is far from simple. On the one hand, it is desirable that every single perpetrator is tried and punished; on the other hand, when crimes occurred on a large scale, as is unfortunately often the case, it is not feasible to try and punish all of the perpetrators in a fair trial. Rwanda’s attempt to do this is an exemplary case here. Rwanda “decided on a policy of maximal accountability for the crime of genocide and crimes against humanity committed”4 from the beginning of the armed conflict, 1 October 1990, until 31 December 1994. However, in 2002, after operating for seven and a half years, the ICTR had tried only nine suspects. The Rwandese specialized genocide chambers had tried a little more than 7,000 suspects in five and a half years, while there were still some 112,000 suspects in prison.5 At that point, the Rwandese government decided to create approximately 10,000 local gaçaça courts to deal quickly and more effectively with the judicial backlog.6 A number of NGOs are concerned that “the fact that in practice it is impossible to try without exception every single person responsible for serious violations of human rights” involves the risk of indirectly legitimizing impunity.7 One can see from the Rwanda case that whether or not there exists a duty to prosecute, in post- conflict societies it is extremely difficult to live up to this standard. Not only is it hard to find all the suspects, it is almost impossible to try them all fairly before a competent judicial institution within reasonable time. Notwithstanding the practical or logistical problems in the country itself of prosecuting large numbers of people after democratic transition, since the establishment of the ICC such problems no longer stand in the way of holding accountable those most responsible. Ben Chigara argues that international processes are indispensable when international crimes are committed.8

4 Amnesty International, Rwanda. Gaçaça: A Question of Justice, 2002, AI Index: AFR 47/007/2002, p. 1. 5Ibid. 6Ibid. 7 Commission on Human Rights, Progress report on the question of the impunity of perpetrators of violations of human rights (civil and political rights) / prepared by Mr. Joinet, pursuant to subcommission resolution 1994/3, E/CN.4/Sub.2/1995/18, 28 June 1995, paras. 11, 12. 8 Ben Chigara, Amnesty in International Law,The Legality under International Law of National Amnesty Laws, Pearson Education: Harlow 2002, p. 10. “Because the laws at issue when such amnesty laws are contemplated often have a dual existence as national laws on the one hand, and as international

The legality of national amnesty laws under international law

Multiple conventions, covenants, declarations, resolutions and reports contain efforts to fight impunity. One of the most recent is the Nuremberg Declaration on Peace and Justice 2008.9 Principle 2 on ‘Ending impunity’ states:

The most serious crimes of concern to the international community, notably genocide, war crimes, and crimes against humanity, must not go unpunished and their effective prosecution must be ensured. The emergence of this principle as a norm under international law has changed the parameters for the pursuit of peace.

As a minimal application of this principle, amnesties must not be granted to those bearing the greatest responsibility for genocide, crimes against humanity and serious violations of international humanitarian law.

Each State has the primary responsibility to protect its population from these crimes. This responsibility entails the prevention, investigation and prosecution of such crimes.10

This principle assumes a duty to prosecute the most serious crimes of concern to the international community. Besides, it states that amnesty for such crimes is not an option. The last part of the principle overlooks the possibility that under some circumstances, amnesty, rather than prosecution, may protect the states’ population from suffering from serious human rights crimes. The intention of states should indeed be to prosecute and punish those responsible. However, even with the best intensions, this is not always possible. In the following sections, the most important documents in the area of international crimes relevant to the duty to prosecute and/or mentioning amnesty or impunity will be discussed, in order to discover whether or not there exists in these documents a duty to prosecute the respective crimes, and whether or not amnesty for these crimes has consequences in the international legal arena.

laws on the other, it is important that breaches of international law be accounted for by international processes, whatever approaches are taken domestically to address violation of national laws.” 9General Assembly, Annex to the letter dated 13 June 2008 from the Permanent Representatives of Finland, Germany and Jordan to the United Nations addressed to the Secretary-General, Nuremberg Declaration on Peace and Justice, A/62/885, 19 June 2008. This “[d]eclaration contains definitions, principles and recommendations on issues of peace, justice and impunity, and making peace and dealing with the past, as well as promoting development. Although it is not a legal document, it aspires to “guide those involved at the local, national and international levels in all phases of conflict transformation, including mediation, post-conflict peacebuilding, development, and the promotion of transitional justice and the rule of law” and thus to influence the future practice of making and building “just and lasting peace”.” 10 See ibid., Principle 2.

Chapter IV

2 THE DUTY TO PROSECUTE IN GENERAL INTERNATIONAL AND REGIONAL HUMAN RIGHTS TREATY LAW

2.1 International Covenant on Civil and Political Rights1966

2.1.1ICCPR

On 16 December 1966, the UN General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR). The Covenant entered into force on 23 March 1976. Parties to the ICCPR commit themselves to respect the rights of individuals laid down in the Covenant, for example the right to life, the right to liberty and security of person, the right to a fair trial and the right to freedom of thought, conscience and religion. To date, 167 countries have ratified the ICCPR. Article 2 of the ICCPR holds that “[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,” “undertakes to take the necessary steps … to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant”, and “undertakes … [t]o ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity”.11 The UN Human Rights Committee (HRC) is the monitoring treaty-based body of the ICCPR. The Committee also publishes General Comments, in which it interprets provisions of the ICCPR. In General Comment No. 20 (1992) on Article 7 of the ICCPR the Committee notes, “that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts … States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be

11 Article 2 ICCPR: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.

The legality of national amnesty laws under international law possible.”12 In General Comment No. 31 (2004), the Human Rights Committee elaborates on Article 2 of the ICCPR. The Committee states:

There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3.13

The Committee thus seems to read a duty to prosecute into Article 2 of the ICCPR. The Committee is of the opinion that governments not only have a duty to protect their citizens from violations of physical integrity, but also have a duty to investigate violations when they occur and to end them.14 The duty to investigate precedes the duty to prosecute.

Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy.15

The Human Rights Committee in General Comment No. 31 continues to claim that both the failure to investigate and the failure to prosecute may constitute breaches of the ICCPR. The duty to investigate and prosecute violations of the ICCPR arises especially for “those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (Article 7), summary and arbitrary killing (Article 6) and enforced disappearance (Articles 7 and 9 and, frequently, 6)”.16 The Human Rights Committee holds that:

[a]ccordingly, where public officials or State agents have committed violations of the Covenant rights referred to in this paragraph, the States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties (see General Comment 20 (44)) and prior legal immunities

12 Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment),Replaces general comment 7, 10 March 1992, para. 15. 13 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 8. 14See ibid., para. 15. 15Ibid. 16See ibid., para. 18.

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and indemnities. Furthermore, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility. Other impediments to the establishment of legal responsibility should also be removed, such as the defence of obedience to superior orders or unreasonably short periods of statutory limitation in cases where such limitations are applicable. States parties should also assist each other to bring to justice persons suspected of having committed acts in violation of the Covenant that are punishable under domestic or international law.17

From the Committee’s clarification of Article 2 ICCPR, it is clear that in the event of ICCPR rights being violated, the Committee rejects impunity and the possibility to grant amnesty or shield the perpetrators in any other way from criminal responsibility and acknowledges a duty to prosecute those responsible. Furthermore, the Committee recognizes that impunity for violations of the rights contained in the ICCPR “may well be an important contributing element in the recurrence of the violations”. Consequently, the Committee notes that the states parties may not provide impunity in any way to those responsible. When the Committee considers that impunity ‘may well be’ an important contributing element in the recurrence of the violations, this is far from certain. It merely assumes a risk. The conclusion that the Committee draws from this risk does not take into consideration the possible negative consequences of prosecution. In Article 14(7) of the ICCPR, it is held that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. Since the Committee does not recognize amnesty, amnesty is not considered an acquittal, and therefore, in line with this, disregarding an amnesty in foreign or international proceedings is not in violation of the principle ne bis in idem. Articles 2 and 4 ICCPR imply that even in a state of emergency, amnesty is not an option.18

2.1.2 Human Rights Committee

This paragraph discusses several examinations of state party reports by the Human Rights Committee, relevant to the duty to prosecute or the rejection of impunity. In its 1993 Concluding Observations on Uruguay, the Committee notes “its deep concern on the implications for the Covenant of the Expiry Law”, a law approved in 1986 providing amnesty to all military and law enforcement members for any acts committed in the country during the 1973-1985 dictatorship:

[T]he Committee emphasizes the obligation of States parties, under article 2 (3) of the Covenant, to ensure that all persons whose rights or freedoms have been violated shall have an effective remedy as provided through recourse to the competent judicial, administrative, legislative or other authority. The Committee

17Ibid. 18 Kai Ambos, “Impunity and International Criminal Law. A Case Study on Colombia, Peru, Bolivia, Chile and Argentina”, Human Rights Journal, vol. 18 no. 1-4 1997, pp. 1-15, p. 7.

The legality of national amnesty laws under international law

notes with deep concern that the adoption of the Law effectively excludes in a number of cases the possibility of investigation into past human rights abuses and thereby prevents the State party from discharging its responsibility to provide effective remedies to the victims of those abuses. The Committee is particularly concerned that the adoption of the Law has impeded follow-up on its views on communications. Additionally, the Committee is particularly concerned that, in adopting the Law, the State party has contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations. This is especially distressing given the serious nature of the human rights abuses in question.19

The Human Rights Committee cannot rule on violations that took place before ratification of the ICCPR in the country concerned. The Argentinean case of S.E. and her three disappeared children, submitted by S.E. who claimed the right to a remedy was violated by the enactment of the two amnesty laws, was declared inadmissible ratione temporis.20 However, in the comments of the HRC on the report of Argentina under Article 40 of the ICCPR, the Committee expressed its concern about the two amnesty laws, and held that they violated the ICCPR.21 In the 1995 Concluding Observations on Haiti, the Committee expressed:

its concern about the effects of the Amnesty Act, agreed upon during the process which led to the return of the elected Government of Haiti. It is concerned that, despite the limitation of its scope to political crimes committed in connection with the coup d’état or during the past regime, the Amnesty Act might impede investigations into allegations of human rights violations, such as summary and extrajudicial executions, disappearances, torture and arbitrary arrests, rape and sexual assault, committed by the armed forces and agents of national security services. In this connection, the Committee wishes to point out that an amnesty in wide terms may promote an atmosphere of impunity for perpetrators of human rights violations and undermine efforts to re-establish respect for human rights in Haiti and to prevent a recurrence of the massive human rights violations experienced in the past.22

19 Human Rights Committee, Concluding Observations of the Human Rights Committee: Uruguay, CCPR/C/79/Add.19 (1993), para. 7. 20S. E. (name deleted) v. Argentina, CCPR/C/38/D/275/1988, 26 March 1990, paras. 2.1, 3.1, 5.3 and 6(a). 21 Human Rights Committee, Comments on Argentina, CCPR/C/79/Add.46, 21/22 March 1995, 1995, para. 10: “The Committee reiterates its concern that Act 23.521 (Law of Due Obedience) and Act 23.492 (Law of Punto Final) deny effective remedy to victims of human rights violations during the period of authoritarian rule, in violation of articles 2 (2, 3) and 9 (5) of the Covenant. The Committee is concerned that amnesties and pardons have impeded investigations into allegations of crimes committed by the armed forces and agents of national security services and have been applied even in cases where there exists significant evidence of such gross human rights violations as unlawful disappearances and detention of persons, including children. The Committee expresses concern that pardons and general amnesties may promote an atmosphere of impunity for perpetrators of human rights violations belonging to the security forces. The Committee voices its position that respect for human rights may be weakened by impunity for perpetrators of human rights violations.” 22 Human Rights Committee, Concluding Observations of the Human Rights Committee: Haiti, A/50/40, paras. 224-241 (1995), para. 230.

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In 1996, the Committee expressed its deep concern about the situation in Peru:

The Committee is deeply concerned that the amnesty granted ... absolves from criminal responsibility and, as a consequence, from all forms of accountability, all military, police and civilian agents of the State who are accused, investigated, charged, processed or convicted for common and military crimes for acts occasioned by the ‘war against terrorism’ from May 1980 until June 1995 ... Such an amnesty prevents appropriate investigation and punishment of perpetrators of past human rights violations, undermines efforts to establish respect for human rights, contributes to an atmosphere of impunity among perpetrators of human rights violations, and constitutes a very serious impediment to efforts undertaken to consolidate democracy and promote respect for human rights and is thus in violation of article 2 of the Covenant.23

The Committee again emphasized that an amnesty, such as the one granted in Peru, “is incompatible with the duty of States to investigate human rights violations, to guarantee freedom from such acts within their jurisdiction, and to ensure that they do not occur in the future”.24 In 1999, when the Committee examined amnesty provisions in Chilean law, it reaffirmed its opinion:

The Amnesty Decree Law, under which persons who committed offences between 11 September 1973 and 10 March 1978 are granted amnesty, prevents the State party from complying with its obligation under article 2, paragraph 3, to ensure an effective remedy to anyone whose rights and freedoms under the Covenant have been violated. The Committee reiterates the view expressed in its General Comment 20, that amnesty laws covering human rights violations are generally incompatible with the duty of the State party to investigate human rights violations, to guarantee freedom from such violations within its jurisdiction and to ensure that similar violations do not occur in the future.25

In its Concluding Observations on Argentina in 2000, the Committee stated that “[g]ross violations of civil and political rights during military rule should be prosecutable for as long as necessary, with applicability as far back in time as necessary to bring their perpetrators to justice”.26 This indicates that no statutes of limitation should cover serious violations of the ICCPR. The Committee recommended, “that rigorous efforts continue to be made in this area and that measures be taken to ensure that persons involved in gross human rights violations are removed from military or public service”.27

23 Human Rights Committee, Preliminary Observations of the Human Rights Committee: Peru, CCPR/C/79/Add.67, 25 July 1996, para. 9. 24Ibid. 25 Human Rights Committee, Concluding Observations of the Human Rights Committee: Chile, CCPR/C/79/Add.104, 30 March 1999, para. 7. 26 Human Rights Committee, Concluding Observations of the Human Rights Committee: Argentina, CCPR/CO/70/ARG, 3 November 2000. 27Ibid.

The legality of national amnesty laws under international law

In 2001, in its Concluding Observations on Croatia, the Committee stated its concern about the possible effect of the amnesty law. The amnesty law excludes war crimes, but it does not define war crimes. Therefore, the Committee is concerned that persons who allegedly committed serious violations of human rights may benefit from the amnesty law.28 The main reasons against the use of amnesty mentioned by the Committee are:

- Violation of the right to an effective remedy for victims; - Possible promotion of an atmosphere of impunity; - Possible weakening of respect for human rights; - Amnesty impedes investigations into allegations of human rights violations; - Amnesty undermines effects to prevent a recurrence of human rights violations; - Amnesty absolves all military police and civilian agents from criminal responsibility and accountability; - Amnesty prevents punishment of perpetrators of past human rights violations; - Perpetrators of serious violations of human rights may benefit from an amnesty law.

In sum, the Human Rights Committee leaves no room for amnesty for serious violations of the ICCPR. The Committee considers domestic and international crimes such as torture and similar cruel, inhuman and degrading treatment, summary and arbitrary killing and enforced disappearance as serious violations. It is not clear whether the Committee accepts amnesty for less serious violations.

2.2 American Convention on Human Rights 1969

2.2.1ACHR

The adoption of the American Declaration of the Rights and Duties of Man in Bogotá, Colombia in April 1948 was the first move towards the inter-American human rights system. This Declaration was the first general international human rights instrument. The American Convention on Human Rights (ACHR) was adopted on 22 November 1969, and entered into force on 18 July 1978. To date, 25 American countries out of 35 members of the Organization of American States (OAS) are state party to the ACHR. The Convention identifies the human rights that the ratifying states have agreed to respect and ensure. The Convention also creates the Inter-American Court of Human Rights and defines the functions and procedures of both the Commission and the Court.

28 Human Rights Committee, Concluding Observations of the Human Rights Committee: Croatia, CCPR/CO/71/HRV, 30 April 2001, para. 11.

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The Inter-American Commission on Human Rights claims that laws or measures that lead to impunity will not hold up in court because they violate the rights in the American Convention.29 In addition, Articles 25 and 27 foreclose the possibility of granting amnesty in a state of emergency.30 In 1994, the Government of the Republic of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca issued an agreement on human rights issues. Impunity is one of the issues mentioned in the agreement. Article 3 ‘Commitment against impunity’ of the Comprehensive Agreement on Human Rights reads:

1. The Parties agree on the need for firm action against impunity. The Government shall not sponsor the adoption of legislative or any other type of measures designed to prevent the prosecution and punishment of persons responsible for human rights violations. 2. The Government of the Republic of Guatemala shall initiate in the legislature necessary legal amendments to the Penal Code so that enforced or involuntary disappearances and summary or extra-judicial executions may be characterized as crimes of particular gravity and punished as such; likewise, the Government shall foster in the international community, recognition of enforced or involuntary disappearances and of summary or extra-judicial executions as crimes against humanity. 3. No special law or exclusive jurisdiction may be invoked to uphold impunity in respect of human rights violations.31

Every country that is faced with human rights crimes on a large scale deals with those crimes in its own manner. In a period of only a few decades, various countries in the Latin and South American continent experienced a period in which human rights atrocities occurred, often followed by amnesty measures. Given the fact that, understandably, victims often do not approve of amnesty measures, over the years the Inter-American Commission and the Inter-American Court on Human Rights were faced with several cases in which an amnesty measure had to be examined. There are several regional conventions, in addition to the international ones, that are

29 IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on the Massacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 210: “Article 2 of the American Convention establishes the obligation of states parties to adopt ‘such legislative or other measures as may be necessary’ to give effect to the rights and freedoms protected in the American Convention. This provision includes a negative obligation, whereby states are also obliged to refrain from issuing laws that eliminate, restrict or nullify the rights and freedoms enshrined in the Convention, or that render them ineffective.” Article 2 ACHR on Domestic Legal Effects provides: “Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.” 30 See also, Kai Ambos, “Impunity and International Criminal Law. A Case Study on Colombia, Peru, Bolivia, Chile and Argentina”, Human Rights Journal, vol. 18 no. 1-4 1997, pp. 1-15, p. 7. 31Comprehensive Agreement on Human Rights, Guatemala, 26 March 1994, art. 3, accessible via

The legality of national amnesty laws under international law relevant in the work of the Inter-American Commission and Court, including the American Convention on Human Rights (1969), the Inter-American Convention to Prevent and Punish Torture (1985),32 and the Inter-American Convention on Forced Disappearance of Persons (1994).33

2.2.2 Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights (IAComHR) is one of two organs in the inter-American system for the promotion and protection of human rights. The other organ is the Inter-American Court of Human Rights. The IAComHR is an autonomous body of the Organization of American States.34 Over the years, the IAComHR build a doctrine on the subject of amnesties in several key cases. In these cases, the IAComHR was consistent in the rejection of amnesty laws and ruled that “comparative legal measures that preclude or terminate the investigation and prosecution of State agents who may be responsible for serious violations of the American Convention or Declaration violate multiple provisions of these instruments”.35 When considering a case, the Commission takes note of the circumstances in which the alleged violation(s) took place and of efforts of the state responsible to fulfil its obligations.36 In 1993, the IAComHR wrote to the government of El Salvador about the General Amnesty Law (Decree No. 486 of 1993) the country had enacted. This

32Article 17, Inter-American Convention to Prevent and Punish Torture. 33Article XIII, Inter-American Convention on Forced Disappearance of Persons. 34 The IAComHR was created in 1959 and entered into force in 1960. Its main function is promoting the observance and protection of human rights. In carrying out its mandate, the Commission, amongst other things, “[r]eceives, analyzes and investigates individual petitions which allege human rights violations, pursuant to Articles 44 to 51 of the Convention”; “Observes the general human rights situation in the member States and publishes special reports regarding the situation in a specific State, when it considers it appropriate”; “Carries out on-site visits to countries to engage in more in-depth analysis of the general situation and/or to investigate a specific situation. These visits usually result in the preparation of a report regarding the human rights situation observed, which is published and sent to the General Assembly”; “Recommends to the member States of the OAS the adoption of measures which would contribute to human rights protection”; and “Requests States to adopt specific "precautionary measures" to avoid serious and irreparable harm to human rights in urgent cases. The Commission may also request that the Court orders "provisional measures" in urgent cases which involve danger to persons, even where a case has not yet been submitted to the Court.”34 The IAComHR may submit cases to the Inter-American Court. 35 IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 345; IAComHR, Consuelo et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, 10.311, Report No. 28/92, OEA/Ser.L/V/II.83 Doc. 14 at 41 (1993), 2 October 1992, paras. 37, 39, 41; IAComHR, Mendoza et. al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Report No. 29/92, OEA/Ser.L/V/II.83 Doc. 14 at 154 (1993), 2 October 1992, paras. 46, 49, 51. 36 IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, e.g. paras. 52-60; IAComHR, Consuelo et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, 10.311, Report No. 28/92, OEA/Ser.L/V/II.83 Doc. 14 at 41 (1993), 2 October 1992, paras. 42, 48.

Chapter IV report clarifies the IAComHRs position on amnesty for human rights crimes and the duty to prosecute. In the Salvadoran situation, the IAComHR was afraid that:

[t]he Legislative Assembly’s passage of a General Amnesty Law on March 20, immediately after publication of the Report of the Truth Commission, could compromise effective implementation of the Truth Commission’s recommendations and eventually lead to a failure to comply with the international obligations undertaken by the Government of El Salvador when it signed the Peace Agreements.37

The IAComHR notified the government of its opinion because the president was still allowed to veto the recently approved amnesty law.38 The IAComHR also reminded the government of “the fact that the political agreements concluded among the parties in no way relieve the State of the obligations and responsibilities it has undertaken by virtue of its ratification of the American Convention on Human Rights and other international instruments on the same subject”.39 The Inter-American Commission on Human Rights reminded the Government of El Salvador

that El Salvador’s ratification of the American Convention on Human Rights made it a State Party and as such it has, as the Inter-American Court of Human Rights stated, “(...) a legal duty (...) to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.” In reference to Article 1 of the Convention, the Court added that “if the State apparatus acts in such a way that the violation goes unpunished (...) the State has failed to comply with its duties to ensure the free and full exercise of those rights to the persons within its jurisdiction”.40

The IAComHR noted “[t]hat amnesty extinguishes criminal and civil liability and thus disregards the legitimate rights of the victims’ next-of-kin to reparation. Such a measure will do nothing to further reconciliation and is certainly not consistent with the provisions of Articles 1, 2, 8 and 25 of the American Convention on Human Rights.”41 Amnesty “legally removes the right to justice … since it makes impossible any effective investigation of human rights violations, or the prosecution and punishment of all those persons involved and the reparation of damages caused”.42

37 IAComHR, Report on the Human Rights Situation in El Salvador (1994), part 4, accessible via 38Ibid. 39Ibid. 40Ibid. 41Ibid. 42Ibid.

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The IAComHR believes that:

the very sweeping General Amnesty Law passed by El Salvador’s Legislative Assembly constitutes a violation of the international obligations it undertook when it ratified the American Convention on Human Rights, because it makes possible a “reciprocal amnesty” without first acknowledging responsibility (despite the recommendations of the Truth Commission); because it applies to crimes against humanity, and because it eliminates any possibility of obtaining adequate pecuniary compensation, primarily for victims.43

In December 1997, the IAComHR, with respect to the human rights situation in Colombia, noted that “cases of violations of human rights and/or of international humanitarian law, could constitute crimes of an international character which would incur the individual criminal responsibility of the authors, who may be prosecuted in any State in which they happen to be [found]”.44 This means that, notwithstanding national measures of impunity, those alleged to be responsible may still be prosecuted in other states or by an international court or tribunal. In 2004, the Commission recognized:

Some states affected by internal armed conflicts and their consequences have issued amnesty laws when implementing mechanisms for achieving peace and national reconciliation. Nonetheless, the granting of amnesties and pardons should be limited to punishable conduct in the nature of political crimes or common crimes linked to political crimes insofar as, having a direct and close relationship with the political criminal conduct, they do not constitute serious violations under international law. Those responsible for committing such crimes should not benefit unduly from grounds of exclusion from punishment, such as the prescription of the crime and prescription of the punishment, the granting of territorial or diplomatic asylum, the refusal to extradite a person for the commission of crimes punished by international law, or the granting of amnesties or pardons.45

Here, the IAComHR considers that national measures to achieve peace and national reconciliation may include the granting of amnesty. The Commission does not fight the claim that amnesty may contribute to national peace and reconciliation, but states that amnesties must not be granted to those responsible for serious violations under international law, even when such a measure contributes to peace and reconciliation. On 26 March 2009, the IAComHR rendered a decision on the arbitrary detention, torture, and forced disappearance of 70 people related to the 1979 Brazilian amnesty law. The decision of the Commission consolidated the inter-

43Ibid. 44 IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 340. 45 IAComHR, Report on the Demobilization Process in Colombia, OEA/Ser.L/V/II.120, Doc. 60, 13 December 2004, para. 23.

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American jurisprudence in relation to forced disappearances and extrajudicial executions, and the resulting obligation of the states to discover the truth and investigate, prosecute and punish serious violations of human rights. The Brazilian amnesty law granted blanket amnesty and no truth commission was established to investigate the violations committed by the regime and its members. According to the Commission, the Brazilian amnesty violates the right to juridical personality, the right to life, the right to humane treatment and the right to personal liberty (Articles 3, 4, 5 and 7). In addition, the right to a fair trial and the right to judicial protection are violated by the amnesty (Articles 8 and 25). The Commission found that the right to freedom of thought and expression (Article 13) was violated for the victims and their relatives.46 The IAComHR found every amnesty law it has considered incompatible with the ACHR.47 According to the Commission, states have an obligation to investigate, prosecute and punish serious human rights violations.48

2.2.3 Inter-American Court of Human Rights

The Inter-American Court of Human Rights (IACtHR) is, next to the IAComHR, the other organ for the promotion and protection of human rights in the inter- American system.49 The IACtHR has decided, on more than one occasion, that states have a duty to prevent human rights violations. When human rights violations occur, states have a duty to investigate those violations and punish those responsible. In addition, the Court recognizes a right to reparation for the victims.50 Several cases are illustrative

46 Comisión Interamericana de Derechos Humanos, Demanda ante la Corte Interamericana de Derechos Humanos en el caso de Julia Gomes Lund y Otros (Guerrilha do Araguaia) Contra la República Federativa de Brasil, (Caso 11.552), 26 de marzo de 2009, para. 257. 47Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 29. 48 See, for example, IAComHR, Garay Hermosilla et al. v. Chile, Case 10.843, Report No. 36/96, OEA/Ser.L/V/II.95 Doc. 7 rev. at 156 (1997), 15 October 1996; Annual Report 1997, Report No. 25/98 (Chile), 7 April 1998, paras. 72 and 84, OES/Ser.L/V/II-98 doc 6 rev., 13 April 1998; and Report on the Human Rights Situation in El Salvador (1994), OEA/Ser.L/V/II.85,Doc. 28 rev., 11 February 1994, pp. 78-79. In this case, the Commission was referring to the amnesty law (decree No. 805) that was approved by the El Salvador legislative assembly on October 27, 1987. As with decree 486 of 1993, that law had granted an "absolute and automatic amnesty" to the authors and accomplices of political crimes or common crimes related to political crimes, or common crimes involving at least 20 persons, committed on or before October 22, 1987. As the Commission stated on that occasion, this law had the effect of "legally removing the possibility of any effective investigation and prosecution of those responsible, or any adequate compensation for the victims and their relatives flowing from civil liability for the crimes committed". (Annual Report of the IAComHR 1992-1993, OEA/Ser.L/V/II.83, Doc 14, 12 March 1993, Report No. 26/92, Case 10,287 "Las Hojas" (El Salvador), page 11.). 49 Its objective is the application and interpretation of the American Convention on Human Rights and related treaties. The Court was established in 1978, after the American Convention on Human Rights entered into force, and is located in San José, Costa Rica. A case may be referred to the Court either by the state involved or by the Commission. Opposed to decisions of the Commission, the judgments of the Court are binding. 50 IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), para. 174. See also, IACtHR, Neira-Alegría et al. v. Peru, Series C No. 20, Judgment of 19 January 1995

The legality of national amnesty laws under international law here. For example, on 29 July 1988, the IACtHR rendered a judgment in Velásquez Rodríguez v. Honduras. This was the first time an international judicial body rendered a judgment on cases of disappearances.51 The IACtHR held that states have a duty to:

investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.52

The IACtHR repeatedly noted that “[w]henever there has been a human rights violation, the State has a duty to investigate the facts and punish those responsible, ... and this obligation must be complied with seriously and not as a mere formality”.53 The Court acknowledged that a state is not judged on the outcome of an investigation into human rights violations, but on the effort to conduct a serious investigation. In the words of the IACtHR:

In certain circumstances, it may be difficult to investigate acts that violate an individual's rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation.54

(Merits), para. 69; IACtHR, Caballero-Delgado and Santana v. Colombia, Series C No. 22, Judgment of 8 December 1995 (Merits), para. 56; IACtHR, Castillo-Páez v. Peru, Series C No. 34, Judgment of 3 November 1997 (Merits), para. 90. 51 Commission on Human Rights, Report of Working Group on Enforced or Involuntary Disappearances, E/CN.4/1990/13, 24 January 1990, para. 360. 52 IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), para. 176. 53 IACtHR, Myrna Mack Chang v. Guatemala, Series C No. 101, Judgment of 25 November 2003 (Merits, Reparations and Costs), para. 273; IACtHR, Cantoral-Benavides v. Peru, Series C No. 88, Judgment of 3 December 2001 (Reparations and Costs), para. 69; IACtHR, Cesti-Hurtado v. Peru, Series C No. 78, Judgment of 31 May 2001 (Reparations and Costs), para. 62; IACtHR, Trujillo-Oroza v. Bolivia, Series C No. 92, Judgment of 27 February 2002 (Reparations and Costs), para. 100; IACtHR, Tiu Tojín v. Guatemala, Series C No. 190, Judgment of 26 November 2008 (Merits, Reparations, and Costs), para. 69. 54 IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), para. 177.

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When states do not investigate alleged violations, they are considered responsible for aiding perpetrators.55 In cases concerning disappearances, the duty to investigate continues to exist until there is certainty about the fate of the persons who have disappeared. Even when those responsible for the disappearances benefit from an impunity measure, the state has a duty to do everything within its power to reveal the truth and inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.56 In 2001, the Inter-American Court delivered its first judgment on the merits on an amnesty.57 In the Barrios Altos judgment of 14 May 2001, the Court ruled that the amnesty laws issued by Peru are incompatible with the Convention. The Court considered:

that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.58

The Peruvian self-amnesty laws were considered incompatible with the American Convention and therefore:

the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the American Convention have been violated.59

Since 2001, the Court has reaffirmed this position repeatedly.60 According to the Court’s jurisprudence, states parties have the duty “to investigate human rights

55Ibid. 56 See ibid., para. 181. See also, IACtHR, Blake v. Guatemala, Series C No. 27, Judgment of 2 July 1996 (Preliminary Objections), para. 39. 57Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 29. 58 IACtHR,Barrios Altos v. Peru, Series C No. 75, Judgment of 14 May 2001 (Merits), para. 41. 59 See ibid.,para. 44. 60 IACtHR, Myrna Mack Chang v. Guatemala, Series C No. 101, Judgment of 25 November 2003 (Merits, Reparations and Costs), para. 276; IACtHR, El Caracazo v. Venezuela, Series C No. 95, Judgment of 29 August 2002 (Reparations and Costs), para. 119; IACtHR, Trujillo-Oroza v. Bolivia, Series C No. 92, Judgment of 27 February 2002 (Reparations and Costs), para, 106; IACtHR,Barrios Altos et al. v. Peru, Series C No. 83, Judgment of 3 September 2001 (Interpretation of the Judgment on the Merits), para. 15.

The legality of national amnesty laws under international law violations, prosecute those responsible and avoid impunity”.61 The IACHR “has defined impunity as the lack of investigation, pursuit, detention, prosecution and punishment of those responsible for human rights violations”.62 “States have the obligation to employ all available legal means in order to avoid … impunity which allows for the chronic repetition of human rights violations and leaves the victims and their families powerless.”63 In El Caracazo v. Venezuela (2002) the Court emphasized that “[t]he State must ensure that domestic proceedings directed toward investigation and punishment of those responsible … have the desired effects and, specifically, not resort to measures such as amnesty, extinguishment and measures designed to eliminate responsibility”.64 In conclusion, it may be observed that the Inter-American Court of Human Rights has confirmed the views of the Inter-American Commission. Neither amnesty nor any other form of impunity for human rights violations are acceptable under the American Convention on Human Rights. Impunity is moreover a possible cause of new violations and violates victims’ rights, especially the rights to know the truth, justice and compensation. “[A]ny person who considers himself or herself to be a victim of such violations has the right to resort to the system of justice to attain compliance with this duty by the State, for his or her benefit and that of society as a whole.”65 The IACtHR recognizes a duty to investigate, prosecute and punish human rights violations of the Convention.66

61 IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 345; IACtHR, Loayza-Tamayo v. Peru, Series C No. 42, Judgment of 27 November 1998 (Reparations and Costs), para. 170. 62 IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 345; IACtHR, Paniagua Morales et al. v. Guatemala, Series C No. 37, Judgment of 8 March 1998 (Merits), para. 173. 63 IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 345; IACtHR, Paniagua Morales et al. v. Guatemala, Series C No. 37, Judgment of 8 March 1998 (Merits), para. 173; See also, IACtHR, Loayza-Tamayo v. Peru, Series C No. 42, Judgment of 27 November 1998 (Reparations and Costs), para. 170; IACtHR, Cantoral- Benavides v. Peru, Series C No. 88, Judgment of 3 December 2001 (Reparations and Costs), para. 69. 64 IACtHR, El Caracazo v. Venezuela, Series C No. 95, Judgment of 29 August 2002 (Reparations and Costs), para. 119; See also, IACtHR, Myrna Mack Chang v. Guatemala, Series C No. 101, Judgment of 25 November 2003 (Merits, Reparations and Costs), para. 276. 65 IACtHR, El Caracazo v. Venezuela, Series C No. 95, Judgment of 29 August 2002 (Reparations and Costs), para. 115. See also, IACtHR, Trujillo-Oroza v. Bolivia, Series C No. 92, Judgment of 27 February 2002 (Reparations and Costs), para. 99. 66 IACtHR, El Caracazo v. Venezuela, Series C No. 95, Judgment of 29 August 2002 (Reparations and Costs), para. 115.

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2.3 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950

2.3.1 European Convention

The European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, ECHR) was adopted in Rome by the Council of Europe on 4 November 1950 and entered into force on 3 September 1953. All 47 member states of the Council of Europe are party to the European Convention. The European Convention on Human Rights is an international treaty under which the member states of the Council of Europe promise to secure fundamental civil and political rights, not only to their own citizens but also to everyone within their jurisdiction. The ECHR does not contain any provisions on amnesty or impunity. Article 13 ECHR on the right to an effective remedy holds that “[e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”. This implies that in order to provide victims of ECHR violations with an effective remedy, violations should be investigated.

2.3.2 European Court of Human Rights

The European Court of Human Rights (ECtHR) is a permanent court established in 1959.67 In a 1996 judgment, the ECtHR ruled that “the notion of an ‘effective remedy’ entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure”.68On 22 March 2001, the European Court of Human Rights reiterated:

that the first sentence of Article 2 § 1 of the Convention enjoins States to take appropriate steps to safeguard the lives of those within their jurisdiction. That implies a primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences which endanger

67 The Court is based in Strasbourg, France. Any person, group of individuals, company or NGO having a complaint about a violation of their rights under the Convention may lodge an individual application. The Court also decides on inter-State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights brought by one State against another. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken ; See also Article 35 ECHR. 68 ECtHR, Aksoy v. Turkey, 100/1995/606/694, Judgment of 18 December 1996, para. 98.

The legality of national amnesty laws under international law

life, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.69

So far, the issue of amnesty for serious violations of human rights was the subject of only one case before the ECtHR. On 30 March 2009, the European Court of Human Rights decided on the admissibility in the case of Ould Dah v. France. Ould Dah is a Mauritanian army officer who was convicted by a French court for acts of torture committed in Mauritania, based on universal jurisdiction.70 The French Gard Assize Court sentenced Ould Dah to 10 years imprisonment for torture and acts of barbarity.71 “The sentence was pronounced despite the fact that Mr Ould Dah had had the benefit, in his country, of an amnesty law passed in 1993”,72 covering crimes committed by members of the armed and security forces between 1 January 1989 and 18 April 1992. Ould Dah claimed, “that only Mauritanian law should apply and, more particularly, the Amnesty Law of 1993 from which he claimed he should benefit”.73 France was the first state to overrule a national amnesty issued by another state for a serious violation of human rights and to convict the perpetrator.74 The French court considered that “[w]hatever the legitimacy of such an amnesty, in the framework of a local politics of reconciliation, that law has no effect except on the territory of the state concerned and it is not binding on third countries, within the framework of the application of international law.”75It has, therefore, no effect on a prosecution in France. The European Court of Human Rights ruled that amnesty for torture and barbarity is generally incompatible with the duty of states to investigate such crimes.76 The ECtHR:

69 ECtHR, Streletz, Kessler and Krenz v. Germany, Judgment of 22 March 2001, para. 86. See also: ECtHR, Akkoç v. Turkey, Applications nos. 22947/93 and 22948/93, Judgment of 10 October 2000, para. 77, and ECtHR, Osman v. the United Kingdom, Application No. 23452/94, Judgment of 28 October 1998, para. 115. The first sentence of Article 2(1) reads: Everyone's right to life shall be protected by law. 70 Herta Däubler-Gmelin, “The State of Human Rights in Europe: The Need to Eradicate Impunity”, Report of the Committee on Legal Affairs and Human Rights, Council of Europe, Parliamentary Assembly, Doc. 11934, 3 June 2009. 71 ECtHR, Decision on the admissibility in the case of Ould Dah v. France, Press release issued by the Registrar, No. 13113/03, 30 March 2009. 72Ibid. 73Ibid. 74 Cedric Ryngaert, “Applying the Rome Statutes Complementarity Principle: Drawing Lessons from the Prosecution of Core Crimes by States Acting under the Universality Principle”, Criminal Law Forum vol. 19 no. 1 2008, pp. 153-180, p. 167. 75 English translation by Amnesty International. The original French text reads: “Quelle que soit le légitimité d’une telle amnistie, dans le cadre d’une politique locale de réconciliation, cette loi n’a d’effet que sur le territoire de l’Etat concerné et n’est pas opposable aux pays tiers, dans le cadre de l’application du droit international. Elle n’a en conséquence aucune incidence sur l’action publique pour l’application de la loi en France.” Available in: Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Enforce Legislation - Chapter Ten (Torture: State Practice at the National Level), AI Secretariat: London September 2001, pp. 34, 35. 76ECtHR,Ould Dah c. France, Requête No. 13113/03, Décision 17 mars 2009, p. 17.

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reiterated that the prohibition of torture occupied a prominent place in international law and that the prohibition was binding. It also observed that at the material time the United Nations Convention against Torture of 1984 had already come into force and had been incorporated into French law. The “absolute necessity” of prohibiting and penalising torture thus justified, in the exercise of universal jurisdiction (i.e. the right of States to prosecute the perpetrators of acts of torture committed outside their own jurisdiction), not only that the French courts declared that they had jurisdiction to try the case, but also that they would apply French law. Otherwise, application of the Mauritanian amnesty law, which served merely to grant impunity to the perpetrators of torture, would deprive the universal jurisdiction provided for by the United Nations Convention of 1984 of its substance. Like the United Nations Committee of Human Rights and the International Criminal Tribunal for former Yugoslavia, the Court considered that an amnesty law was generally incompatible with the duty on States to investigate acts of torture or barbarity.77

The ECtHR declared the application inadmissible.78 Next to the right to justice and the right to reparation, the right of victims to know the truth surrounding a violation is also recognized by the ECtHR. In Gongadze v. Ukraine, the ECtHR recognized that not knowing what happened to a disappeared family member may constitute torture, a breach of Article 3 of the ECHR.79

77 ECtHR, Decision on the admissibility in the case of Ould Dah v. France, Press release issued by the Registrar, No. 13113/03, 30 March 2009. 78ECtHR,Ould Dah c. France, Requête No. 13113/03, Décision 17 mars 2009, p. 19. 79 ECtHR, Gongadze v. Ukraine, Application No. 4451/70, Judgment of 8 November 2005. The relevant paragraphs (184-186) read: 184. The Court observes that Article 3 has previously been relied on in a number of similar cases against Turkey in which the applicants complained that they had suffered inhuman and degrading treatment in the context of the death or disappearance of their next of kin. Whether a family member of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the relative a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of serious violations of human rights. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family members in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries (see ECtHR, Orhan v. Turkey, Application No. 25656/94, Judgment of 18 June 2002, para. 358). 185. In the instant case the Court notes that the applicant's husband disappeared in September 2000 and that, according to the applicant, it was only in March 2003 that she received convincing information that the decapitated body that had been found in Tarashcha in November 2000 was that of her husband. In the meantime, the applicant had received numerous contradictory statements from the authorities about his fate. In particular, in December 2000 the Prosecutor General announced that the Tarashcha corpse was not Mr Gongadze; on 10 January 2001 the Prosecutor General publicly announced that it was highly probable that the corpse was Mr Gongadze and, at the same time, announced that there were witnesses who had seen Mr Gongadze alive after his disappearance; three days later the GPO informed the applicant that there was no evidence that the corpse was Mr Gongadze; and a fortnight later the applicant was recognised as an aggrieved party because there was enough evidence to believe that the Tarashcha corpse was that of her late husband. This situation of uncertainty continued, with the result that, having raised doubts as to the identity of the Tarashcha corpse, and therefore the fate of the applicant's husband, the State authorities at the same time constantly refused to grant the applicant full

The legality of national amnesty laws under international law

3 THE DUTY TO PROSECUTE IN HUMAN RIGHTS CONVENTIONS ON SPECIFIC CRIMES

This section elaborates on the duty to prosecute in human rights conventions on specific crimes. The selection of conventions is made in correspondence with those crimes that are considered to be the most serious human rights crimes that may occur during a violent conflict, and of which crimes there are specific conventions. These crimes are genocide, war crimes and crimes against humanity, including apartheid, torture and forced disappearances. The conventions related to these crimes are presented in chronological order of adoption.

3.1 Convention on the Prevention and Punishment of the Crime of Genocide 1948

Shortly after the end of the World War II, on 9 December 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Genocide is regarded as one of the most serious crimes of concern to the international community as a whole.80 Currently, 141 states have ratified the Genocide Convention, indicating that a large majority of the states in the world agrees that the crime of genocide should be prevented and punished. Apart from that, it may be observed that genocide belongs to the category of ius cogens crimes. Moreover, the crime of genocide is also one of the crimes within the jurisdiction of the ICC, which implies that there is broad consensus on the principle that the crime of genocide should not go unpunished. Article 6 of the Genocide Convention, read in combination with Articles 1, 381 and 5,82 stipulates that genocide or any of the other acts enumerated in Article 3 is an international crime for which the consequence of committing is prosecution. Article 6 provides: “Persons charged with genocide or any of the other acts

access to the relevant material in the case file. Only in August 2005 was the applicant allowed access to the file. In September 2005 the GPO announced that the latest DNA test conducted in Germany proved that the body found in Tarashcha was that of the applicant's husband. 186. The Court finds that the attitude of the investigating authorities towards the applicant and her family clearly caused her serious suffering which amounted to degrading treatment contrary to Article 3 of the Convention. It concludes, therefore, that there has been a violation of this provision. 80 See, for instance, ICC Statute Article 5. 81 Convention on the Prevention and Punishment of the Crime of Genocide, Article 3: The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide. 82 Convention on the Prevention and Punishment of the Crime of Genocide, Article 5: The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article 3.

Chapter IV enumerated in Article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” There is no room for exceptions or amnesty. Article 1 of the Genocide Convention stipulates: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” The use of the words ‘undertake’ in Article 1 and ‘shall’ in Article 6 designates a duty to prosecute, without the possibility of exceptions or amnesty. The International Court of Justice affirms the obligation to punish the crime of genocide for states parties to the Convention.83

3.2 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 1968

The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity was developed out of fear for a situation in which the war criminals of World War II, who were not yet held accountable, could no longer be held responsible for their crimes.84 The UN General Assembly adopted it on 26 November 1968. It entered into force on 11 November 1970. Currently, 54 countries have ratified the Convention. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity contains no duty to prosecute. The Convention is silent on the issues of amnesty and impunity. Having said that, the Preamble of the Convention states that punishment is an important element to prevent future war crimes and crimes against humanity.85 Therefore, no statutory limitations should cover war crimes and crimes against humanity.86 Recognizing

83 International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, para. 79. 84 The Human Rights Commission prepared the Convention. The Preamble of the Convention notes: “Recognizing that it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application” 85 “Convinced that the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion of international peace and security” 86 Crimes against humanity and war crimes are defined in Article 1 of the Convention on the Non- Applicability of Statutory Limitations to War Crimes and Crimes against Humanity: “No statutory limitation shall apply to the following crimes, irrespective of the date of their commission: (a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the "grave breaches" enumerated in the Geneva Convention of 12 August 1949 for the protection of war victims; (b) Crimes against humanity whether committed in time of war or in time of peace as they are defined

The legality of national amnesty laws under international law that prosecution and punishment are important elements in the prevention of crimes, the wording of the Convention implies that not prosecuting, for example because an amnesty law was issued, will not contribute to the prevention of crimes. One may assume that, in line with the spirit of this Convention, if the granting of amnesty is deemed necessary, such an amnesty should not cover war crimes or crimes against humanity. This presumption is confirmed in Article 4, which provides that there should be no statutory or other limitations covering war crimes or crimes against humanity. An amnesty may be considered as an ‘other limitation’ in the wording of Article 4. This reads:

The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment [emphasis added] of the crimes referred to in articles I and II of this Convention and that, where they exist, such limitations shall be abolished.

Article 3 contains a provision on the extradition of individuals suspected of war crimes or crimes against humanity.87 Articles 3 and 4 embolden the idea that it should always be possible to prosecute and punish individuals guilty of war crimes or crimes against humanity. Since it is not desirable that these crimes remain unpunished or become unpunishable, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity tries to rule out the possibility that a situation occurs in which prosecution and punishment are no longer an option. The Council of Europe adopted a similar convention, the European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes, on 25 January 1974. This Convention entered into force on 27 June 2003, after three ratifications. To date, seven countries have ratified this Convention. Unlike the UN Convention, the applicability is limited to cases for which the statutory limitation period has not expired at the time of its entry into force. The low number of ratifications may be explained by the preceding existence of the UN Convention, since they cover the same subject. Although there is no duty to prosecute war crimes and crimes against humanity based on this Convention, it is unlikely that an amnesty covering such grave human rights crimes will hold up in international prosecutions.

in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 ((I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.” 87 Article 3: “The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in article II87 of this Convention.”

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3.3 International Convention on the Suppression and Punishment of the Crime of Apartheid 1976

The states parties to the International Convention on the Suppression and Punishment of the Crime of Apartheid are convinced that the convention makes “it possible to take more effective measures at the international and national levels with a view to the suppression and punishment of the crime of apartheid”.88 Yet, there is no international jurisprudence on the crime of apartheid. Article 1(1) declares that apartheid is a crime against humanity, and “that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination” are international crimes.89 Categorized under crimes against humanity in Article 7 of the ICC Statute, apartheid falls under the jurisdiction of the ICC. The Convention was adopted by the UN General Assembly on 30 November 1973 and entered into force on 18 July 1976. Now, 107 countries are party to the Convention. South Africa is not a state party. Article 4 of the Convention forces states parties to prevent and punish the crime of apartheid, and, inter alia, to adopt legislative, judicial and administrative measures to prosecute, bring to trial and punish in accordance with their jurisdiction persons responsible for, or accused of, the acts defined in Article 2. Article 4 reads:

The States Parties to the present Convention undertake: (a) To adopt any legislative or other measures necessary to suppress as well as to prevent any encouragement of the crime of apartheid and similar segregationist policies or their manifestations and to punish persons guilty of that crime; (b) To adopt legislative, judicial and administrative measures to prosecute, bring to trial and punish in accordance with their jurisdiction persons responsible for, or accused of, the acts defined in article II of the present Convention, whether or not such persons reside in the territory of the State in which the acts are committed or are nationals of that State or of some other State or are stateless persons.

The phrases in Article 4 “undertake ... to punish persons guilty of that crime” and “undertake to adopt legislative, judicial and administrative measures to prosecute, bring to trial and punish” indicate that the International Convention on the Suppression and Punishment of the Crime of Apartheid entails an obligation on state parties to the convention to criminalize apartheid. It cannot be held that the

88 Preamble of the International Convention on the Suppression and Punishment of the Crime of Apartheid. 89 Article 1(1): The States Parties to the present Convention declare that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security.

The legality of national amnesty laws under international law convention obliges states to prosecute, or that amnesty or other impunity measures are foreclosed. Nevertheless, since the crime of apartheid is adopted in the Rome Statute of the ICC as a crime against humanity, states are nevertheless expected to prosecute and punish the crime of apartheid when committed as part of a widespread or systematic attack directed against any civilian population.90

3.4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984

3.4.1 Convention

On 10 December 1984, the UN General Assembly adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). The Convention entered into force on 26 June 1987. Currently, 149 states have ratified the Convention. Torture is one of the crimes against humanity listed in Article 7 of the ICC Statute,91 and it is recognized in the Statutes of the International Criminal Tribunals for former Yugoslavia (Article 5) and Rwanda (Article 3) and in the Statute of the Special Court for Sierra Leone (Article 2). Article 1 of the Convention against Torture describes the crime of torture.92 Article 4 of the Convention contains a duty to criminalize all acts of torture, attempts to commit torture and complicity or participation in torture. All state parties shall make these offences “punishable by appropriate penalties which take into account their grave nature”. Article 5 obliges states parties to take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 4 if the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that state; the alleged offender is a national of that state; the victim was a national of that state if that state considers it appropriate. The Convention against Torture entails an explicit provision to extradite or submit the case to its competent authorities for the purpose of prosecution in Article

90 See Article 7 ICC Statute. 91 Article 7 of the ICC Statute states that for the purpose of the ICC Statute, torture as part of a crime against humanity must be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Article 7 (2e) ICC Statute states: "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. 92 [A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

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7(1).93This provision is not literally a duty to prosecute.94 The competent authorities may still decide not to institute proceedings. However, the prohibition of torture is an ius cogens crime universally recognized as non-derogable, and subject to universal jurisdiction.95 Moreover, the 1975 UN Declaration against Torture96 in Article 10 holds that alleged acts of torture shall be prosecuted:

If an investigation under article 8 or article 9 establishes that an act of torture as defined in article 1 appears to have been committed, criminal proceedings shall be instituted against the alleged offender or offenders in accordance with national law. If an allegation of other forms of cruel, inhuman or degrading treatment or punishment is considered to be well founded, the alleged offender or offenders shall be subject to criminal, disciplinary or other appropriate proceedings.97

Based on this provision, it may be held that the Declaration against Torture entails a duty to prosecute acts of torture and consequently leaves no room for amnesty or any other form of impunity. The Convention contains provisions that amount to the same effect. Article 12 obliges states to “ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction”. The Torture Convention in Articles 13 and 14 recognizes the rights of victims to justice and reparation. Under the Convention, a state party has a duty to investigate alleged acts of torture, as well as a duty to provide reparation to the victims.

93 The state party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. 94 Christopher C. Joyner, “Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability”, Denver Journal of International Law and Policy, vol. 26 no. 4 1998, pp. 591-624, p. 606. 95 Commission on Human Rights, Eighth annual report and list of States which, since 1 January 1985, have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro Despouy, Special Rapporteur appointed pursuant to Economic and Social Council resolution 1985/37. Annex 1, Report of the meeting of experts on rights not subject to derogation during states of emergency and exceptional circumstances Geneva 17-19 May 1995,E/CN.4/Sub.2/1995/20, 26 June 1995, para. 40. 96 General Assembly, Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by UN General Assembly Resolution 3452 (XXX), 9 December 1975. 97 Article 8 UN Declaration against Torture: “Any person who alleges that he has been subjected to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of a public official shall have the right to complain to, and to have his case impartially examined by, the competent authorities of the State concerned.” Article 9 UN Declaration against Torture: “Wherever there is reasonable ground to believe that an act of torture as defined in article 1 has been committed, the competent authorities of the State concerned shall promptly proceed to an impartial investigation even if there has been no formal complaint.”

The legality of national amnesty laws under international law

3.4.2 Committee against Torture

The Committee against Torture (CAT) monitors the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.98 In its reports, the CAT rejects amnesty laws for serious human rights violations. For example, in its 1996 Annual Report, it stressed the incompatibility of amnesty laws with the Convention against Torture in the following words: “[t]he Committee considers amnesty laws in force in Senegal to be inadequate to ensure proper implementation of certain provisions of the Convention.”99 Over the last decade, the CAT has condemned the amnesty laws in for example Peru, Azerbaijan, Kyrgyzstan,100 Benin,101 Chile,102Bahrain103 and Tajikistan.104 With respect to another form of impunity, prescription, the CAT recommends that states repeal the statute of limitations for crimes involving torture.105 In its reports and considerations of reports submitted by states parties under Article 19 of the Convention against Torture, the CAT also mentions positive results. For instance, in its 2002/2003 Report the CAT welcomed the positive

98 The CAT is a treaty-based body within the UN system. Every state party is obliged regularly to submit an implementation report to the CAT. The CAT examines each submitted report and publishes its conclusions, concerns and recommendations to the state party in the form of concluding observations or comments; See Articles 17-24 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 99Committee against Torture, Report of the Committee against Torture, A/51/44, 9 July 1996, para. 117. 100Committee against Torture, Report of the Committee against Torture, Twenty-third session (8-19 November 1999), Twenty-fourth session (1-19 May 2000), A/55/44, para. 59 (Peru), paras. 68, 69 (Azerbaijan), paras. 74, 75 (Kyrgyzstan). 101Committee against Torture, Report of the Committee against Torture, Twenty-seventh session (12-23 November 2001), Twenty-eighth session (29 April-17 May 2002), A/57/44, para. 34. 102Committee against Torture, Report of the Committee against Torture, Thirty-first session (10-21 November 2003), Thirty-second session (3-21 May 2004), A/59/44, para. 56. The CAT (in para. 57) recommends Chile to “Reform the Constitution to ensure the full protection of human rights, including the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment in conformity with the Convention, and to this end abolish the Amnesty Law”. 103Committee against Torture, Report of the Committee against Torture, Thirty-third session (16-26 November 2004), Thirty-fourth session (2-20 May 2005), A/60/44, para. 108: “The Committee expresses its concern at: ... (g) The blanket amnesty extended to all alleged perpetrators of torture or other crimes by Decree No. 56 of 2002 and the lack of redress available to victims of torture”. 104Committee against Torture, Report of the Committee against Torture, Thirty-seventh session (6-24 November 2006), Thirty-eighth session (30 April-18 May 2007),A/62/44, para. 38 (17): “[T]he Committee is concerned about the fact that acts of torture and ill-treatment in the years 1995 to 1999 were immunized from punishment by amnesty laws, thereby entrenching impunity of those responsible for torture”. 105 Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture: Turkey, CAT/C/CR/30/5, 27 May 2003, para. 7 (c); Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture: Slovenia, CAT/C/CR/30/4, 27 May 2003, para. 6 (b); Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture: Chile, CAT/C/CR/32/5, 14 June 2004, para. 7 (f).

Chapter IV development that the new constitution of Venezuela “requires the State to investigate and impose penalties for human rights offences, declares that action to punish them is not subject to a statute of limitations and excludes any measure implying impunity, such as an amnesty or a general pardon.”106 In its 2003/2004 Report, with respect to Colombia, the CAT expressed “its satisfaction at: (a) The statement by the state party’s representative that there neither has been nor will be any amnesty or clemency in the state party for acts of torture”.107 In this same report, with respect to Croatia, the Committee “takes note with satisfaction of the assurances given by the state party’s representative that the 1996 Amnesty Act has not been applied to acts of torture”.108 There are no amnesty laws that have received approval of the CAT. In conclusion, the CAT recognizes the duty to prosecute torture and other cruel, inhuman or degrading treatment or punishment distilled from the Convention. The CAT rejects amnesty or other forms of impunity, such as statutes of limitation, for acts of torture.

3.5 Inter-American Convention to Prevent and Punish Torture 1985

On 9 December 1985, the OAS General Assembly adopted the Inter-American Convention to Prevent and Punish Torture. The Convention entered into force on 28 February 1987 and has 18 states parties to date. Article 6 of the Inter-American Convention to Prevent and Punish Torture provides:

In accordance with the terms of Article 1, the States Parties shall take effective measures to prevent and punish torture within their jurisdiction. The States Parties shall ensure that all acts of torture and attempts to commit torture are offenses under their criminal law and shall make such acts punishable by severe penalties that take into account their serious nature. The States Parties likewise shall take effective measures to prevent and punish other cruel, inhuman, or degrading treatment or punishment within their jurisdiction.109

This article contains a duty to criminalize torture. To punish acts of torture, the perpetrator of the crime must be prosecuted. The article holds that state parties should take effective measures to punish torture; it does not claim that every act of

106 Committee against Torture, Report of the Committee against Torture, Twenty-ninth session (11-22 November 2002), Thirtieth session (28 April-16 May 2003), A/58/44, para. 76. See also: Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture: Venezuela, CAT/C/CR/29/2, 23 December 2002, para. 6 (c). 107Committee against Torture, Report of the Committee against Torture, Thirty-first session (10-21 November 2003), Thirty-second session (3-21 May 2004), A/59/44, para. 64. 108 See ibid., para. 74. 109 (Footnote added) Article 1: “The State Parties undertake to prevent and punish torture in accordance with the terms of this Convention.”

The legality of national amnesty laws under international law torture should be prosecuted and punished. The Convention is silent on amnesty or other impunity measures. Thus, this Convention does not contain a duty to prosecute torture, but merely a commitment by states to prevent and punish acts of torture as much as possible. Supervision of this Convention falls within the ambit of the Inter-American Commission and Court.

3.6 Inter-American Convention on Forced Disappearance of Persons 1994

In the Annual Report of the IAComHR 1983, the General Assembly resolved to declare that the crime of forced disappearance “is an affront to the conscience of the hemisphere and constitutes a crime against humanity”.110 In 1984, the General Assembly considered the practice of forced disappearance to be cruel and inhuman, mock the rule of law, and undermine those norms that guarantee protection against arbitrary detention and the right to personal security and safety.111 As a result, the Inter-American Convention on Forced Disappearance of Persons was drafted. At 9 June 1994, the General Assembly to the Organization of American States adopted the Convention. The Convention entered into force on 28 March 1996 and to date, 14 American states have ratified the Convention. Supervision of this Convention falls within the working space of the Inter-American Commission and Court. In the Preamble of the Inter-American Convention on Forced Disappearance of Persons it is considered “that the forced disappearance of persons violates numerous non-derogable and essential human rights enshrined in the American Convention on Human Rights, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights”. It is also reaffirmed “that the systematic practice of the forced disappearance of persons constitutes a crime against humanity”. Article 1 of the Convention embodies a duty to prosecute the crime of forced disappearance. Article 1 obliges states parties to undertake “to punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories” and “[t]o cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons”.112

110 IAComHR General Assembly, Annual Report of the Inter-American Commission on Human Rights, AG/RES. 666 (XIII-0/83), 18 November 1983, para. 4. 111 IAComHR General Assembly, Annual Report of the Inter-American Commission on Human Rights, AG/RES. 742 (XIV-0/84), 17 November 1984 . 112 Article 1: The States Parties to this Convention undertake: a. Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees; b. To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories; c. To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons;

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Article 4 of the Convention defines that “[t]he acts constituting the forced disappearance of persons shall be considered offenses in every state party. Consequently, each state party shall take measures to establish its jurisdiction over such cases.” This implies a duty to criminalize and make prosecution possible. Article 6 entails the duty to prosecute in case a request for extradition is denied.113 Article 7 states that the crime of enforced disappearance is not subject to statutes of limitations.114 Like its sister, the International Convention for the Protection of All Persons from Enforced Disappearance, this Convention expects state parties to prosecute and punish the crime of enforced disappearance. The international Convention will be discussed in the next subsection.

3.7 International Convention for the Protection of All Persons from Enforced Disappearance 2006

The UN Commission on Human Rights established a Working Group on Enforced or Involuntary Disappearances by Resolution 20 of 29 February 1980.115 The Working Group on Enforced or Involuntary Disappearances has the task to monitor states’ compliance with the obligations arising from the Declaration and gives assistance to states regarding the implementation. The mandate originally included the role of intermediary between the families of disappeared persons and the involved governments. Aim of the Working Group was to ensure “that sufficiently documented and clearly identified individual cases are investigated and the whereabouts of the disappeared persons clarified”.116 In a 1990 report, the Working Group stated that it remained “of the view that those responsible for disappearances should be prosecuted to the full extent of the law, a task that falls on the State”.117 To strengthen the UN position on this matter, the General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance on 18 December 1992, “[c]onsidering that enforced disappearance undermines the deepest d. To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention. 113 Article VI: When a State Party does not grant the extradition, the case shall be submitted to its competent authorities as if the offense had been committed within its jurisdiction, for the purposes of investigation and when appropriate, for criminal action, in accordance with its national law. Any decision adopted by these authorities shall be communicated to the state that has requested the extradition. 114 Article VII: Criminal prosecution for the forced disappearance of persons and the penalty judicially imposed on its perpetrator shall not be subject to statutes of limitations. However, if there should be a norm of a fundamental character preventing application of the stipulation contained in the previous paragraph, the period of limitation shall be equal to that which applies to the gravest crime in the domestic laws of the corresponding State Party. 115Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1435, 26 January 1981, para 26. 116 Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1999/62, 28 December 1998, para. 2. 117 Commission on Human Rights, Report of Working Group on Enforced or Involuntary Disappearances, E/CN.4/1990/13, 24 January 1990, para. 347.

The legality of national amnesty laws under international law values of any society committed to respect for the rule of law, human rights and fundamental freedoms, and that the systematic practice of such acts is of the nature of a crime against humanity”.118 The Declaration in Article 18 provides that those responsible for the crime of enforced disappearance “shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction”.119 In addition, the Declaration states that “[i]n the exercise of the right of pardon, the extreme seriousness of acts of enforced disappearance shall be taken into account”.120 In the Working Group’s General Comment on Article 18 of the Declaration, it is provided that Article 18 must be interpreted in such a way that even an amnesty law “endorsed by a referendum or similar consultation procedure” “should be considered as being contrary to the provisions of the Declaration”.121 In the opinion of the Working Group, “the enactment of amnesty laws and the implementation of other measures that lead to impunity … may perpetuate continuing human rights abuses for many years”.122 Combating impunity for the crime of forced disappearance is held to be a possible factor in prevention of the crime.123 The Working Group claims that “States are under an obligation to take effective measures to prevent and terminate acts of enforced disappearance by making them continuing offences under criminal law and establishing civil liability for those responsible”.124 In its 2009 Report, the Working Group reminds “States of their obligations under the Declaration to prevent impunity by taking lawful and appropriate steps to bring to justice those alleged to have committed enforced disappearances”,125 and reaffirms that the

118 General Assembly, Declaration on the Protection of All Persons from Enforced Disappearances, A/RES/47/133, 18 December 1992. 119 See ibid., Article 18(1). The Working Group strongly urges all states to comply with Article 18; See: Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1999/62, 28 December 1998, para. 336. 120 General Assembly, Declaration on the Protection of All Persons from Enforced Disappearances, A/RES/47/133, 18 December 1992, Article 18(2). 121Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/2006/56, 27 December 2005, para. 49, general comment para. 2. 122 Human Rights Council, Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled “Human Rights Council”, Report of the Working Group on Enforced or Involuntary Disappearances, A/HRC/4/41, 25 January 2007, p. 2. See also para. 25. 123 See ibid., para. 500. Paragraph 500 continues: “Among them, the Working Group highlights the following: harmonization of domestic law with the obligations of States under the Declaration and other international human rights law; accessible and updated registries of detainees; guaranteed access to appropriate information and to places of detention for relatives and lawyers of persons deprived of their liberty; ensuring that persons are brought before a judicial authority promptly following detention; bringing to justice all persons accused of having committed acts of enforced disappearance, ensuring that perpetrators do not benefit from any special amnesty law or other similar measures likely to provide exemption from criminal proceedings or sanctions; and providing redress and adequate compensation to victims and their families.” 124 Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, A/HRC/7/2, 10 January 2008, Annex I. Revised Methods of Work of the Working Group (adopted on 30 November 2007), para. 4. 125 Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, A/HRC/10/9, 25 February 2009, para. 448.

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Declaration refers to “the duty to try alleged perpetrators of acts of disappearance before ordinary (not military) courts, [and] the exemption of the criminal offence of acts of enforced disappearances from statutes of limitation, special amnesty laws and similar measures leading to impunity”.126 These duties are related to the rights to truth, justice and reparation. In paragraph 8 of the General Comment on Article 18 of the Declaration, it is specified that:

[p]erpetrators of disappearances shall not benefit from such laws if the State has not fulfilled its obligations to investigate the relevant circumstances surrounding disappearances, identify and detain the perpetrators, and ensure the satisfaction of the right to justice, truth, information, redress, reparation, rehabilitation and compensation to the victims.127

Under the ICC Statute, enforced disappearances committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack are a crime against humanity.128 The UN General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance129 on 20 December 2006.130 The Convention entered into force on 23 December 2010. To date, 29 countries are state party to the Convention. Its Preamble reasserts that the states parties to the Convention are:

Determined to prevent enforced disappearances and to combat impunity for the crime of enforced disappearance, Considering the right of any person not to be subjected to enforced disappearance, the right of victims to justice and to reparation, Affirming the right of any victim to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and impart information to this end

An obligation to investigate, criminalize, prosecute and punish the crime of enforced disappearances may be distilled from Articles 3, 4, 5 and 7 of the Convention. Article 3 holds that “[e]ach State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice”. Article 4 obliges states to criminalize enforced disappearances. Article 5 states that “[t]he widespread or systematic practice of

126 Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, A/HRC/10/9, 25 February 2009, pp. 86, 87. 127Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/2006/56, 27 December 2005, para. 49, general comment para. 8(c). 128 Article 7 (1)(i) ICC Statute. 129 Recalling the Declaration on the Protection of All Persons from Enforced Disappearance adopted by the General Assembly of the United Nations in its resolution 47/133 of 18 December 1992. 130 General Assembly, International Convention for the Protection of All Persons from Enforced Disappearance, A/RES/61/177, 12 January 2007.

The legality of national amnesty laws under international law enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law”. Article 7 holds that “[e]ach State Party shall make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness”. The duty to prosecute or extradite is laid down in Article 9(2).131 The consensus on a duty for states parties to investigate, prosecute and punish the international crime of enforced disappearance is clear. Especially the phrase “[d]etermined to prevent enforced disappearances and to combat impunity for the crime of enforced disappearance” is unambiguous. In addition, the Convention recognizes the rights of victims to justice, truth and reparation.

4 THE DUTY TO PROSECUTE IN INTERNATIONAL HUMANITARIAN LAW

4.1 Geneva Conventions 1949

The four Geneva Conventions of 1949 form the foundation of international humanitarian law.132 After their adoption on 12 August 1949, they entered into force on 21 October 1950. To date, 194 states are party to the Geneva Conventions. According to Tom Farer:

[t]he Geneva Conventions were designed to cover inter-State wars and large- scale civil wars. But the principles they embody have a wider scope. Plainly a part of contemporary international customary law, they are applicable wherever political ends are sought through military means. No principle is more central to the humanitarian law of war than the obligation to respect the distinction between combatants and non-combatants.133

It seems against the aim of the Conventions to withhold applicability outside the scope of international conflicts. This matter came to the fore in Prosecutor v. Duško Tadić (ICTY), where the Appeals Chamber noted that for the applicability of Article 3, it is not relevant whether the violation of international humanitarian law

131 Article 9 (2): Each State Party shall likewise take such measures as may be necessary to establish its competence to exercise jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized. 132 The Geneva Conventions explicitly protect people who are not taking part in the hostilities during an armed conflict, like civilians and those who are no longer participating in the hostilities, such as the wounded and sick in armed forces in the field, the wounded, sick and shipwrecked members of armed forces at sea, and prisoners of war. The Conventions are applicable to international conflicts. 133 Security Council, Report pursuant to paragraph 5 of Security Council Resolution 837 (1993) on the investigation into the 5 June 1993 attack on United Nations forces in Somalia conducted on behalf of the Security Council, by Professor Tom Farer, S/26351, 24 August 1993, para. 9.

Chapter IV was committed in the context of an international or an internal armed conflict, as long as certain conditions are met.134 The Geneva Conventions and their Protocols hold that those responsible for grave breaches must be sought, tried or extradited, whatever nationality they may hold. The first Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, in Article 49 contains a duty to criminalize grave breaches of the Convention:

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Next, the article establishes an obligation to prosecute (or extradite) grave breaches of the first Geneva Convention:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

The same text as in Article 49 of the first Geneva Convention (GC) is included in the other three Geneva Conventions, respectively in Article 50 GC II, Article 129 GC III and Article 146 GC IV,135 and therefore the duty to prosecute is applicable to breaches of all four Conventions. What grave breaches under the four Geneva Conventions and Additional Protocols are is defined in each separate Geneva Convention, and in Additional Protocol I (1977).136 Additional Protocol I concerns

134 ICTY, Prosecutor v. Dusko Tadića/k/a/ “Dule” (Decision on the defence motion for interlocutory appeal on jurisdiction), IT-94-1, 2 October 1995, para. 94. 135 First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I), Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II), Third Geneva Convention relative to the Treatment of Prisoners of War (GC III), Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV). 136 Art. 50 GC I and Art. 51 GC II are identical and state: Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Art. 130 GC III states: Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile

The legality of national amnesty laws under international law the Protection of Victims of International Armed Conflicts. Additional Protocol II relates to the Protection of Victims of Non-International Armed Conflicts. Because

Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention. Art. 147 GC IV states: Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Article 11 AP 1 on the Protection of persons states: […] 4. Any wilful act or omission which seriously endangers the physical or mental health or integrity of any person who is in the power of a Party other than the one on which he depends and which either violates any of the prohibitions in paragraphs 1 and 2 or fails to comply with the requirements of paragraph 3 shall be a grave breach of this Protocol. In Article 85 AP I continues on the definition of grave breaches: [...] 2. Acts described as grave breaches in the Conventions are grave breaches of this Protocol if committed against persons in the power of an adverse Party protected by Articles 44, 45 and 73 of this Protocol, or against the wounded, sick and shipwrecked of the adverse Party who are protected by this Protocol, or against those medical or religious personnel, medical units or medical transports which are under the control of the adverse Party and are protected by this Protocol. 3. In addition to the grave breaches defined in Article 11, the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health: (a) making the civilian population or individual civilians the object of attack; (b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a)(iii); (c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a)(iii); (d) making non-defended localities and demilitarized zones the object of attack; (e) making a person the object of attack in the knowledge that he is hors de combat; (f) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol. 4. In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol: (a) the transfer by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention; (b) unjustifiable delay in the repatriation of prisoners of war or civilians; (c) practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination; (d) making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, subparagraph (b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives; (e) depriving a person protected by the Conventions or referred to in paragraph 2 of this Article of the rights of fair and regular trial. [...]

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Additional Protocol II contains a controversial provision, this Protocol is examined separately in the next subsection.

4.2 Additional Protocol II to the Geneva Conventions 1977

Additional Protocol II to the 1949 Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts was the first treaty that specifically applied to non-international armed conflict. The Protocol was drafted because of the increase in non-international armed conflicts after the adoption of the initial four Geneva Conventions. It entered into force on 7 December 1978. Before, Article 3 common to the Geneva Conventions was the only provision applicable to non- international armed conflicts. To date, 166 states are party to Additional Protocol II. In proceedings before national courts, amnesty laws were occasionally upheld with reference to Article 6(5) of Protocol II as an international legal justification of amnesties.137 Article 6(5) explicitly foresees in the granting of amnesty:

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, whether they are interned or detained.138

This provision should be interpreted within the scope of the Geneva Conventions, which means that it is not intended to cover violations of international humanitarian law. The International Committee of the Red Cross (ICRC) affirms this interpretation of Article 6(5) in Protocol II. According to the ICRC, the amnesty provision is:

the equivalent of what in international armed conflicts is known as “combatant immunity,” i.e.[,] the fact that a combatant may not be punished for acts of hostility, including killing enemy combatants, as long as he respected international humanitarian law, and that he has to be repatriated at the end of active hostilities. In non-international armed conflicts, no such principle exists, and those who fight may be punished, under national legislation, for the mere fact of having fought. Article 6(5) attempts to encourage a release at the end of hostilities for those detained or punished for the mere fact of having

137 See, for instance, South African Constitutional Court, Azanian Peoples Organisation (AZAPO) and others v. President of the Republic of South Africa and Others, CCT17/96, Judgment of 25 July 1996, para. 30. See also, Chilean Supreme Court, Bárbara Urive Tambley and E. F. Van Jurick, Rol No. 5.566, 26 October 1995. 138 Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, entry into force 7 December 1978; Naomi Roht-Arriaza, “Combating impunity: Some thoughts on the way forward”, Law and Contemporary Problems, vol. 59 1996, pp. 93-102, p. 97.

The legality of national amnesty laws under international law

participated in hostilities. It does not aim at an amnesty for those having violated international humanitarian law.139

The Inter-American Commission also confirmed the interpretation that Article 6(5) was not meant to cover violations of international humanitarian law committed in non-international armed conflicts in e.g. Parada Cea et al. v. El Salvador140and in the 3rd Report on the Human Rights Situation in Colombia.141The ICTY has affirmed that serious violations of the provisions in the Geneva Conventions during internal armed conflicts are international crimes because “customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife”.142 According to the ICTY Appeals Chamber, this view is strengthened by the fact that the ICTR Statute, which is concerned with an internal conflict, made violations of common Article 3 subject to prosecution at the international level.143 Article 6(5) does not intend to provide amnesty for perpetrators of international humanitarian law. The provision intends to promote peace and reconciliation. Additional Protocol II to the Geneva Conventions contains no provision indicating an obligation to prosecute.

5 THE DUTY TO PROSECUTE IN STATUTES OF INTERNATIONAL COURTS AND TRIBUNALS

5.1Introduction

In the past, political transitions were often accompanied by blanket amnesties. This was the case, for example, in Chile. Nowadays, during or after political transitions there is an increasing demand from the international community that accountability

139 Letter of 15 April 1997 from Dr. Toni Pfanner, Head of the Legal Division, ICRC Headquarters, Geneva, to Naomi Roht-Arriaza and Douglas Cassel (filed with the addressees), in: Naomi Roht- Arriaza, “Combating impunity: Some thoughts on the way forward”, Law and Contemporary Problems, vol. 59 1996, pp. 93-102, p. 97. 140 IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99, OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 116: “The preparatory work for Article 6(5) indicates that the purpose of this precept is to encourage amnesty, ... as a type of liberation at the end of hostilities for those who were detained or punished merely for having participated in the hostilities. It does not seek to be an amnesty for those who have violated international humanitarian law.” 141 IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 345. 142 ICTY, Prosecutor v. Dusko Tadića/k/a/ “Dule” (Decision on the defence motion for interlocutory appeal on jurisdiction), IT-94-1, 2 October 1995, para. 134. 143 ICTY, Prosecutor v. Zdravko Mucić (aka "Pavo"), Hazim Delić, Esad Landžo (aka "Zenga") and Zejnil Delalić (Appeal Judgment), IT-96-21-A, 20 February 2001, para. 170.

Chapter IV should be dealt with right away.144 This may be done, for example, by means of a tribunal or special court such as those in the former Yugoslavia, Rwanda and Sierra Leone. The Rome Statute of the ICC was adopted to give states parties an incentive to investigate and prosecute the crimes under the jurisdiction of the ICC right away, because if they fail to do so, the ICC may initiate an investigation. The establishment of these courts and tribunals “reflect[s] a growing shift in the international community, away from a tolerance for impunity and amnesty and towards the creation of an international rule of law”.145 This section will elaborate on the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (5.2), the International Criminal Tribunal for Rwanda (5.3), the International Criminal Court (5.4) and the hybrid Special Court for Sierra Leone (5.5). This is the chronological order of establishment. Other similar courts did not provide enough relevant information to discuss them here.

5.2International Criminal Tribunal for the former Yugoslavia

On 25 May 1993, the UN Security Council, acting under Chapter VII of the UN Charter, established the International Criminal Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia (ICTY) since 1991 as a peace enforcement measure.146 The ICTY was established after reports describing mass atrocities taking place in Croatia and Bosnia and Herzegovina. The reports revealed “horrendous crimes, in which thousands of civilians were being killed and wounded, tortured and sexually abused in detention camps and hundreds of thousands expelled from their homes”.147 The Security Council was convinced that the ICTY would contribute to the restoration and maintenance of peace, and that the “prosecution of persons responsible for … serious violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed”.148 By bringing perpetrators to trial, the ICTY aims to deter future crimes and render justice to thousands of victims and their families, thus contributing to a lasting peace in the former Yugoslavia. For the ICTY there has been no need to pronounce on the issue of amnesty since the successor states of the former Yugoslavia have refrained from enacting amnesty

144 William A. Schabas, Impunity and Human Rights Defenders, Paper presented at the FrontLine Conference: Dublin 17 January 2002, p. 1. 145 Security Council, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General, S/2004/616, 23 August 2004, para. 40. 146 Security Council, Security Council Resolution 827 (1993) [on establishment of the international tribunal for prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991], S/RES/827(1993), 25 May 1993. 147 ICTY, “About the ICTY”, accessible via 148 Security Council, Security Council Resolution 827 (1993) [on establishment of the international tribunal for prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991], S/RES/827(1993), 25 May 1993.

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The legality of national amnesty laws under international law laws.149 Nevertheless, the Trial Chamber of the ICTY in Furundžija declared that the prohibition on torture has an ius cogens character, and that amnesties for torture are null and void ab initio and will not receive foreign recognition.150The ICTY held that:

[t]he fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio,[…] and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law.[…] If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition.151

In addition, the Trial Chamber stated that “torture may not be covered by a statute of limitations, and must not be excluded from extradition under any political offence exemption”.152 The ICTY in Tadić determined “that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife”.153 The Tribunal indicated that there is:

no doubt that … [the violations] entail individual criminal responsibility, regardless of whether they are committed in internal or international armed conflicts. Principles and rules reflect elementary considerations of humanity widely recognized as the mandatory minimum for conduct in armed conflicts of any kinds. No one can doubt the gravity of the acts at issue, nor the interest of the international community in their prohibition.154

149Christian Tomuschat, Human Rights, Between Idealism and Realism, Oxford University Press: New York 2003, pp. 288-289. 150ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, paras. 151-157; Art. 53 Vienna Convention on the Law of Treaties (1969). 151ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, para. 155. Original footnotes omitted. 152 See ibid., para. 157. 153 ICTY, Prosecutor v. Dusko Tadića/k/a/ “Dule” (Decision on the defence motion for interlocutory appeal on jurisdiction), IT-94-1, 2 October 1995, para. 134. See also IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 341; ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, para. 157. 154 ICTY, Prosecutor v. Dusko Tadića/k/a/ “Dule” (Decision on the defence motion for interlocutory appeal on jurisdiction), IT-94-1, 2 October 1995, para. 129; See also IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 341.

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In the Trial Chamber Judgment of Mucić et al., it was held that:

[t]he fact that the Geneva Conventions themselves do not expressly mention that there shall be criminal liability for violations of common article 3 clearly does not in itself, preclude such liability. Furthermore, identification of the violation of certain provisions of the Conventions as constituting “grave breaches” and thus subject to mandatory universal jurisdiction, certainly cannot be interpreted as rendering all of the remaining provisions of the Conventions as without criminal sanction. While “grave breaches” must be prosecuted and punished by all States, “other” breaches of the Geneva Conventions may be so. Consequently, an international tribunal such as this must also be permitted to prosecute and punish such violations of the Conventions.155

In the Appeals Chamber Judgment of Mucić et al., the ICTY confirmed that “[i]t is universally acknowledged that the acts enumerated in common Article 3 [of the Geneva Conventions] are wrongful and shock the conscience of civilised people, and thus are, in the language of Article 15(2) of the ICCPR, ‘criminal according to the general principles of law recognised by civilised nations’”.156 Notwithstanding the fact that the ICTY did not have to deal with the issue of amnesty, it considered amnesty or any other legal means to foreclose prosecution of torture and serious violations of Article 3 common to the Geneva Conventions as acts with no international legal recognition. This notwithstanding, Article 28 of the ICTY Statute provides the possibility to take a national pardon or commutation of sentence into account in the interests of justice and the general principles of law. The President of the ICTY in consultation with the judges, acting under Article 28, may decide to maintain the national measure. When one considers amnesty equal to pardon, the ICTY may decide to refrain from prosecution in an individual case in the interests of justice and general principles of law.

5.3 International Criminal Tribunal for Rwanda

On 8 November 1994, the UN Security Council, acting under Chapter VII of the UN Charter, created the International Criminal Tribunal for Rwanda (ICTR) by Resolution 955 (1994). The UN Security Council established the ICTR in response to “reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda”.157The ICTR was established to prosecute those responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994. The main aim of the ICTR is to “contribute

155 ICTY, Prosecutor v. Zdravko Mucić (aka “Pavo”), Hazim Delić, Esad Landžo (aka “Zenga”)and Zejnil Delalić (Trial Judgment), IT-96-21-T, 16 November 1998, para 308. 156 See ibid., para 173. 157 Security Council, Security Council Resolution 955 (1994) [on establishment of an international tribunal for Rwanda and adoption of the statute of the tribunal], S/RES/955(1994), 8 November 1994.

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The legality of national amnesty laws under international law to the process of national reconciliation and to the restoration and maintenance of peace”.158 Like the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda did and does not have to deal with suspects who were granted amnesty, because Rwanda did not proclaim amnesty.159 This notwithstanding, it may be held that the crimes within the jurisdiction of the ICTR contribute to the concept that these crimes are ius cogens crimes which are susceptible for prosecution by means of universal jurisdiction. At the same time, Article 27 of the ICTR Statute contains a provision similar to Article 28 of the ICTY Statute. As explained in the previous section, the tribunal may decide to maintain a national measure of impunity in an individual case, based on the interests of justice and the general principles of law.

5.4 International Criminal Court

In 1998, the international community established the International Criminal Court (ICC). The Rome Statute of the International Criminal Court (ICC Statute) was adopted by 120 states on 17 July 1998, and entered into force on 1 July 2002 (after the 60th ratification). The ICC aims to eradicate impunity by trying those responsible for “the most serious crimes of concern to the international community as a whole”.160 The ICC is the first permanent international criminal court. It has jurisdiction with respect to the crime of genocide, crimes against humanity and war crimes and is “[d]etermined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. From the fact that currently 116 states have ratified the Rome Statute of the ICC, it may be concluded that there is broad consensus on the fact that the crimes the ICC has jurisdiction over should not go unpunished. The ICC is not hindered by a distinction between crimes committed in internal and international armed conflicts. The ICC Statute states in its Preamble that the states parties to this Statute recognize “that such grave crimes threaten the peace, security and well-being of the world”, they affirm “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. The states parties are “[d]etermined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,” because “such grave crimes threaten the peace, security and well-being of the world” and recall “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. Criminal jurisdiction includes universal jurisdiction. The crimes within the jurisdiction of the ICC are part of customary international law.

158Ibid. 159 Christian Tomuschat, Human Rights, Between Idealism and Realism, Oxford University Press: New York 2003, pp. 288-289. 160 Preamble ICC Statute.

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The ICC is an essential part of the international effort to eradicate climates of impunity that often shelter those who committed serious international crimes.161 The ICC may complement national judicial systems when these are unable or unwilling to prosecute persons responsible for genocide, crimes against humanity and war crimes.162 Because the ICC only has the power to investigate and prosecute if the state concerned fails to do so, it encourages states to initiate domestic investigations and prosecutions. In fact, a duty to prosecute for the state may be recognized here; when the state fails to comply with the duty to prosecute properly, the ICC obtains the power to open investigations into the situation concerned. During the negotiations leading up to the ICC Statute, the issue of how to deal with national amnesties and national truth and reconciliation efforts was brought up, but it was not explicitly dealt with in the ICC Statute. Views on the matter clashed sharply during the negotiations, as many participants felt very strongly that prosecution is the sole appropriate response, whereas others felt very strongly that alternative mechanisms are acceptable. Even among those delegations that favoured the prosecution of all international crimes, many had reservations about laying down an inflexible rule for all time mandating prosecution as the only acceptable response in all situations. On the other hand, creating an explicit exception allowing amnesties was equally unacceptable. Some delegations opposed any exception on principle, whereas others were concerned that any exception would be immediately exploited and abused. As a result, the drafters allowed the Court to develop an appropriate approach when faced with concrete situations.163 Notwithstanding the clear message in the Preamble of the ICC Statute, which at least suggests that not initiating an investigation and prosecution because of a national amnesty law would be incompatible with the purpose of the ICC,164 some articles of the Statute grant the ICC Prosecutor and the judges some margin to recognize an amnesty exception to its jurisdiction. Such margin may be important, because when the ICC Prosecutor interprets the ICC Statute strictly and initiates an investigation and prosecution without regard to local circumstances, this may infringe on and overturn politically sensitive arrangements. The following articles are worth mentioning here:

161 Darryl Robinson, “Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court”, European Journal of International Law, vol. 14 no. 3 2003, pp. 481-505, p. 482. 162 See ICC Statute, Preamble and Article 1. 163 Darryl Robinson, “Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court”, European Journal of International Law, vol. 14 no. 3 2003, pp. 481-505, p. 483. 164 According to Goldstone and Fritz, the ICC is not aiming to start an investigation and prosecution in each and every instance, or without regard to the concerned state’s societal system. Thus, concerns for an ICC Prosecutor who will intervene in transition processes are misplaced; Richard J. Goldstone and Nicole Fritz, “‘In the Interests of Justice’ and Independent Referral: The ICC Prosecutor’s Unprecedented Powers”, Leiden Journal of International Law, vol. 13 2000, pp. 655-667, p. 660. However, the complementarity principle in the ICC Statute gives both national courts and the ICC jurisdiction over the crimes within the jurisdiction of the ICC, which means in principle that prosecution is the appropriate means.

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̶ Under Article 16 (Deferral of investigation or prosecution), the UN Security Council may request the ICC Prosecutor to halt investigations or prosecutions in a specific case for a period of twelve months when the Security Council adopts a Resolution on that matter under Chapter VII of the UN Charter. This request is renewable each year. A Chapter VII Resolution is made with respect to threats to the peace, breaches of the peace, or acts of aggression. For the purpose of deferral, this means that prosecution by the ICC must be regarded as a threat to the international peace and security. When prosecution by the ICC is deemed to be a threat to a newly established peace, or peace negotiations, the Security Council may request the ICC Prosecutor to postpone investigations or prosecutions in the interests thereof.

̶ According to Article 17 (Issues of admissibility), the Court has to determine that a case is inadmissible where the state that has jurisdiction over the case has properly investigated or prosecuted it. States have the primary responsibility for investigating and prosecuting the crimes within the jurisdiction of the ICC, since the ICC is complementary to national jurisdictions. A national amnesty may be regarded as an act by a state that is unwilling or unable genuinely to carry out the investigation or prosecution.165To find a situation or case inadmissible under Article 17, alternative sanctions, such as reparations, exile, public apologies, or mandatory participation in a truth commission or traditional justice mechanisms, may be taken into account by the ICC.

̶ Article 20 (Ne bis in idem), holds that the ICC shall not try persons already tried by another court, unless the proceedings in the other court:

(3)(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(3)(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

This indicates that sham proceedings will not prevent the ICC from opening an investigation. Sham trials, which aim to shield perpetrators from criminal responsibility and appropriate punishment, may be recognized as providing veiled impunity for perpetrators of grave human rights violations. Recognizing that the effect of a sham trial is equivalent to

165Article 17(1)(a) ICC Statute.

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an amnesty measure, it is likely that a national amnesty will not prevent the ICC from exercising its powers.

̶ Under Article 53 (Initiation of an investigation) the ICC Prosecutor may decide not to initiate an investigation when he believes that “… [taken] into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice”.166 The phrase “interests of justice” gives the ICC Prosecutor discretion in complex situations. Factors that may be of relevance here are the interests of victims and possible domestic accountability measures. A national amnesty law may be taken into consideration here as well.

In line with the Preamble, Article 29 states that “[t]he crimes within the jurisdiction of the Court shall not be subject to any statute of limitations”. This means that whatever time has elapsed since the crime was committed, it will always be possible to prosecute those responsible. Seen as a restriction to prevent prosecution, a statute of limitations is comparable to an amnesty provision. Regarded as such, it may be argued that the ICC will not recognize amnesty since it is a restriction to prosecute. Given the fact that the ICC Statute forecloses the possibility of ruling out prosecution after a number of years by a statute of limitations, it is quite unlikely that it will accept the impossibility of prosecuting because of an amnesty law. In conclusion, it may be stated that it is very unlikely that the ICC will ever give up prosecution because of an amnesty, since it is completely against the Court’s mandate and policy. However, it is not inconceivable that the ICC Prosecutor will refrain from initiating an investigation because of alternative transitional justice measures a state party has taken, of which an amnesty law may form a part, when these alternative measures comply with the criteria to be developed in this research and the ICC Prosecutor believes that prosecution will do more harm than good. The former President of the ICC, Philippe Kirsch, once said that under the ICC Statute “some limited amnesties may be compatible” with the obligations to genuinely investigate or prosecute. At the same time, it seems likely that the ICC will not honour sweeping amnesty provisions that have been put in place by regimes to protect their own officials.167

166 Article 53(1)(c) ICC Statute. Article 53(3)(b) ICC Statute states: “The Pre-Trial Chamber of the ICC may review this decision of the prosecutor, and in such a case, the decision of the prosecutor not to proceed shall be effective only if confirmed by the Pre-Trial Chamber.” See also Michael P. Scharf, “The Amnesty Exception to the Jurisdiction of the International Criminal Court”, Cornell International Law Journal, vol. 32 1999, pp. 507-527, pp. 522-527, and John Dugard, “Possible Conflicts of Jurisdiction with Truth Commissions”, in: Antonio Cassese, Paola Geata and John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1, Oxford University Press: Oxford/New York 2002, pp. 693-704, pp. 701-702. 167 In the extradition case against the former Chilean dictator Augusto Pinochet, neither his lawyers nor the Chilean government brought forward the amnesty decree of 1978, which granted unconditional, total amnesty for crimes committed between 1973 and 1978, probably because they did not expect that a foreign court would pay serious attention to an amnesty decree in effect granted by Pinochet to

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5.5 Special Court for Sierra Leone

The Government of Sierra Leone and the United Nations set up the Special Court for Sierra Leone (SCSL) jointly after the call “of the Government of Sierra Leone for assistance from the United Nations in establishing a strong and credible court that will meet the objectives of bringing justice and ensuring lasting peace”.168 The SCSL was established by an Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council Resolution 1315 (2000) of 14 August 2000169 and is playing a crucial role in bringing justice for horrific human rights abuses committed during the Sierra Leone armed conflict.170 On 16 January 2002, in Freetown, the United Nations and the Government of Sierra Leone signed an agreement establishing the Special Court171 to provide “a credible system of justice and accountability for the very serious crimes committed … [which] would end impunity and would contribute to the process of national reconciliation and to the restoration and maintenance of peace”.172 Before the establishment of the Court, on 7 July 1999, the Government of Sierra Leone and the armed opposition Revolutionary United Front signed a peace agreement to settle the war in their country that began in 1991. Article IX of the Lomé Peace Agreement states:

himself. In the judgments on the extradition case, only two Law Lords mentioned the question of amnesty; John Dugard, “Dealing with Crimes of a Past Regime. Is Amnesty Still an Option?”, Leiden Journal of International Law, vol. 12 1999, pp. 1001-1015, p. 1007. In the words of Kofi Annan, the ICC Statute is to ensure “… that mass-murderers and other arch criminals cannot shelter behind a state run by themselves and their cronies, or take advantage of a general breakdown of law and order”. With respect to the jurisdiction of the ICC, UN Secretary-General Kofi Annan stated: “No one should imagine that it would apply to a case like South Africa’s, where the regime and the conflict which caused the crimes have come to an end, and the victims have inherited the power. It is inconceivable that, in such a case, the court would seek to substitute its judgment for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future. (Speech at the Witwatersrand University Graduation Ceremony on the occasion of the conferment of an Honorary Doctor of Laws degree, Johannesburg, 1 September 1998.) 168 Security Council, Security Council Resolution 1315 (2000) [on establishment of a Special Court for Sierra Leone], S/RES/1315(2000), 14 August 2000. 169 SCSL Statute. 170 “The conflict, which lasted from 1991 to 2002, was characterized by extreme brutality. Civilians suffered widespread and systematic attacks involving murder, mutilation, amputation, torture, rape, abduction, and the conscription and use of child soldiers. The majority of crimes were perpetrated by rebels from the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC). Government forces and their allies, including the Civil Defense Forces (CDF), also committed serious violations, albeit on a smaller scale than those by the rebel alliance.” In: Human Rights Watch, Sierra Leone.Justice in Motion. The Trial Phase of the Special Court for Sierra Leone, November 2005 vol. 17 no. 14(A), p. 1. 171 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone. 172 Security Council, Security Council Resolution 1315 (2000) [on establishment of a Special Court for Sierra Leone], S/RES/1315(2000), 14 August 2000; The SCSL is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.

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PARDON AND AMNESTY

1. In order to bring lasting peace to Sierra Leone, the Government of Sierra Leone shall take appropriate legal steps to grant Corporal Foday Sankoh absolute and free pardon.

2. After the signing of the present Agreement, the Government of Sierra Leone shall also grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present Agreement.

3. To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organisations, since March 1991, up to the time of the signing of the present Agreement. In addition, legislative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality.

In the Report of the UN Secretary-General on the establishment of a Special Court for Sierra Leone, the UN Secretary-General discussed the amnesty clause in the Lomé Peace Agreement. He stated:

While recognizing that amnesty is an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict,[…] the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law. … At the time of the signature of the Lomé Peace Agreement, the Special Representative of the Secretary-General for Sierra Leone was instructed to append to his signature on behalf of the United Nations a disclaimer to the effect that the amnesty provision contained in article IX of the Agreement (“absolute and free pardon”) shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law. This reservation is recalled by the Security Council in a preambular paragraph of resolution 1315 (2000).173

In UN SC Resolution 1315 (2000), it was recalled “that the Special Representative of the Secretary-General appended to his signature of the Lomé Agreement a statement that the United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international

173 Security Council, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, S/2000/915, 4 October 2000.

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The legality of national amnesty laws under international law humanitarian law”.174 The Security Council reaffirmed “that persons who commit or authorize serious violations of international humanitarian law are individually responsible and accountable for those violations and that the international community will exert every effort to bring those responsible to justice in accordance with international standards of justice, fairness and due process of law”.175 The Appeals Chamber of the SCSL affirmed that “[t]he interpretative declaration appended by the Secretary-General’s representative at the signing of the Lomé Agreement is in accordance with international law and is sufficient indication of the limits of the amnesty granted by the Agreement”.176 Article 10 of the SCSL Statute provides that “[a]n amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution”.177 The crimes named in Articles 2 to 4 are crimes against humanity, violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, and other serious violations of international humanitarian law. On 13 March 2004, the SCSL Appeals Chamber rendered an important decision on the validity of amnesties under international law, in accordance with Article 10 of its Statute. In its decision regarding its jurisdiction in Prosecutor v. Morris Kallon and Brima Bazzy Kamara, the Court held that “the amnesty granted in the Lomé Agreement … is ineffective in removing the universal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes. It is also ineffective in depriving an international court such as the Special Court of jurisdiction.”178 The Appeals Chamber found that the Lomé Peace Agreement created rights and obligations that are to be regulated by the domestic laws of Sierra Leone. Consequently, “whether it is binding on the Government of Sierra Leone or not does not affect the liability of the accused to be prosecuted in an international tribunal for international crimes such as those contained in Articles 2 to 4 of the Statute of the Court”.179 According to the SCSL:

174 Security Council, Security Council Resolution 1315 (2000) [on establishment of a Special Court for Sierra Leone], S/RES/1315(2000), 14 August 2000. 175Ibid. 176SCSL Appeals Chamber, Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Case No. SCSL-2004-15-AR72(E) and Case No. SCSL-2004-16-AR72(E), 13 March 2004, para. 89. 177 Alejandra Vicente, Justice against Perpetrators, The Role of Prosecution in Peacemaking and Reconciliation, paper prepared for BADIL expert forum: Ghent University May 2003, p. 12. 178 SCSL Appeals Chamber, Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Case No. SCSL-2004-15-AR72(E) and Case No. SCSL-2004-16-AR72(E), 13 March 2004, para. 88. 179 See ibid., para. 86. There is a variety of legal sources supporting the principle that domestic laws or judicial decisions cannot exempt a person accused of international crimes from individual criminal responsibility or prevent a foreign or international court from prosecuting. E.g., the Allied Control Council Law No. 10 of 1946 provided that no statute, pardon, grant of immunity or amnesty under the Nazi regime would be admitted as a bar to trial or punishment: Art. II.5: “In any trial or prosecution for a crime herein referred to, the accused shall not be entitled to the benefits of any statute of limitation in respect to the period from 30 January 1933 to 1 July 1945, nor shall any immunity, pardon or amnesty granted under the Nazi regime be admitted as a bar to trial or punishment.”; In 1968, the UN General

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The grant of amnesty or pardon is undoubtedly an exercise of sovereign power which, essentially, is closely linked, as far as crime is concerned, to the criminal jurisdiction of its state exercised in such sovereign power. Where jurisdiction is universal, a state cannot, by the grant of amnesty, deprive another state of its jurisdiction to prosecute the offender. It is for this reason unrealistic to regard as universally effective the grant of amnesty by a state in regard to grave international crimes in which there exists universal jurisdiction. A state cannot bring into oblivion and forgetfulness a crime such as a crime against international law, which other states are entitled to keep alive and remember.180

This decision of the Special Court is the first ruling of a (mixed) international criminal tribunal unequivocally stating that amnesties do not bar the prosecution of human rights crimes before international or foreign national courts. According to the Minister of Justice of Sierra Leone, Solomon Berewa, without the amnesty provision in the Lomé Peace Agreement the Revolutionary United Front would have refused to sign the agreement and to end hostilities.181 It is therefore remarkable that the Special Court in its decision did not take into account the situation in Sierra Leone or the consequences its decision might have. Human Rights Watch is nevertheless of the opinion that “[a]ccountability for serious human rights crimes committed during Sierra Leone’s war is essential for several reasons, including to bring justice to the victims, to punish the perpetrators, and to strengthen respect for the rule of law in the post-conflict era”.182 In another decision, the SCSL ruled that:

[t]he crimes mentioned in Articles 2-4 of the Statute of the Special Court (crimes against humanity; violations of Article 3 common to the Geneva Conventions and Additional Protocol II, and other serious violations of international humanitarian law) are international crimes entailing universal jurisdiction. Article IX of the Lomé Agreement cannot constitute a legal bar to the exercise of jurisdiction over international crimes by an international court or a state asserting universal jurisdiction. Equally, it does not constitute a legal bar to the establishment of an international court to try crimes against humanity.183

Assembly stated that no statutory limitation would apply to war crimes, crimes against humanity, or genocide, see the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, General Assembly Resolution 2391, 26 November 1968. 180 SCSL Appeals Chamber, Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Decision on Preliminary Motion Based on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by the Lomé Accord, Case No: SCSL-2004-15-PT and SCSL-2004-16-PT, 13 March 2004, para. 75. 181 Solomon Berewa, “Addressing impunity using divergent approaches: The Truth and Reconciliation Commission and the Special Court”, accessible via 182 Human Rights Watch, Sierra Leone.Justice in Motion. The Trial Phase of the Special Court for Sierra Leone, November 2005 vol. 17 no. 14(A), p. 1. 183 SCSL Appeals Chamber, Prosecutor v. Augustine Gbao, Decision on Preliminary Motion on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court, Case No. SCSL-2004-15-AR72(E), 25 May 2004, para. 8.

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The SCSL made clear that a national amnesty provision covering grave human rights violations, even one agreed to in a peace agreement, will have no legal value in international proceedings by a foreign national court based on universal jurisdiction, nor for an international court such as the Special Court for Sierra Leone, and consequently, will not prevent those courts from exercising jurisdiction, and prosecuting and punishing the perpetrators.

6 UNIVERSAL JURISDICTION

In the international human rights arena, there are two ways of holding perpetrators of international human rights crimes accountable before a court. Either prosecution before an international court or tribunal based on international law, or before a national court of a third-party state based on universal jurisdiction. Universal jurisdiction is a complementary means for the enforcement of international jurisdiction for international crimes. Through universal jurisdiction, a crime falls within the jurisdiction of all states. By means of universal jurisdiction, a state may or even should exercise:

jurisdiction over crimes allegedly committed in the territory of another state by nationals of another state against national of another state where the crime alleged poses no direct threat to the vital interests of the state asserting jurisdiction. In other words, universal jurisdiction amounts to the claim by a state to prosecute crimes in circumstances where none of the traditional links of territoriality, nationality, passive personality or the protective principle exists at the time of the commission of the alleged offence.184

The principle of universal jurisdiction “is based on the notion that certain crimes are so harmful to international interests that States are entitled, and even obliged, to bring proceedings against the perpetrator, regardless of the location of the crime or the nationality of the perpetrator or the victim”.185 These crimes are considered imprescriptible.186 Universal jurisdiction is only applicable to serious international human rights crimes like genocide, crimes against humanity, war crimes, piracy and torture.187 Menno Kamminga explains whether it is more a duty or a right to exercise universal jurisdiction: the exercise of universal jurisdiction is considered to be an obligation regarding grave breaches of the Geneva Conventions and torture

184Council of the European Union, 8672/1/09, AU-EU Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction, Report: Brussels 16 April 2009, para. 8. 185 General Assembly, Report of the UN High Commissioner for Human Rights, A/56/36, 28 September 2001, para. 72. 186 Commission on Human Rights, Final Report on the Question of the Impunity of Perpetrators of Human Rights Violations (Economic, Social and Cultural Rights), prepared by Mr. El Hadji Guissé, Special Rapporteur, pursuant to Sub-Commission resolution 1996/24, E/CN.4/Sub.2/1997/8, 27 June 1997, para. 29. 187Council of the European Union, 8672/1/09, AU-EU Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction, Report: Brussels 16 April 2009, para. 9.

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Chapter IV for states parties to these conventions.188 Based on customary international law, states are entitled to exercise jurisdiction over the crime of genocide, crimes against humanity, war crimes and torture.189 Universal jurisdiction originates from the idea that when a state itself is not able or willing to prosecute, other countries may try those suspected of serious international crimes, who are considered hostis humani generis. Through the existence of the mechanism of universal jurisdiction, it is hoped that states are encouraged to investigate and prosecute themselves. Justice is the main motive for the application of universal jurisdiction. Although it was possible, states did not use universal jurisdiction for a long time. Since approximately 1998, universal jurisdiction has been used more and more on several occasions. In particular Spain has made use of the possibility, the most famous example being that of former Chilean military leader, General Augusto Pinochet Ugarte, who as a result was arrested in London in 1998. During the proceedings against Pinochet in London:

Senator Pinochet was alleged to have breached norms of international law founded on customary international law, conventions and treaties. The prohibition of torture ‘has evolved into a peremptory norm of jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even “ordinary customary” rules’. Charges of torture are commonplace in the leading cases on crimes against humanity. Therefore, when executive decisions compromise enforcement of norms jus cogens, they undermine the very core of international standards. In the view of Lords Millet and Philips torture and hostage taking are ‘international crimes for which there could be no immunity even before the [Torture] Convention came into effect and consequently there is no immunity under customary international law’.190

During the proceedings, the self-amnesty law issued by Pinochet himself did not come up. It was evident that the amnesty argument would not stand up outside Chile. Eventually, Great Britain did not extradite Pinochet to Spain; due to health issues, he was released in 2000 and returned to Chile. Although Pinochet was not extradited to Spain to be tried, the case led to a flood of other cases. One case based on universal jurisdiction that led to a conviction, was that of Adolfo Scilingo, an Argentinean naval officer who was found guilty of crimes against humanity by a Spanish court in 2005.191 Cases concerning crimes within their jurisdiction but not brought before the ICTY and ICTR may be brought before courts in other states

188 Menno Kamminga, “Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses”, Human Rights Quarterly, vol. 23 2003, pp. 940-974, p. 965. 189Ibid. 190 Ben Chigara, Amnesty in International Law, The Legality under International Law of National Amnesty Laws, Pearson Education: Harlow 2002, p. 17. 191 Scilingo wrote a book on his involvement in the Dirty War, called ‘El Vuelo’ (which means ‘The Flight’) referring to the death flights he witnessed as a naval officer. In Spain he was convicted for crimes against humanity and torture.

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The legality of national amnesty laws under international law under the principle of universal jurisdiction. There are already several examples of such cases.192 Notwithstanding the increasing role of international law, the increasing use of universal jurisdiction and the establishment of international court and tribunals, the responsibility for prosecution lies primarily with the state concerned. Even when the state concerned does not comply with its obligations under international law, the court or tribunal that does want to investigate and prosecute is reliant on cooperation of the state concerned regarding evidence and the extradition of suspects. Article 93(1) of the ICC Statute specifies the forms of cooperation that may be needed. The UN Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity provide that “States shall co-operate with each other in the collection of information and evidence which would help to bring to trial the persons … [against whom there is evidence that they have committed war crimes and crimes against humanity] and shall exchange such information”.193 This notwithstanding, witnesses have to be traced and be willing to cooperate and testify. They may fear retaliation. The threat of a criminal trial in another country may however stimulate a state to show its commitment to the rule of law and to comply with its obligations under international law. This happened for instance in the case of Ricardo Miguel Cavallo, a former Argentinean naval officer, who was extradited from Mexico to Spain in 2003, where he was charged with genocide, crimes against humanity and terrorism. In 2005, the Argentinean Constitutional Court ruled that the two amnesty laws were unconstitutional and subsequently, Argentina initiated proceedings against Cavallo. As a result, in 2008, he was extradited from Spain to Argentina to stand trial. Notwithstanding the difficulties, universal jurisdiction is an important fall-back instrument in cases where the state concerned is genuinely unable or unwilling to investigate, prosecute and punish the suspects of serious violations of human rights. One of the initiatives to clarify and promote universal jurisdiction is the Princeton Principles on Universal Jurisdiction announced by renowned jurists and legal experts in 2001. Principle 13 emphasizes that the aim of the Princeton Principles is to strengthen accountability and universal jurisdiction.194 According to

192 See, for instance, Belgium v. the "Four of Butare" (two Rwandan nuns, Consolata Mukangango (known as Sister Gertrude) and Julienne Mukabutera (known as Sister Julienne Kisito), academic Vincent Ntezimana and the former Minister Alphonse Higaniro) (2001), Belgium v. Ephrem Nkezabera (2009) and Germany v. Maksim Sokolovic (2001). 193 General Assembly, Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, General Assembly Resolution 3074 (XXVIII), 3 December 1973, para. 6. 194 Principle 13: 1. National judicial organs shall construe national law in a manner that is consistent with these Principles. 2. Nothing in these Principles shall be construed to limit the rights and obligations of a state to prevent or punish, by lawful means recognized under international law, the commission of crimes under international law.

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Principle 2(1), serious crimes under international law are piracy, slavery, war crimes, crimes against peace, crimes against humanity, genocide and torture. Besides stipulating that there exists an obligation to prosecute these crimes, the Principles also rule out every form of de iure impunity. A number of Principles are relevant in this respect. Principle 4 obligates states to support accountability.195 Principle 5 on ‘Immunities’ states that “the official position of any accused person, whether as head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment”. Principle 6 holds that “Statutes of limitations or other forms of prescription shall not apply to serious crimes under international law as specified in Principle 2(1)”. Principle 7 is specifically about amnesties:

1. Amnesties are generally inconsistent with the obligation of states to provide accountability for serious crimes under international law as specified in Principle in 2(1). 2. The exercise of universal jurisdiction with respect to serious crimes under international law as specified in Principle 2(1) shall not be precluded by amnesties which are incompatible with the international legal obligations of the granting state.

The authors of the Princeton Principles are well aware that “the imprudent or untimely exercise of universal jurisdiction could disrupt the quest for peace and national reconciliation in nations struggling to recover from violent conflict or political oppression”, and therefore asks for discretion in the exercise of universal jurisdiction.196 On 21 March 2006, the UN General Assembly adopted the Basic Principles and Guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law (known as the Van Boven-Bassiouni Principles).197 Principle 5 of the Van Boven-Bassiouni Principles contains a view on universal jurisdiction:

3. These Principles shall not be construed as limiting the continued development of universal jurisdiction in international law. 195 Article 4: 1. A state shall comply with all international obligations that are applicable to: prosecuting or extraditing persons accused or convicted of crimes under international law in accordance with a legal process that complies with international due process norms, providing other states investigating or prosecuting such crimes with all available means of administrative and judicial assistance, and undertaking such other necessary and appropriate measures as are consistent with international norms and standards. 2. A state, in the exercise of universal jurisdiction, may, for purposes of prosecution, seek judicial assistance to obtain evidence from another state, provided that the requesting state has a good faith basis and that the evidence sought will be used in accordance with international due process norms. 196 Stephen Macedo (ed.), Princeton Principles on Universal Jurisdiction, Princeton University: Princeton 2001, p. 25. 197 General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. The Principles and Guidelines were drafted by the

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[W]here so provided in an applicable treaty or under other international law obligations, States shall incorporate or otherwise implement within their domestic law appropriate provisions for universal jurisdiction. Moreover, where it is so provided for in an applicable treaty or other international legal obligations, States should facilitate extradition or surrender offenders to other States and to appropriate international judicial bodies and provide judicial assistance and other forms of cooperation in the pursuit of international justice, including assistance to, and protection of, victims and witnesses, consistent with international human rights legal standards and subject to international legal requirements such as those relating to the prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment.198

Beneficiaries of an amnesty measure may only safely rely on their being let off scot-free in their own country. Outside the borders, suspects of serious violations of human rights may be arrested and prosecuted because amnesty has no international validity. The following consideration of the ICTY in Furundžija (1998) regarding the universal crime of torture is exemplary here:

Furthermore, at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture to such an extent as to restrict the normally unfettered treaty-making power of sovereign States, and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice abroad. This legal basis for States’ universal jurisdiction over torture bears out and strengthens the legal foundation for such jurisdiction found by other courts in the inherently universal character of the crime. It has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes. As stated in general terms by the Supreme Court of Israel in Eichmann, and echoed by a USA court in Demjanjuk, “it is the universal character of the crimes in question i.e. international crimes which vests in every State the authority to try and punish those who participated in their commission.”199

Therefore, the perpetrators are only safe from prosecution in the country that granted amnesty, unless the state repeals the law at a later date. By means of universal jurisdiction, another country may institute proceedings, as the case of

independent experts Mr. Theo van Boven and Mr. M. Cherif Bassiouni and adopted by the UN Commission on Human Rights on 19 April 2005 in Resolution 2005/35. 198 General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006, Principle 5. 199ICTY, Prosecutor v. Anto Furundžija (Trial Judgment), IT-95-17/1-T, 10 December 1998, para. 156.

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Ould Dah v. France (ECtHR) illustrates.200 Other countries may however decide to respect the state’s choice not to prosecute, for the sake of the country’s future, for instance, when the granting of amnesty was the only means of establishing peace. The home state of the national against whom proceedings are initiated will possibly not be pleased; therefore, states will be careful in initiating cases based on universal jurisdiction. Universal jurisdiction will continue to play a role, notwithstanding the jurisdiction of the ICC. The ICC will never be able to prosecute all suspects of serious violations of human rights that are not tried in their home country.201 Whether an amnesty stands in the way of exercising universal jurisdiction may be examined through the framework for amnesty review.

7 CONCLUSION

From the sections above it has become evident that several conventions and declarations contain a rejection of amnesty or other measures of impunity and/or an obligation to prosecute. In line of these findings, amnesty laws should thus not cover acts that constitute violations of the rights recognized in these international human rights instruments. This is also one of the main arguments of opponents of the use of amnesty. However, state practice does not reject amnesties. This is very inconvenient for the opponents of amnesty, since general state practice against the prohibition of amnesty or the duty to prosecute casts doubt on these demands. During his visit to the ICTY in 1997, Kofi Annan said: “Impunity cannot be tolerated, and will not be. In an interdependent world, the rule of the law must prevail.” This is a very strong statement to which one has to agree in principle. There are, however, exceptions. Instead of ignoring the fact that state practice of issuing amnesties exists, and simply claiming that amnesties are unacceptable and repeating their possible negative consequences without further looking into the underlying reasons for granting amnesty in the state concerned, the actual consequences or the possibility that amnesty enhances the prospects for peace more than conducting prosecutions does, it seems more realistic to take the possible positive effects of amnesty into account. None of the conventions, treaties, declarations or statutes and their monitoring bodies discussed in this chapter considers the possibility that amnesty, in some cases and under certain circumstances, may positively contribute to the human rights situation. Under international law, no immunity from prosecution and punishment is permitted for serious human rights crimes, qualified as war crimes, genocide and crimes against humanity. Article 27 of the Vienna Convention on the Law of Treaties provides that a state may not unilaterally invoke the provisions of its domestic law as justification for its failure to perform the legal obligations imposed by an international treaty. However, no mention is made of an exception

200 See Section 2.3.2 of this chapter, on the European Court of Human Rights. 201 See also, Stephen Macedo (ed.), Princeton Principles on Universal Jurisdiction, Princeton University: Princeton 2001, p. 16.

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The legality of national amnesty laws under international law regarding a state of emergency in which an amnesty measure may be deemed necessary to restore peace and order. When holding the position that a duty to prosecute exists, and forcing a country to either prosecute or extradite, one should be sure that prosecution is in the best interests of the people. This is, however, a claim that cannot be held with certainty in every situation. Notwithstanding the fact that various international, regional and crime specific legal instruments foreclose impunity for civil and political rights, there is no general framework to put amnesty measures to the test. Neither is there a standardized approach when a state issues an amnesty that cannot pass muster. In the next chapter, the United Nations position and practice regarding impunity, amnesties and the duty to prosecute will be discussed in more detail, in order to find out how the various UN mechanisms deal with amnesty and impunity-related issues.

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CHAPTER V THE UNITED NATIONS’ POSITION AND PRACTICE ON IMPUNITY, AMNESTIES AND THE DUTY TO PROSECUTE

1 INTRODUCTION

The Charter of the United Nations was adopted on 26 June 1945 and entered into force on 24 October 1945. It is the constituent treaty of the United Nations. The Charter was “designed to introduce law and order and an effective collective security system into international relations”.1 One of the main purposes of the United Nations is:

[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.2

Over the years, due to developments in countries across the globe, various UN bodies have dealt with questions on impunity, amnesty and the duty to prosecute serious human rights violations. Major achievements in the field of international criminal justice are the establishment of the ICTY and the ICTR, already discussed in Chapter III. The General Assembly, the Security Council and the International Court of Justice are relevant organs within this research and these organs will be discussed in this chapter. In addition, the Secretary-General of the United Nations, the former Commission on Human Rights, the Human Rights Council and the Office of the High Commissioner on Human Rights will be elaborated on.

1 Peter Malanczuk, Akehurst’s Modern Introduction to International Law, Routledge: London/New York 1997, p. 27. 2UN Charter, Article 1(1).

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Worth mentioning in this introduction is the UN World Conference of Human Rights.3 This conference marked “the beginning of a renewed effort to strengthen and further implement the body of human rights instruments” of the United Nations.4 On 25 June 1993, the representatives of 171 states adopted the Vienna Declaration and Programme of Action with consensus. In paragraph 18 of Section II, “[t]he World Conference on Human Rights recommends to the General Assembly … the establishment of a High Commissioner for Human Rights for the promotion and protection of all human rights”.5 The General Assembly subsequently created the post of High Commissioner for Human Rights by Resolution 48/141 of 20 December 1993.6 In paragraph 23 of Section II, “[t]he World Conference on Human Rights stresses that all persons who perpetrate or authorize criminal acts associated with ethnic cleansing are individually responsible and accountable for such human rights violations, and that the international community should exert every effort to bring those legally responsible for such violations to justice”.7In paragraph 60 of Section II, it is laid down that “[s]tates should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law”.8 As is clear from these paragraphs and the consensus on the Vienna Declaration, amnesty laws should not cover serious violations of human rights. Currently, there are 193 member states of the United Nations. Given its global reach, the UN position and practice on impunity, amnesty and the duty to prosecute is well worth setting out.

2 GENERAL ASSEMBLY

Over the years, the General Assembly has on several occasions given its opinion on questions of prosecution of human rights crimes and remedies for victims.9 Although General Assembly resolutions are not legally binding, they often nonetheless represent confirmation of state practice and opinio iuris.10 The

3 The WCHR was organized in Vienna (Austria) from 14 to 25 June 1993 (just a few weeks after the establishment of the ICTY). See also Section 1 of Chapter IV. 4 UN OHCHR, ‘World Conference on Human Rights, 14-25 June 1993, Vienna, Austria’, accessible via 5 World Conference on Human Rights, Vienna Declaration and Programme of Action, A/CONF.157/23, 12 July 1993, Section II,para.18. 6General Assembly, High Commissioner for the promotion and protection of all human rights, A/RES/48/141, 7 January 1994. 7 World Conference on Human Rights, Vienna Declaration and Programme of Action, A/CONF.157/23, 12 July 1993, Section II, para. 23. 8 See ibid., para. 60. 9 The UN General Assembly is one of the principal organs of the United Nations, established in 1945 under the UN Charter. The General Assembly is a forum for multilateral negotiations and the main deliberative organ of the UN, determining UN policy. 10 Michael P. Scharf, “The Amnesty Exception to the Jurisdiction of the International Criminal Court”, Cornell International Law Journal, vol. 32 1999, pp. 507-527, p. 520; Andreas O’Shea, Amnesty for

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The United Nations’ position and practice on impunity, amnesties and the duty to prosecute following relevant developments and statements are worth mentioning with respect to the UN position on impunity, amnesty and the duty to prosecute. They are presented in chronological order:

* On 10 December 1948, the UN General Assembly adopted and proclaimed the Universal Declaration of Human Rights (UDHR). Article 8 of the Universal Declaration guarantees “the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”.11 The right to a remedy is a right to protect victims. In order to provide an effective remedy, the fact that a crime occurred, and if so the conduct of the crime, has to be established in fair legal proceedings. This means that the omission not to prosecute fails to guarantee the right to a remedy, and consequently violates Article 8 of the UDHR. Seen in this light, implicitly, the UDHR thus contains a duty to prosecute whenever the victims prefer prosecutions over impunity. Article 7 UDHR claims that all are equal before the law and are entitled without any discrimination to equal protection of the law.12

* In 1969, The UN General Assembly in Resolution 2583 noted that:

The thorough investigation of war crimes and crimes against humanity, and the detection, arrest, extradition and punishment of persons responsible for war crimes and crimes against humanity, constitute an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion of international peace and security.

* In Resolution 2840 (1971) on the question of the punishment of war criminals and of persons who have committed crimes against humanity, the General Assembly noted that it is “[c]onvinced that the effective punishment of war crimes and crimes against humanity is an important element in putting an end to and preventing such crimes, in the protection of human rights and fundamental freedoms, in the strengthening of confidence and in promoting co-operation between peoples as well as peace and international security”.13 The General Assembly affirmed “that war crimes and crimes against humanity are amongst the most dangerous crimes under international law”,14 and is “convinced of the need for international co-operation in the thorough investigation of war crimes and crimes against humanity, ... and in

Crime in International Law and Practice, Kluwer Law International: The Hague/London/New York 2002, p. 249. 11 Article 8 UDHR. 12 Universal Declaration of Human Rights 1948, Article 7: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” 13 General Assembly, Question of the punishment of war criminals and of persons who have committed crimes against humanity, General Assembly Resolution 2840 (XXVI), 18 December 1971. 14Ibid.

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Chapter V bringing about the detection, arrest, extradition and punishment of all war criminals and persons guilty of crimes against humanity who have not yet been brought to trial or punished”.15 The “refusal by States to co-operate in the arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity is contrary to the purposes and principles of the Charter of the United Nations and to generally recognized norms of international law”.16

* In 1973, the UN General Assembly adopted the Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, in which it declared that:

War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment … as a general rule in the countries in which they committed those crimes … States shall not take any legislative or other measures which may be prejudicial to the international obligations they have assumed in regard to the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity.17

* On 29 November 1985, the UN General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. In the accompanying resolution, the General Assembly “[c]alls upon Member States to take the necessary steps to give effect to the provisions contained in the Declaration and, in order to curtail victimization as referred to hereinafter, endeavour: … To establish and strengthen the means of detecting, prosecuting and sentencing those guilty of crimes.”18 Principle 4 on ‘the access to justice and fair treatment’ provides that “[v]ictims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.” In the 1999 Guide for Policy Makers. On the Implementation of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power it is emphasized that redress includes access to justice and fair treatment, restitution, compensation and the necessary material, medical, psychological and social assistance and support.19

15Ibid. 16See ibid., para. 4. 17 General Assembly, Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, General Assembly Resolution 3074 (XXVIII), 3 December 1973, paras. 1, 5, 8. 18 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES 40/34, 29 November 1985, para. 4(d). 19Guide for Policy Makers. On the Implementation of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UNODCCP, Centre for International Crime Prevention, New York 1999, pp. 17, 24, 26 and 27, and para. 19.

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* In 1989, the General Assembly endorsed Resolution 1989/65 of the UN Economic and Social Council on the Principles on the effective prevention and investigation of extra-legal, arbitrary and summary executions. Principle 19 strongly opposes amnesty laws for extra-legal, arbitrary or summary executions. Principles 18 and 19 read:

18. Governments shall ensure that persons identified by the investigation as having participated in extra-legal, arbitrary or summary executions in any territory under their jurisdiction are brought to justice. Governments shall either bring such persons to justice or cooperate to extradite any such persons to other countries wishing to exercise jurisdiction. This principle shall apply irrespective of who and where the perpetrators or the victims are, their nationalities or where the offence was committed. 19. Without prejudice to principle 3 above, an order from a superior officer or a public authority may not be invoked as a justification for extra-legal, arbitrary or summary executions. Superiors, officers or other public officials may be held responsible for acts committed by officials under their authority if they had a reasonable opportunity to prevent such acts. In no circumstances, including a state of war, siege or other public emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in extra-legal, arbitrary or summary executions.

* On 14 December 1990, the UN General Assembly adopted the Model treaty on extradition “as a useful framework that could be of assistance to States interested in negotiating and concluding bilateral agreements aimed at improving co-operation in matters of crime prevention and criminal justice”.20 Article 3 of this Model treaty provides mandatory grounds for refusal. Article 3(e) holds that “[e]xtradition shall not be granted … if the person whose extradition is requested has, under the law of either Party, become immune from prosecution or punishment for any reason, including lapse of time or amnesty”. Read in combination with other General Assembly resolutions, for example the 1973 Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, Article 3(e) should not be interpreted to cover amnesties for gross human rights violations.

* On 18 December 1992, the UN General Assembly adopted the Declaration on the protection of all persons from enforced disappearance.21 Article 4 provides that “[a]ll acts of enforced disappearance shall be offences under criminal law punishable by appropriate penalties which shall take into account their extreme seriousness”. Article 18 provides:

Persons who have or are alleged to have committed offences referred to in article 4, paragraph 1, above, shall not benefit from any special amnesty law or

20 General Assembly, Model Treaty on Extradition, A/RES/45/116, 14 December 1990, para. 1. 21 General Assembly, Declaration on the Protection of All Persons from Enforced Disappearances, A/RES/47/133, 18 December 1992.

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similar measures that might have the effect of exempting them from any criminal proceedings or sanction.

In the exercise of the right of pardon, the extreme seriousness of acts of enforced disappearance shall be taken into account.

* Article 9 of the Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms, adopted by the General Assembly on 8 March 1999, in paragraph 1 holds that “everyone has the right, individually and in association with others, to benefit from an effective remedy and to be protected in the event of the violation of those rights”.22 Article 9(5) holds that “[t]he State shall conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever there is reasonable ground to believe that a violation of human rights and fundamental freedoms has occurred in any territory under its jurisdiction”.23

* On 21 March 2006, the UN General Assembly adopted the Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law (known as the Van Boven-Bassiouni Principles).24 These Basic Principles clearly provide a duty to prosecute in Principle 4:

In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. Moreover, in these cases, States should, in accordance with international law, cooperate with one another and assist international judicial organs competent in the investigation and prosecution of these violations.25

Principle 6 of the Van Boven-Bassiouni Principles elaborates on statutes of limitations and states: “Where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law”. According to this principle, impunity conflicts with the duty to prosecute and

22 General Assembly, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, A/RES/53/144, 8 March 1999. 23Ibid. 24 General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. The Principles and Guidelines were drafted by the independent experts Mr. Theo van Boven and Mr. M. Cherif Bassiouni and adopted by the UN Commission on Human Rights on 19 April 2005 in Resolution 2005/35. 25 See ibid.

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3 SECURITY COUNCIL

The United Nations Security Council is one of the principal organs of the United Nations, charged with the responsibility for the maintenance of international peace and security in accordance with the principles and purposes of the United Nations.28 The UN Charter holds that “[t]he parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”.29 In Chapter VII of the UN Charter, on Action with respect to threats to the peace, breaches of the peace, and acts of aggression, Article 39 provides that “[t]he Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”.30 Another power of the Security Council derives from the ICC Statute. Notwithstanding the fact that the International Criminal Court is not part of the UN system, under the ICC Statute, the Security Council, acting under Chapter VII of the UN Charter, may refer to the ICC Prosecutor a situation in which one or more of

26Chapter VI outlines the right to the truth and other victims’ rights. 27 See ibid. 28 The Security Council consists of fifteen members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America are the permanent members of the Security Council. The General Assembly elects ten other members of the United Nations to be non-permanent members of the Security Council for two-year terms. 29Article 33 UN Charter 30Articles 41 and 42 provide: Article 41: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Article 42: “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

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Chapter V the crimes referred to in Article 5 of the ICC Statute31 appears to have been committed.32 In addition, the Security Council has the power to defer an investigation or prosecution. Article 16 reads: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”33 The Security Council may adopt such a resolution halting investigations and prosecutions in the interest of international peace and security. After the end of the Cold War, the role of the Security Council in dispute- settlement increasingly came to the fore. Overall, the approach of the Security Council is that those responsible for human rights violations should be brought to justice. For instance, in Resolution 935 (1994) the Security Council recognized “that all persons who commit or authorize the commission of serious violations of international humanitarian law are individually responsible for those violations and should be brought to justice”.34 An example of a situation in which the Security Council took the position that those responsible should be brought to justice is that of Rwanda (1994) where the Security Council condemned impunity for serious violations of human rights and humanitarian law. In Resolution 955 of 8 November 1994, the Security Council established the ICTR35 and “represented the culmination of a series of resolutions in which the Council had condemned the systematic and widespread violations of international humanitarian law in Rwanda and, in particular, the mass killing of tens of thousands of civilians with impunity”.36 The Security Council’s standpoint is reflected in the Statute of the ICTR. The Statute provides that the Security Council is:

Determin[ed] that this situation continues to constitute a threat to international peace and security,

Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them,

31The crime of genocide, crimes against humanity and war crimes. 32Article 13 ICC Statute. 33Article 16 ICC Statute. 34 Security Council, Security Council Resolution 935 (1994) [requesting the secretary-general to establish a commission of experts to examine violations of international humanitarian law committed in Rwanda], S/RES/935(1994), 1 July 1994. 35 See Chapter IV, Section 5.3 on the ICTR. The ICTR was established for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandese citizens responsible for genocide and other such violations committed in the territory of neighbouring states, between 1 January 1994 and 31 December 1994. 36 Security Council, Report of the Secretary-General pursuant to paragraph 5 of Security Council Resolution 955 (1994), S/1995/134, 13 February 1995, para. 1.

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Convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the process of national reconciliation and to the restoration and maintenance of peace,

Believing that the establishment of an international tribunal for the prosecution of persons responsible for genocide and the other above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed.

In continuation of Resolution 935 (1994), the Security Council emphasized the need to prosecute those responsible for breaches of human rights and humanitarian law in two Presidential Statements. It noted that the Security Council “stresses the obligation of all States to prosecute those responsible for grave breaches of international humanitarian law”,37 and “affirms the need to bring to justice, in an appropriate manner, individuals who incite or cause violence against civilians in situations of armed conflict or who otherwise violate international humanitarian and human rights law”.38 In Resolution 1674 (2006), on the protection of civilians in armed conflict, the Security Council “reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”.39 These two paragraphs, regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, read as follows:

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.40

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter,

37 Security Council, Presidential Statement [on the item entitled "children and armed conflict"], S/PRST/1998/18, 29 June 1998. 38 Security Council, Presidential Statement [on the item entitled "protection of civilians in armed conflict"], S/PRST/1999/6, 12 February 1999. 39 Security Council, Security Council Resolution 1674 (2006) [on protection of civilians in armed conflict], S/RES/1674(2006), 28 April 2006, para. 4. 40General Assembly, 2005 World Summit Outcome, A/RES/60/1, 24 October 2005, para. 138.

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including Chapter VII, on a case by case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.41

Further on in Resolution 1674 (2006), the Security Council:

7. Reaffirms that ending impunity is essential if a society in conflict or recovering from conflict is to come to terms with past abuses committed against civilians affected by armed conflict and to prevent future such abuses, draws attention to the full range of justice and reconciliation mechanisms to be considered, including national, international and “mixed” criminal courts and tribunals and truth and reconciliation commissions, and notes that such mechanisms can promote not only individual responsibility for serious crimes, but also peace, truth, reconciliation and the rights of the victims;42

8. Emphasizes in this context the responsibility of States to comply with their relevant obligations to end impunity and to prosecute those responsible for war crimes, genocide, crimes against humanity and serious violations of international humanitarian law, while recognizing, for States in or recovering from armed conflict, the need to restore or build independent national judicial systems and institutions;43

9. Calls on States that have not already done so to consider ratifying the instruments of international humanitarian, human rights and refugee law, and to take appropriate legislative, judicial and administrative measures to implement their obligations under these instruments;44

In the 2006 Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon (STL), it was agreed in Article 16 that, “[t]he Government undertakes not to grant amnesty to any person for any crime falling within the jurisdiction of the Special Tribunal. An amnesty already granted in respect of any such persons and crimes shall not be a bar to prosecution”.45 In the Statute of the STL, it was affirmed in Article 6 that “[a]n

41 See ibid., para. 139. 42 Security Council, Security Council Resolution 1674(2006) [on protection of civilians in armed conflict], S/RES/1674(2006), 28 April 2006, para. 7. 43 See ibid., para. 8. 44 See ibid., para. 9. 45 Security Council, Report of the Secretary-General on the establishment of a special tribunal for Lebanon, S/2006/893, 15 November 2006, Annex I. Agreement between the United Nations and the

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The United Nations’ position and practice on impunity, amnesties and the duty to prosecute amnesty granted to any person for any crime falling within the jurisdiction of the Special Tribunal shall not be a bar to prosecution”.46 When acting under Chapter VII, regarding situations jeopardizing international peace and security, the Security Council in some situations approved of, tolerated and even suggested amnesty. Examples of such situations are Haiti (1993), Croatia (1996), Papua New Guinea (1998) and Sierra Leone (2000), which will be outlined next.

* In the situation of Haiti, the Security Council approved an amnesty without restrictions. After the September 1991 coup d'état in Haiti, a protocol of agreement was signed on 23 February 1992 between President Jean-Bertrand Aristide and the parliamentary negotiating commission to find a definitive solution to the Haitian crisis.47 They agreed to “prevent any attempts at revenge or settling of accounts”48 and they recognized the need to “[p]roclaim a general amnesty, save for common criminals”.49 On 10 January 1993, an article written by Haitian President Jean-Bertrand Aristide, in exile in the United States of America, was published in The Washington Post. In this article he stated that, in order to put the country back together, several conditions had to be met, one of which was the removal of the small group of coup d'état leaders. In order to ease the removal, Aristide stated that he was “ready to grant general amnesty to the army”.50 Acting under Chapter VII, the Security Council imposed a trade embargo against Haiti on 16 June 1993 because the situation threatened the international peace and security in the region.51 The embargo was suspended after the conclusion of two agreements.52 On 3 July 1993, an agreement was signed between President Jean-Bertrand Aristide and the Commander-in-Chief of the Armed Forces of Haiti, Lieutenant-General Raoul Cédras. In this Agreement of Governors Island, they agreed that a number of arrangements should be made in order to resolve the Haitian crisis. One of these arrangements was the granting of an amnesty by the President of the Republic.53 In

Lebanese Republic on the establishment of a Special Tribunal for Lebanon, 15 November 2006, Article 16. 46 Security Council, Report of the Secretary-General on the establishment of a special tribunal for Lebanon, S/2006/893, 15 November 2006, Attachment. Statute of the Special Tribunal for Lebanon, Article 6. 47Commission on Human Rights, Report on the situation of human rights in Haiti submitted by Mr. Marco Tulio Bruni Celli, Special Rapporteur, in accordance with Commission resolution 1992/77, E/CN.4/1993/47, 4 February 1993, Annex I, p. 41. 48 See ibid., Article I. 49 See ibid., Article V. 50Jean-Bertrand Aristide, “A Safe Harbor for Haiti; Aristide: How Clinton Should Help My Country”, in The Washington Post, Sunday 10 January 1993, p. C1. 51 Security Council, Security Council Resolution 841 (1993) [on sanctions against Haiti], S/RES/841(1993), 16 June 1993. 52 Security Council, Security Council Resolution 861 (1993) [on suspension of the sanctions against Haiti], S/RES/861(1993), 27 August 1993. 53Agreement of Governors Island, 3 July 1993, para. 6.

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Chapter V a subsequent agreement, the New York Pact, signed at the United Nations Headquarters in New York on 16 July 1993, it was agreed that “[t]he political forces and parliamentary blocs undertake to ensure that” an Amnesty Act is passed “on the basis of an emergency procedure”.54 On 13 August 1993, the Secretary- General reported to the General Assembly and the Security Council on the situation of democracy and human rights in Haiti. He noted that “the signatories of the Pact have ... undertaken to ensure the passage by Parliament of a series of bills under an emergency procedure, including ... an amnesty”.55 On 27 August 1993, the Security Council approved the Governors Island Agreement. On 23 September 1993, the Security Council considered “that there is an urgent need to ensure conditions for the full implementation of the Governors Island Agreement and the political accords contained in the New York Pact”.56 The Security Council thus approved the amnesty contained in both documents. The President of the Security Council made the following statement on behalf of the Security Council on 30 October 1993:

The Security Council continues to insist on full and unconditional compliance with the Governors Island Agreement and the early return of President Aristide and full democracy to Haiti, in accordance with relevant resolutions and statements by the President of the Council. It reaffirms that the Governors Island Agreement remains fully in force as the only valid framework for the solution of the crisis in Haiti which continues to threaten peace and security in the region [emphasis added].

The Security Council is deeply concerned by the suffering of the Haitian people which results directly from the refusal by the military authorities to comply with the Governors Island process.57

The Security Council considered the granting of amnesty a part of the only valid framework for the solution of the crisis in Haiti. It did not state that amnesty should not be granted to those responsible for serious human rights violations, or that there is a duty to prosecute these crimes. This, notwithstanding the fact that the Security Council was aware of the fact that serious human rights violations had been committed in Haiti.

* On 22 May 1996, the President of the Security Council made a statement on behalf of the Security Council on the situation in Croatia in which he “calls upon

54New York Pact, 16 July 1993, para, 4. 55 General Assembly/Security Council, Report of the Secretary-General on the Situation of Democracy and Human Rights in Haiti, A/47/1000-S/26297, 13 August 1993, para. 5. 56 Security Council, Security Council Resolution 867 (1993) [on establishment of the UN mission in Haiti], S/RES/867(1993), 23 September 1993. 57 Security Council, Note by the President of the Security Council [transmitting statement by the President of the Security Council concerning the item entitled "the question concerning Haiti" and calling for full compliance with the Governors Island Agreement], S/26668, 30 October 1993; See also, General Assembly, The situation of democracy and human rights in Haiti, A/RES/48/27, 10 December 1993, para. 5

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again urges the Government of Croatia to adopt a comprehensive amnesty law concerning all persons who, voluntarily or by coercion, served in the civil administration, military or police forces of the local Serb authorities in the former United Nations Protected Areas, with the exception of those who committed war crimes as defined in international law. The Council notes with concern that the amnesty law and the action subsequently taken by the Government of Croatia, as described by the Secretary-General in his report of 5 August, have been insufficient to create confidence among the local Serb population in Eastern Slavonia. The Council notes the general agreement reached by President Tudjman and President Milosevic in Athens on 7 August 1996 that a general amnesty is an indispensable condition for the safe return of refugees and displaced persons. It expects this agreement to be followed up by corresponding concrete measures [emphasis added].59

On 5 October 1996, a Law on General Amnesty was adopted in Croatia. Article 1 grants general amnesty “from criminal prosecution and criminal procedure ... to the perpetrators of criminal acts committed during the aggression, armed rebellion or armed conflicts, and related to aggression, armed rebellion or armed conflicts in the Republic of Croatia”.60 This entails the period from 17 August 1990 to 23 August 1996. Article 3 exempts from the amnesty referred to in Article 1 the perpetrators of the most serious violations of humanitarian law having the character of war crimes.61

58 Security Council, Statement by the President of the Security Council [on the item entitled "the situation in Croatia"], S/PRST/1996/26, 22 May 1996. 59 Security Council, Statement by the President of the Security Council, S/PRST/1996/35, 15 August 1996. 60Law on General Amnesty, Croatia, 5 October 1996, Article 1. 61 Specifically; acts of genocide (Article 119), war crimes against civilian population (Article 120), war crimes against the wounded and sick (Article 121), war crimes against prisoners of war (Article 122), organization of instigation of genocide and war crimes (Article 123), unlawful killings and wounding of the enemy (Article 124), illegal seizure of possessions of killed and wounded persons on the battlefield (Article 125), use of prohibited combat means (Article 126), violation of envoys (Article 127), cruel treatment of the wounded. sick and prisoners of war (Article 128), unjustified delay in repatriation of the prisoners of war (Article 129), destruction of cultural and historic heritage (Article 1310), instigation of the war of aggression (Article 131), abuse of international signs (Article 131), racial and other discrimination (Article 133), imposition of slavery and transport or enslaved persons (Article 134), international terrorism (Article 135), endangerment of persons Under international protection (Article 136), taking hostages (Article 137), of the Basic Penal Code of the Republic of Croatia (Official Gazette No. 31/93-consolidated text, 35/93, 108/95, 16/96 and 28/96) and act of terrorism regulated by the provisions of the international law.

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In the situation of Croatia, the Security Council called for a comprehensive amnesty, but it was stressed that the amnesty should not be granted to those who committed war crimes as defined in international law.

* Another general amnesty supported by the Security Council is the one contained in the Lincoln Agreement on Peace, Security and Development on Bougainville of 23 January 1998. In this agreement, the parties agreed that “[t]he Papua New Guinea National Government will: (a) Grant amnesty to persons involved in crisis-related activities on all sides; (b) Following receipt of advice from the Advisory Committee on the Power of Mercy, recommend pardons for persons convicted of crisis- related offences.”62 A few months later, in April 1998, the Security Council stated that it “strongly supports the Agreement on Peace, Security and Development on Bougainville”.63 It did not, however, remind the parties to the agreement that they should not provide amnesty or pardon to those who committed serious crimes under international human rights law.

* In Resolution 1315 (2000), on the establishment of a Special Court for Sierra Leone, the Security Council:

Recall[ed] that the Special Representative of the Secretary-General appended to his signature of the Lomé Agreement a statement that the United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law,

Reaffirm[ed] the importance of compliance with international humanitarian law, and reaffirm[ed] further that persons who commit or authorize serious violations of international humanitarian law are individually responsible and accountable for those violations and that the international community will exert every effort to bring those responsible to justice in accordance with international standards of justice, fairness and due process of law,

Recogniz[ed] that, in the particular circumstances of Sierra Leone, a credible system of justice and accountability for the very serious crimes committed there would end impunity and would contribute to the process of national reconciliation and to the restoration and maintenance of peace,

62 Security Council, Letter dated 31 March 1998 from the Chargé d’Affaires a.i. of the Permanent Mission of Papua New Guinea to the United Nations addressed to the President of the Security Council, S/1998/287, 31 March 1998, Attachment I: Lincoln Agreement on Peace, Security and Development on Bougainville, 23 January 1998, Article 10. 63 Security Council, Statement by the President of the Security Council [on the development of the Bougainville conflict], S/PRST/1998/10, 22 April 1998.

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Article 10 of the Statute of the SCSL specifically holds that “[a]n amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution”.64 The Security Council thus approved of an amnesty in the Sierra Leonean situation, but not for the international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.

4 INTERNATIONAL COURT OF JUSTICE

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.65 The ICJ may consider two types of cases: legal disputes between states submitted to it by them (contentious cases) and requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies (advisory proceedings).66 The General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question.67 Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.68 The ICJ never considered the issue of amnesty for serious violations of human rights. However, there is one judgment that may be of relevance for this research, the judgment in the case concerning the arrest warrant of 11 April 2000 in Democratic Republic of the Congo v. Belgium. In the judgment of this case, the ICJ concluded that, based on customary international law, there exists no “exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity”.69 Therefore, the arrest warrant issued:

against Mr. Abdulaye Yerodia Ndombasi of … 11 April 2000, and its international circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo, in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law.70

64Statute SCSL, Article 10. 65 The Court was established in June 1945 by the Charter of the United Nations and began functioning in April 1946. All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice; See also, Article 92 and 93 UN Charter. 66 International Court of Justice, How the Court works, accessible via 67Article 96 UN Charter. 68Ibid. 69 International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, para. 58. 70 See ibid., para. 78.

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The ICJ highlighted, though,

that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.71

According to the ICJ, immunity does not foreclose criminal prosecution in certain circumstances.72The Court lists four cases where an incumbent or former Minister may be prosecuted, despite his immunities under customary international law: (1) he can be prosecuted in his own country; (2) he can be prosecuted in other states if the state whom he represents waives immunity; (3) he can be prosecuted after he ceases being a Minister for Foreign Affairs; and (4) he can be prosecuted before an international court.73

Judge ad hoc Van den Wyngaert appended a dissenting opinion to the judgment of the Court. According to Van den Wyngaert, the Court’s proposition that immunity does not necessarily lead to impunity is wrong. The four instances listed by the ICJ

71 See ibid., para. 60. 72 See ibid., para. 61. “First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries' courts in accordance with the relevant rules of domestic law. Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as wel1as in respect of acts committed during that period of office in a private capacity. Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VI1 of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter's Statute expressly provides, in Article 27, paragraph 2, that "[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person".” 73 International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, Dissenting Opinion of Judge Van den Wyngaert, para. 34.

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The United Nations’ position and practice on impunity, amnesties and the duty to prosecute are highly hypothetical.74 Notwithstanding the fact that immunity is not equal to impunity, immunity leads to de facto impunity.75 According to the ICJ, in the third case, an incumbent or former Minister may be prosecuted after he has ceased to hold the office of Minister for Foreign Affairs for “acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity”.76 The Court does not state, with respect to crimes committed in a private capacity while in office, whether this category includes war crimes and crimes against humanity.77Van den Wyngaert claims that “[i]mmunity should never apply to crimes under international law, neither before international courts nor national courts”.78 With respect to the fourth case of ‘prosecution despite immunity’ presented by the ICJ, an incumbent or former Minister may be prosecuted “before certain international criminal courts, where they have jurisdiction”. In Van den Wyngaert’s opinion, “[t]he Court grossly overestimates the role an international criminal court can play”.79 “[E]ven where … [the] willingness [to prosecute] exists, the International Criminal Court, like the ad hoc international tribunals, will not be able to deal with all crimes that come under its jurisdiction.”80 Van den Wyngaert concludes that there is no basis in customary international law for immunity for incumbent Ministers for Foreign Affairs.81 This notwithstanding, this immunity is “certainly ... not ‘full’ or absolute and does not apply to war crimes and crimes against humanity”.82 The Court’s position on amnesty has yet to be formed. Out of the jurisprudence of the Court so far, it is not clear what the position of the International Court of Justice will be.

74Ibid. 75 See ibid., para. 35: Van den Wyngaert explains her view: “Prosecution in the first two cases presupposes a willingness of the State which appointed the person as a Foreign Minister to investigate and prosecute allegations against him domestically or to lift immunity in order to allow another State to do the same. This, however, is the core of the problem of impunity: where national authorities are not willing or able to investigate or prosecute, the crime goes unpunished. And this is precisely what happened in the case of Mr. Yerodia. The Congo accused Belgium of exercising universal jurisdiction in absentia against an incumbent Foreign Minister, but it had itself omitted to exercise its jurisdiction in presentia in the case of Mr. Yerodia, thus infringing the Geneva Conventions and not complying with a host of United Nations resolutions to this effect [original footnote omitted].” 76 International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, para. 61. 77 See ibid., Dissenting Opinion of Judge Van den Wyngaert, para. 36. 78Ibid. 79 See ibid., para. 37. 80Ibid. 81 See ibid., para. 39. 82Ibid.

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5 SECRETARY-GENERAL

The United Nations Secretary-General is the chief administrative officer of the United Nations.83 The Secretary-General may bring to the attention of the Security Council any matter that in his opinion may threaten the maintenance of international peace and security.84 Secretary-General Kofi Annan (1997-2006) spoke out clearly against the granting of amnesty for genocide, war crimes, crimes against humanity or gross violations of human rights. Over the years, Kofi Annan repeatedly paid attention to the issue of impunity and amnesty in his reports. The incumbent Secretary-General, Ban Ki-moon, pursues this policy. In “We the peoples: the role of the United Nations in the twenty-first century” (2000), Kofi Annan noted that “[t]o strengthen protection, we must reassert the centrality of international humanitarian and human rights law. We must strive to end the culture of impunity - which is why the creation of the International Criminal Court is so important”.85 He strongly urged “all countries to sign and ratify the Rome Statute of the International Criminal Court, so as to consolidate and extend the gains we have achieved in bringing to justice those responsible for crimes against humanity”.86 The Lomé Peace Agreement between the Government of Sierra Leone and the armed opposition RUF granted amnesty in order to end the human rights violations and to secure the commitment of all parties to the peace process.87 Given the reality of the conflict, the Sierra Leone TRC views the amnesty granted as necessary in the circumstances that prevailed at the time.88 It was accepted, at the time of the signing of the Lomé Peace Agreement, that the RUF would not have signed the agreement if there had been any prospect of legal action being taken against its members.89 The TRC was seen as an alternative mechanism for accountability. In his 2000 report on the establishment of a Special Court for Sierra Leone six months later, the Secretary-General recapitulated the United Nations position on amnesty:

While recognizing that amnesty is an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict, the United Nations has consistently maintained the position that amnesty cannot

83 Article 97 UN Charter. The General Assembly appoints the Secretary-General upon the recommendation of the Security Council for a period of five years. This period may be renewed. 84 Article 99 UN Charter. 85 General Assembly, We the peoples: The role of the United Nations in the twenty-first century. Report of the Secretary-General, A/54/2000, 27 March 2000, para. 211. 86See ibid., para. 330. 87 See also Chapter IV, Section 5.5. 88 Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. 2, 5 October 2004, p. 110, para. 583. 89 Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. 3b, 5 October 2004, p. 364, para. 6.

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be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law.90

In line with this position, the Special Representative of the Secretary-General for Sierra Leone was “instructed to append to his signature [of the Lomé Peace Agreement] on behalf of the United Nations a disclaimer to the effect that the amnesty provision contained in article IX of the Agreement (‘absolute and free pardon’) shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law”.91 In Resolution 1315 (2000), the Security Council requested the Secretary- General “to negotiate an agreement with the Government of Sierra Leone to create an independent special court”.92 In one of the preambular paragraphs of Resolution 1315, the Security Council recalled the statement the Special Representative of the Secretary-General appended to his signature of the Lomé Peace Agreement. In addition, the Security Council:

[r]eaffirm[ed] the importance of compliance with international humanitarian law, and reaffirm[ed] further that persons who commit or authorize serious violations of international humanitarian law are individually responsible and accountable for those violations and that the international community will exert every effort to bring those responsible to justice in accordance with international standards of justice, fairness and due process of law,

The Sierra Leonean TRC stated the following about the disclaimer: “[S]tating that the amnesty provisions shall not apply to certain international crimes, may have sent a message to combatants and leaders of armed factions that the amnesty provided by the Lomé Peace Agreement was not a secure amnesty”.94 The TRC also stated “that in repudiating the amnesty clause in the Lomé Peace Agreement, both the United Nations and the Government of Sierra Leone may have sent an unfortunate message to combatants in future wars that they cannot trust peace agreements that contain amnesty clauses. The Commission subscribes to the general

90 Security Council, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, S/2000/915, 4 October 2000, para. 22. 91 See ibid., para. 23. 92 Security Council, Security Council Resolution 1315 (2000) [on establishment of a Special Court for Sierra Leone], S/RES/1315(2000), 14 August 2000, para. 1. 93 See ibid., preambular paragraphs. 94 Truth & Reconciliation Commission, Sierra Leone, Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. 2, 5 October 2004, p. 110, para. 585.

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Chapter V proposition that there will be circumstances where a trade of peace for amnesty represents the least bad of the available alternatives.”95 In 2009, the High Commissioner for Human Rights reported that the position taken by the United Nations in Sierra Leone “has subsequently been upheld in Angola, the Sudan and Uganda, where United Nations representatives have first attempted to limit the scope of amnesties and, if unsuccessful, have appended a reservation to their signatures”.96 In Angola, in signing the Memorandum of Understanding between the FAA (Angolan Armed Forces) and UNITA (Union for the Total Independence of Angola), Special Representative of the Secretary-General Ibrahim Gambari “entered a reservation concerning the non-recognition of any general amnesty that included genocide, crimes against humanity and war crimes”.97 UNITA’s Secretary-General General, Paulo Lukamba ‘Gato’, and the leader of the FNLA (National Front for the Liberation of Angola), Holden Roberto, “considered Gambari’s intervention unwelcome and as potentially destabilizing of the prevailing positive mood”.98 Gambari himself, in briefing the Security Council on the matter, said that the reservation “had left some apprehension in the minds of UNITA and some segments of civil society, who felt it may undermine the peace process, because some combatants might believe it negated the Amnesty Law recently passed by the National Assembly”.99 In the Sudan, “the Government agreed to delete a blanket amnesty clause from the 2004 Agreement between the Government and the Sudan People’s Liberation Movement”.100 In Uganda, “[t]he Government of Uganda and LRA similarly removed a blanket amnesty clause from the 2008 agreement on disarmament, demobilization and reintegration”.101 In the Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict of 30 March 2001, the Secretary-General recommends “that the Security Council consider the establishment of arrangements addressing impunity and, as appropriate, for truth and reconciliation, during the crafting of peacekeeping mandates, in particular where this response has been triggered by widespread and systematic violations of international humanitarian and human

95 See ibid., p. 110, para. 586. 96 Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General. Analytical study on human rights and transitional justice,A/HRC/12/18, 6 August 2009, para. 54. 97UN Security Council, Secretary-General’s Special Adviser briefs Security Council on Angola; Says Recent Agreement Creates Brighter Prospects for Lasting Peace, Press Release, SC/7372, 23 April 2002. 98Guus Meijer, From Military Peace to Social Justice? The Angolan Peace Process, Conciliation Resources: London 2004, p. 27. 99UN Security Council, Secretary-General’s Special Adviser briefs Security Council on Angola; Says Recent Agreement Creates Brighter Prospects for Lasting Peace, Press Release, SC/7372, 23 April 2002. 100 Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General. Analytical study on human rights and transitional justice,A/HRC/12/18, 6 August 2009, para. 54. 101Ibid.

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The United Nations’ position and practice on impunity, amnesties and the duty to prosecute rights law”.102 Besides, he “encourage[s] Member States to introduce or strengthen domestic legislation and arrangements providing for the investigation, prosecution and trial of those responsible for systematic and widespread violations of international criminal law”.103 The Secretary-General emphasizes that “the granting of amnesties to those who committed serious violations of international humanitarian and criminal law is not acceptable. The experience of Sierra Leone has confirmed that such amnesties do not bring about lasting peace and reconciliation.”104 In 2001, the Secretary-General addressed the issue of impunity in several reports concerning the situation in Afghanistan.105 In one of his 2001 reports to the Security Council on the situation in Afghanistan and its implications for international peace and security, the Secretary-General stresses that “[g]iven a well-established pattern of repeated and systematic violations that perpetuate the prevailing climate of impunity, concerted action is needed to hold to account all those responsible for war crimes, breaches of international humanitarian law and gross violations of human rights”.106 Later that year, the Secretary-General emphasized “the importance of addressing the issue of impunity in Afghanistan and of bringing a halt to the systematic violations of human rights”.107 Further on, he claims that “[g]iven the persistent allegations of serious violations of human rights and international humanitarian law by all parties to the conflict in Afghanistan, it is important that the international community urgently take steps to address the issue of impunity”.108 In December 2001, the Secretary-General noted that “[s]ustainable peace, reconciliation, reconstruction and development cannot be built on a foundation of impunity. Hence, the Afghan people and their international partners must commit themselves to addressing the problems of the past by ending impunity and ensuring accountability for past abuses, including gross and systematic violation of human rights.”109

102 Security Council, Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict, S/2001/331, 30 March 2001. Annex I. Recommendations and Generic Policy Directions, para. 2. 103 Security Council, Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict, S/2001/331, 30 March 2001. Annex I. Recommendations and generic policy directions, para. 3. 104 See ibid., para. 10. 105 For more on Afghanistan, see also Section 7 of this chapter. 106 General Assembly/Security Council, The situation in Afghanistan and its implications for international peace and security. Report of the Secretary-General, A/55/907-S/2001/384,19 April 2001, para. 52. 107 General Assembly/Security Council, The situation in Afghanistan and its implications for international peace and security. Report of the Secretary-General, A/55/1028-S/2001/789, 17 August 2001, para. 46. 108 See ibid., para. 50. 109 General Assembly/Security Council, The situation in Afghanistan and its implications for international peace and security. Report of the Secretary-General, A/56/681-S/2001/1157, 6 December 2001, para. 83.

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In 2002, the Commission on Human Rights asked Secretary-General Kofi Annan to gather the opinions of governments, NGOs and intergovernmental organizations on the Set of Principles for the protection and promotion of human rights through action to combat impunity.110 In his conclusion on the replies,111 he notes that there is broad agreement that there should be no impunity for human rights violations, war crimes, crimes against humanity and genocide.112 In addition, “[t]he contributions highlighted the importance of pursuing prosecutions; finding and publicizing the truth; assisting and protecting victims, witnesses and other participants in the proceedings; and providing reparation and remedies”.113 In his 2003 report on the situation in the Central African Republic, the Secretary-General expressed that he is:

gravely concerned by the re-emergence of acts of rape, holdups, and violations of the right to life perpetrated in the country’s hinterland and in Bangui. As indicated in my previous report to the Security Council, and as recognized unanimously by delegates to the national dialogue, control of the security situation remains an essential prerequisite for the normal functioning of the State, a smooth transition, and the holding of the upcoming elections. With this in mind, I would urge the authorities of the Central African Republic to ensure that these violations do not go unpunished, by bringing their perpetrators to justice.114

In his 2004 report on the rule of law and transitional justice in conflict and post- conflict societies, the Secretary-General noted that peace agreements approved by the UN can never promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights.115 He underlines that “[c]arefully crafted amnesties can help in the return and reintegration of both groups [displaced civilians and former fighters] and should be encouraged, although, ..., these can

110Commission on Human Rights, Commission on Human Rights resolution 2002/79: Impunity, E/CN.4/RES/2002/79, 25 April 2002, para. 12. 111 Commission on Human Rights, Impunity. Report of the Secretary-General, E/CN.4/2003/97, 9 January 2003, para 2: “[I]nformation was received from the Governments of Argentina, Canada, Chile, and Portugal. The Organization for Economic Co-operation and Development as well as the following non-governmental organizations also provided their comments: the Europe-Third World Centre, International Commission of Jurists, International Federation of Human Rights Leagues, Pax Christi International and World Organization against Torture.” 112 Commission on Human Rights, Impunity. Report of the Secretary-General, E/CN.4/2003/97, 9 January 2003, para 33. 113 See ibid., para 34. 114 Security Council, The situation in the Central African Republic and the activities of the United Nations Peace-building Support Office in the Central African Republic. Report of the Secretary- General, S/2003/1209, 29 December 2003, para. 36. 115 Security Council, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General, S/2004/616, 23 August 2004, para. 10; see also: Security Council, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, S/2000/915, 4 October 2000, para. 22.

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The United Nations’ position and practice on impunity, amnesties and the duty to prosecute never be permitted to excuse genocide, war crimes, crimes against humanity or gross violations of human rights”.116The Secretary-General points out that: domestic justice systems should be the first resort in pursuit of accountability. But where domestic authorities are unwilling or unable to prosecute violators at home, the role of the international community becomes crucial. The establishment and operation of the international and hybrid criminal tribunals of the last decade provide a forceful illustration of this point. These tribunals represent historic achievements in establishing accountability for serious violations of international human rights and humanitarian law by civilian and military leaders. They have proved that it is possible to deliver justice and conduct fair trials effectively at the international level, in the wake of the breakdown of national judicial systems. More significantly still, they reflect a growing shift in the international community, away from a tolerance for impunity and amnesty and towards the creation of an international rule of law. Despite their limitations and imperfections, international and hybrid criminal tribunals have changed the character of international justice and enhanced the global character of the rule of law.117

One of the conclusions of the Secretary-General in his 2004 report is that it must be ensured “that peace agreements and Security Council resolutions and mandates ... [r]eject any endorsement of amnesty for genocide, war crimes, or crimes against humanity, including those relating to ethnic, gender and sexually based international crimes, ... [and] that no such amnesty previously granted is a bar to prosecution before any United Nations-created or assisted court”.118 In his 2004 report on the United Nations Stabilization Mission in Haiti (MINUSTAH), the Secretary-General observed that a persistent climate of impunity impedes respect for human rights.119 He claimed that the restoration of law and order in Haiti is necessary in the interest of basic human rights and the rule of law. The Secretary-General emphasized that the government, in particular its law enforcement structures, needs to demonstrate a genuine and consistent adherence to human rights and the rule of law in dealing with those responsible for the recent violence.120 For a number of years, the situation in Afghanistan has received special attention from the Secretary-General. Annually, the Secretary-General issues a number of reports on the situation in Afghanistan and its implications for international peace and security. In early 2007, in Afghanistan the lower and upper houses of Parliament adopted a resolution on national reconciliation. The Secretary- General describes:

116 Security Council, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General, S/2004/616, 23 August 2004, para. 32. 117 See ibid., para. 40. 118See ibid., para 64. 119 Security Council, Report of the Secretary-General on the United Nations Stabilization Mission in Haiti, S/2004/908, 18 November 2004, para. 41. 120 See ibid., para. 60.

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On 31 January, a commission of the lower house of Parliament circulated a resolution on national reconciliation, which highlighted the need for reconciliation and, among other issues, declared that all political parties and belligerent groups associated with the two and a half decades of conflict should be immune from prosecution. The resolution, which passed the lower house with a majority vote, was approved by the upper house on 20 February 2007. President Karzai stated that he would not approve any bill that was unconstitutional or against sharia law, and affirmed that only victims of human rights violations have the right to forgive.121

The then United Nations High Commissioner for Human Rights, Louise Arbour, expressed her concern over the adoption of the resolution.122 UN Secretary-General Ban Ki-moon, in office since 1 January 2007, expressed his concerns in one of his reports to the Security Council during 2007:

While meaningful progress was made in the field of transitional justice, it could be jeopardized by the adoption in both houses of Parliament of the resolution on national reconciliation, which could lead to amnesty for those prosecutable for human rights violations. I welcome President Karzai’s launch of the Action Plan on Peace, Justice and Reconciliation in December, which states that no amnesty should be provided for war crimes, crimes against humanity and other gross violations of human rights, and outlines a clear road map for the future. I urge the Afghan Government to maintain this momentum.123

In September 2007, the Secretary-General, with regard to the situation in Afghanistan, reported that there was almost no progress in implementing the Action Plan on Peace, Reconciliation and Justice.124 He observed that “[p]olitical support for transitional justice in Afghanistan is almost non-existent. This was exemplified by the adoption of an amnesty law in March 2007 that seriously undermines the Action Plan.”125 In 2008, the Secretary-General reported that there was still a lack of respect for human rights in Afghanistan, “as a result of, inter alia, the impact of an escalating conflict on civilians, a pervasive atmosphere of impunity, absence of official impetus for the transitional justice process, a weak judicial system and threats to the media from both State and non-State actors”.126 According to the Secretary-General, a climate of impunity “undermines efforts to uphold the rule of

121 General Assembly/Security Council, The situation in Afghanistan and its implications for international peace and security. Report of the Secretary-General, A/61/799-S/2007/152, 15 March 2007, para. 14. 122See ibid., para. 39; See also Section 7 of this chapter on the OHCHR. 123See ibid., para. 79. 124 Adopted by the Afghan government in December 2005 and due for completion by end 2008. 125 General Assembly/Security Council, The situation in Afghanistan and its implications for international peace and security. Report of the Secretary-General, A/62/345-S/2007/555, 21 September 2007, para. 47. 126 General Assembly/Security Council, The situation in Afghanistan and its implications for international peace and security. Report of the Secretary-General, A/63/372-S/2008/617, 23 September 2008, para. 46.

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The United Nations’ position and practice on impunity, amnesties and the duty to prosecute law, including redress for victims of human rights violations as well as access to judicial processes that are just and credible”.127

6 COMMISSION ON HUMAN RIGHTS / HUMAN RIGHTS COUNCIL

This section will discuss the Human Rights Council, which is a Charter-based subsidiary body of the General Assembly, and its predecessor, the Commission on Human Rights. The relevant treaty-based bodies, i.e. the Human Rights Committee and the Committee against Torture, have already been discussed in Chapter IV. Based on chronology, first the Commission on Human Rights will be elaborated on, and then the Human Rights Council.

6.1 Commission on Human Rights

The Commission on Human Rights was a subsidiary body of the UN Economic and Social Council (ECOSOC).128 The UN Human Rights Council succeeded the Commission in 2006.129 The Commission on Human Rights was assisted in its work by the Sub-Commission on the Promotion and Protection of Human Rights,130 a number of working groups and a network of individual experts, representatives and rapporteurs mandated to report to it on specific issues, and it was also assisted in its work by the Office of the United Nations High Commissioner for Human Rights. In 2006, the Sub-Commission on the Promotion and Protection of Human Rights was axed. The Human Rights Council assumed all mandates, mechanisms, functions and responsibilities of the Sub-Commission. Given that all documents relevant to this part of the research that were issued under the in 1999 renamed Sub-Commission on Prevention of Discrimination and Protection of Minorities131 have been revised or updated under the Sub- Commission on the Promotion and Protection of Human Rights, the focus in this section on the Human Rights Commission will be on the period from 1999 until 2006. In 1999, the Commission on Human Rights adopted a resolution on impunity in which it stated that “the practice and expectation of impunity for violations of

127See ibid., para. 47. 128 The Commission on Human Rights developed the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. 129On 15 March 2006, the General Assembly adopted Resolution A/RES/60/251 to establish the Human Rights Council. On 27 March 2006, the Commission on Human Rights concluded its sixty-second and final session. 130 The United Nations Sub-Commission on the Promotion and Protection of Human Rights, the main subsidiary body of the former Commission on Human Rights, was established in 1947 with 12 members. The original name was the Sub-Commission on Prevention of Discrimination and Protection of Minorities, but the Sub-Commission was renamed in 1999. 131 See ibid.

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Chapter V international human rights or humanitarian law encourage such violations”.132 The Commission on Human Rights is aware that the existence of impunity influences all society.133 In Resolution 2001/46 on the Question of enforced or involuntary disappearances, the Commission on Human Rights “[e]mphasiz[ed] that impunity is simultaneously one of the underlying causes of enforced disappearances and one of the major obstacles to the elucidation of cases thereof and that there is a need for effective measures to combat the problem of impunity”.134 In Resolution 2002/38, the Commission on Human Rights stated that “States shouldabrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law”, and “[u]rge[d] all Governments to promote the speedy and full implementation of the Vienna Declaration and Programme of Action (A/CONF.157/23), in particular Part II, section B.5, relating to freedom from torture”, in which this is stated.135 The Commission repeated its request in Resolution 2003/32.136 In Resolution 2003/53 on Extrajudicial, summary or arbitrary executions, the Commission on Human Rights:137

2. Notes with deep concern that impunity continues to be a major cause of the perpetuation of violations of human rights, including extrajudicial, summary or arbitrary executions; … 4. Reiterates the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, to identify and bring to justice those responsible, while ensuring the right of every person to a fair and public hearing by a competent, independent and impartial tribunal established by law, to grant adequate compensation within a reasonable time to the victims or their families and to adopt all necessary measures, including legal and judicial measures, in order to bring an end to impunity and to prevent the recurrence of such executions, as stated in the Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions;

132 Commission on Human Rights, Commission on Human Rights resolution 1999/34; Impunity, E/CN.4/RES/1999/34, 26 April 1999. 133Ibid. 134 Commission on Human Rights, Commission on Human Rights resolution 2001/45: Question of enforced or involuntary disappearances, E/CN.4/RES/2001/46, 23 April 2001. See also, Commission on Human Rights, Commission on Human Rights resolution 2003/38: Question of enforced or involuntary disappearances, E/CN.4/RES/2003/38, 23 April 2003. 135 Commission on Human Rights, Commission on Human Rights resolution 2002/38: Torture and other cruel, inhuman or degrading treatment or punishment, E/CN.4/RES/2002/38, 22 April 2002, para. 3. 136 Commission on Human Rights, Commission on Human Rights resolution 2003/32: Torture and other cruel, inhuman or degrading treatment or punishment, E/CN.4/RES/2003/32, 23 April 2003, para. 3. 137 Commission on Human Rights, Commission on Human Rights resolution 2003/53: Extrajudicial, summary or arbitrary executions, E/CN.4/RES/2003/53, 24 April 2003. See also, Commission on Human Rights, Commission on Human Rights resolution 2001/45: Extrajudicial, summary or arbitrary executions, E/CN.4/RES/2001/45, 23 April 2001.

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…

8. Stresses the importance of States taking effective measures to end impunity with regard to extrajudicial, summary or arbitrary executions, inter alia through the adoption of preventive measures, and calls upon States to ensure that such measures are included in post-conflict peace-building efforts;

In Resolution 2003/72 on Impunity, the Commission on Human Rights recognizes the importance of combating impunity for all human rights violations that constitute crimes.138 In this resolution, the Commission on Human Rights:

[recognizes] that accountability of perpetrators, including their accomplices, for grave human rights violations is one of the central elements of any effective remedy for victims of human rights violations and a key factor in ensuring a fair and equitable justice system and, ultimately, reconciliation and stability within a State. ... Convinced of the need for Governments to combat impunity by addressing past or ongoing violations, taking measures aimed at preventing their recurrence,

1. Emphasizes the importance of combating impunity to the prevention of violations of international human rights and humanitarian law and urges States to give necessary attention to the question of impunity for violations of international human rights and humanitarian law, including those perpetrated against women and children, and to take appropriate measures to address this important issue;

2. Also emphasizes the importance of taking all necessary and possible steps to hold accountable perpetrators, including their accomplices, of violations of international human rights and humanitarian law, recognizes that amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes and urges States to take action in accordance with their obligations under international law;

9. Welcomes in this regard the establishment in some States of commissions of truth and reconciliation to address human rights violations that have occurred there, welcomes the publication in those States of the reports of those commissions and encourages other States where serious human rights violations have occurred in the past to establish appropriate mechanisms to expose such violations, to complement the justice system; 10. Recognizes that crimes such as genocide, crimes against humanity, war crimes and torture are violations of international law and that perpetrators of such crimes should be prosecuted or extradited by States, and urges all States to take effective measures to implement their obligations to prosecute or extradite perpetrators of such crimes.

138Commission on Human Rights, Commission on Human Rights resolution 2003/72: Impunity, E/CN.4/RES/2003/72, 25 April 2003.

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13. Encourages States in their efforts to strengthen their domestic capacity to combat impunity and requests the High Commissioner for Human Rights to provide, upon request, technical and legal assistance in developing national legislation and institutions to combat impunity in accordance with international standards of justice, fairness and due process of law.139 One year later, in Resolution 2004/72 on Impunity, the Commission on Human Rights reaffirmed:

the duty of all States to put an end to impunity and to prosecute, in accordance with their obligations under international law, those responsible for all violations of human rights and international humanitarian law that constitute crimes, including genocide, crimes against humanity and war crimes, in order to promote accountability, respect for international law and justice for the victims, deter the commission of such crimes and fulfil the responsibility of States to protect all persons from such crimes.

Convinced that impunity for violations of human rights and international humanitarian law that constitute crimes encourages such violations and is a fundamental obstacle to the observance and full implementation of human rights and international humanitarian law,

Convinced also that exposing violations of human rights and international humanitarian law that constitute crimes, holding their perpetrators, including their accomplices, accountable, obtaining justice and an effective remedy for their victims, as well as preserving historical records of such violations and restoring the dignity of victims through acknowledgement and commemoration of their suffering, are integral to the promotion and implementation of human rights and international humanitarian law and to the prevention of future violations and a key factor in ensuring a fair and equitable justice system and, ultimately, reconciliation and stability within a State.140

In the same resolution, the Commission on Human Rights further emphasized that for the prevention of violations of human rights and international humanitarian law impunity must be combated. It urged states to end impunity for such crimes by bringing the perpetrators, including accomplices, to justice in accordance with international law.141 The Commission on Human Rights “[r]ecognizes that States must prosecute or extradite perpetrators of international crimes such as genocide, crimes against humanity, war crimes and torture in accordance with their international obligations, and urges all States to take effective measures to

139Ibid. 140 Commission on Human Rights, Commission on Human Rights resolution 2004/72: Impunity, E/CN.4/RES/2004/72, 21 April 2004. 141 See ibid., para. 1. See also, Commission on Human Rights, Commission on Human Rights resolution 1999/34; Impunity, E/CN.4/RES/1999/34, 26 April 1999.

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The United Nations’ position and practice on impunity, amnesties and the duty to prosecute implement these obligations”.142 Besides, the Commission on Human Rights holds that amnesty should not be granted to perpetrators of “violations of human rights and international humanitarian law that constitute crimes, urges States to take action in accordance with their obligations under international law and welcomes the lifting, waiving, or nullification of amnesties and other immunities”.143 In 2004, the Commission on Human Rights published the Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, by Professor Diane Orentlicher, commissioned after a request thereto in Resolution 2003/72.144 In her study, Orentlicher also took into account “how they [the Set of Principles] have been applied, reflecting recent developments and considering the issue of their further implementation, and also taking into account the information and comments received pursuant to” Resolution 2003/72.145The study reveals that the Set of Principles has already had a deep impact on efforts to combat impunity:

They have become a key reference in decisions by the supervisory bodies for the American Convention on Human Rights, which, in turn, have prompted national Governments to dismantle seemingly impregnable barriers to justice. The Principles have also been cited directly by national authorities in support of measures to combat impunity.

Recent experience, as well as the jurisprudence of human rights treaty bodies, reinforce a central premise of the Principles: the need for a comprehensive approach towards combating impunity. An effective policy requires a multifaceted strategy, with each component playing a necessary but only partial role. By way of illustration, there previously was a widespread perception that truth commissions were a “next best” response to mass atrocities when an amnesty or de facto impunity foreclosed prosecutions. Today, truth commissions, prosecutions and reparations are widely seen as complementary, each playing a distinctly important role [original footnote omitted].146

In 2005, the Set of Principles for the protection and promotion of human rights through action to combat impunity, originally drafted by Louis Joinet in 1997, was updated by Independent Expert Diane Orentlicher pursuant to Resolution 2004/72 of the Commission on Human Rights. This was deemed necessary, in order to include developments in international law and practice and the Independent study on best practices (E/CN.4/2004/88).147The preamble of the updated Set of

142Commission on Human Rights, Commission on Human Rights resolution 2004/72: Impunity, E/CN.4/RES/2004/72, 21 April 2004, para. 2. 143 See ibid., para. 3. 144Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004. 145 Commission on Human Rights, Commission on Human Rights resolution 2003/72: Impunity, E/CN.4/RES/2003/72, 25 April 2003. 146Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, paras. 8, 10. 147Commission on Human Rights, Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the

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Principles for the protection and promotion of human rights through action to combat impunity notes:

Considering that the duty of every State under international law to respect and to secure respect for human rights requires that effective measures should be taken to combat impunity,

Aware that there can be no just and lasting reconciliation unless the need for justice is effectively satisfied,

Equally aware that forgiveness, which may be an important element of reconciliation, implies, insofar as it is a private act, that the victim or the victim’s beneficiaries know the perpetrator of the violations and that the latter has acknowledged his or her deeds,

...

Pursuant to the Vienna Declaration and Programme of Action, the following principles are intended as guidelines to assist States in developing effective measures for combating impunity.148

Principle 24 of the updated Set of Principles for the protection and promotion of human rights through action to combat impunity is specifically dedicated to the issue of amnesty. It reads:

RESTRICTIONS AND OTHER MEASURES RELATING TO AMNESTY

Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds:

(a) The perpetrators of serious crimes under international law may not benefit from such measures until such time as the State has met the obligations to which principle 19[149] refers or the perpetrators have been prosecuted before a

protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Preamble. 148Ibid. 149 Principle 19. Duties of states with regard to the administration of justice: “States shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished. Although the decision to prosecute lies primarily within the competence of the State, victims, their families and heirs should be able to institute proceedings, on either an individual or a collective basis, particularly as parties civiles or as persons conducting private prosecutions in States whose law of criminal procedure recognizes these procedures. States should guarantee broad legal standing in the judicial process to any wronged party and to any person or non-governmental organization having a legitimate interest therein.”

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court with jurisdiction - whether international, internationalized or national - outside the State in question;

(b) Amnesties and other measures of clemency shall be without effect with respect to the victims’ right to reparation, to which principles 31 through 34 refer, and shall not prejudice the right to know;

...

The Set of Principles also contains principles on the right to know, the right to justice and the right to reparation. These rights fall within the scope of Chapter VI of this thesis and will be elaborated on there.

6.2 Human Rights Council

The General Assembly created the United Nations Human Rights Council (UNHRC) on 15 March 2006 as a replacement of the Human Rights Commission.150 The Council is responsible for strengthening the promotion and protection of human rights. Its main purpose is to address situations of human rights violations and give recommendations on them.151 The Human Rights Council is a charter-based body and a subsidiary organ of the General Assembly.152 The Council consists of 47 states.153 In its first year, the Human Rights Council recalled Commission on Human Rights resolution 2005/81. The Council:

150 The Human Rights Commission had been widely criticized for ignoring human rights violations in some countries. According to former Secretary-General Kofi Annan, “the Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole.” He continued to state that “[i]f the United Nations is to meet the expectations of men and women everywhere - and indeed, if the Organization is to take the cause of human rights as seriously as those of security and development - then Member States should agree to replace the Commission on Human Rights with a smaller standing Human Rights Council.” - General Assembly, Follow-up to the outcome of the Millennium Summit, In larger freedom: towards development, security and human rights for all. Report of the Secretary- General, A/59/2005, 21 March 2005, para. 182. 151Pursuant to Resolution 5/1 of the Human Rights Council on Institution-building of the United Nations Human Rights Council, the Human Rights Council Advisory Committee was established. The Human Rights Council Advisory Committee functions as a think-tank for the Human Rights Council, resembling the Sub-Commissions function as a think-tank for the Commission on Human Rights, and is composed of 18 independent experts. 152General Assembly, Human Rights Council, A/RES/60/251, 15 March 2006. 153Angola, Argentina, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Brazil, Burkina Faso, Cameroon, Chile, China, Cuba, Djibouti, Egypt, France, Gabon, Ghana, Hungary, India, Indonesia, Italy, Japan, Jordan, Kyrgyzstan, Madagascar, Mauritius, Mexico, Netherlands, Nicaragua, Nigeria, Norway, Pakistan, Philippines, Qatar, Republic of Korea, Russian Federation, Saudi Arabia, Senegal, Slovakia, Slovenia, South Africa, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Zambia.

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1. Requests the United Nations High Commissioner for Human Rights to continue to ensure the wide dissemination of the updated Set of Principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/2005/102 and Add.1), to continue to support judicial mechanisms and commissions of inquiry and to provide, upon request, technical and legal assistance in developing national legislation and institutions to combat impunity in accordance with international standards of justice, fairness and due process of law; 2. Welcomes the efforts of the Office of the High Commissioner to strengthen its capacity and expertise to provide support for international and national commissions of inquiry and fact-finding missions upon request or in accordance with its mandates, and encourages its continued endeavours; 3. Requests the High Commissioner to continue to report to the Human Rights Council on the latest developments in international law and practice relevant to combating impunity, including international jurisprudence and State practice, and on the work of the High Commissioner for Human Rights and other parts of the United Nations system.

In 2008, the Human Rights Council called upon states not to grant amnesties for the most serious crimes against children.154 It urged states to “end impunity for perpetrators of crimes against children, and to investigate and prosecute such acts of violence and impose appropriate penalties”.155With respect to torture and other cruel, inhuman or degrading treatment or punishment, the Human Rights Council in 2008 urged states to criminalize all acts of torture under domestic criminal law.156 In 2010, with respect to the human rights situation in Palestine and other occupied Arab territories, the Human Rights Council stressed “the need to ensure accountability for all violations of international humanitarian law and international human rights law in order to prevent impunity, ensure justice, deter further violations and promote peace”.157 In sum, since the Human Rights Council succeeded the Commission on Human Rights, it has continued its position regarding impunity and amnesty.

7 OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS

154 Human Rights Council, Rights of the Child, A/HRC/RES/7/29, 28 March 2008. 155See ibid., para. 14(f). 156 Human Rights Council, Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, A/HRC/RES/8/8, 18 June 2008, para. 6(f); The Human Rights Council “emphasizes that acts of torture are serious violations of international human rights law and humanitarian law and can constitute crimes against humanity and war crimes and that the perpetrators are liable to prosecution and punishment.” 157 Human Rights Council, Follow-up to the Report of the United Nations Independent International Fact-Finding Mission on the Gaza Conflict, Draft Resolution. Bolivia (Plurinational State of), El Salvador*, Morocco*, Pakistan (on behalf of the Organization of the Islamic Conference), Palestine*, Sudan* (on behalf of the Group of Arab States), Venezuela (Bolivarian Republic of), A/HRC/13/L.30, 22 March 2010.

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On 20 December 1993, the General Assembly created the post of United Nations High Commissioner for Human Rights.158 The High Commissioner for Human Rights is the principal human rights official of the United Nations. The High Commissioner has “principal responsibility for United Nations human rights activities under the direction and authority of the Secretary-General”.159 The High Commissioner heads the Office of the High Commissioner for Human Rights (OHCHR), which supports the work of the experts and the different monitoring bodies within the UN system. The High Commissioner leads the United Nations human rights efforts for promotion and protection of human rights, including transitional justice.160 The OHCHR is part of the United Nations Secretariat. The High Commissioner in her 2001 Report emphasized “[t]he Secretary- General’s position that there can be no granting of amnesty to those who commit serious violations of international criminal law such as genocide, war crimes and crimes against humanity” and stated that this position “provides an essential guidance for the United Nations in this regard”.161 The UN Independent Expert in 2004 on the situation of human rights in Afghanistan, Cherif Bassiouni, “expressed serious concerns about the human rights situation. Mr. Bassiouni identified a number of priority issues for immediate action,” among which “the need to address the continuing impunity of human rights violators, particularly local commanders”.162 In 2006, the OHCHR published a series of documents called ‘Rule of law tools for post-conflict states’. These ‘rule of law tools’ are intended to “provide practical guidance to field missions and transitional administrations in critical transitional

158The current United Nations High Commissioner for Human Rights is Ms. Navanethem Pillay from South Africa. She took up the post on 1 September 2008. Previous High Commissioners were: Mrs. Louise Arbour from Canada, 2004-2008, Mr. Bertrand Ramcharan from Guyana, 2003-2004, Mr. Sergio Vieira de Mello from Brazil, 2002-2003, Mrs. Mary Robinson from Ireland, 1997-2002 and the First High Commissioner Mr. José Ayala-Lasso from Ecuador, 1994-1997 . 159 General Assembly, High Commissioner for the promotion and protection of all human rights, A/RES/48/141, 7 January 1994. 160General Assembly/Security Council, Uniting our strengths: Enhancing United Nations support for the rule of law. Report of the Secretary-General, A/61/636-S/2006/980, 14 December 2006, para. 13.OHCHR provides support and guidance on transitional justice issues, including the development of policy tools and assistance in the design, establishment and implementation of transitional justice mechanisms. The rule of law-related initiatives of OHCHR include activities to enhance the ratification of human rights treaties, improve the administration of justice at the national level and record violations, including through mechanisms created by the Human Rights Council, in areas such as arbitrary detention, independence of the judiciary and torture. OHCHR also provides expert support for international commissions of inquiry and the establishment and strengthening of national human rights institutions. 161 General Assembly, Report of the UN High Commissioner for Human Rights, A/56/36, 28 September 2001, para. 71. 162General Assembly/Security Council, The situation in Afghanistan and its implications for international peace and security. Emergency international assistance for peace, normalcy and reconstruction of war-stricken Afghanistan. Report of the Secretary-General, A/59/581-S/2004/925, 26 November 2004, para. 39.

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Chapter V justice and rule of law-related areas”.163 The tools may be used separately or together. The rule of law tools contain principles in the areas of mapping the justice sector, prosecution initiatives, truth commissions, vetting and monitoring legal systems.164In 2008, two additional tools on maximizing the legacy of mixed courts and reparations programs were added to the five tools that were already in place. The OHCHR supported the result of numerous standard setting documents, including the Updated Set of Principles for the protection and promotion of human rights through action to combat impunity (2005)165 and the Van Boven-Bassiouni Principles (2006).166 The OHCHR also published a study on the right to the truth in 2006.167 Relevant for this section is that:

[t]he study concludes that the right to the truth about gross human rights violations and serious violations of human rights law is an inalienable and autonomous right, linked to the duty and obligation of the State to protect and guarantee human rights, to conduct effective investigations and to guarantee effective remedy and reparations. This right is closely linked with other rights and has both an individual and a societal dimension and should be considered as a non-derogable right and not be subject to limitations.168

In addition, the OHCHR holds that “[a]mnesties or similar measures and restrictions to the right to seek information must never be used to limit, deny or impair the right to the truth. The right to the truth is intimately linked with the States’ obligation to fight and eradicate impunity.”169 The right to the truth will be elaborated on further in Chapter VI of this thesis. Under the Commission on Human Rights and currently the Human Rights Council, mechanisms may be established under the general heading ‘special procedures’. These mechanisms may address either specific country situations worldwide or thematic issues.170 The OHCHR is responsible for the staffing, programming, research and logistical support. The experts work independently.171

163UN OHCHR, Rule-of-Law Tools for Post-Conflict States. Vetting: An Operational Framework, New York 2006, p. v. 164Ibid. 165Commission on Human Rights, Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005; See also Section 6.1 of this chapter. 166 General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006; See also Section 2 of this chapter. 167Commission on Human Rights, Study on the right to the truth.Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006. 168 See ibid., p. 2. 169 See ibid., para. 60. 170 Currently, there are 33 thematic and 8 country mandates; See, UN OHCHR, Special Procedures of the Human Rights Council, accessible via 171Ibid.; “Mandate holders are appointed to “examine, monitor, advise and publicly report on human rights situations in specific countries or territories, known as country mandates, or on major phenomena

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The experts working for the Commission on Human Rights were given various titles. Worth mentioning are Special Rapporteurs, independent experts, representatives of the Secretary-General and representatives of the Commission. The Human Rights Council uses this same system.172For reasons of unity, the term Special Rapporteur will be used for the remainder of this thesis. It should be kept in mind that this title is interchangeable with the terms Independent Experts, representatives of the Secretary-General or representatives of the Commission. However, when discussing a specific mandate in which another title was agreed to, that title will be used. Special Rapporteurs are appointed to monitor and report on the protection and violation of human rights. One of the rapporteurs is the Special Rapporteur on torture. The Commission on Human Rights in Resolution 1985/33 decided to appoint an expert to examine questions relevant to torture and other cruel, inhuman or degrading treatment or punishment. The mandate was last extended for three years in 2011.173 The mandate applies to all countries, also those that did not ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, due to the fact that the prohibition of torture has been recognized as a peremptory norm of international law.174 In the clarification of states’ responsibility in combating impunity of the Progress report on the question of the impunity of perpetrators of violations of human rights (civil and political rights), prepared by Special Rapporteur Mr. Joinet, pursuant to Sub-Commission Resolution 1994/34:

[t]he Special Rapporteur wishes ... [that States] take greater account of the important contribution at the international level of the jurisprudence of the jurisdictional (or parajurisdictional) bodies competent in the area of human of human rights violations worldwide, known as thematic mandates. Various activities are undertaken by special procedures, including responding to individual complaints, conducting studies, providing advice on technical cooperation at the country level, and engaging in general promotional activities. Special procedures are either an individual ... or a working group usually composed of five members (one from each region). The mandates of the special procedures are established and defined by the resolution creating them. Mandate-holders of the special procedures serve in their personal capacity, and do not receive salaries or any other financial compensation for their work. The independent status of the mandate-holders is crucial in order to be able to fulfill [sic] their functions in all impartiality.” 172The background of this diversity is explained in Human Rights Fact Sheet 27: “These different titles neither reflect a hierarchy, nor are they an indication of the powers entrusted to the expert. They are simply the result of political negotiations. The most important issue is the mandate given to the expert as it is formulated in the resolutions of the Commission on Human Rights. These mandates could focus on reporting on violations, or on analysing a problem, or on assisting in the provision of technical assistance or on a combination of one or more of these features.”; UN OHCHR, Human Rights Fact Sheet 27. Seventeen Frequently Asked Questions about the United Nations Special Rapporteurs, April 2001, p. 6. 173 Human Rights Council, Torture and other Cruel, Inhuman or Degrading Treatment or Punishment: mandate of the Special Rapporteur, A/HRC/RES/16/23, 12 April 2011, para. 3. 174 Human Rights Council, Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, A/HRC/RES/8/8, 18 June 2008; and UN OHCHR, Statement by Manfred Nowak, Special Rapporteur on Torture at the 18th session of the Commission on Crime Prevention and Criminal Justice, Vienna, 24 April 2009.

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rights, such as the Human Rights Committee or, at the regional level, the Inter- American Commission on Human Rights and the Inter-American Court of Human Rights, among others, because of the originality of their jurisprudence concerning the obligation placed on States to investigate and prosecute perpetrators of violations of human rights.175

In August 2009, the Office of the High Commissioner for Human Rights published an inventory of human rights and transitional justice aspects in post-2000 peace agreements after a request from the Human Rights Council.176 In March 2010, the United Nations human rights office in Afghanistan called for the repeal of the ‘Reconciliation and general amnesty law’.177 The High Commissioner on Human Rights noted that the law:

relieves Afghan authorities of their obligation to investigate and prosecute, on their own initiative, those allegedly responsible for gross violations of human rights. It contravenes Afghanistan’s obligations under international law and it green-lights impunity and continued human rights violations. It ignores the grievances of victims and denies them access to justice. This Law also sends the wrong message to victims who have repeatedly called for justice and the removal of human rights violators from public office.

The Law is likely to undermine efforts to secure genuine reconciliation which is of course about bringing together different elements of a fractured society in a manner that allows them to overcome, or deal with, harmful and divisive policies, practices, and experiences. At the very minimum, there must be an acknowledgment of the grave injustices that have occurred if the long and notorious pattern of abuse is to end in this country.178

This Law was adopted in 2007 by the lower and upper houses of parliament in Afghanistan, but never signed by President Karzai. Late 2009, it appeared that the law was gazetted in December 2008, as a result of which it came into force.179

175 Commission on Human Rights, Progress report on the question of the impunity of perpetrators of violations of human rights (civil and political rights) / prepared by Mr. Joinet, pursuant to subcommission resolution 1994/3, E/CN.4/Sub.2/1995/18, 28 June 1995, para. 14. 176 Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General, Office of the United Nations High Commissioner for Human Rights Analytical Study on Human Rights and Transitional Justice, Addendum. Inventory of Human Rights and Transitional Justice Aspects of Recent Peace Agreements, A/HRC/12/18Add.1, 21 August 2009. 177 See also Section 5 of this chapter. 178United Nations Assistance Mission in Afghanistan, Press conference in Kabul by Norah Niland, Representative of the UN High Commissioner for Human Rights in Afghanistan, 25 March 2010, accessible via 179Ibid.

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8 CONCLUSION

The General Assembly recognizes the effective punishment of war crimes and crimes against humanity as an important element in putting an end to and preventing such crimes. The General Assembly is of the opinion that all war criminals should be punished. The refusal by states to cooperate in the arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity is contrary to the purposes and principles of the Charter of the United Nations and to generally recognized norms of international law. Those responsible for war crimes and crimes against humanity shall be subject to tracing, arrest, trial and, if found guilty, to punishment. In no circumstances should blanket immunity from prosecution be granted to any person allegedly involved in extra-legal, arbitrary or summary executions. All acts of enforced disappearance shall be offences under criminal law punishable by appropriate penalties and shall not benefit from any special amnesty law or similar measures. According to the General Assembly, there exists a duty to prosecute gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law. With regard to the victims, the General Assembly consistently emphasizes the right to an effective remedy for victims of human rights violations. The right to a remedy as well as the right to reparation will be focussed on in more detail in Chapter VI. In general, all UN bodies take a unanimous stand on the issue of impunity and amnesty for human rights violations. This notwithstanding, in practice considering situations in a transition to democracy, the Security Council has taken a more lenient approach to facilitate this process. The Security Council condemned impunity in numerous documents not related to a country situation and in, for example, Rwanda and Lebanon. In the situations of Haiti (1993), Croatia (1996), Papua New Guinea (1998) and Sierra Leone (2000), the Security Council approved of amnesty measures. In the situation of Croatia, the Security Council even suggested them, although with the exception of those who had committed war crimes as defined in international law. In the situations of Haiti and Papua New Guinea, the Security Council did not emphasize that amnesty should not be granted to those who committed serious human rights violations under international law. In the situation of Sierra Leone, the Security Council specifically mentioned that the amnesty provisions of the Lomé Peace Agreement should not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law. Possibly, there has been a shift of policy since the ICC Statute was adopted on 17 July 1998.

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The International Court of Justice has thus far not ruled that amnesty, impunity or immunity should not be granted to those who have committed serious crimes under international law. The UN Secretary-General is convinced of the need to end cultures of impunity. The Secretary-General recognizes that amnesty is an accepted legal concept for less serious crimes, but condemns the granting of amnesty for genocide, war crimes, crimes against humanity or gross violations of human rights, and emphasizes that amnesty for these crimes is not acceptable. According to the Secretary-General, such amnesty measures do not contribute to lasting peace and reconciliation. The Secretary-General urges authorities to make sure violations of internationally recognized human rights do not go unpunished and to prosecute the perpetrators. The Commission on Human Rights to some extent initiated the focus on the topic of impunity and amnesty within the United Nations. From the 1980s on, the Commission continued to pay attention to this issue and developed the (Updated) Set of Principles for the protection and promotion of human rights through action to combat impunity. The Commission on Human Rights is of the opinion that states must prosecute or extradite perpetrators of international crimes such as genocide, crimes against humanity, war crimes and torture in accordance with their international obligations. The Human Rights Council carries on the work of the Commission. The Office of the United Nations High Commissioner for Human Rights pursues the general UN approach on impunity and amnesty. Several useful instruments are provided by the Office to promote and protect human rights and the rule of law, such as the ‘Rule of law tools for post-conflict states’. Overall, it may be concluded that in theory, the United Nations position on impunity, amnesties and the duty to prosecute is in theory quite consistent in that impunity and amnesty laws for serious violations of human rights are rejected, and that those responsible for these crimes should be prosecuted to strengthen the rule of law. However, in practice, the United Nations has a much less consistent position, as shown for example in the situation of Haiti. As former Secretary- General Kofi Annan said: “Nowhere is the gap between rhetoric and reality - between declarations and deeds - so stark and so deadly as in the field of international humanitarian law.”180 This difference between theory and practice shows that in practice, it is extremely difficult to hold on to the position that there is no place for amnesty. It also shows that the United Nations is willing to adapt its policy when confronted with a situation in which amnesty may do more good for the human rights situation than would impunity.

180 General Assembly, Follow-up to the outcome of the Millennium Summit, In larger freedom: towards development, security and human rights for all. Report of the Secretary-General, A/59/2005, 21 March 2005, para. 134.

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CHAPTER VI AMNESTY AND THE RIGHTS OF VICTIMS

1 INTRODUCTION

In every post-conflict society, perpetrators, bystanders and victims have to find a new balance in which they can live together peacefully. Perpetrators will often claim that they obeyed superiors’ orders to avoid punishment. Bystanders may argue that they did not know. To be able to heal, victims want their suffering to be recognized, the perpetrators to be punished and the bystanders to know what happened to them. In addition to recognition, bringing to justice those responsible, and reparation for the harm done will contribute to healing the wounds of the victims. Healing the wounds of victims amounts to healing the wounds of society and therefore contributes to the process of reconciliation by means of transitional justice. From this perspective, victims are the core of transitional justice efforts. Therefore, victims should have the primal attention after a period of human rights violations and they should be the focal point of processes of reconciliation and transitional justice. If the victims are overlooked, and the crimes that they fell victim to are not investigated and the perpetrators prosecuted, it is argued that “impunity … [will be] a new aggression that amounts to a crime against humanity”.1 Rojas Baeza holds that, apart from the fact that impunity is in and of itself a violation of human rights, an amnesty granted or an amnesty measure left in place after democracy is restored may be regarded as a new violation in addition to the crimes already committed.2 Meant as a means to facilitate and smoothen a

1 See, for example, Paz Rojas Baeza, “Impunity: An Impossible Reparation”, Nordic Journal of International Law, vol. 69 no. 1 2000, pp. 27-34, p. 28. 2 See ibid., p. 31, 32. See, for example, Dieu-Donné Wedi Djamba, Central Africa: We want our dignity back, 12 July 2007, accessible via "Horrific acts of violence were committed against women and children during and after the wars in the Great Lakes region... [I]n the Great Lakes region, while the perpetrators and bystanders are living peacefully and comfortably, the victims, particularly women and girls, continue to experience the same nightmares. They have paid a heavy price for the deadly wars, which have caused hundreds of thousands of deaths, refugees and displacements, mass human rights violations such as rape, torture, and other atrocities, burning of houses and the looting of national resources by the different armed

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transition, the granting of amnesty may have the opposite effect. This is especially the case when the decision to grant amnesty is taken without accompanying counterbalancing measures to secure the rights of victims.3 Since this chapter discusses the rights of victims, it is useful to define who is considered to be a victim. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) provides a definition of victims in Principles 1 and 2, which encompasses both direct and indirect victims and is quite similar to the use of the term “victim” in this chapter:

1. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.

2. A person may be considered a victim ... regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.4

From a victims’ point of view, the “[s]tate cannot forgive breaches of international human rights law. It is powerless so to do because the rights in question are the property of the victims of those particular breaches, and victims

groups. An aftermath does not seem to exist for them. Indeed, the post-conflict period is the equivalent of the period of the actual conflict.” 3The International Centre for Transitional Justice distinguishes the following initiatives as the basic approaches to transitional justice: - Criminal prosecutions. They are judicial investigations of those responsible for human rights violations. Prosecutors frequently emphasize investigations of the "big fish": suspects considered most responsible for massive or systematic crimes. - Truth commissions. These commissions of inquiry have the primary purposes of investigating and reporting on key periods of recent past abuse. They are often official state bodies that make recommendations to remedy such abuse and to prevent its recurrence. - Reparations programs. They are state-sponsored initiatives that help repair the material and moral damages of past abuse. They typically distribute a mix of material and symbolic benefits to victims, benefits which may include financial compensation and official apologies. - Gender justice. These efforts challenge impunity for sexual- and gender-based violence and ensure women's equal access to redress of human rights violations. - Security system reform. These efforts seek to transform the military, police, judiciary and related state institutions from instruments of repression and corruption into instruments of public service and integrity. - Memorialization efforts. They include museums and memorials that preserve public memory of victims and raise moral consciousness about past abuse, in order to build a bulwark against its recurrence. 4 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES 40/34, 29 November 1985, Principles 1 and 2.

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Amnesty and the rights of victims never pass title of those rights to the State.”5 Ben Chigara claims that national amnesty laws or impunity measures therefore violate the rights of victims whose title never passes on to the state. Consequently, the state is not able to trade those rights off by means of an amnesty law or a similar measure granting impunity.6 This is also recognized by Special Rapporteur Louis Joinet. In his final report on the Question of the impunity of perpetrators of human rights violations, he affirms that “[a]mnesty cannot be accorded to perpetrators before the victims have obtained justice by means of an effective remedy”.7 In Principle 19 of the original Set of Principles for the protection and promotion of human rights through action to combat impunity annexed to the report, Joinet calls for safeguards against the use of reconciliation or forgiveness to further impunity. Principle 19 provides: that “[t]here can be no just and lasting reconciliation without an effective response to the need for justice; an important element in reconciliation is forgiveness, a private act which implies that the victim knows the perpetrator of the violations and that the latter has been able to show repentance”.8 In line with this, the Preamble of the Updated Set of Principles (2005) states the following:

Considering that the duty of every State under international law to respect and to secure respect for human rights requires that effective measures should be taken to combat impunity, Aware that there can be no just and lasting reconciliation unless the need for justice is effectively satisfied,

…

Convinced, therefore, that national and international measures must be taken for that purpose with a view to securing jointly, in the interests of the victims of violations, observance of the right to know and, by implication, the right to the

5 Ben Chigara, Amnesty in International Law, The Legality under International Law of National Amnesty Laws, Pearson Education: Harlow 2002, p. 16; See also Zbigniew Herbert in his poem ‘The envoy of Mr Cogito’: “and do not forgive truly it is not in your power to forgive in the name of those betrayed at dawn” 6 See ibid., Chigara 2002, p. 13. 7 Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political). Final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20, 26 June 1997, para. 32. 8See ibid., Principle 19; See also: Office of the United Nations High Commissioner for Human Rights, Making Peace our Own. Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda, United Nations: 2007, p. 29: “for most people who have suffered harm, forgiveness is not automatic but rather a conscious choice shaped by a range of individual and communal factors.” And at p. 30: “forgiveness is far from an inherent or primordial aspect of society but rather a deliberate, often reluctant, choice.”

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truth, the right to justice and the right to reparation, without which there can be no effective remedy against the pernicious effects of impunity,

Expecting victims to forgive may cause more distress, especially for victims of brutal, severe and intimate crimes. Martha Minow states that “[f]undamentally, forgiveness must remain a choice by individuals; the power to forgive must be inextricable from the power to choose not to do so. It cannot be ordered or pressured.”9 In sum, it may be stated that when a state usurps the individual victims’ right to forgive the perpetrator(s), it fails to fully acknowledge the pain of those who have suffered.10 A basis for combating impunity and thus amnesty are the rights of victims of serious human rights violations.11 When amnesty is considered as the only option, the rights of victims should nevertheless be safeguarded as much as possible. In the Updated Set of Principles, Principle 24 on ‘Restrictions and other measures relating to amnesty’ exactly describes the restrictions that states are bound to when granting amnesty:

Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds: (a) The perpetrators of serious crimes under international law may not benefit from such measures until such time as the State has met the obligations to which principle 19[12] refers or the perpetrators have been prosecuted before a

9 Martha Minow, Breaking the Cycles of Hatred: Memory, Law and Repair, Princeton University Press: Princeton/Oxford 2002, p. 18. 10 Aryeh Neier, quoted in Danielle Celermajer, From the Levinasian Apology to The Political Apology; Reflections on Ethical Politics, Refereed paper presented to the Australasian Political Studies Association conference, University of Newcastle, 25-27 September 2006, p. 3. 11 See, for example, Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, Section I on Combating impunity: general obligations. Principle 1. General obligations of states to take effective action to combat impunity: “Impunity arises from a failure by states to meet their obligations to investigate violations; To take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; To provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.” 12 (Footnote added) Updated Set of Principles, Principle 19 provides: Duties of states with regard to the administration of justice: States shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished. Although the decision to prosecute lies primarily within the competence of the State, victims, their families and heirs should be able to institute proceedings, on either an individual or a collective basis, particularly as parties civiles or as persons conducting private prosecutions in States whose law of criminal procedure recognizes these procedures. States should guarantee broad legal standing in the judicial process to any wronged party and to any person or non-governmental organization having a legitimate interest therein.

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court with jurisdiction - whether international, internationalized or national - outside the State in question; (b) Amnesties and other measures of clemency shall be without effect with respect to the victims’ right to reparation, to which principles 31 through 34 refer, and shall not prejudice the right to know; (c) ...13

These restrictions imply rights on the side of the victims; (a) implies the right to justice, (b) implies the right to reparation and the right to truth. Every right that victims have, consequently entails a duty towards the victims on the side of the state. These duties coincide with the restriction found in Principle 24 of the Updated Set of Principles. Juan Mendez identifies four duties on the side of the state:

1. to investigate, prosecute, and punish the perpetrators; 2. to disclose to the victims, their families, and society all that can be reliably established about those events; 3. to offer the victims adequate reparations; and 4. to separate known perpetrators from law enforcement bodies and positions of authority.14

These duties should be interpreted as distinct duties. The rights that match these obligations are:

1. the right to justice; 2. the right to know the truth; 3. the right to reparation; and 4. the “right to new, reorganized, and accountable institutions”.15

This chapter discusses the first three rights. Amnesty laws may violate the right to reparation, the right to truth and the right to justice. Vetting, being part of the fourth mentioned right, will be discussed in Section 4 of this chapter on the right to justice. In the following sections, the victims’ rights to truth, reparation and justice will be elaborated upon. Identifying whether victims actually do have these rights is important when one wants to determine the acceptability of an amnesty law. It is important to determine whether amnesty laws may be counterbalanced by additional transitional justice mechanisms, such as a truth commission, in order to minimize the violation of victims’ rights by an amnesty measure. This too will be touched upon in the sections to come. The transitional justice mechanisms that will

13Commission on Human Rights, Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Principle 24. 14 Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255- 282, p. 261. 15Ibid.

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Chapter VI be discussed are truth (and reconciliation) commissions, reparation, memorialization efforts and vetting. These initiatives most directly affect the victims’ rights to truth, reparation and justice. To determine the scope and content of the right to the truth, the right to reparation and the right to justice, literature on the subject is analysed in addition to an examination of the legal documents discussed in Chapter IV. With respect to case law, the examples given in this chapter are mostly of Latin and South American origin. This is not only due to the fact that the continent has a history which provides many examples to enrich this chapter, but also because, in contrast with other parts of the world where similar violations have taken place, this continent has a well-functioning supervisory body for human rights violations on the continent in the form of the Inter-American Commission and Court of Human Rights. The Inter-American Commission and Court provide much valuable insight into the rights of victims of serious human rights violations. In addition, documents of UN origin are taken into account. In particular, the following sources provide valuable information: the Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, the Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, and the 2006 OHCHR Study on the right to the truth.

2 THE RIGHT TO KNOW THE TRUTH

2.1 Introduction

So long as justice is not obtained and we do not know what happened, this is not just an issue of the past. We are also talking about the present.16

An amnesty law in principle violates the right to the truth and the right to know because, by waiving prosecutions and not investigating the crimes committed, victims, survivors, the victims’ relatives and society are left in the dark. For example, in Massacre of the Jesuits in El Salvador (1999) the IAComHR concluded “that application of the amnesty decree eliminated the possibility of undertaking any further judicial investigations through the courts to establish the truth and it denied the right of the victims, their relatives and society as a whole to know the truth”.17 The IAComHR further concluded that “[t]he Salvadoran State has violated the right to know the truth to the prejudice of the victims’ relatives, the members of the religious and academic community to which the victims belonged, and

16 Quote from Estela de Carlotto, President of the Grandmothers of the Plaza de Mayo, whose newly born grandson was taken from her daughter during the Dirty War. Quoted in: L. Rohter, “Letter from South America; Now the Dirtiest of Wars Won't Be Forgotten”, The New York Times, 18 June 2003, A4. 17 IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 232. To date, the Salvadoran amnesty law is still in force.

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Salvadoran society as a whole”.18 In its 1999 Annual Report, the IAComHR reiterated that:

[r]egardless of the problem of eventual responsibilities, which in any case must always be individual and must be established by due process through a pre- existing tribunal imposing punishment consistent with the law existing at the time the crime was committed, every society has the inalienable right to know the truth about what has occurred, as well as the reasons and circumstances in which those crimes came to be committed, so as to avoid a repetition of such events in the future. In turn, no one can prevent the victims’ relatives from learning what has happened to their loved ones. Access to the truth presupposes that freedom of expression must be unrestricted…19

The right to the truth is the individual right of victims directly affected by a human rights violation to know what has happened. In the 2006 OHCHR Study on the right to the truth, the right to the truth is described as follows: “The right to the truth implies knowing the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, as well as the reasons for them.”20To prevent history from repeating itself, it is important to know the reasons and circumstances in which crimes came to be committed.21 Therefore, the right to the truth is also a collective right, referred to as the right to know.22 The IACtHR holds the position “that every person, including the next of kin of the victims of grave violations of human rights, has the right to the truth. Therefore, the next of kin of the victims and society as a whole must be informed of everything that has happened in connection with said violations.”23 The purpose and aim of the right “of a society to have full knowledge of its past is not only a mode of reparation and clarification of what has happened, but is also aimed at preventing future violations”.24 In 2007, Kai Ambos noted that the right to know on both the

18 See ibid., para. 240. 19 IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on the Massacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para 226. 20Commission on Human Rights, Study on the right to the truth.Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, para. 3. 21 See IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99, OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 155. “The right of a society to know, in full, its past is not only to be found in the methods of reparation and elucidation of the incidents which have occurred, but in the objective of preventing future violations.” 22 See, for instance, Commission on Human Rights, Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Principles 2, 3. 23 IACtHR, Myrna Mack Chang v. Guatemala, Series C No. 101, Judgment of 25 November 2003 (Merits, Reparations and Costs), para 274. 24 IAComHR, Monsignor Oscar Arnulfo Romero y Galdámez v. El Salvador, Case 11.481, Report No. 37/00, 13 April 2000, para. 148; See also: IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 228.

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Chapter VI individual and the collective level “is an emerging customary norm and a general principle of law”.25 The OHCHR claims that for all gross human rights violations and serious breaches of international humanitarian law there exists a right to the truth.26 Often, the right to the truth comes to the fore with regard to serious violations of human rights and grave breaches of humanitarian law. Especially in cases of enforced disappearance, missing persons, abducted children, torture and summary executions, victims demand to know what happened to them or their relatives. With respect to terminology, the right of individual victims to the truth is also referred to as the right to know, or the right to information.27 For instance, Amnesty International holds that the right to information applies not only to the relatives of the victims directly affected by a human rights violation, but also to society in general.28 In the revised final report on the Question of the impunity of perpetrators of human rights violations, Joinet clarifies the difference between the right to the truth and the right to know.29 The right to know:

25 Kai Ambos, The legal framework of Transitional Justice, Study prepared for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, pp. 19-21. 26Commission on Human Rights, Study on the right to the truth.Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, para. 34. Para 33 reads: International human rights instruments, as well as the Additional Protocol I to the Geneva Conventions, of 12 August 1949, give indications of the material scope of the right to the truth. In terms of the human rights violations for which the question of the right to the truth arises, international human rights bodies have recognized the right to the truth in cases of gross violations of human rights - in particular enforced disappearances, extrajudicial executions and torture - and serious violations of international humanitarian law. This is supported by the jurisprudence of international and regional human rights bodies and courts.26 27Human Rights Council, The Right to Development. Draft Resolution. China, Cuba (on behalf of the Non-Aligned Movement), A/HRC/9/L.12, 18 September 2008, p. 3. 28 Amnesty International, Peace-keeping and Human Rights, AI Index: IOR 40/01/94, January 1994, p. 38. See also, IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99, OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 153. 29 See also, Kai Ambos, The legal framework of Transitional Justice, Study prepared for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 19, 20: Victims have a right to [the] … [t]ruth, i.e., “the clarification of the illegal facts and the corresponding responsibilities”; this is both ‘‘a collective right that ensures society access to information that is essential for the workings of democratic systems, and … a private right for relatives of the victims, which affords a form of compensation, in particular, in cases where amnesty laws are adopted.’’; And: IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99, OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 151: “The "right to the truth" is a collective right which allows a society to gain access to information essential to the development of democratic systems, and also an individual right for the relatives of the victims, allowing for a form of reparation, especially in cases where the Amnesty Law is enforced. The American Convention protects the right to gain access to and obtain information, especially in cases of the disappeared, in regard to which the Court and the Commission have established that the State is obligated to determine the person’s whereabouts.”; And: IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 224: “The right to know the truth is a collective right that ensures society access to information that is essential for the workings of democratic systems, and it is also a private right for relatives of the victims, which affords a form of compensation, in particular, in cases where amnesty laws are adopted.”

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is not simply the right of any individual victim or closely related persons to know what happened, a right to the truth. The right to know is also a collective right, drawing upon history to prevent violations from recurring in the future. Its corollary is a “duty to remember”, which the State must assume, in order to guard against the perversions of history that go under the names of revisionism or negationism; the knowledge of the oppression it has lived through is part of a people's national heritage and as such must be preserved. These, then, are the main objectives of the right to know as a collective right.30

Especially in cases of missing or disappeared persons, the right to the truth is of importance with regard to the fate of those persons.31 This is because “[t]he practice of disappearances often involves secret execution without trial, followed by

30 Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 17. 31 IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), paras. 155 and 156 elaborate on the crime of enforced disappearance: 155. The forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee. The kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee's right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest, all in violation of Article 7 of the Convention which recognizes the right to personal liberty by providing that: "1. Every person has the right to personal liberty and security. 2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto. 3. No one shall be subject to arbitrary arrest or imprisonment. 4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him. 5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial. 6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies." 156. Moreover, prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore, violates Article 5 of the Convention, which recognizes the right to the integrity of the person by providing that: "1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person." In addition, investigations into the practice of disappearances and the testimony of victims who have regained their liberty show that those who are disappeared are often subjected to merciless treatment, including all types of indignities, torture and other cruel, inhuman and degrading treatment, in violation of the right to physical integrity recognized in Article 5 of the Convention.

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Chapter VI concealment of the body to eliminate any material evidence of the crime and to ensure the impunity of those responsible”.32 International and national courts, human rights bodies and state practice have recognized this.33 Initially, the right to the truth was only referred to in cases of enforced or involuntary disappearances.34 For instance, in María del Carmen Almeida de Quinteros et al. v. Uruguay (1983), the Human Rights Committee noted that the failure of the authorities of Uruguay to inform the mother about the situation of her adult daughter who disappeared after being taken into custody not only violated her rights, but constituted (psychological) torture and therefore violated Article 7 ICCPR.35 Currently, the right to the truth is also acknowledged for other serious human rights violations, such as torture and extrajudicial executions,36 both in international and non- international conflicts.37 Consequently, the right to the truth entitles victims:

to seek and obtain information on: the causes leading to the person’s victimization; the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law; the progress and results of the investigation; the circumstances and reasons for the perpetration of crimes under international

32 IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), para. 157. Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance contains a description of the crime of enforced disappearance: For the purposes of this Convention, “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. 33 Kai Ambos, The legal framework of Transitional Justice, Study prepared for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 20. 34 Commission on Human Rights, Study on Amnesty Laws and Their Role in the Safeguard and Promotion of Human Rights, Preliminary Report by Mr. Louis Joinet, Special Rapporteur, E/CN.4/Sub.2/1985/16, 21 June 1985, para. 81. 35“… has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter in particular, of article 7” - Human Rights Committee, María del Carmen Almeida de Quinteros et al. v. Uruguay, Comm. No. 107/1981, CCPR/C/OP/2 at 138 (1990), 21 July 1983, para. 14. See also: Human Rights Committee, Concluding Observations of the Human Rights Committee: Uruguay, CCPR/C/79/Add.90, 8 April 1998, para. 7; Human Rights Committee, Mariya Staselovich v. Belarus, Comm. No. 887/1999, CCPR/C/77/D/887/1999, 24 April 2003, para. 9.2; Human Rights Committee, Validzhon Khalilov v. Tajikistan, Comm. No. 973/2001, U.N. Doc. CCPR/C/83/D/973/2001, 13 April 2005, para. 7.7; ECtHR, Taş v. Turkey, Application no. 24396/94, Judgment of 14 November 2000, paras. 79, 80; ECtHR, Cyprus v. Turkey, Application No. 25781/94, Judgment of 10 May 2001, paras. 155-158; African Commission on Human and Peoples’ Rights, Amnesty International and others v. Sudan, Comm. No. 48/90, 50/91, 52/91, 89/93 (1999), para 54; and IAComHR, Annual Report 1978, OEA/Ser.L/V/II.47, Doc. 13 rev.1, 29 June 1979, Section 2 Part II; IAComHR, Annual Report 1982- 83, OEA/Ser.L/V/II.61, Doc. 22 rev. 1, 27 September 1983, Chapter III. 36 IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, paras. 221, 237, 240. 37 See, for example, Commission on Human Rights, Study on the right to the truth.Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, para. 7.

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law and gross human rights violations; the circumstances in which violations took place; in the event of death, missing or enforced disappearance, the fate and whereabouts of the victims; and the identity of perpetrators.38

To make it possible for victims, their relatives and society to find out the truth, it is essential that states preserve archives and other evidence concerning serious violations of human rights. This may be seen as being part of the right to an effective remedy, since it enables victims to corroborate their stories.

2.2 The development of the right to know the truth

The right to truth can be traced back to Articles 32 and 33 of Additional Protocol I39 to the Geneva Conventions of 1949.40 Article 32 holds the right of families to know the fate of their relatives;41 Article 33 lays down certain duties for the state with respect to missing persons.42

38 See ibid., para. 38. 39 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1). Adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, entry into force 7 December 1979. 40 Kai Ambos, The legal framework of Transitional Justice, Study prepared for the International Conference ‘Building a Future on Peace and Justice’, Nuremberg, 25-27 June 2007, p. 20. 41Article 32. - General principle In the implementation of this Section, the activities of the High Contracting Parties, of the Parties to the conflict and of the international humanitarian organizations mentioned in the Conventions and in this Protocol shall be prompted mainly by the right of families to know the fate of their relatives. 42 Article 33. - Missing Persons 1. As soon as circumstances permit, and at the latest from the end of active hostilities, each Party to the conflict shall search for the persons who have been reported missing by an adverse Party. Such adverse Party shall transmit all relevant information concerning such persons in order to facilitate such searches. 2. In order to facilitate the gathering of information pursuant to the preceding paragraph, each Party to the conflict shall, with respect to persons who would not receive more favourable consideration under the Conventions and this Protocol: (a) Record the information specified in Article 138 of the Fourth Convention in respect of such persons who have been detained, imprisoned or otherwise held in captivity for more than two weeks as a result of hostilities or occupation, or who have died during any period of detention; (b) To the fullest extent possible, facilitate and, if need be, carry out the search for and the recording of information concerning such persons if they have died in other circumstances as a result of hostilities or occupation. 3. Information concerning persons reported missing pursuant to paragraph I and requests for such information shall be transmitted either directly or through the Protecting Power or the Central Tracing Agency of the International Committee of the Red Cross or national Red Cross (Red Crescent, Red Lion and Sun) Societies. Where the information is not transmitted through the International Committee of the Red Cross and its Central Tracing Agency, each Party to the conflict shall ensure that such information is also supplied to the Central Tracing Agency. 4. The Parties to the conflict shall endeavour to agree on arrangements for teams to search for, identify and recover the dead from battlefield areas, including arrangements, if appropriate, for such teams to be accompanied by personnel of the adverse Party while carrying out the missions in areas controlled by the adverse Party. Personnel of such teams shall be respected and protected while exclusively carrying out these duties.

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The right to the truth gained prominence in the 1980s and 1990s after several regime changes, when victims, their relatives and society demanded to know what happened during a former regime. The Mothers of the Plaza del Mayo in Buenos Aires (Argentina) is just one example. Special Rapporteur Louis Joinet emphasized the importance of respecting the right to know and the right to truth in all circumstances during the 1995 Meeting of experts on rights not subject to derogation during states of emergency and exceptional circumstances.43 In 1997, Joinet included these rights in the Set of Principles for the protection and promotion of human rights through action to combat impunity.44 As described above, this Set of Principles was updated in 2005. Principles 2 and 4 of the Updated Set of Principles contain the individual and the collective right to the truth:

Principle 2: THE INALIENABLE RIGHT TO THE TRUTH Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.45

Principle 4: THE VICTIMS’ RIGHT TO KNOW Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate.46

The right to the truth and the right to know imply a duty for the state to ensure these rights. This duty is laid down in Principle 3 of the updated Set of Principles:

THE DUTY TO PRESERVE MEMORY A people’s knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfilment of the State’s duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations.

43 Commission on Human Rights, Eighth annual report and list of States which, since 1 January 1985, have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro Despouy, Special Rapporteur appointed pursuant to Economic and Social Council resolution 1985/37. Annex 1, Report of the meeting of experts on rights not subject to derogation during states of emergency and exceptional circumstances Geneva 17-19 May 1995,E/CN.4/Sub.2/1995/20, 26 June 1995, para. 39. 44 Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, Principles 1-4. 45Commission on Human Rights, Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Principle 2. 46See ibid., Principle 4.

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On 21 March 2006, the General Assembly adopted the Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, referred to earlier and known as the Van Boven-Bassiouni Principles.47 These Principles provide the following on the right to the truth. Paragraph 22(b) states:

Satisfaction should include, where applicable, any or all of the following: … (b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations”.

Section X of the Van Boven-Bassiouni Principles, on access to relevant information concerning violations and reparation mechanisms, states in its sole Paragraph 24:

States should develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by these Basic Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access. Moreover, victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations.

From the above, it may be concluded that the collective’s right to know is recognized as a separate right. The conclusions of the 2006 OHCHR Report on the right to the truth represent the core of the right to the truth, and read as follows:

55. The right to the truth about gross human rights violations and serious violations of humanitarian law is an inalienable and autonomous right, recognized in several international treaties and instruments as well as by national, regional and international jurisprudence and numerous resolutions of intergovernmental bodies at the universal and regional levels. 56. The right to the truth is closely linked to the State’s duty to protect and guarantee human rights and to the State’s obligation to conduct effective investigations into gross human rights violations and serious violations of humanitarian law and to guarantee effective remedies and reparation. The right

47 General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006.

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to the truth is also closely linked to the rule of law and the principles of transparency, accountability and good governance in a democratic society. 57. The right to the truth is closely linked with other rights, such as the right to an effective remedy, the right to legal and judicial protection, the right to family life, the right to an effective investigation, the right to a hearing by a competent, independent, and impartial tribunal, the right to obtain reparation, the right to be free from torture and ill-treatment; and the right to seek and impart information. Truth is fundamental to the inherent dignity of the human person. 58. In cases of gross human rights violations - such as torture, extrajudicial executions and enforced disappearance - serious violations of humanitarian law and other crimes under international law, victims and their relatives are entitled to the truth. The right to the truth also has a societal dimension: society has the right to know the truth about past events concerning the perpetration of heinous crimes, as well as the circumstances and the reasons for which aberrant crimes came to be committed, so that such events do not reoccur in the future. 59. The right to the truth implies knowing the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, as well as the reasons for them. In cases of enforced disappearance, missing persons, children abducted or during the captivity of a mother subjected to enforced disappearance, secret executions and secret burial place, the right to the truth also has a special dimension: to know the fate and whereabouts of the victim. 60. The right to the truth as a stand-alone right is a fundamental right of the individual and therefore should not be subject to limitations. Giving its inalienable nature and its close relationship with other non-derogable rights, such as the right not to be subjected to torture and ill-treatment, the right to the truth should be treated as a non-derogable right. Amnesties or similar measures and restrictions to the right to seek information must never be used to limit, deny or impair the right to the truth. The right to the truth is intimately linked with the States’ obligation to fight and eradicate impunity. 61. International criminal tribunals, truth commissions, commissions of inquiry, national criminal tribunals, national human rights institutions and other administrative bodies and proceedings may constitute important tools for ensuring the right to the truth. Judicial criminal proceedings, with a broad legal standing in the judicial process for any wronged party and to any person or non- governmental organization having a legitimate interest therein, are essential to ensuring the right to the truth. Judicial remedies, such as habeas corpus, are also important mechanisms to protect the right to the truth.48

As Paragraph 60 of the 2006 OHCHR Study on the right to the truth points out, an amnesty measure should not lead to a violation of the right to the truth.

48Commission on Human Rights, Study on the right to the truth.Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, paras. 55-61.

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2.3 The right to know the truth in international human rights law

The right to the truth is found in one of the human rights documents discussed in Chapter IV. The International Convention for the Protection of All Persons from Enforced Disappearance (2006) in its Preamble affirms “the right of any victim to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and impart information to this end”. Article 24(2) reads: “Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard.” In addition, Article 9(4) of the Convention on the Rights of the Child explicitly recognizes the right to the truth. It recognizes the right of children who have become separated from family members because of detention, imprisonment, exile or death in detention to information about the absent family member.49 The Inter-American Commission on Human Rights recognizes the existence of a right to the truth based on Articles 1(1) (on the obligation to respect rights),50 8 (on the right to a fair trial) and 25 (on the right to judicial protection),51 and 13 (on freedom of thought and expression)52 of the American Convention on Human Rights.53 In Parada Cea et al. v. El Salvador (1999) the IAComHR concludes that “the ‘right to the truth’ arises as a basic and indispensable consequence for all states parties, given that not knowing the facts related to human rights violations means that, in practice, there is no system of protection capable of guaranteeing the identification and possible punishment of those responsible”.54 The IAComHR also mentions that the existence of obstacles, de facto or de iure, “to accessing and

49Article 9(4) of the Convention on the Rights of the Child provides: “Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.” 50 IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on the Massacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 223: “The interpretations of the Inter-American Court in the Castillo Páez case and other cases relating to the generic obligations of Article 1.1 of the Convention point to the conclusion that "the right to know the truth" arises as a basic and indispensable consequence for every State party to that instrument, since lack of knowledge of the facts relating to human rights violations means, in practice, that there is no system of protection capable of guaranteeing the identification and eventual punishment of those responsible.” 51 IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99, OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 152: The right to the truth is also related to Article 25 of the Convention which establishes the right to have a simple and prompt remedy for the protection of the rights enshrined in it. 52 Article 13 of the American Convention protects the right of access to information. 53 IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99, OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 148. 54See ibid., para. 150.

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2.4 Mechanisms to guarantee the right to know the truth

The right to the truth may be ensured by national courts, truth (and reconciliation) commissions, national or international commissions of inquiry,56 international criminal tribunals, national human rights institutions and other administrative bodies and proceedings.57 The state itself may also disclose the facts surrounding crimes it has information on. These different mechanisms are all able to establish (parts of) the truth, although they may reach various conclusions and cover various parts of the truth. This is caused by the fact that a court will focus on those parts of the truth that are necessary to decide whether the suspected perpetrator is guilty or not, and a truth commission may focus more on the story of the victim. Because of this, truth commissions will always have an added value next to criminal proceedings. A truth commission is a mechanism to exercise the right to the truth and the right to know. It is an official, temporary, public, non-judicial fact-finding body that investigates a pattern of human rights crimes committed within a set period. Generally, a truth commission is established to determine the truth “about what has taken place; to facilitate the reconciliation process; to contribute to the fight against impunity; and to reinstall or to strengthen democracy and the rule of law”.58Truth commissions take a victim-centred approach and usually complete their task with a final report of findings of fact and recommendations. It is not feasible to establish the truth about what happened regarding every human rights crime that has been perpetrated. Even the combination of trials and a national commission of inquiry does not guarantee the whole truth. For example, in Argentina, the relatives of victims of forced disappearances continue to demand an ‘individualized truth’ in addition to the collective truth uncovered by the National

55See ibid., para. 152. 56 Examples are: Argentina’s Commission on the Disappeared (1983), Chad’s Commission of Inquiry into the crimes and misappropriations committed by ex-president Habré, his accomplices and/or accessories (1990), Guatemala’s Commission for the historical clarification of human rights violations and incidents of violence that have caused suffering to the Guatemalan population (1994), the International Commission of Inquiry on Darfur (2005). 57Commission on Human Rights, Study on the right to the truth.Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, para. 61. 58See ibid., para. 14. See for instance Article XXVI (1) of the Peace agreement between the government of Sierra Leone and the Revolutionary United Front of Sierra Leone, which reads: A Truth and Reconciliation Commission shall be established to address impunity, break the cycle of violence, provide a forum for both the victims and perpetrators of human rights violations to tell their story, get a clear picture of the past in order to facilitate genuine healing and reconciliation. Another example: Government of Chile, Executive Branch, Ministry of Justice, Undersecretary of the Interior, Supreme Decree No. 355, Creation of the Commission on Truth and Reconciliation, Santiago, 25 April 1990.

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Commission on the Disappearance of Persons (CONADEP) and by the Junta trials.59 Acknowledging the importance of establishing the truth in individual cases, Chile and Panama introduced a follow-up modality, through which the process of truth seeking continues even though the respective commission of inquiry and truth commission have finished their terms.60 When an amnesty law is issued, national courts are ruled out to contribute to establish the truth. In Argentina,

[a] decision by the Argentine Supreme Court rendered on 13 August 1998, which ruled that courts lacked jurisdiction to hold the proceedings as a result of the amnesty laws, led to submission of a case before the Inter-American Commission. In a friendly settlement resolving this case, the Government of Argentina accepted and undertook to guarantee “the right to the truth, which involves the exhaustion of all means to obtain information on the whereabouts of the disappeared persons”. As a result, Argentine courts were allowed to carry on truth trials and an ad hoc Prosecutor’s Commission on truth proceedings was established to investigate cases. In July 2001, approximately 3,570 human rights cases were being investigated.61

The truth trials, the establishment of truth commissions and truth and reconciliation commissions in countries where human rights violations have taken place shows that the importance of knowing what happened is also recognized by countries in transition.62 Truth commissions are not established to provide justice. The Argentine CONADEP in its report noted that it “was set up not to sit in judgment, because that is the task of the constitutionally appointed judges, but to investigate the fate of the people who disappeared during those ill-omened years of” the nation’s life.63

59 Juan E. Méndez, “The Human Right to Truth”, in: Borer, T.A. (ed.), Telling the Truths. Truth Telling and Peace Building in Post-Conflict Societies, University of Notre Dame Press: Notre Dame (Indiana) 2006, pp. 115-150, p. 121. 60 See ibid., p. 133. 61Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 16. 62 In Commission on Human Rights resolution 2005/66: Right to the truth, E/CN.4/RES/2005/66, 20 April 2005, The Commission on Human Rights: 1.Recognizes the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights; 2.Welcomes the establishment in several States of specific judicial mechanisms, as well as other non-judicial mechanisms such as truth and reconciliation commissions that complement the justice system, to investigate violations of human rights and violations of international humanitarian law, and appreciates the elaboration and publication of the reports and decisions of these bodies; 3.Encourages the States concerned to disseminate, implement, and monitor implementation of, the recommendations of non-judicial mechanisms such as truth and reconciliation commissions, and provide information regarding compliance with the decisions of judicial mechanisms; 4.Encourages other States to consider establishing specific judicial mechanisms as well as, where appropriate, truth and reconciliation commissions to complement the justice system, to investigate and address gross violations of human rights and serious violations of international humanitarian law; 63Nunca Más. The Report of the Argentine National Commission on the Disappeared, New York: Farrar Straus Giroux in association with Index on Censorship London 1986, p. 1.

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A truth commission establishes a record of the crimes and the context in which they were committed. In addition, it may provide a background and explanation of the causes. A truth commission may also recommend cases for prosecution, as was the case in Peru,64 or grant amnesty for politically motivated crimes in return for a genuine confession, as happened in South Africa. Before a truth commission, the victim is given more attention and may tell his or her story. The opportunity to relate what happened to them is a form of reparation. For the victims, a truth commission may contribute to a sense of closure.65 For example in South Africa, the opportunity to tell one’s story was one of the foundations of the TRC’s model for reconciliation.66 John Dugard proposes a set of minimum requirements for truth commissions.67 These are the conditions that should be met:

1. The Commission should be established by the legislature or executive of a democratically elected regime; 2. The Commission should be a representative and independent body; 3. The Commission should have a broad mandate to enable it to make a thorough investigation. It should not, for example, be restricted to deaths and disappearances (as with Chile) but should be permitted instead to investigate all forms of gross human rights violations; 4. The Commission should hold public hearings at which victims of human rights abuses are permitted to testify; 5. The perpetrators of gross human rights violations should be named, provided adequate opportunity is given to them to challenge their accusers before the Commission; 6. The Commission should be required to submit a comprehensive report and recommendations within a reasonable time; 7. The Commission should be empowered to recommend reparations for victims of gross human rights violations; and 8. Amnesty should be denied to perpetrators of gross human rights abuses who refuse to co-operate with the Commission or who refuse to make a full disclosure of their crimes.

As with trials or a commission of inquiry, a truth commission is also no guarantee to establish the whole truth. In El Salvador for instance, as a result of the limitations

64 Juan E. Méndez, “The Human Right to Truth”, in: T.A. Borer (ed.), Telling the Truths. Truth Telling and Peace Building in Post-Conflict Societies, University of Notre Dame Press: Notre Dame (Indiana) 2006, pp. 115-150, p. 137. 65 Christopher C. Joyner, “Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability”, Denver Journal of International Law and Policy, vol. 26 no. 4 1998, pp. 591-624, p. 610. 66 Christopher J. Colvin, ‘We are Still Struggling’: Storytelling, Reparations and Reconciliation after the TRC, Centre for the Study of Violence and Reconciliation in collaboration with Khulumani (Western Cape) Victims Support Group and the Cape Town Trauma Centre for Survivors of Violence and Torture: December 2000, p. 24. 67 John Dugard, “Dealing with Crimes of a Past Regime. Is Amnesty Still an Option?”, Leiden Journal of International Law, vol. 12 1999, pp. 1001-1015, p. 1012.

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The Massacre of the Jesuits in El Salvador

A short description of the facts of the murder of the six Jesuit priests, a woman and her daughter as established by the Salvadorian Truth Commission reads as follows: In the early hours of 16 November 1989, a group of soldiers from the Atlacatl Battalion entered the campus of José Simeón Cañas Central American University (UCA) in San Salvador. They made their way to the Pastoral Centre, which was the residence of Jesuit priests Ignacio Ellacuría, Rector of the University; Ignacio Martín-Baró, Vice-Rector; Segundo Montes, Director of the Human Rights Institute; and Amando López, Joaquín López y López and Juan Ramón Moreno, all teachers at UCA. The soldiers tried to force their way into the Pastoral Centre. When the priests realized what was happening, they let the soldiers in voluntarily. The soldiers searched the building and ordered the priests to go out into the back garden and lie face down on the ground. The lieutenant in command, José Ricardo Espinoza Guerra, gave the order to kill the priests. Fathers Ellacuría, Martín-Baró and Montes were shot and killed by Private Oscar Mariano Amaya Grimaldi, Fathers López and Moreno by Deputy Sergeant Antonio Ramiro Avalos Vargas. Shortly afterwards, the soldiers, including Corporal Angel Pérez Vásquez, found Father Joaquín López y López inside the residence and killed him. Deputy Sergeant

68 IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99, OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 156. 69 See ibid., para. 157. 70 See ibid., paras. 146, 157. Paragraph 146 reads: The IACHR considers that, despite the importance of the Truth Commission in establishing the facts related to the more serious violations and in promoting national reconciliation, the functions it carried out cannot be considered to be an appropriate substitute for the judicial process. Neither does it replace the State’s obligation to investigate the violations which were committed within the scope of its jurisdiction, as well as to identify those responsible, impose sanctions, and assure the victim appropriate reparation.

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Tomás Zarpate Castillo shot Julia Elva Ramos, who was working in the residence, and her 16-year-old daughter, Celina Mariceth Ramos. Private José Alberto Sierra Ascencio shot them again, finishing them off. They fired a machine gun at the façade of the residence and launched rockets and grenades. Before leaving, they wrote on a piece of cardboard: “FMLN executed those who informed on it. Victory or death, FMLN.”

In this case, those responsible for ordering the murder did everything in their power to conceal the truth. Many people were accessory to the cover up. Eventually, in this case, the truth was revealed by the Commission on the Truth for El Salvador.

The Commission on the Truth for El Salvador reveals the cover-up:

During the early hours of the morning of 16 November 1989, Major Carlos Camilo Hernández Barahona and Lieutenant José Vicente Hernández Ayala went in person to Colonel Ponce's office to report on everything that had happened at UCA. They reported that they had a small suitcase with photographs, documents and money which the soldiers had stolen from the Jesuits a few hours earlier. Colonel Ponce ordered it destroyed because it was evidence of the armed forces' responsibility. They destroyed the suitcase at the Military College. On returning to his unit, Lieutenant Espinoza Guerra informed the Commander of the Atlacatl Battalion, Lieutenant Colonel Oscar Alberto León Linares, of what had happened. President Cristiani entrusted the investigation of the crime to the Commission for the Investigation of Criminal Acts (CIHD). Colonel Benavides told Lieutenant Colonel Manuel Antonio Rivas Mejía, Head of CIHD, what had happened and asked him for help. Mejía recommended that the barrels of the weapons which had been used be destroyed and replaced with others in order to prevent them from being identified during ballistic tests. This was later done with the assistance of Lieutenant Colonel Oscar Alberto León Linares. Lieutenant Colonel Rivas Mejía also advised Colonel Benavides to make sure that no record remained of those entering and leaving the Military College that would make it possible to identify the culprits. Subsequently, Colonel Benavides and Major Hernández Barahona ordered that all Military College arrival and departure logs for that year and the previous year be burned. Shortly after the investigation began, Colonel René Emilio Ponce arranged for Colonel Nelson Iván López y López, head of unit I of the General Staff, who had also been in charge of the General Staff Tactical Operations Centre during the entire night of 15 to 16 November, to join CIHD in order to assist in the investigation of the case. In November, CIHD heard two witnesses, Deputy Sergeant Germán Orellana Vázquez and police officer Victor Manuel Orellana Hernández, who testified that they had seen soldiers of the Atlacatl Battalion near UCA that night; they later changed their statements. Another witness also retracted her initial statement. Lucía Barrera de Cerna, an employee at the University, said that she had seen, from a building adjacent to the Jesuits' residence, soldiers in camouflage and berets. In the United States, where she went for protection, she was questioned by the Federal Bureau of Investigation (FBI) and retracted her earlier statement. Lieutenant Colonel Rivas Mejía, Head of CIHD, was present when she was questioned. Subsequently, she confirmed her original statement. CIHD did not take a statement from Colonel Benavides, even though the incident had occurred within

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his command zone. According to the court dossier, the first statement Benavides made was on 11 January 1990 to the Special Honour Commission. On 2 January 1990, a month and a half after the murders, Major Eric Warren Buckland, an officer of the United States Army and an adviser to the armed forces of El Salvador, reported to his superior, Lieutenant Colonel William Hunter, a conversation he had some days previously with Colonel Carlos Armando Avilés Buitrago. During that conversation, Avilés Buitrago had told him that he had learnt, through Colonel López y López, that Benavides had arranged the murders and that a unit from the Atlacatl Battalion had carried them out. He also said that Benavides had asked Lieutenant Colonel Rivas Mejía for help. Lieutenant Colonel William Hunter informed the Chief of the United States Military Mission, Colonel Milton Menjívar, who arranged a meeting in Colonel Ponce’s office where Buckland and Avilés were brought face to face. Avilés denied having given Buckland such information. A few days after Buckland's statements were reported, the Minister of Defence established a Special Honour Commission, consisting of five officers and two civilians, to investigate the murders. On learning what CIHD had found out, the Honour Commission questioned some 30 members of the Atlacatl Battalion, including Lieutenant Espinoza Guerra and Second Lieutenant Guevara Cerritors, and a number of officers of the Military College, including Colonel Benavides and Lieutenant Mendoza Vallecillos. Lieutenants Espinoza and Mendoza and Second Lieutenant Guevara, as well as the soldiers who had participated in the murders, confessed their crime in extrajudicial statements to the Honour Commission. A civilian member of the Commission, Rodolfo Antonio Parker Soto, legal adviser to the General Staff, altered their statements in order to delete any reference to the existence of orders from above. He also deleted the references to some officers, including the one to Major Carlos Camilo Hernández Barahona. On 12 January, the Commission submitted its report to President Cristiani. The report identified nine people as being responsible for the murders, four officers and five soldiers; they were arrested and later brought to trial. Subsequently, newly promoted Lieutenant Colonel Carlos Camilo Hernández Barahona was included in the trial. The pre-trial proceedings took nearly two years. During this time, Colonel (now General) René Emilio Ponce, Colonel (now General) Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel (now General) Gilberto Rubio Rubio pressured lower-ranking officers not to mention orders from above in their testimony to the court. Finally, the trial by jury took place on 26, 27 and 28 September 1991 in the building of the Supreme Court of Justice. The identity of the five members of the jury was kept secret. The accused and the charges were as follows: • Colonel Guillermo Alfredo Benavides Moreno, Lieutenant José Ricardo Espinoza Guerra and Second Lieutenant Gonzalo Guevara Cerritos: accused of murder, acts of terrorism, acts preparatory to terrorism and instigation and conspiracy to commit acts of terrorism. • Lieutenant Yusshy René Mendoza Vallecillos: accused of murder, acts of terrorism, acts preparatory to terrorism, instigation and conspiracy to commit acts of terrorism and of being an accessory. • Deputy Sergeant Antonio Ramiro Avalos Vargas, Deputy Sergeant Tomás Zarpate Castillo, Corporal Angel Pérez Vásquez and Private Oscar Mariano Amaya Grimaldi: accused of murder, acts of terrorism and acts preparatory to terrorism. • Private Jorge Alberto Sierra Ascencio: tried in absentia for murder. Lieutenant Colonel Carlos Camilo Hernández Barahona: accused of being an accessory. The jury had to decide only with respect to the charges of murder and acts of terrorism. The other charges were left to the judge to decide. Only Colonel Guillermo Alfredo Benavides

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Moreno and Lieutenant Yusshy René Mendoza Vallecillos were found guilty of murder. The judge gave them the maximum sentence, 30 years in prison, which they are currently serving. The judge also found Colonel Benavides and Lieutenant Mendoza guilty of instigation and conspiracy to commit acts of terrorism. Lieutenants Espinoza and Guevara Cerritos were sentenced to three years for instigation and conspiracy to commit acts of terrorism. Lieutenant Colonel Hernández was also sentenced by the judge to three years for being an accessory and Mendoza Vallecillos was also convicted on that charge. Espinoza, Guevara and Hernández were released and continued in active service in the armed forces. The Commission on the Truth makes the following findings and recommendations: 1. There is substantial evidence that on the night of 15 November 1989, then Colonel René Emilio Ponce, in the presence of and in collusion with General Juan Rafael Bustillo, then Colonel Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel Francisco Elena Fuentes, gave Colonel Guillermo Alfredo Benavides the order to kill Father Ignacio Ellacuría and to leave no witnesses. For that purpose, Colonel Benavides was given the use of a unit from the Atlacatl Battalion, which two days previously had been sent to search the priest's residence. 2. There is evidence that, subsequently, all these officers and others, knowing what had happened, took steps to conceal the truth. There is sufficient evidence that General Gilberto Rubio Rubio, knowing what had happened, took steps to conceal the truth. 3. There is full evidence that: (a) That same night of 15 November, Colonel Guillermo Alfredo Benavides informed the officers at the Military College of the order he had been given for the murder. When he asked whether anyone had any objection, they all remained silent. (b) The operation was organized by then Major Carlos Camilo Hernández Barahona and carried out by a group of soldiers from the Atlacatl Battalion under the command of Lieutenant José Ricardo Espinoza Guerra and Second Lieutenant Gonzalo Guevara Cerritos, accompanied by Lieutenant Yusshy René Mendoza Vallecillos. 4. There is substantial evidence that: (a) Colonel Oscar Alberto León Linares, Commander of the Atlacat Battalion, knew of the murder and concealed incriminating evidence. (b) Colonel Manual Antonio Rivas Mejía of the Commission for the Investigation of Criminal Acts (CIHD) learnt the facts and concealed the truth and also recommended to Colonel Benavides measures for the destruction of incriminating evidence. (c) Colonel Nelson Iván López y López, who was assigned to assist in the CIHD investigation, learnt what had happened and concealed the truth. 5. There is full evidence that Rodolfo Antonio Parker Soto, a member of the Special Honour Commission, altered statements in order to conceal the responsibility of senior officers for the murder. 6. The Commission believes that it is unfair that Colonel Guillermo Alfredo Benavides Moreno and Lieutenant Yusshy René Mendoza Vallecillos should still be in prison when the people responsible for planning the murders and the person who gave the order for the murder remain at liberty. In the Commission's view, the request by the Society of Jesus that Colonel Guillermo Alfredo Benavides Moreno and Lieutenant Yusshy René Mendoza Vallecillos be pardoned should be granted by the relevant authorities.71

71 United States Institute of Peace, From Madness to Hope: the 12-year war in El Salvador:Report of the Commission on the Truth for El Salvador, S/25500, 1993, pp. 43-47.

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In Almonacid-Arellano et al v. Chile (2006), the IACtHR highlighted the fact that the various Chilean Commissions significantly contributed in trying to collectively build the truth of what occurred between 1973 and 1990.72 This notwithstanding, the Court emphasized the important distinction between the (individual) right to the truth and the (collective) right to know:

the “historical truth” included in the reports of the above mentioned Commissions is no substitute for the duty of the State to reach the truth through judicial proceedings. In this sense, Articles 1(1), 8 and 25 of the Convention protect truth as a whole, and hence, the Chilean State must carry out a judicial investigation of the facts related to Mr. Almonacid-Arellano’s death, attribute responsibilities, and punish all those who turn out to be participants. Indeed, the Report of the Comisión Nacional de Verdad y Reconciliación (National Truth and Reconciliation Commission) concludes that:

From the standpoint of prevention alone, this Commission believes that for the sake of achieving national reconciliation and preventing the recurrence of such events it is absolutely necessary that the government fully exercise its power to mete out punishment. Full protection of human rights is conceivable only within a state that is truly subject to the rule of law. The rule of law means that all citizens are subject to the law and to the courts, and hence that the sanctions contemplated in criminal law, which should be applied to all alike, should thereby be applied to those who infringe the laws which safeguard human rights.73

This is an important conclusion, because if it is held that truth commissions and other similar institutions can only contribute to the establishment of the collective right to know, then the only way to guarantee the individual right to the truth is through a judicial investigation. Here, the clash between the result of issuing amnesty and the rights of victims becomes very clear. Some truth commissions have the power to grant amnesty, for example those in South Africa and East Timor. Such an amnesty is conditional.74The Commission for Reception, Truth and Reconciliation in East Timor75 only granted amnesty for violations not amounting to serious human rights crimes, and only after a public expression of remorse.76 That way, the amnesty that is granted becomes more acceptable. Examples of truth commissions that positively complemented criminal procedures are found in Argentina, Peru, Timor-Leste and Sierra Leone.77

72 IACtHR, Almonacid-Arellano et al v. Chile, Series C No. 154 Judgment of 26 September 2006 (Preliminary Objections, Merits, Reparations and Costs), para. 149. 73 See ibid., para. 150. 74 See Section 3.1.4 of Chapter III. 75 Official name: Comissão de Acolhimento, Verdade e Reconciliação de Timor-Leste (CAVR). 76 Lars Waldorf, “Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice”, Temple Law Review, vol. 79 no. 1 (2006), pp. 1-88, p. 24. 77 Security Council, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General, S/2004/616, 23 August 2004, para 26.

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2.5 Interrelationship with other victims’ rights

The right to the truth is also a fundamental part of the right to justice. When crimes are investigated and trials take place, the truth, or part of it, may be established. When an amnesty law is issued, and consequently no investigations or trials take place, it is unlikely that victims will find out the truth themselves. A state may establish a commission for that purpose, and open up archives and other information concerning the crimes committed. However, according to Amnesty International, after the Uruguayan government established the Comisión para la Paz (Peace Commission),78 the truth might be partly established, but the right to justice was still violated by the 1986 amnesty law that “grants exemption from punishment to all police and military personnel who committed human rights violations for political motives or to obey orders before 1 March 1985”.79 The IAComHR took the political and ethical dimensions of the measure adopted by the Uruguayan government into consideration, but nevertheless “reached a conclusion different from that of the Government as to whether, with the law, the Government's highest mission according to the obligations of the American Convention, which is to defend and promote human rights, is being served”. The IAComHR has concluded that the Uruguayan Expiry Law violates the American Convention on Human Rights, especially Articles 1, 8 and 25.80 In 2002, the IACtHR declared “the continued denial of the truth about the fate of a disappeared person … a form of cruel, inhuman and degrading treatment for the close family”. It considered “that the delivery of the mortal remains in cases of detained-disappeared persons is, in itself, an act of justice and reparation”.81 The Court stipulated that the state should satisfy the right to truth in the interests not only of the next of kin but also of society as a whole.82 Although the right to the truth and the right to reparation are discussed as two separate rights here, the right to the truth is sometimes referred to as being part of the right to reparation, for example in Paragraph 22(b) of the Van Boven-Bassiouni Principles and Guidelines. In cases before the Inter-American Commission and Court on Human Rights, the right to the truth was also referred to as a form of reparation. In Monsignor Oscar Arnulfo Romero y Galdámez v. El Salvador (2000),the IAComHR stated that, recognized and exercised in a concrete situation

78 Established in August 2000 to clarify the fate of all those who disappeared between 1973 and 1985. 79 Amnesty International, End Impunity. Justice for the victims of torture, Amnesty International Publications: London 2001, p. 86. 80 IAComHR, Mendoza et. al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Report No. 29/92, OEA/Ser.L/V/II.83 Doc. 14 at 154 (1993), 2 October 1992, Conclusion para. 1. 81 IACtHR, Trujillo-Oroza v. Bolivia, Series C No. 92, Judgment of 27 February 2002 (Reparations and Costs), para. 115. The Court continues: “It is an act of justice to know the whereabouts of the disappeared person and it is a form of reparation because it allows the victims to be honored, since the mortal remains of a person merit being treated with respect by their relatives, and so that the latter can bury them appropriately.” 82 See ibid., para. 114.

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Amnesty and the rights of victims or individual case, to know the full, complete, and public truth as to the events that transpired, their specific circumstances, and who participated in them is an important means of reparation.83 In Myrna Mack Chang v. Guatemala (2003), a case concerning extrajudicial execution, the IACtHR found that the right of relatives to the truth and the right of society to know everything that happened in connection with the violations constitutes an important means of reparation.84 In Bámaca-Velásquez v. Guatemala (2002), the IACtHR held that “the possibility of the victim’s next of kin knowing what happened to the victim and, if that be the case, the whereabouts of the victim’s mortal remains, is a means of reparation” for both the relatives of the victim and society as a whole. Therefore, the state should provide this right.85 That knowing the truth is also regarded as an important means of reparation makes it all the more essential to respect this right.

2.6 Conclusion

As held in Chapter IV, amnesty and impunity are at odds with the obligation of states to prosecute and punish the perpetrators of gross violations of human rights. As a result, not only the right to justice, but also the opportunity for victims to claim reparation and the possibility to retrieve the truth is taken away. For direct and indirect victims of serious human rights violations, it is extremely important to know the truth regarding such violations, to the fullest extent possible. The fate of their loved ones and in case of their death the location of the remains, the identity of the perpetrators, the causes and facts of such violations, and the circumstances under which they occurred, are particularly relevant. Various treaties and UN documents recognize the right to the truth. The Human Rights Committee, the Working Group on Enforced or Involuntary Disappearances, the European Court of Human Rights, the African Commission on Human and Peoples’ Rights, and the Inter-American Commission on and Court of Human Rights, among other, recognize the right to the truth in their respective recommendations and judgments in several cases of human rights violations. Another important observation is that truth commissions and truth and reconciliation commissions may complement the justice system, but that they are not a replacement in the sense that they cannot punish the perpetrators. In general, truth commissions meet the collective/societies’ right to know, but not the individual victims’ right to the truth. For individual victims, the most effective way to find out the truth is through the justice system, complemented by a truth (and reconciliation) commission.

83 IAComHR, Monsignor Oscar Arnulfo Romero y Galdámez v. El Salvador, Case 11.481, Report No. 37/00, 13 April 2000, paras. 147, 148. 84 IACtHR, Myrna Mack Chang v. Guatemala, Series C No. 101, Judgment of 25 November 2003 (Merits, Reparations and Costs), para. 274. 85 IACtHR, Bámaca-Velásquez v. Guatemala, Series C No. 91, Judgment of 22 February 2002 (Reparations and Costs), para. 76.

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The 2006 UN Study on the right to the truth:

concludes that the right to the truth about gross human rights violations and serious violations of human rights law is an inalienable and autonomous right, linked to the duty and obligation of the State to protect and guarantee human rights, to conduct effective investigations and to guarantee effective remedy and reparations. This right is closely linked with other rights and has both an individual and a societal dimension and should be considered as a non- derogable right and not be subject to limitations.86

The right to the truth is a non-derogable right and should not be subject to limitations. As the UN study on the right to the truth concluded, “[a]mnesties or similar measures and restrictions to the right to seek information must never be used to limit, deny or impair the right to the truth. The right to the truth is intimately linked with the States’ obligation to fight and eradicate impunity.”87 The right of victims to know the truth implies a duty on the part of the state to provide the truth. Knowing the truth contributes to a better understanding of the past, which may contribute to the prevention of crimes. Therefore, it is not only in the interest of the victims to know the truth, and make the truth known, but also in the interest of the state. Judicial investigations and trials are the most suitable way of retrieving and establishing the truth. However, it is not possible to try every perpetrator. Besides, criminal trials may not satisfy the need of victims to (publicly) tell their side of the story. Therefore, even when amnesty is not granted, it is valuable to establish other institutions to try to establish the truth in a more general way that amounts to the right to know the truth. The right to the truth is interrelated to the rights of victims to reparation and justice. These rights are the subject of the next sections.

3 RIGHT TO REPARATION

3.1 Introduction

The right to reparation is the second of the three victims’ rights discussed in this chapter. The right of victims to reparation is an umbrella term for reparation that may take the form of restitution, compensation, satisfaction, rehabilitation, guarantees of non-repetition or memorialization efforts.88 All these measures are part of an obligation on the state, aimed to help the victims recover after a period in which their human rights were violated. Recognition of the fact that human rights

86Commission on Human Rights, Study on the right to the truth.Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006, p. 2. 87 See ibid., para. 60. 88 See, for instance, Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009, para. 1866: “Reparation can take the form of restitution, compensation or satisfaction, but may also include measures of rehabilitation of victims and guarantees of non-repetition.”

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Amnesty and the rights of victims violations took place is a first step in the process of reparation. The right to reparation requires both individual and collective measures.89 In 1989, the Sub-Commission on Prevention of Discrimination and Protection of Minorities appointed Theo van Boven as Special Rapporteur assigned to undertake a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms and to draft basic principles and guidelines on the issue.90 In 1993, Special Rapporteur Van Boven submitted his final report.91 In this report, Van Boven stated that “it cannot be ignored that a clear nexus exists between the impunity of perpetrators of gross violations of human rights and the failure to provide just and adequate reparation to the victims and their families or dependants”.92 This indicates that in cases of amnesty, reparation is rarely provided to the victims. The Special Rapporteur went on to state that:

89 Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 40. Paragraphs 41 and 42 read: 41. On an individual basis, victims including relatives and dependants must have an effective remedy. The procedures applicable must be publicized as widely as possible. The right to reparation should cover all injuries suffered by victims. According to the Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, drawn up by Mr. Theo van Boven, Special Rapporteur for the Sub-Commission (E/CN.4/Sub.2/1996/17), this right embraces three kinds of action: (a) Restitution (seeking to restore victims to their previous state); (b) Compensation (for physical or mental injury, including lost opportunities, physical damage, defamation and legal aid costs); and (c) Rehabilitation (medical care, including psychological and psychiatric treatment). 42. On a collective basis, symbolic measures intended to provide moral reparation, such as formal public recognition by the State of its responsibility, or official declarations aimed at restoring victims' dignity, commemorative ceremonies, naming of public thoroughfares or the erection of monuments, help to discharge the duty of remembrance. In France, for example, it took more than 50 years for the Head of State formally to acknowledge, in 1996, the responsibility of the French State for the crimes against human rights committed by the Vichy regime between 1940 and 1944. Mention can be made of similar statements by President Cardoso concerning violations committed under the military dictatorship in Brazil, and more especially of the initiative of the Spanish Government, which recently conferred the status of ex-servicemen on the anti-Fascists and International Brigade members who fought on the Republican side during the Spanish civil war. 90 Commission on Human Rights, Question of the Violation of Human Rights and Fundamental Freedoms, Including Policies of Racial Discrimination and Segregation and of Apartheid, in All Countries, with Particular Reference to Colonial and Other Dependent Countries and Territories: Report of the Sub-Commission under Commission on Human Rights Resolution 8 (XXIII), E/CN.4/Sub.2/1989/13, 15 June 1989. 91 Commission on Human Rights, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms. Final report submitted by Mr. Theo van Boven, Special Rapporteur, E/CN.4/Sub.2/1993/8, 2 July 1993; Preliminary report (E/CN.4/Sub.2/1990/10). First progress report (E/CN.4/Sub.2/1991/7). Second progress report (E/CN.4/Sub.2/1992/8). 92 Commission on Human Rights, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms. Final report submitted by Mr. Theo van Boven, Special Rapporteur, E/CN.4/Sub.2/1993/8, 2 July 1993, para. 126.

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[i]n many situations where impunity has been sanctioned by the law or where de facto impunity prevails with regard to persons responsible for gross violations of human rights, the victims are effectively barred from seeking and receiving redress and reparation. In fact, once the State authorities fail to investigate the facts and to establish criminal responsibility, it becomes very difficult for victims or their relatives to carry on effective legal proceedings aimed at obtaining just and adequate reparation.93

In this final report, the Special Rapporteur proposed a Set of Basic Principles and Guidelines concerning reparation to victims of human rights. Principle 5 of this set provides that “[r]eparation for certain gross violations of human rights that amount to crimes under international law includes a duty to prosecute and punish perpetrators. Impunity is in conflict with this principle.”94 In 1996, the Principles and Guidelines were revised by Special Rapporteur Van Boven and received a new title. Principle 2 of the Revised Set of Basic Principles and Guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law states that the obligation to respect and to ensure respect for human rights and humanitarian law includes the duty, amongst other things, to afford remedies and reparation to victims.95

Archbishop Desmond Tutu refers to the South African TRC report with regard to victim compensation:

Zonder adequate schadeloosstelling en rehabilitatie kan er geen sprake zijn van genezing en verzoening, noch op het individuele niveau, noch op dat van de hele gemeenschap. ... Bovendien ... is schadeloosstelling van groot belang als tegenwicht voor de amnestie. Het verlenen van amnestie onthoudt de slachtoffers het recht een civiele procedure aan te spannen tegen daders. De regering dient derhalve verantwoordelijkheid te aanvaarden voor schadeloosstelling.96

With this, Tutu emphasizes the need to counterbalance an amnesty measure by means of reparation to the victims. Reparation is needed not only in the interest of the victims, but also of society as a whole and the state itself.

93 See ibid., para 127. 94 See ibid., para 137. 95 Commission on Human Rights, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117, E/CN.4/Sub.2/1996/17, 24 May 1996. 96 Desmond Tutu, Geen toekomst zonder verzoening, De Bezige Bij: Amsterdam 1999, pp. 60, 61.

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3.2 The development of the right to reparation

In 1998, the Commission on Human Rights appointed Mr. M. Cherif Bassiouni to prepare a revised version of the revised basic principles and guidelines developed by Special Rapporteur Van Boven with a view to their adoption by the General Assembly.97 This resulted in the 2005 Van Boven-Bassiouni Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law. These principles and guidelines recognize the following forms of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.98 Section IX specifically provides principles and guidelines on ‘Reparation for harm suffered’.99 Section IX clarifies that there are several ways of

97 Commission on Human Rights, The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms. Final report of the Special Rapporteur, Mr. M. Cherif Bassiouni, submitted in accordance with Commission resolution 1999/33, E/CN.4/2000/62, 18 January 2000. 98 General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. 99 Section 9 on ‘Reparation for harm suffered’ contains the following principles and guidelines: 15. Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim. 16. States should endeavour to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations. 17. States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgements for reparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgements. 18. In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. 19. Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property. 20. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross

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Chapter VI providing reparation, suitable for the individual and the collective rights to reparation. The form of reparation required may depend on the society or culture concerned and on the background of the conflict and the subsequent transition.100 In a research study in northern Uganda (2007), “[r]espondents commonly identified compensation as a necessary response to harm, both as a form of accountability for perpetrators and a means to improving the material conditions of affected violations of international human rights law and serious violations of international humanitarian law, such as: (a) Physical or mental harm; (b) Lost opportunities, including employment, education and social benefits; (c) Material damages and loss of earnings, including loss of earning potential; (d) Moral damage; (e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services. 21. Rehabilitation should include medical and psychological care as well as legal and social services. 22. Satisfaction should include, where applicable, any or all of the following: (a) Effective measures aimed at the cessation of continuing violations; (b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations; (c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities; (d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; (e) Public apology, including acknowledgement of the facts and acceptance of responsibility; (f) Judicial and administrative sanctions against persons liable for the violations; (g) Commemorations and tributes to the victims; (h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels. 23. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention: (a) Ensuring effective civilian control of military and security forces; (b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality; (c) Strengthening the independence of the judiciary; (d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders; (e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces; (f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises; (g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution; (h) Reviewing and reforming laws contributing to or allowing Gross violations of international human rights law and serious violations of international humanitarian law. 100 Ernesto Kiza, Corene Rathgeber & Holger Rohne, Victims of War. An Empirical Study on War- Victimization and Victims’ Attitudes towards Addressing Atrocities, Hamburger Edition: Hamburg 2006, p. 118.

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[p]rogrammes to provide reparations to victims for harm suffered can be effective and expeditious complements to the contributions of tribunals and truth commissions, by providing concrete remedies, promoting reconciliation and restoring victims’ confidence in the State. Reparations sometimes include non-monetary elements, such as the restitution of victims’ legal rights, programmes of rehabilitation for victims and symbolic measures, such as official apologies, monuments and commemorative ceremonies.

No single form of reparation is likely to be satisfactory to victims. Instead, appropriately conceived combinations of reparation measures will usually be required, as a complement to the proceedings of criminal tribunals and truth commissions. Whatever mode of transitional justice is adopted and however reparations programmes are conceived to accompany them, both the demands of justice and the dictates of peace require that something be done to compensate victims. Indeed, the judges of the tribunals for Yugoslavia and Rwanda have themselves recognized this and have suggested that the United Nations consider creating a special mechanism for reparations that would function alongside the tribunals.

Measures of reparation may also contribute in preventing human rights violations. In the Updated Set of Principles for the protection and promotion of human rights through action to combat impunity (2005), Section IV on the right to reparation/guarantees of non-recurrence provides four general principles on the right to reparation, Principles 31-34.103 Principle 31 contains the right of victims to reparation and the duty of the State to make reparation by stating that “[a]ny human rights violation gives rise to a right to reparation on the part of the victim or his or her beneficiaries, implying a duty on the part of the state to make reparation and the possibility for the victim to seek redress from the perpetrator”.

101Office of the United Nations High Commissioner for Human Rights, Making Peace our Own. Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda, United Nations: 2007, p. 47. 102 Security Council, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General, S/2004/616, 23 August 2004, paras. 54 and 55. See also Security Council, Letter dated 2 November 2000 from the Secretary-General addressed to the President of the Security Council, S/2000/1063, 3 November 2000; and Security Council, Letter dated 14 December 2000 from the Secretary-General addressed to the President of the Security Council, S/2000/1198, 15 December 2000. 103Commission on Human Rights, Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005.

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3.3 The right to reparation in international human rights law

Of the human rights conventions discussed in Chapter IV, the right to reparation is explicitly recognized in Article 14 of the Convention against Torture (1984),104 Article 63(1) of the American Convention on Human Rights (1948),105 Article 9 of the Inter-American Convention to Prevent and Punish Torture (1985)106 and in Article 24(4) and (5) of the International Convention for the Protection of All Persons from Enforced Disappearance (2006).107 Reparation as part of the right to a remedy has been enshrined in Article 2(3) of the International Covenant on Civil and Political Rights.108 The ICC Statute provides for the right of victims to reparations in Article 75.109 Article 91 of Additional Protocol I to the Geneva

104 Article 14(1) of the CAT provides: “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation." 105 Article 63(1) of the ACHR provides: “If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.” 106 Article 9 of the Inter-American Convention to Prevent and Punish Torture provides: “The States Parties undertake to incorporate into their national laws regulations guaranteeing suitable compensation for victims of torture.” 107 International Convention for the Protection of All Persons from Enforced Disappearance Article 24(4) and (5) provides: 4. Each State Party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation. 5. The right to obtain reparation referred to in paragraph 4 of this article covers material and moral damages and, where appropriate, other forms of reparation such as: (a) Restitution; (b) Rehabilitation; (c) Satisfaction, including restoration of dignity and reputation; (d) Guarantees of non-repetition. 108 See, for example, Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009, para. 1865; and, General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006, Principle 11: Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law: (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; (c) Access to relevant information concerning violations and reparation mechanisms. 109 Article 75(1), (2), and (3) of the ICC Statute provides: 1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. 2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate,

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Conventions,110 Article 39 of the Convention on the Rights of the Child111 and Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination112 also contain a provision on reparation. The South African TRC acknowledged the existence of a right to reparation based on international human rights instruments and treaties, echoed by state practice and expert opinion in the TRC report. In its report, the South African TRC noted that “reparations are a minimum requirement where ordinary access to the courts is limited”.113 If an amnesty law is issued as a result of which the right to justice is violated, it is all the more important that reparation is provided to the victims. This is also true for other situations of de facto or de iure impunity.

3.4 Mechanisms to guarantee the right to reparation

To provide reparation, it must be established who the victims are, what happened to them and what kind of reparation best suits their needs. This implies that a thorough investigation into the violations has to be conducted before reparation is granted.114 An independent and unbiased institution must carry out this investigation. In the case of amnesty, as a result of which no legal investigations will be conducted on the national level, and no trials will take place, the right to reparation is violated if no other institution is entrusted with the investigations into

the Court may order that the award for reparations be made through the Trust Fund provided for in article 79. 3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. 110Article 91 Responsibility: “A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” 111Article 39 of the Convention on the Rights of the Child states: “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.” 112 Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination: “States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.” 113 Volume 6, p. 110, para. 43. 114 “Difficult questions include who is included among the victims to be compensated, how much compensation is to be rewarded, what kinds of harm are to be covered, how harm is to be quantified, how different kinds of harm are to be compared and compensated and how compensation is to be distributed.” - Security Council, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General, S/2004/616, 23 August 2004, para. 54.

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Chapter VI the alleged violations and the reparation that should be granted to the victims and/or their relatives. For example, in Velásquez Rodríguez v. Honduras (1988) the IACtHR ruled that Honduras had to pay fair compensation to the victims’ next of kin.115The Committee against Torture argues that every “State party should adopt measures to regulate and institutionalize the right of victims of torture to fair and adequate compensation”.116 As discussed in Chapter III, amnesty may not only be granted when there is no political will to prosecute, but also because of a lack of legal and law enforcement institutions and professionally trained legal professionals to conduct fair trials. In such a case, an international court that is established for the specific conflict may be an option, or the International Criminal Court to try those most responsible for the committed crimes. In case no efforts are made ensure of the right to justice, a state may still ensure the right to the truth and the right to reparations by means of establishing a truth (and reconciliation) commission. Principle 24 of the Updated Set of Principles holds that “[a]mnesties and other measures of clemency shall be without effect with respect to the victims’ right to reparation, to which principles 31 through 34 refer, and shall not prejudice the right to know”. In cases of amnesty, it is often seen that a truth commission is established. Truth commissions may also be assigned to recommend on reparation measures for the victims. This was the case in for example Chile,117 South Africa,118 Sierra Leone119 and Liberia.120

Recommendations on reparations in the final report of the Liberian TRC

17.0. RECOMMENDATIONS ON REPARATIONS The TRC hereby recommends that the Government of Liberia assumes its full responsibility under international law principles and regimes and pursuant to its moral, legal, social, political, cultural, economic, and security obligations to its citizens to provide reparations for all those individuals and communities victimized by the years of instability and war.

115 IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), para. 194(5), IACtHR, Velásquez Rodríguez v. Honduras, Series C No. 7, Judgment of 21 July 1989, paras. 25-26. See also, IACtHR, “Las Dos Erres” Massacre v. Guatemala, Series C No. 211, Judgment of 24 November 2009 (Preliminary Objection, Merits, Reparations, and Costs), paras. 223-227, 310(5). 116 Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture: Venezuela, CAT/C/CR/29/2, 23 December 2002, para. 11(c). 117 Report of the Chilean National Commission on Truth and Reconciliation (1993), Part 4, Chapter 1, pp. 1057-1074. 118 Report of the Truth and Reconciliation Commission of South Africa, Volume One (1998), pp. 285- 293, Volume Six (2003), Section Two, pp. 92-164. 119 Report of the Sierra Leone Truth & Reconciliation Commission (2004), Volume Two, Chapter 4, pp. 227-270. 120 Report of the Republic of Liberia Truth and Reconciliation Commission (2009), Volume I: Preliminary findings and determinations, p. 59 and Volume II: Consolidated Final Report, Chapter 17, pp. 378-381.

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The TRC recommends a reparation program of approximately US$500m spanning a 30 year implementation period. Speciﬁcally the TRC recommends that within the ﬁrst 5 years that is from July 1, 2009 - July 30, 2014 all direct victim support program must be implemented including memorials, victim support and the process of prosecution. Further that the program of compulsory free education must continue in operation for at least 30 years. See annex 4 for somes and Application of Reparation Funds. 17.1 Addressing the Needs of Victims The TRC recommends reparation in the form of psychosocial, physical, therapeutic, counselling, medical, mental health and other health related services for all physically challenged individuals who were incapacitated as a consequence of the civil war to rehabilitate them in returning to normal live utilizing the full potentials of other human resources The TRC recommends that personal cash or material assistance be given other victims who are today asking nothing more than assistance as li=le as a bundle of zinc or two to put shelter over their heads of their burnt out or badly looted residential structures to protect them from repeated sun beat and rain fall year in and year out. This shall be done on a case by case basis as the managers of the Reparation Trust Fund may determine. 17.2 The Reparation Trust Fund The TRC recommends the resourcing of the reparation trust fund to ensure that the reparation programme is well managed and timely executed to satisfy the post-war objectives envisioned in the TRC Act and Policy on reparation. Pursuant to this objective the TRC recommends that the E.J. Roye building which was constructed by tax payers’ money for private purposes shall be nationalized and the proceeds therefrom be utilized for reparation trust fund. The TRC also recommends that considering the history of land disputes and the well established fact that the colonialists of the ACS and pioneers of the Liberian Government acquired land by force from the natives, that the JJ Roberts Trust Fund established by former president JJ Roberts for the education of the “children of Monrovia” be nationalized and the proceeds therefrom be utilized for the education of the “children of

Liberia”. 17.3. Reparation for Particular Groups, Individuals and Communities The TRC further recommends that a reparation program for the empowerment of women devastated by the civil war be extended to survivors to advance their academic and economic pursuits in the form of soft micro credit economic programs, small enterprise and marketing programs with education on small business management for sustainability, including free education for themselves and children from primary to secondary as well tertiary education. The TRC recommends that the Central Bank, Ministry of Finance or the Government of Liberia ensures that commercial banks and lending institutions expand existing micro economic programs and government guaranteed lending schemes to women everywhere, especially in the rural areas, and on very flexible terms and conditions suitable to poor people. Training in management of funding shall be critical and imperative. 17.4 Memorials The TRC recommends that in order to memorialize the dead and out of respect for the survivors of the Liberian civil conflict, that there be established a national holiday for that purpose to be observed once every year; preferably that National Unification Day be

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renamed National Unification and Memorial Day, and that memorial sites be built in the capital cities of each county to include every site of massacres where the remains of our people en masse have been buried from 1979 to 2003. The TRC recommends that befitting programmes be held on that day and that the Government assist the people to conduct proper cleansing ceremonies according to their customs and traditions to cleanse the land and lay the spirits of the dead ones to rest. That there be assistance to rebuild the shrines and holy places and rehabilitate desecrated traditional, cultural and religious institutions. 17.4.1 Burial of former Presidents The TRC recommends that appropriate national memorial ceremonies be held and a befitting grave be erected with a tomb to honor the memory and loss of President William R. Tolbert, Jr., the 19th President of Liberia who was buried in a mass grave in Monrovia. The TRC also recommends that appropriate national memorial ceremonies be held and a befitting grave be erected with a tomb to honor the memory and loss of President Samuel K. Doe who surrendered to Prince Y. Johnson and was killed while in his custody. Hon. Prince Y. Johnson should be made to account for the remains of the late President, especially the skull of the head of the President which was occasionally displayed by Hon. Johnson as a “war trophy”. 17.4.2 Issuance of Death Certificates for war dead The TRC recommends that certificates of death adorned in the National Colors, be issued to the surviving heirs of all those who lost their lives during the period 1979 to 2003 as a consequence of the national conflict and who to date remain unaccounted for, are without a grave or other legal evidence of death. The Independent National Human Rights Commission will verify and authenticate the conflict related deaths utilizing TRC database and other reliable sources and will work of the Bureau of Vital Statistics in the issuance of death certificates. That all missing persons, that is, those who have not maintained any contact with relative or friends for a period of more than seven years, be and are hereby declared dead. 17.4.3 Public Apology The TRC recommends that the Government of Liberia issues public apology to the people of Liberia for the dastardly nature of the Liberian conflict and the wanton loss of human life and destruction of properties that ensued in its wake. The TRC also recommends that the Government of Liberia issues public apology to the Governments and peoples of West African nations and other foreign nations and their peoples for the wanton, malicious, inhumane and willful deaths of their citizens during the Liberian civil war. The TRC takes particular note of the death of journalists Christopher Imodibe and Tayo Awotusin of the Guardian and Champion Newspapers respectively and recommends that the Government of Liberia issues death certificates to their memory and that the Press Union of Liberia hold appropriate memorial service in their honor and that of all other journalists who fell during the Liberian crisis. The TRC further recommends that the Government of Liberia issues public apologies to each government that contributed troops to the various peace keeping missions deployed in Liberia for the wanton, deliberate, and malicious killings of their soldiers in active duty.

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One of the reparation measures recommended by the Liberian TRC is on memorials. Memorialization efforts meet the collective right to reparation. The International Center for Transitional Justice (ICTJ) holds “that efforts to collectively remember past human rights abuse and atrocity can contribute to a more democratic, peaceful, and just future”.121 To this end, the ICTJ has a program on Memory, Memorials and Museums (MMM). MMM measures are, for instance, public memorials, monuments and museums about past human rights abuse, crimes against humanity, war crimes and genocide. With these MMM measures, it is aimed to provide victims with “physical spaces that are places of mourning, and in some cases healing”.122 An example of a memorialization effort is the Escuela Superior de Méchanica de la Armade (Navy School of Mechanics, ESMA) in Buenos Aires (Argentina), which is now a memorial site. The ESMA was the most infamous centre of illegal detentions, torture and the assassination of political dissidents during the 1976-1983 military rule. In general, what measures are needed and whether they should be individual or collective should be based on victims’ wishes.123 Most victims expect recovery of the truth and reparation, particularly compensation.124 Victims often ask for compensation, especially when poverty resulted from the conflict. One victim of violence in northern Uganda stated: “I want the Government to compensate me for my properties that were destroyed by the rebels. It may not reverse the harms done but it will help me re-establish my life.”125 The role of victims in the process of developing reparation programs is also acknowledged in the Updated Set of Principles. The Updated Set of Principles contains two principles on reparation procedures, Principles 32 and 33.126In these principles, it is held that victims should

121 International Center for Transitional Justice, Memory, Memorials and Museums. MMM Program, accessible via 122Ibid. 123 See, for instance, Ernesto Kiza, Corene Rathgeber & Holger Rohne, Victims of War. An Empirical Study on War-Victimization and Victims’ Attitudes towards Addressing Atrocities, Hamburger Edition: Hamburg 2006, p. 121; See also Section 5 of this chapter, on victim participation. 124Office of the United Nations High Commissioner for Human Rights, Making Peace our Own. Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda, United Nations: 2007, p. 70. 125 See ibid., p. 47. 126Commission on Human Rights,Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005; Principle 32 on reparation procedures provides: All victims shall have access to a readily available, prompt and effective remedy in the form of criminal, civil, administrative or disciplinary proceedings subject to the restrictions on prescription set forth in principle 23. In exercising this right, they shall be afforded protection against intimidation and reprisals. Reparations may also be provided through programmes, based upon legislative or administrative measures, funded by national or international sources, addressed to individuals and to communities. Victims and other sectors of civil society should play a meaningful role in the design and implementation of such programmes. Concerted efforts should be made to ensure that women and minority groups participate in public consultations aimed at developing, implementing, and assessing reparations programmes. Exercise of the right to reparation includes access to applicable international and regional procedures.

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Chapter VI play a meaningful role in reparation processes and that knowledge of existence of such processes should be widely disseminated. The attitude of victims with regard to addressing atrocities varies per country or region. This means that to best serve the interests of victims with regard to reparation measures, the reparations offered should be adapted to the needs of the victims.127 Even when a state promises reparation in the form of compensation to the victims, a state may still fail to actually pay this compensation. One of the members of a South African victims support group stated the following, which provides an example hereof:

They promised us reparations. I have a letter from President Nelson Mandela so how can they say no? They must give us reparations because we will never believe them again if we do not get reparations. It is because they don’t care about us, I think. They know that many of our people are dying because they don’t have these reparations. How many more of us must die before they do what they say they should [would] do.128

Not keeping a promise of reparation strengthens the negative feelings of victims towards the state and will certainly not contribute to reconciliation or to trust in the new government.

3.5 Interrelationship with other victims’ rights

The right to reparation is interwoven with the right to the truth and the right to justice. As was elaborated on in Section 2.5 of this chapter, the right to reparation is related to the right to truth in the sense that knowing the truth is regarded as an important means of reparation.129 Besides, before one may determine what

Principle 33 on publicizing reparation procedures provides: Ad hoc procedures enabling victims to exercise their right to reparation should be given the widest possible publicity by private as well as public communication media. Such dissemination should take place both within and outside the country, including through consular services, particularly in countries to which large numbers of victims have been forced into exile. 127 Ernesto Kiza, Corene Rathgeber & Holger Rohne, Victims of War. An Empirical Study on War- Victimization and Victims’ Attitudes towards Addressing Atrocities, Hamburger Edition: Hamburg 2006, p. 121. 128 Christopher J. Colvin, ‘We are Still Struggling’: Storytelling, Reparations and Reconciliation after the TRC, Centre for the Study of Violence and Reconciliation in collaboration with Khulumani (Western Cape) Victims Support Group and the Cape Town Trauma Centre for Survivors of Violence and Torture: December 2000, p. 21. 129 IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 228: “An important part of the right to compensation for human rights violations, in terms of providing satisfaction and ensuring that there is no repetition, is the right of any person, and of society in general, to know the full, complete and public truth about the events that have occurred, the specific circumstances surrounding them, and those who participated in them.”

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that responsibility for the disappearance of Elena Quinteros falls on the authorities of Uruguay and that, consequently, the Government of Uruguay should take immediate and effective steps: (a) to establish what has happened to Elena Quinteros since 28 June 1976, and secure her release; (b) to bring to justice any persons found to be responsible for her disappearance and ill-treatment; (c) to pay compensation for the wrongs suffered; and (d) to ensure that similar violations do not occur in the future.131

The enforced disappearance of Elena Quinteros Almeida

Maria del Carmen Almeida de Quinteros describes what happened to her daughter:

My daughter, Elena Quinteros Almeida (born on 9 September 1945), was arrested at her home in the city of Montevideo on 24 June 1976. For four days she was being held completely incommunicado. It appears that Elena misled her captors, and told them she had a rendezvous with someone that they wanted to arrest. They took her to the place of the alleged appointment, which was very close to the Embassy of Venezuela.132 Believing that Elena was going to denounce someone, her captors brought her near to the Embassy, allowing her freedom of movement so that she could go to the supposed rendezvous. Elena, who had already given thought to the possibility, went into the house

130 Commission on Human Rights, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms. Final report submitted by Mr. Theo van Boven, Special Rapporteur, E/CN.4/Sub.2/1993/8, 2 July 1993; Other Special Rapporteurs familiar with this issue have supported this position; See, for instance, Commission on Human Rights, Question of the impunity of perpetrators of violations of human rights (civil and political rights): final report prepared by Mr. L. Joinet, pursuant to Subcommission resolution 1995/35, E/CN.4/Sub.2/1996/18, 29 June 1996; See also, IAComHR, Lucio Parada Cea et al. v. El Salvador, Case No. 10.480, Report No. 1/99, OEA/Ser.L/V/II.95 Doc. 7 rev. at 531 (1998), 27 January 1999, para. 154: “[T]he Committee … insisted on the fact that the duty to redress the damage is not satisfied solely by means of offering a quantity of money to the relatives of the victims. In the first place, an end must be put to the state of uncertainty and lack of information in which ... [the direct relatives of the victims] have been placed, i.e., provide complete and public knowledge of the truth.” 131Human Rights Committee, María del Carmen Almeida de Quinteros et al. v. Uruguay, Comm. No. 107/1981, CCPR/C/OP/2 at 138 (1990), 21 July 1983, para. 16. 132See ibid., para. 1.2.

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next to the Embassy. From there she managed to jump over the dividing wall, thus landing in Venezuelan territory. She shouted “Asylum!” and stated her name and occupation. When they realized what was happening, the policemen escorting her came through the gate giving access to the gardens of the Embassy, without being stopped by the four policemen on guard. When they heard Elena shouting, the Ambassador and his secretary, as well as other officials, ran towards her and were able to see her being beaten and dragged by the hair by the policemen who were trying to remove her by force from Venezuelan territory. The Counsellor of the Embassy, Mr. Frank Becerra, and the Secretary, Baptista Olivares, tried to prevent the woman seeking refuge from being removed from the Embassy garden before she could enter the residence itself. While Elena was being dragged outside, the two diplomats were grappling with the police, grabbing hold of Elena's legs. One of the policemen struck Mr. Becerra, who fell, thus enabling them to take Elena away and put her in a greenish Volkswagen ...133

Maria del Carmen Almeida de Quinteros never heard from her daughter again. She did never “obtain from the authorities any official information about her daughter's whereabouts, nor was her detention officially admitted.”134

The Human Rights Committee is of the opinion that with respect to violations of the right to life, “the direct relatives of the victims have the right to be compensated for these violations due, among other things, to the fact that the circumstances of the death and the identity of those responsible for the crimes are unknown”. Here, the interrelationship between the right to the truth and the right to reparation is clear. The Updated Set of Principles also recognizes this interrelationship; Principle 34 on the Scope of the right to reparation refers to the right to the truth by stating that in cases of enforced disappearances, “the family of the direct victim has an imprescriptible right to be informed of the fate and/or whereabouts of the disappeared person and, in the event of decease, that person’s body must be returned to the family as soon as it has been identified, regardless of whether the perpetrators have been identified or prosecuted”.135 As with knowing the truth, justice being served may also be regarded as a form of reparation. The IACtHR in its judgment in Almonacid-Arellano et al v. Chile (2006) stated that “[t]his judgment is, in and of itself, a form of reparation”.136The Human Rights Committee remarked that reparation may, amongst other things, consist of bringing to justice the perpetrators of human rights violations.137 The

133 See ibid., para. 10.3. 134 See ibid., para. 1.4. 135Commission on Human Rights, Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Principle 34. 136 IACtHR, Almonacid-Arellano et al v. Chile, Series C No. 154 Judgment of 26 September 2006 (Preliminary Objections, Merits, Reparations and Costs), para. 171(4). 137Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 16.

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Human Rights Committee holds that reparation as part of the right to a remedy is embodied by Article 2(3) of ICCPR: “Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of Article 2, paragraph 3, is not discharged.”138Therefore, it may be held that when either the right to justice or the right to the truth is violated, the right to reparation may also be violated. The consequences may vary, however, depending on the victims’ needs. In the outcome of a survey conducted in Nepal,139 more than 99 percent of the respondents favoured reparations for the victims.140 Fifty-two percent of the respondents thought that compensation should be provided to the victims and their families.141 According to the ICTJ, “reparations are the most tangible form of recognition and redress that states can provide to victims”. The ICTJ holds that “[i]n contrast to other forms of criminal accountability that primarily deal with perpetrators or long- term institutional changes, reparations constitute very concrete and immediate acknowledgment of the dignity of the victims and their status as citizens”.142 The South African TRC in its 2003 report noted that the international legitimacy of the amnesty process “depends on the provision of adequate reparations to the victims of gross violations of human rights. Making good the injuries to victims of gross violations of human rights where their ability to seek reparation has been taken away from them is thus an inescapable moral obligation on the part of the … state.”143

3.6 Conclusion

Victims of gross violations of international human rights law and serious violations of international humanitarian law have a right to reparation. Reparation is important because it acknowledges the suffering of the victims. It may contribute in a very important way to the healing of victims of human rights crimes. Healing the victims contributes to the process of transition to a just society. As a result, reparation measures also contribute to prevent new violations and to the healing of society as a whole. There are various forms of reparation measures. The Van Boven-Bassiouni Basic Principles and Guidelines lay down the right to reparation for victims of gross

138Ibid., “Article 2, paragraph 3, of the ICCPR requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation.” 139 For more details, see Section 4.1 of this chapter. 140 International Center for Transitional Justice, Nepali Voices. Perceptions of Truth, Justice, Reconciliation, Reparations and the Transition in Nepal, ICTJ and the Advocacy Forum: Kathmandu March 2008, p. 45. 141 See ibid., p. 46. 142Ibid. 143 Volume 6 (2003), p. 110, para. 44.

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Chapter VI violations of international human rights law and serious violations of international humanitarian law, and define different kinds of reparation measures. Reparation may constitute restitution, compensation, satisfaction, rehabilitation, guarantees of non-repetition or memorialization efforts. Which form best suits the needs of victims may depend on the nature of the conflict and the local customs. What is needed exactly should be decided in collaboration with the victims. The trial of the alleged prosecutor and justice being served may be seen as a form of reparation as can be the confession of the perpetrator before a truth commission. The next section goes more deeply into the right to justice.

4 RIGHT TO JUSTICE

4.1 Introduction

In 2008, the International Center for Transitional Justice issued the report Nepali Voices. Perceptions of Truth, Justice, Reconciliation, Reparations and The Transition in Nepal on a survey conducted in Nepal, of which the objectives were to: - Understand the immediate needs and concerns of victims after signing of the CPA [Comprehensive Peace Agreement] - Capture opinions and attitudes about specific transitional-justice mechanisms, including justice, truth commissions, reconciliation, amnesty and reparations.144 This report produced some interesting results that are useful for this chapter. One of these is that “[a]n overwhelming majority of the respondents (90 percent) wanted trials and punishment for past human-rights violations”.145 In addition, 93 percent felt that it was [very important (69%) or important (25%)] to have accountability for past human-rights violations”.146 Seventy-seven percent were of the opinion that human-rights violators and perpetrators should not receive amnesty.147 The victims’ right to justice is the right of victims to an effective remedy. This means that the state has the obligation to “investigate violations, to prosecute the perpetrators and, if their guilt is established, to punish them”.148 The right to a fair and effective remedy is described by Joinet and:

144 International Center for Transitional Justice, Nepali Voices. Perceptions of Truth, Justice, Reconciliation, Reparations and the Transition in Nepal, ICTJ and the Advocacy Forum: Kathmandu March 2008, p. iii. 145 See ibid., p. 38. 146Ibid. 147 See ibid., p. 43. 148 Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 27. Also in para 27: “Although the decision to prosecute is initially a State responsibility, supplementary procedural rules should allow

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implies that all victims shall have the opportunity to assert their rights and receive a fair and effective remedy, ensuring that their oppressors stand trial and that they obtain reparations. As pointed out in the preamble and in the set of principles, there can be no just and lasting reconciliation without an effective response to the need for justice; as a factor of reconciliation, forgiveness, insofar as it is a private act, implies that the victim must know the perpetrator of the violations and that the latter has been in a position to show repentance. For forgiveness to be granted, it must first have been sought.149 victims to be admitted as civil plaintiffs in criminal proceedings or, if the public authorities fail to do so, to institute proceedings themselves.” 149 Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 26. Paras. 30-39 entail: “Restrictions justified by the desire to combat impunity 30. Restrictions may be applied to certain rules of law in order to support efforts to counter impunity. The aim is to prevent the rules concerned from being used to benefit impunity, thus obstructing the course of justice. The main restrictions are as follows. (a) Prescription 31. Prescription is without effect in the case of serious crimes under international law, such as crimes against humanity. It cannot run in respect of any violation while no effective remedy is available. Similarly, prescription cannot be invoked against civil, administrative or disciplinary actions brought by victims. (b) Amnesty 32. Amnesty cannot be accorded to perpetrators of violations before the victims have obtained justice by means of an effective remedy. It must have no legal effect on any proceedings brought by victims relating to the right to reparation. (c) Right to asylum 33. Neither political refugee status nor territorial asylum, nor diplomatic asylum may be granted. (d) Extradition 34. The political nature of an offence may not be advanced as an argument against extradition, nor the principle of non-extradition of nationals. (e) Trial in absentia 35. Unlike most Roman law countries, common law countries do not acknowledge trial in absentia in their legal systems. The absence of such a procedure significantly benefits impunity, especially when the countries concerned refuse to cooperate with the courts (such as the International Criminal Tribunal in the Hague). As a compromise, might trial in absentia not be admitted only after it has been legally established that cooperation has been refused? If not, non-recognition of trial in absentia should be limited to the judgement phase alone. (f) Due obedience 36. Due obedience cannot exonerate a perpetrator from criminal responsibility; at most it may be taken into consideration as a mitigating circumstance. Similarly, the fact that violations may have been perpetrated by a subordinate may not exonerate his superiors if they did not use their authority to prevent or stop the violation as soon as they knew or were in a position to know that a violation was being or was about to be committed. (g) Legislation on repentance 37. In cases where legislation on repentance has been adopted as part of the restoration of or transition to democracy, such legislation may be advanced in mitigation of evidence but cannot completely exonerate repentant perpetrators; a distinction must be drawn, depending on what risks the perpetrators ran, between revelations made while grave violations were taking place and those made subsequently. (h) Military courts 38. Because military courts do not have sufficient statutory independence, their jurisdiction must be limited to specifically military infractions committed by members of the military, to the exclusion of human rights violations, which must come within the jurisdiction of the ordinary courts.

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The UN Commission on Human Rights recognized “that accountability of perpetrators of grave human rights violations is one of the central elements of any effective remedy for victims of human rights violations and a key factor in ensuring a fair and equitable justice system and, ultimately, reconciliation and stability within a State”.150 The right to justice for the victims should, just like the right to know the truth and the right to reparation, not be sacrificed by the state without the consent of the victims.

4.2 The development of the right to justice

In 1985, the UN General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, of which Principle 4 recognizes the right to justice.151 In the 1995 Report of the Meeting of experts on rights not subject to derogation during states of emergency and exceptional circumstances, the Human Rights Committee held that,

while a State may have discretion to amnesty or pardon officials accused of human rights violations, granting immunity from criminal responsibility may not be done in such a way as to prejudice the right of victims to pursue a civil remedy, nor does it relieve the State of its obligation to investigate responsibility for human rights violations under article 2 of the International Covenant. Article 2 sets forth the general obligations of States parties, and is not subject to derogation. The Inter-American Commission on Human Rights takes a stronger position, indicating the granting of immunity from criminal prosecution violates the rights of the victim. Its decisions concern countries which were not parties to applicable human rights treaties at the time the violations occurred. ... The existence of concurring jurisprudence in these systems and in the opinions of the pertinent United Nations rapporteurs evidences the existence of a rule of customary international law.152

The Van Boven-Bassiouni Basic Principles and Guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and

(i) The principle of the irremovability of judges 39. Irremovability, though vital as a safeguard of the independence of judges, must not benefit impunity. Judges appointed in conformity with an earlier legal regime may be confirmed in their positions. Conversely, judges appointed unlawfully may be relieved of their functions in accordance with the principle of parallelism, subject to appropriate safeguards.” 150 Commission on Human Rights, Commission on Human Rights resolution 1999/34; Impunity, E/CN.4/RES/1999/34, 26 April 1999. 151 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985), Principle 4: “Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.” 152 Commission on Human Rights, Eighth annual report and list of States which, since 1 January 1985, have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro Despouy, Special Rapporteur appointed pursuant to Economic and Social Council resolution 1985/37. Annex 1, Report of the meeting of experts on rights not subject to derogation during states of emergency and exceptional circumstances Geneva 17-19 May 1995,E/CN.4/Sub.2/1995/20, 26 June 1995, para. 40.

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VII. Victims’ right to remedies 11. Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law: (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; (c) Access to relevant information concerning violations and reparation mechanisms.

VIII. Access to justice 12. A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law. Other remedies available to the victim include access to administrative and other bodies, as well as mechanisms, modalities and proceedings conducted in accordance with domestic law. Obligations arising under international law to secure the right to access justice and fair and impartial proceedings shall be reflected in domestic laws. To that end, States should: (a) Disseminate, through public and private mechanisms, information about all available remedies for gross violations of international human rights law and serious violations of international humanitarian law; (b) Take measures to minimize the inconvenience to victims and their representatives, protect against unlawful interference with their privacy as appropriate and ensure their safety from intimidation and retaliation, as well as that of their families and witnesses, before, during and after judicial, administrative, or other proceedings that affect the interests of victims; (c) Provide proper assistance to victims seeking access to justice; (d) Make available all appropriate legal, diplomatic and consular means to ensure that victims can exercise their rights to remedy for gross violations of international human rights law or serious violations of international humanitarian law. 13. In addition to individual access to justice, States should endeavour to develop procedures to allow groups of victims to present claims for reparation and to receive reparation, as appropriate. 14. An adequate, effective and prompt remedy for gross violations of international human rights law or serious violations of international humanitarian law should include all available and appropriate international processes in which a person may have legal standing and should be without prejudice to any other domestic remedies.

153 General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006.

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The Updated Set of Principles for the protection and promotion of human rights through action to combat impunity not only recognizes the right to know and the right to reparation/guarantees of non-recurrence, but also the duty to prosecute, which is the consequence of the victims’ right to justice. Principle 19 on duties of states with regard to the administration of justice holds that “[s]tates shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, … by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished”.154Principle 32 of the Updated Set of Principles holds that “[a]ll victims shall have access to a readily available, prompt and effective remedy in the form of criminal, civil, administrative or disciplinary proceedings.”155 Together with Principle 12 of the Basic Principles and Guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, these principles echo a deep-rooted rule of international human rights law.156 Also the Human Rights Committee stated that, in case of serious violations,157 victims must have recourse to judicial remedies.

4.3 The right to justice in international human rights law

Several of the international and regional human rights instruments examined in Chapter IV stipulate the right to an effective remedy. The right is found in the International Covenant on Civil and Political Rights (Article 2(3)),158 the

154Commission on Human Rights,Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher. Addendum: Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005, Principle 19; Principle 19 continues: “Although the decision to prosecute lies primarily within the competence of the State, victims, their families and heirs should be able to institute proceedings, on either an individual or a collective basis, particularly as parties civiles or as persons conducting private prosecutions in States whose law of criminal procedure recognizes these procedures. States should guarantee broad legal standing in the judicial process to any wronged party and to any person or non-governmental organization having a legitimate interest therein.” 155 See ibid., Principle 32 156Commission on Human Rights, Impunity: Report of the independent expert to update the Set of Principles to combat impunity, Diane Orentlicher, E/CN.4/2005/102, 18 February 2005, para. 58. 157 In Human Rights Committee, Coronel et al. v. Colombia, Comm. No. 778/1997, CCPR/C/76/D/778/1997, 24 October 2002, the Human Rights Committee “recalled that, if the violation that is the subject of the complaint is particularly serious, as is the case with violations of basic human rights, particularly the right to life, remedies of a purely disciplinary and administrative nature cannot be considered sufficient or effective.” Para. 6.2. 158 Article 2(3) of the International Covenant on Civil and Political Rights holds the right to an effective remedy: Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

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Convention against Torture (Article 13)159 and in the International Convention for the Protection of All Persons from Enforced Disappearance (Preamble, Articles 8(2)160 and 20(2)).161 Regional instruments that embody the right to an effective remedy are: the American Convention on Human Rights (Article 25),162 the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (Article 13),163 the African Charter on Human and Peoples Rights (Article 7(1))164 and the Arab Charter on Human Rights (Article 23).165 The right to a remedy is also found in the Universal Declaration of Human Rights (Article

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. 159 Article 13 of the CAT reads: Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given. 160 Article 8(2) Each State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the term of limitation. 161 Article 20(2) Without prejudice to consideration of the lawfulness of the deprivation of a person’s liberty, States Parties shall guarantee to the persons referred to in article 18, paragraph 1, the right to a prompt and effective judicial remedy as a means of obtaining without delay the information referred to in article 18, paragraph 1. This right to a remedy may not be suspended or restricted in any circumstances. 162 Article 25 of the American Convention on Human Rights contains the right to judicial protection: 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. 2. The States Parties undertake: 1. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; 2. to develop the possibilities of judicial remedy; and to ensure that the competent authorities shall enforce such remedies when granted. 163 Article 13 on the right to an effective remedy provides: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. 164 Article 7(1): Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 165Article 23: Each State party to the present Charter undertakes to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.

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8),166and in the Universal Islamic Declaration on Human Rights (Preamble at g(xiii)167 and Article IV).168 The Human Rights Committee applied the right to an effective remedy (Article 2(3) ICCPR) in F. Birindwa ci Bithashwiwa, E. Tshisekedi wa Mulumba v. Zaire (1989). The Committee held that the state party is under an obligation “to take effective measures to remedy the violations suffered by the authors, in particular to ensure that they can effectively challenge these violations before a court of law, to grant appropriate compensation to Mr. Tshisekedi and Mr. Birindwa, and to ensure that similar violations do not occur in the future”.169 A few years later, in General Comment No. 20 (1992), the Human Rights Committee laid down that “[a]mnesties are generally incompatible with the duty of States to investigate ... acts [of torture]; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future”.170 When granting amnesty, states should ensure the right to an effective remedy, “including compensation and such full rehabilitation as may be possible”.171 In Rodriguez v. Uruguay (1994), the Committee gave its view on a case concerning a torture victim who claimed that Uruguay had violated Article 7 of the Covenant.172 The Committee found:

that the facts as submitted sustain a finding that the military regime in Uruguay violated article 7 of the Covenant. In this context, the Committee notes that,

166 Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. 167 Preamble at g): in our obligation to establish an Islamic order: xiii) wherein every individual shall have the right to bring legal action against anyone who commits a crime against society as a whole or against any of its members; Do hereby, as servants of Allah and as members of the Universal Brotherhood of Islam, at the beginning of the Fifteenth Century of the Islamic Era, affirm our commitment to uphold the following inviolable and inalienable human rights that we consider are enjoined by Islam. 168IV. Right to Justice: a) Every person has the right to be treated in accordance with the Law, and only in accordance with the Law. b) Every person has not only the right but also the obligation to protest against injustice; to recourse to remedies provided by the Law in respect of any unwarranted personal injury or loss; to self-defence against any charges that are preferred against him and to obtain fair adjudication before an independent judicial tribunal in any dispute with public authorities or any other person. c) It is the right and duty of every person to defend the rights of any other person and the community in general (Hisbah). d) No person shall be discriminated against while seeking to defend private and public rights. e) It is the right and duty of every Muslim to refuse to obey any command which is contrary to the Law, no matter by whom it may be issued. 169 Human Rights Committee,F. Birindwa ci Bithashwiwa, E. Tshisekedi wa Mulumba v. Zaire, Comm. Nos. 241/1987 and 242/1987, CCPR/C/37/D/242/1987, 2 November 1989, para. 14. 170 Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment),Replaces general comment 7, 10 March 1992,para. 15. 171Ibid. 172 Article 7 ICCPR reads: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

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although the Optional Protocol lays down a procedure for the examination of individual communications, the State party has not addressed the issues raised by the author as a victim of torture nor submitted any information concerning an investigation into the author's allegations of torture. Instead, the State party has limited itself to justifying, in general terms, the decision of the Government of Uruguay to adopt an amnesty law.173

Human Rights Committee, Rodriguez v. Uruguay (1994)

The victim, Hugo Rodriguez, submitted the following facts to the Human Rights Committee:

In June 1983, the Uruguayan police arrested the author [Hugo Rodriguez] and his wife, together with several other individuals. The author was taken by plainclothes policemen to the headquarters of the secret police (Dirección Nacional de Información e Inteligencia), where he allegedly was kept handcuffed for several hours, tied to a chair and with his head hooded. He was allegedly forced to stand naked, still handcuffed, and buckets of cold water were poured over him. The next day, he allegedly was forced to lie naked on a metal bedframe; his arms and legs were tied to the frame and electric charges were applied (picana eléctrica) to his eyelids, nose and genitals. Another method of ill-treatment consisted in coiling wire around fingers and genitals and applying electric current to the wire (magneto); at the same time, buckets of dirty water were poured over him. Subsequently, he allegedly was suspended by his arms, and electric shocks were applied to his fingers. This treatment continued for a week, after which the author was relocated to another cell; there he remained incomunicado [sic] for another week. On 24 June, he was brought before a military judge and indicted on unspecified charges. He remained detained at the “Libertad Prison” until 27 December 1984. The author states that during his detention and even thereafter, until the transition from military to civilian rule, no judicial investigation of his case could be initiated. After the re- introduction of constitutional guarantees in March 1985, a formal complaint was filed with the competent authorities. On 27 September 1985, a class action was brought before the Court of First Instance (Juzgado Letrado de Primera Instancia en lo Penal de 4 Turno) denouncing the torture, including that suffered by the author, perpetrated on the premises of the secret police. The judicial investigation was not, however, initiated because of a dispute over the court’s jurisdiction, as the military insisted that only military courts could legitimately carry out the investigations. At the end of 1986, the Supreme Court of Uruguay held that the civilian courts were competent, but in the meantime, the Parliament had enacted, on 22 December 1986, Law No. 15,848, the Limitations Act or Law of Expiry (Ley de Caducidad) which effectively provided for the immediate end of judicial investigation into such matters and made impossible the pursuit of this category of crimes committed during the years of military rule.174

173 See ibid., para. 12.1. 174 Human Rights Committee, Rodriguez v. Uruguay, Comm. No. 322/1988, CCPR/C/51/D/322/1988, 9 August 1994, paras. 2.1, 2.2.

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The Human Rights Committee concluded that the Uruguayan amnesty law (Law No. 15,848, 1986) seriously impeded victims’ right to an adequate remedy.175 Uruguay defended itself by claiming that victims may still initiate private investigations into crimes they were a victim of, despite the amnesty law. The Human Rights Committee rejected this view and found “that the responsibility for investigations falls under the state party’s obligation to grant an effective remedy”.176 The Human Rights Committee concluded that in the specific circumstances of Rodriguez v. Uruguay, the victim did not have an effective remedy.

The Committee moreover reaffirms its position that amnesties for gross violations of human rights and legislation such as the Law No. 15,848, Ley de Caducidad de la Pretensión Punitiva del Estado are incompatible with the obligations of the State party under the Covenant. The Committee notes with deep concern that the adoption of this law effectively excludes in a number of cases the possibility of investigation into past human rights abuses and thereby prevents the State party from discharging its responsibility to provide effective remedies to the victims of those abuses. Moreover, the Committee is concerned that, in adopting this law, the State party has contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations.177

Another example of a violation of Article 2(3) ICCPR observed by the Human Rights Committee is the Chilean amnesty law, which grants amnesty to persons who committed offences between 11 September 1973 and 10 March 1978.178 According to the Human Rights Committee, the amnesty law prevents Chile “from complying with its obligation … to ensure an effective remedy to anyone whose rights and freedoms under the Covenant have been violated”.179 In Coronel et al. v. Colombia (2002), the Human Rights Committee recognizes that states parties have an obligation to provide the victims’ relatives with effective remedy,180 including compensation, based on Article 2(3) ICCPR.181 The Inter-American Commission on Human Rights concluded that the Argentinean amnesty laws182 violate Article XVIII (right to a fair trial) of the

175 See ibid., para. 12.2. 176 See ibid., para. 12.3. 177 See ibid., para. 12.4. 178 Human Rights Committee, Concluding Observations of the Human Rights Committee: Chile, CCPR/C/79/Add.104, 30 March 1999. 179 See ibid., para. 7. 180 (Footnote added) “In accordance with the Committee's case law and that of other international human rights bodies, the military courts in Colombia cannot be considered an effective remedy for dealing with human rights violations committed by members of the army.” in Human Rights Committee, Coronel et al. v. Colombia, Comm. No. 778/1997, CCPR/C/76/D/778/1997, 24 October 2002, para. 5.7. 181Human Rights Committee, Coronel et al. v. Colombia, Comm. No. 778/1997, CCPR/C/76/D/778/1997, 24 October 2002, para. 10. 182Laws No. 23,492 and No. 23,521 and Decree No.1002/89.

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American Declaration of the Rights and Duties of Man and Articles 1, 8 and 25 of the American Convention on Human Rights.183 With reference to the same articles, the IAComHR rejected the 1986 Uruguayan amnesty law.184 In the eyes of the Commission, “such laws remove the most effective measure for enforcing human rights, i.e., the prosecution and punishment of the violators”.185 With regard to the human rights situation in Colombia, the IAComHR stated that a states parties to the ACHR “cannot invoke the application of their domestic law, in this case amnesty laws, in order to disregard their obligation to ensure the full and proper functioning of justice for the victims”.186This stipulation is internationally recognized and is embodied in Article 27 of the Vienna Convention on the Law of Treaties, 1969.187 In Barrios Altos v. Peru (2001) the Inter-American Court of Human Rights considered that:

the amnesty laws adopted by Peru prevented the victims’ next of kin and the surviving victims in this case from being heard by a judge, as established in Article 8(1) of the Convention; they violated the right to judicial protection embodied in Article 25 of the Convention; they prevented the investigation, capture, prosecution and conviction of those responsible for the events that occurred in Barrios Altos, thus failing to comply with Article 1(1) of the Convention, and they obstructed clarification of the facts of this case. Finally, the adoption of self-amnesty laws that are incompatible with the Convention meant that Peru failed to comply with the obligation to adapt internal legislation that is embodied in Article 2 of the Convention.188 The Court considers that it should be emphasized that, in the light of the general obligations established in Articles 1(1) and 2 of the American Convention, the States Parties are obliged to take all measures to ensure that no one is deprived of judicial protection and the exercise of the right to a simple and effective recourse, in the terms of Articles 8 and 25 of the Convention. Consequently, States Parties to the Convention which adopt laws that have the opposite effect, such as self-amnesty laws, violate Articles 8 and 25, in relation to Articles 1(1) and 2 of the Convention. Self-amnesty laws lead to the defenselessness of victims and perpetuate impunity; therefore, they are manifestly incompatible with the aims and spirit of the Convention. This type of law precludes the

183 IAComHR, Consuelo et al. v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, 10.311, Report No. 28/92, OEA/Ser.L/V/II.83 Doc. 14 at 41 (1993), 2 October 1992. 184Uruguayan Law 15,848 of 22 December 1986; See also, IAComHR, Mendoza et. al. v. Uruguay, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, Report No. 29/92, OEA/Ser.L/V/II.83 Doc. 14 at 154 (1993), 2 October 1992. 185 IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 200. 186 IACtHR, Almonacid-Arellano et al v. Chile, Series C No. 154 Judgment of 26 September 2006 (Preliminary Objections, Merits, Reparations and Costs), para. 125; IAComHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, para. 345; IACtHR, Loayza-Tamayo v. Peru, Series C No. 42, Judgment of 27 November 1998 (Reparations and Costs), para. 168. 187Article 27. Internal law and observance of treaties. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. … 188 IACtHR,Barrios Altos v. Peru, Series C No. 75, Judgment of 14 May 2001 (Merits), para. 42.

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identification of the individuals who are responsible for human rights violations, because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation.189

4.4 Mechanisms to guarantee the right to justice

To provide justice to the victims, it is essential that there is a well-functioning legal system to conduct fair trials. Fair trials are important to both victims and perpetrators. As the UN Secretary-General put it: “Without adequately resourced and professionally trained judicial and law enforcement institutions, victims have no legal recourse and perpetrators act with impunity.”190The right to justice is violated when sham trials are conducted. An example is the case known as the Massacre of the Jesuits in El Salvador referred to above in Section 2.4. In its report on the case, the IAComHR “concludes that the investigation undertaken by the Salvadoran State with respect to the extra-judicial execution of the victims in this case was not conducted seriously or in good faith, but was rather intended to protect some of the material authors and all of the intellectual authors of the crime”.191Sham trials pretending that the right to a remedy is lived up to are counterproductive to smooth progress of the transition. They will not bring justice and the victims will feel abandoned again. Consequently, when the right to justice is not respected, impunity prevails. No matter that the truth will be revealed or that reparation will be provided to the victims or their relatives via other transitional justice mechanisms, the perpetrators will not be punished and live in freedom. Although not prosecuted, perpetrators may still be held accountable in some way by barring them from public services.192 For example, the Secretary-General claims that “[i]n the context of Afghanistan’s fragile transition to peace, reform of the justice sector is inseparable from security, and thus from commensurate reform of the military, police, corrections, and disarmament, demobilization and reintegration”.193 There are also options of alternative justice, like the gaçaça courts in Rwanda and the system of mato oput in Uganda.

189 See ibid., para. 43. 190 General Assembly/Security Council, The situation in Afghanistan and its implications for international peace and security. Report of the Secretary-General, A/57/850-S/2003/754, 23 July 2003, para. 39. 191 IAComHR, Ignacio Ellacuria et al. v. El Salvador (Report on theMassacre of the Jesuits in El Salvador), Report No. 136/99, Case 10.488, 22 December 1999, para. 141. 192 Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 43, on Guarantees of non-recurrence, (c) Removal from office of senior officials implicated in serious violations. These should be administrative measures, of a preventive, not punitive, character, duly safeguarding the officials' rights. 193 General Assembly/Security Council, The situation in Afghanistan and its implications for international peace and security. Report of the Secretary-General, A/57/850-S/2003/754, 23 July 2003, para. 20.

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In the 1993 Vienna Declaration and Programme of Action, the World Conference on Human Rights emphasized the importance of:

an effective framework of remedies to redress human rights grievances or violations. The administration of justice, including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non- discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development.194

4.5 Interrelationship with other victims’ rights

The right to justice is interrelated to the right to know the truth and the right to reparation. It is related to the right to know the truth, because when establishing the right to justice, the truth may also be found in the process of conducting investigations and a trial. In addition, to establish certain aspects of the truth, cooperation of the perpetrator is needed. Prosecutions may achieve such cooperation. When the right to justice is deprived of the victims, their relatives and society, it becomes very hard and probably even unfeasible to find out the truth themselves. In that case, counterbalancing measures should be established to enhance the chances of establishing the truth. The right to justice is also interrelated to the right to reparation. The right of a victim “to an effective remedy not only obligates the state to prevent, investigate, and punish serious human rights violations, but also to provide reparations. Among various reparations mechanisms, states should restore the right violated and provide compensation for damages.”195 A judgment by a court may be regarded as a form of reparation in and of itself.196 The Human Rights Committee “takes the view that the right to an effective remedy may in certain circumstances require states parties to provide for and implement provisional or interim measures to avoid continuing

194 World Conference on Human Rights, Vienna Declaration and Programme of Action, A/CONF.157/23, 12 July 1993, para. I.27; Para I.27 continues: “In this context, institutions concerned with the administration of justice should be properly funded, and an increased level of both technical and financial assistance should be provided by the international community. It is incumbent upon the United Nations to make use of special programmes of advisory services on a priority basis for the achievement of a strong and independent administration of justice.”; In addition, the World Conference on Human Rights stated that “[v]ictims of the abhorrent practice of ethnic cleansing are entitled to appropriate and effective remedies.” para. II.24 and “The World Conference on Human Rights stresses the importance of further concrete action within the framework of the United Nations with the view to providing assistance to victims of torture and ensure more effective remedies for their physical, psychological and social rehabilitation.” para. II.59 195 Human Rights Watch, Democratic Republic of Congo “We Will Crush You”. The Restriction of Political Space in the Democratic Republic of Congo, Human Rights Watch: New York/Berlin/etc. November 2008, p. 84. 196 IACtHR, Almonacid-Arellano et al v. Chile, Series C No. 154 Judgment of 26 September 2006 (Preliminary Objections, Merits, Reparations and Costs), para. 171(4).

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4.6 Conclusion

Granting amnesty is a violation of ubi jus, ibi remedium. It should however be kept in mind that whether amnesty was granted or not, in both situations not all victims will see their perpetrator face justice. In a post-conflict situation, the number of perpetrators is simply too high to accomplish the right to justice for all victims. In a best-case scenario, only those who bear the most responsibility will stand trial. When criminal investigations and prosecutions are not possible, accountability may also be established by way of a truth commission. A truth commission will in any case be a valuable complementary measure to criminal proceedings.

5 VICTIM PARTICIPATION

Not only is it important that victims’ rights are protected and guaranteed in the process of transitional justice, it is also important that victims and other citizens take part in the process of designing policies for dealing with the past.198 They should not just be focussed on, but actually take part in the process of decision and policy-making, strategy and communication. It is of the utmost importance to pay attention to the victims’ view on justice and their experience of injustice. According to the Secretary-General, programs that emerge from national consultations and are designed in close collaboration with the citizens, including the victims, are more likely than those imposed from outside “to secure sustainable justice for the future, in accordance with international standards, domestic legal traditions and national aspirations”.199 As may be concluded, outsiders should not impose a peace process or agreement on the local population; peace that is not home grown tends to be weak and short-lived. Victim participation is therefore of the utmost importance. However, as Ben Chigara observes, “[t]he mechanisms or approach that … is chosen will depend not only on perceptions of what is best for society [or on the will of the people], but also on the balance of powers between the society and its former offenders”.200 Victim participation also helps to ensure that national policies respond to victims’ actual needs. One South African victim said: “How can they do this thing without asking us what we would like? They are not the victims so how can they

197Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 19. 198Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 11. 199 Security Council, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General, S/2004/616, 23 August 2004, para. 17. 200 Andreas O’Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International: The Hague/London/New York 2002, p. 70.

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Amnesty and the rights of victims say what should happen. I think this thing is very wrong.”201 In South Africa, according to many victims, the TRC was a perpetrator-friendly institution.202 A press statement given by the South African Khulumani (Western Cape) Victims Support Group captures this sentiment:

What has become painfully evident is that the perpetrators are benefiting more from the TRC. They have lawyers defending them free of charge, they receive amnesty, and they either maintain their jobs or receive huge golden handshakes. (We are still waiting for the public prosecution of those who did not request amnesty to begin.) On the hand, survivors are insulted, kept in the dark, have no work and continue to live with their pain and suffering.203

Including victims also serves a deeper aim: it can help reconstitute the full civic membership of those who were denied the protection of the law in the past. Their participation in public deliberations may itself contribute to a process in which victims reclaim control over their lives and may help restore their confidence in government.204 That the role of victims’ in designing programs is important is also concluded in the study Victims of War: An Empirical Study on War-Victimization and Victims’ Attitudes towards Addressing Atrocities, in which it is stated that “[v]ictims affected by large scale violence and human rights violations should have the opportunity to decide about future actions in order to achieve the best results in peace building. In order to be able to choose from different possibilities the available or appropriate concepts should be introduced through public debate.”205 The Commission on Human Rights:

[u]rges States to provide the victims of violations of human rights and international humanitarian law that constitute crimes, with a fair and equitable

201 O.H., 3 November 2000, quoted in Christopher J. Colvin, ‘We Are Still Struggling’: Storytelling, Reparations and Reconciliation after the TRC, Centre for the Study of Violence and Reconciliation in collaboration with Khulumani (Western Cape) Victims Support Group and the Cape Town Trauma Centre for Survivors of Violence and Torture: December 2000, p. 23. 202 See ibid., p. 22. 203Ibid. 204Commission on Human Rights, Impunity, E/CN.4/2004/88, 27 February 2004, para. 11; See also: Office of the United Nations High Commissioner for Human Rights, Making Peace our Own. Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda, United Nations: 2007, p. 26: “In all regions, respondents also expressed a sense of betrayal by the Government specifically for the failure to protect them from harm in line with the constitutional duty to protect the population.” 205 Ernesto Kiza, Corene Rathgeber & Holger Rohne, Victims of War. An Empirical Study on War- Victimization and Victims’ Attitudes towards Addressing Atrocities, Hamburger Edition: Hamburg 2006, p. 109. In a research study in northern Uganda on themes of accountability, reconciliation and transitional justice, “respondents emphasised that they needed more information regarding potential mechanisms of accountability and reconciliation. In particular, many focus groups stated that they wished to learn more about reconciliation processes used by different tribes and sub-regions affected by the conflict.” - Office of the United Nations High Commissioner for Human Rights, Making Peace our Own. Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda, United Nations: 2007, p. 46.

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process through which these violations can be investigated and made public in the interest of the victims and to encourage victims to participate in such a process, including by taking measures to ensure the protection of, and support and assistance to, victims and witnesses, that are appropriate and sensitive to their needs, including contact points and child- and gender sensitive procedures and attention to crimes of sexual violence, in judicial and truth and reconciliation processes.206

The Commission on Human Rights “[r]ecognizes the important role of civil society in combating impunity and encourages States to involve, as appropriate, civil society, including victims and human rights defenders, in efforts to combat impunity, including judicial processes and the design of truth commissions, the selection of commissioners and the drafting of relevant legislation”.207 In the process of victim involvement, especially those groups most affected by conflict, such as minorities, the elderly, children, women, prisoners, displaced persons and refugees, should be involved.208 In the Updated Set of Principles for the protection and promotion of human rights through action to combat impunity, Principle 32 on reparation procedures provides that “[v]ictims and other sectors of civil society should play a meaningful role in the design and implementation of … [reparation] programmes. Concerted efforts should be made to ensure that women and minority groups participate in public consultations aimed at developing, implementing, and assessing reparations programmes.” When the choices made by a state reflect the will of the people, including the victims, chances are high that the past is dealt with in the right way, which provides opportunities for a stable peace and future as well. In such a case, international involvement risks destabilizing the processes of transitional justice. When the involvement of an international court against the state’s wishes risks a continuation of the conflict or an upheaval of the violence, the international court should seriously consider whether the result of prosecuting one or a few of those alleged to be most responsible outweighs the consequences this might have on the national level.

6 CONCLUSION

Based on the findings in the previous sections, it may be concluded that victims of human rights crimes indeed have a right to the truth, a right to reparation, and a right to justice. Various international treaties and instruments recognize the rights discussed as well as regional and international case law and several resolutions of intergovernmental bodies at the regional and universal levels. Notwithstanding the mere existence of these rights, providing the truth, reparation or justice will

206 Commission on Human Rights, Commission on Human Rights resolution 2004/72: Impunity, E/CN.4/RES/2004/72, 21 April 2004, sub 11. 207Ibid., sub 14. 208 Security Council, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General, S/2004/616, 23 August 2004, para. 25.

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Amnesty and the rights of victims significantly contribute to stabilizing society and the rule of law.209 Although they are independent, the right to the truth, the right to reparation and the right to justice are closely interwoven and partly overlap. The fact that they overlap makes it even more important to recognize and comply with the corresponding duties of the state in situations of transition. The obligations of the state in matching the three rights of victims elaborated on in this chapter have a separate and distinct nature. This means that if, for example, the right to justice through legal trials is foreclosed because of an amnesty law, the other rights still need to be ensured. An amnesty law in principle violates the rights of victims. However, a state may try to guarantee the rights of victims through the establishment of counterbalancing mechanisms. The duties of the state that correspond to the rights of victims are “obligations of means, not of results”.210 This means that the state may establish a truth commission and reveal documents and open up archives related to the violations, but this will not provide every victim or their relatives with the truth. Likewise, a state complies with its duty to prosecute when it investigates and prosecutes a crime in a fair trial, even if the trial results in acquittal because of a lack of evidence.211 In addition, it has to be acknowledged that a state will never be able to prosecute all those responsible for the human rights violations committed. The right to justice in the strict sense of the right remains a problem if amnesty is granted. Truth and reparation may be provided to the victims through other channels than the judicial one, but justice cannot be done without fair trials in a court of law. Thinking of the Nepali survey amongst victims, justice being done is very important to victims of human rights violations. Despite other possible mechanisms of transitional justice, such as the vetting of public offices, the perpetrators will not be punished in the legal sense of the word. This may be very hard for victims who survived, their relatives and society as a whole. In sum, in addition to the findings in Chapter IV, an amnesty law may not only violate the duty to prosecute, it may also violate the rights of victims to the truth, to reparation and to justice.

209 “Beyond the need to ensure a basic judicial remedy for the victims of impunity, there is the obligation to prevent, at all costs, a recurrence of what has happened. ...” Luis Pérez Aguirre, “The Consequences of Impunity in Society”, in: International Commission of Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, p. 109. 210 Juan E. Méndez, “Accountability for Past Abuses”, Human Rights Quarterly, vol. 19 1997, pp. 255- 282, p. 264. 211 See, for example, IACtHR, Velásquez Rodríguez v. Honduras, Series C No.4, Judgment of 29 July 1988 (Merits), para. 177: “In certain circumstances, it may be difficult to investigate acts that violate an individual's rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.”

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PART 4

FRAMEWORK FOR THE LEGITIMATE USE OF AMNESTY

CHAPTER VII FRAMEWORK FOR THE LEGITIMATE USE OF AMNESTY

1 INTRODUCTION

In the previous chapters, several subjects came to the fore that are important when reviewing an amnesty. In this chapter, all the relevant findings of the previous chapters are put into a framework for the legitimate use of amnesty that may be used as a tool when one wants to examine an amnesty. The framework is not only useful when reviewing an amnesty measure. It may also be informative for and kept in mind by states considering amnesty or actors involved in post-conflict processes of reconciliation, transitional justice, and so on. It can be said that, based on the international treaties and conventions in existence, UN documents and UN practice, and the establishment of the ICC and the number of ratifications of the Rome Statute, the international community agrees that those responsible for the most serious violations of human rights should be prosecuted and punished in a fair trial. State practice, however, shows a long tradition of granting amnesty after violent conflict, or as part of a peace agreement. Exclusion of the crimes mentioned in the ICC Statute is rare. This contradiction shows that although states are willing to prosecute and punish those responsible for core crimes, it is not always in their power to do so, nor in the best interest of the nation. States introduce amnesty measures out of necessity; it provides them with a way out. It is often held by opponents of amnesty that without justice, there can be no reconciliation. One should question, however, whether prosecutions are better suited to promote reconciliation than amnesty. It is not realistic to view the amnesty matter in a purely legal perspective. Abiding by the law is not a purpose in itself. It is a means to realize a just society. However, sometimes the law alone is not enough. For example, in post-conflict situations much more is needed than investigations and prosecution of the perpetrators to heal a society and achieve reconciliation. It may be concluded, based on the findings in this research, there is not one single solution for all situations. Every situation needs its own approach. Both prosecutions and amnesty may be important tools in conflict and post-conflict situations. However, they both need to be accompanied by additional transitional

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Chapter VII justice measures to effectively address the past and meet the rights of victims. Building confidence in a post-conflict situation or in a newly established democracy often involves a trade-off between justice and reconciliation. The victims’ demand for justice must be balanced with the need for reconciliation and peace within the country. One should avoid a time-consuming and expensive process of prosecution not contributing to peace and reconciliation. Following the research done in the previous chapters, now is the time to apply all the findings in a framework for the legitimate use of amnesty. Amnesty granted to a specific group of prisoners, for instance the disabled, or because of an overcrowding of the prison system is not relevant here because this in fact is equivalent to the granting of a pardon. This is because in such cases, amnesty is granted after the suspects were tried and found guilty, and as a means to withdraw the sentence. Neither does it have to do with the aftermath of conflict or a political transition.

2 CONSIDERATIONS FOR THE DRAFTING OF A FRAMEWORK

International law has not yet taken a position on the granting of amnesty (to perpetrators of international crimes). Neither does it approve of amnesties, nor does it prohibit them. In fact, nothing at all is regulated regarding the granting of amnesty for serious human rights crimes. However, the existence of amnesty is recognized in several legal instruments. A general duty to prosecute human rights crimes under international law is not supported by state practice. On the contrary, recent history is full of examples of cases in which successor regimes have granted amnesty to officials of the previous regime who were guilty of human rights crimes, rather than prosecute them. In some cases, the United Nations even welcomed such a solution, as was elaborated on in Chapter V. As was established in Chapter IV on the legality of national amnesty laws under international law, anti-impunity components were integrated in human rights documents from the start of the discipline. However, “for many years, these provisions and other like them were not given the attention they required, perhaps due in part to the historic unease and discomfort of the human rights movement with repressive criminal law”.1The notion that impunity must be combated has especially emerged since the end of the Cold War. In 1992, in the opening speech of the International Meeting on Impunity of Perpetrators of Gross Human Rights Violations, Adama Dieng remarked that “[a] consensus appears to be emerging concerning the notion that total impunity – whether as the result of an amnesty, clemency measures or simply the inefficiency of the courts – constitutes a violation of international law”.2 Since the end of the Cold War, major developments have taken place to eradicate impunity. However, it

1 William A. Schabas, Impunity and Human Rights Defenders, Paper presented at the FrontLine Conference: Dublin 17 January 2002, pp. 3, 4. 2 Adama Dieng, “Opening Speech”, in: International Commission of Jurists, Justice. Not Impunity, International Meeting 2 to 5 November 1992, International Commission of Jurists: Geneva 1993, pp. 19-26, p. 21.

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Framework for the legitimate use of amnesty is not yet possible to say there is a duty to prosecute. This may be due to the fact that amnesty in several cases can be considered a success. Therefore, a total ban on amnesty may have counterproductive effects, and so may have a duty to prosecute. It is highly likely that if a victim of a crime or the relative of a victim is asked whether they want the perpetrator and those responsible to be punished, the answer will be ‘yes’. In the context of state repression, a violent conflict or the aftermath thereof, the answer will be no different. In a 2006 empirical study on victims’ attitudes towards addressing atrocities, almost 80 percent of the respondents answered that they favoured prosecution.3 It is very easy to say that amnesty is not an option because of the gravity of the crimes. However, there is not always a climate in which investigations and fair proceedings are possible. Amnesty is often part of a political compromise. In these cases, where amnesty or impunity is the sole option to end ongoing violations or prevent the reigniting of conflict, it seems both harsh and unrealistic to condemn this choice and demand prosecutions. When a state decides to grant amnesty, because it judges that prosecutions for human rights abuses committed during a recently ended conflict might reignite the conflict or hamper reconciliation, such a decision only has domestic value. Although a national amnesty for serious violations of human rights does not theoretically prevent prosecution before an international court or tribunal or by means of universal jurisdiction, the state that granted amnesty will not actively cooperate with such proceedings in the sense of providing evidence, surrendering suspects or providing witnesses. Notwithstanding the uncooperative attitude of the state, prosecutions in another country or by an international court or tribunal may work against local amnesty measures, producing a clash of interests. Prosecution should therefore not be a goal in itself. The threat of prosecution may risk continuation of a violent conflict. Why stop fighting when you risk being incarcerated, or worse? It is important to make a distinction between what is prescribed by international law or legally possible, and what is realistic and wise to do. In some situations, prosecution may be possible, or there may even be a duty to prosecute, but if this causes further suffering, continuation or resumption of the conflict or something similar, one should question what carries more weight. In my opinion, the objective should always be to minimize suffering. Not only in the short term, but also in the long term. If this means that amnesty be granted, actors not directly involved in the process should respect this. Obviously, if one assumes there is a duty to prosecute, granting amnesty is incompatible with that duty. When amnesty is granted, this is because the state wants to make an exception to the expectation that crimes should be punished. If it did not deem prosecution to be in the line of expectations, the state could have spared itself the effort of drafting an amnesty law. Maybe there is some comparison with a ‘state of emergency’ that threatens the life of the nation. In a state of emergency, a state may violate some rights of its citizens because it is deemed

3 Ernesto Kiza, Corene Rathgeber & Holger Rohne, Victims of War. An Empirical Study on War- Victimization and Victims’ Attitudes towards Addressing Atrocities, Hamburger Edition: Hamburg 2006, p. 97.

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Chapter VII necessary in the situation. If an amnesty law is regarded as emergency legislation, it may be repealed when the conditions leading to the emergency do not longer exist. One may argue that the prosecution of those who were first granted amnesty is contrary to the fundamental principles of law. In line with this reasoning, when a democratic government grants an amnesty to achieve peace or stabilize the country, this country should bear the consequences of such a law and must not repeal this law afterwards. However, in case of a de facto amnesty, crimes are still punishable years later. When amnesty is granted as part of a peace agreement, it is impossible to nullify the amnesty later in order to prosecute those responsible anyway. When it is held that trust is both a consequence and a condition of the rule of law, the institution of proceedings after amnesty was arranged seriously violates this trust. It may risk ruining the basis of trust that is necessary to achieve progress and reconcile the nation, and the return of conflict. In case of a de iure amnesty, one may argue that the amnesty may be repealed later, because the amnesty should have never been granted in the first place, being in violation of international law and norms. When an amnesty law is repealed, and considered to be null and void from the start, prosecutions of those protected by the amnesty law become possible. This happened for instance in Argentina. Granting amnesty was deemed necessary at the time and granted by a democratically elected president. After almost 20 years, the amnesty law was considered unconstitutional and was repealed. A divided nation needs reconciliation to unite. A new regime alone does not make reconciliation happen. Prosecutions are not enough to generate reconciliation, neither is amnesty. To achieve reconciliation, additional efforts are needed, not just criminal trials and punishment of the guilty or granting amnesty. According to Boraine, the ICTY, “with its major focus on prosecution, has not been able to achieve any meaningful reconciliation in the former Yugoslavia”.4 When making an inventory of what is needed, it is of the utmost importance to include victims in the process. An amnesty law may give victims and society the impression that the law does not protect them, but does protect perpetrators. This may also delegitimize the new government. If a new government shows little respect for the rule of law, it may be hard for the people to have confidence in that new government. Public condemnation of the crimes committed enhances the possibility of perpetrators feeling guilty for the harm caused and showing remorse. By including the victims in the process of decision-making in the aftermath of violence, it is much more likely that they will respect the outcome. Even when the expected result is not achieved. It may also provide them with insight into the possible benefits of amnesty. Notwithstanding the benefits amnesty may have, prosecutions must be pursued where possible.

4Alexander Boraine, “Retributive Justice and Restorative Justice: Contradictory or Complementary?”, in: Nanci Adler (ed.),Genocide and Accountability. Three Public Lectures by Simone Veil, Geoffrey Nice and Alex Boraine, Vossiuspers UvA: Amsterdam 2004, p. 43.

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Framework for the legitimate use of amnesty

Reconciliation is of special importance after internal violent conflicts, because the perpetrators will still live alongside the victims and their families. A process of reconciliation takes years, even decades. It cannot be forced and neither should it be. A South African victim named Kalukwe Mawila stated: “What really makes me angry about the TRC and Tutu is that they are putting pressure on me to forgive…. I don’t know if I will ever be able to do so. I carry this ball of anger within me and I don’t know where to begin dealing with it. The oppression was bad, but what is much worse, what makes me even angrier, is that they are trying to dictate my forgiveness.”5 Her words show that the road to reconciliation is a long and tough one. The possibility of granting amnesty should not be foreclosed in international law. States should have the discretion to opt for amnesty when this is deemed necessary. When amnesty is considered to be the only option to improve a situation, other states or actors should not interfere with this process, unless this is necessary or wanted by the state concerned. If this does happen, the interfering state or other actor should not impose measures, but contribute to home-grown solutions. The international community should respect exceptional solutions in exceptional circumstances when these are in the interest of the human rights situation. Efforts to prosecute nationals of a state against the will and interests of that state may have counterproductive results and the victims in such a case will be the citizens. It may be argued that there are two positions with regard to the use of amnesties. People adhering to the first position hold that amnesty is not an option, whatever the circumstances, and whatever the consequences. This position is very narrow, and does not balance the demands of justice against those of reconciliation. The second position maintains that amnesty is permissible under certain circumstances, for example, when it is the only way to end a violent conflict and when it is accompanied with counterbalancing measures. Advocates of both positions both try to achieve a situation in which there is respect for human rights and the rule of law. In a post-conflict situation, or after a regime change, it is very hard to guarantee all victims’ rights. Mendez deems it “safe to say that there is no place where a full measure of truth, justice, reconciliation, and peace has been achieved”.6 Therefore, it is worthwhile to take the framework for the legitimate use of amnesty into account, to consider which measures fit a situation best and may achieve the effect desired. Such measures may include amnesty when other solutions are foreclosed or may have counterproductive effects. There is no standard solution. Standardization runs the risk of ‘solutions’ not adapted to the complex and specific nature of a situation. There is no one-size-fits- all response to serious violations of human rights. The exceptional legacy of each

5 Wilhelm Verwoerd, “Forgiving the torturer but not the torture”, Sunday Independent, 14 December 1998. 6 Juan E. Méndez, “The Human Right to Truth”, in: T.A. Borer (ed.), Telling the Truths. Truth Telling and Peace Building in Post-Conflict Societies, University of Notre Dame Press: Notre Dame (Indiana) 2006, pp. 115-150, p. 120.

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Chapter VII society and people that has endured human rights violations will form its understanding of justice and reconciliation. There are several examples of countries that have overturned amnesty laws. The amount of time that has elapsed in the meantime varies per situation. Forcing the country to prosecute before it is ready to do so is not in the benefit of a country or its people. In some instances, it has to be accepted that prosecution may endanger peace and democracy and that it may take more time to create a situation in which prosecution becomes possible. International help from, for instance, other countries, the UN or NGOs may focus on the victims, and on society and the country to recover right away. What should be done when, according to international criminal law principles, the perpetrators of crimes who were granted amnesty should be punished, but at the moment of review, the amnesty has positive effects and the situation is more or less stable? Every post-conflict situation is unique, and so must be the strategy for recovery. Every society has its own specific needs, and therefore it cannot be held that a strategy that is considered successful in one situation will be so in another. Each state has to find its own way of dealing with the past, in consultation with its people and if desired with international help. A newly obtained peace situation is very fragile, especially when international actors try to change settled agreements. International help should focus on support and strengthening of national processes. This notwithstanding, it will take years to find out whether a state made the right choices in the post-conflict period. When an amnesty is under review, it is important to determine in what political situation the state that granted amnesty is. This may correlate with the lapse of time. Just after the end of a conflict and the granting of amnesty, there may still be a lot of unrest and the state has not yet been able to show its commitment to the rule of law. Several factors may play a role: is the peace still fragile; does the military still have a lot of power or is there a situation of durable peace and democracy? These are all important matters to take into account. There is no answer to the question as to how much time a country should get to get things on track again. However, the mere passing of time is not enough to reconcile a society. The legacy of the past must be actively dealt with. Otherwise, the problem may grow. It is essential that if a country grants amnesty, it nevertheless shows a commitment to respect human rights and makes and effort to rebuild the rule of law. The state must show denunciation of human rights violations. That way, the state shows the people and the international community that the amnesty was just an exceptional non-recurrent solution for an exceptional situation. Moreover, it should be kept in mind that involvement in national processes is not necessarily in the best interests of the state. It is preferable for a state to be able to recover from conflict on its own. Besides, there is no statute of limitations for serious human rights crimes under international law, which means that however much time has elapsed since their commission, it will always be possible to prosecute and punish those responsible, and the rights of the victims also continue to exist. For the reasons and risks mentioned in Chapter II regarding cultures of impunity, it is however advisable to address the accountability

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Framework for the legitimate use of amnesty issue as soon as possible. When international actors become involved in transitional justice processes, they should support measures and efforts that are opted for by the state itself in cooperation with the victims and society. Imposing methods or services that are not needed would be simply a waste of resources. When reviewing the outcome of an amnesty process, one should determine whether the measures the state took provided the desired result. This question is very difficult to answer though, since the effects may only become visible after years or even decades. This also applies for the negative consequences. When the amnesty under review is not considered acceptable after considering the various factors embedded in the framework that is presented below, prosecution is possible. One should wonder, however, what the dangers of international involvement are. When one continues with prosecution, thereby neglecting the amnesty that was granted on the national level, one should be aware of the consequences this might have, and whether this prosecution outweighs these consequences. In such a case, a risk analysis should be made, weighing the various factors that accompany the sidestepping of a national amnesty. In the framework of the legitimate use of amnesty, several parts of the research come to the fore. The framework is subdivided into ten questions. The framework provides no clear-cut answers, but rather indicates the focus points.

3 FRAMEWORK FOR THE LEGITIMATE USE OF AMNESTY

Having established what law is applicable, it is time to turn to the subject of amnesty. First, one should determine whether in fact it is amnesty that is granted, or whether it is some other form of impunity that allows perpetrators to walk off scot- free. Amnesty has certain characteristics, as described in Chapters II and III. In short, an amnesty law is a law that grants amnesty to a group of people who have committed crimes in a certain period. The law in effect shields the perpetrators from being tried for the crimes they committed during a set period before the issuance of the amnesty law. If indeed amnesty was granted, ten questions need to be answered:

I. Under what circumstances was amnesty granted? II. At what moment was the amnesty granted? III. Why was amnesty granted? IV. In what form was amnesty granted? V. What crimes are covered by the amnesty? VI. Who took part in the process of deciding to grant amnesty? VII. How do victims and society feel about the granting of amnesty? VIII. Are counterbalancing measures established to guarantee victims’ rights? IX. Was the international community involved in the granting of amnesty? X. What is the state’s dedication to the rule of law?

I will now expand on these questions. The order of the questions does not indicate their importance. All ten points are important to check and answer.

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Chapter VII

I. Under what circumstances was amnesty granted? Amnesty may be granted in a variety of circumstances. Amnesty, for instance, may be part of a peace accord or granted in an effort to strengthen a fragile peace. For example, a prior military regime may still have a lot of power and prosecutions may jeopardize the newly established political situation. Amnesty may also be granted by a regime to itself, for instance as a condition for stepping down. An amnesty that is not absolutely necessary given the circumstances to create or maintain a situation of peace cannot hope to receive international recognition.

II. At what moment was amnesty granted? Amnesty may be granted at different moments in time. Was amnesty granted to end the conflict, directly after the conflict or later? The moment amnesty was granted often coheres with the circumstances under which amnesty was granted. When amnesty is granted at a moment that does not influence improvement of the human rights situation, it is difficult to justify its necessity.

III. Why was amnesty granted? The motives which led to the decision to grant amnesty to perpetrators of human rights crimes should be taken into account in international proceedings. Was granting amnesty necessary under the circumstances at the time? Were there other options? If there were other options, why were these not chosen? The law should only extend to what is absolutely necessary to achieve the legitimate aim pursued. A corresponding question is whether the nullification of the amnesty and the prosecution of suspected perpetrators would jeopardize the newly established situation of peace or democratic transition.

IV. In what form was amnesty granted? Chapter III outlines the various forms of amnesty. The form of amnesty granted influences the chances of it being considered legitimate. For instance, a self- amnesty is by definition not legitimate, but a conditional amnesty may be. The more conditions appended to the amnesty, and especially when the amnesty does not involve serious violations of international human rights law, the more international actors may accept it.

V. What crimes are covered by the amnesty? It is possible to exclude certain crimes from an amnesty, for instance grave human rights crimes. This will certainly enhance the legitimacy of the amnesty. The fact that a state issues an amnesty law confirms the fact that the state is aware that crimes have been committed which would have been punishable without the amnesty law. When, due to certain circumstances, a state prefers to grant amnesty to those involved in the crimes in order to prevent further violence or to make progress in the transition to democracy, the international community should not condemn such a decision right away. However, international recognition of amnesty for crimes within the ICC’s jurisdiction would be difficult. Right after the end of a

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Framework for the legitimate use of amnesty conflict, the exclusion of crimes from the amnesty law may lead to de facto impunity, since the state will probably not be able to prosecute within a short period. This notwithstanding, it shows to the victims, society, the perpetrators and the international community that the state is not intentionally granting amnesty to those who committed horrific crimes, but leaves open the possibility to prosecute in the future. To investigate the human rights violations committed and establish a record of the past, it is advisable to establish a truth commission or a truth and reconciliation commission.

VI. Who took part in the process of deciding to grant amnesty? It is important to determine by whom amnesty was granted, and who were involved in the process of deciding to grant amnesty. Was the amnesty a result of negotiations to end the conflict? Did the victims play a role in the process? Victim participation is very important for the process to be a success as well as for it to be considered legitimate. The amnesty may well be a self-amnesty, but notwithstanding the culpability of such a law, it may be deemed necessary at the time, because the outgoing regime would not have given up power without such a provision. Such an amnesty may be ranked alongside an amnesty that forms part of a peace agreement. Did a democratic government issue the amnesty, or was the amnesty granted in a transition to democracy? The problem with post-conflict situations is that democracy is often in the process of formation. The aim should be to include all the affected parties in the process. The needs of victims are important, but so is the peaceful future of the country. Therefore, the concerns of all the parties involved should be formed into a model that incorporates these views in the best way possible.

VII. How do victims and society feel about the granting of amnesty? This question may be especially relevant when the victims and society did not take part in the process of granting amnesty. How were the opinions of victims and society determined? Does the method chosen to determine the opinions of victims lead to a representative outcome? The opinions of victims and society on the granting of amnesty is very important when determining whether the aims that are pursued by granting amnesty may be achieved. If the victims or society do not back the states’ decision to grant amnesty, the amnesty may have counterproductive effects.

VIII. Are counterbalancing measures established to guarantee victims’ rights? With the issuance of an amnesty law, it is not the victims that are protected, but the perpetrators. By relinquishing prosecutions, the victims’ rights are sacrificed. Not by the victims themselves, however, but by the state. To compensate this, measures should be established to counterbalance the effects the amnesty has for the victims’ rights. A corresponding question is: is the granting of amnesty counterbalanced by the establishment of other mechanisms for revealing the truth and for providing reparation to the victims of the crimes that are revealed? Amnesty laws that are not

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Chapter VII accompanied by any counterbalancing measures are considered unacceptable. Victims are reliant on the state with regard to their rights. Therefore, it should be determined: are the rights of victims safeguarded satisfactorily? Victims’ rights are important in every post-conflict situation, not only in those cases where amnesty was granted. When an amnesty is not accompanied by counterbalancing measures, it should be examined why they were not established. This may be caused by, for instance, a lack of resources, the political situation or the power of the army. It may also be that the state is unwilling, or that there is no need for counterbalancing measures. When there is still a need for counterbalancing measures on the side of the victims, it is important to examine what measures need to be established and whether international help is needed. International help may help establish or support counterbalancing measures. After a conflict, it may take a state many years to comply with the victims’ needs. For such processes, international involvement may be a solution to increase the pace. One should be careful, however, not to alienate those involved in the process by imposing measures not in line with actual needs. Research into the needs of victims is therefore essential. To achieve a just society, it is essential that more is done than to prosecute. Transitional justice embraces more than punishing the guilty. Even in cases where no amnesty is granted it is not possible to capture the real intent of justice by criminal prosecutions alone. Therefore, it is essential to pay full attention to additional measures to guarantee victims’ rights as much as possible. It will not be possible to guarantee the rights of all victims. The first difficulty is to determine who the victims are, and what happened to them. When the victims are known, in many instances, it will be very hard to recover the truth, if it is possible at all. In addition, resources to provide reparation may be lacking immediately after a conflict or regime change. If the state is willing but it is just not feasible to guarantee the rights of victims, it is important to communicate this to the victims. In any case, the state should not make promises it cannot keep. This may cause further harm to the victims.

IX. Was the international community involved in the granting of amnesty? If an international organization, for example the United Nations, was involved in the process, this is a clear indication the amnesty should be considered legitimate.

X. What is the state’s dedication to the rule of law? What effort did the state responsible make to fulfil its obligations? If a state has no interest in rebuilding the rule of law, maybe the state has chosen the easy way out, amnesty was not necessary and prosecutions are possible after all. If this is considered to be the case, this means that the state is unwilling to prosecute, and in such a case suspects may be tried before an international court or tribunal, or in a third-party state by means of universal jurisdiction.

As may be evident from the findings of this research, there is no clear-cut answer to the research question as defined in Chapter I. Instead, a case by case approach is

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Framework for the legitimate use of amnesty needed. In view of the practice concerning amnesty measures and the fact that international law does not require states to take any action that poses a threat to vital national interests, the framework above may be a valuable tool to determine the legitimacy of an amnesty by highlighting themes that should not be neglected, and therefore is an answer to the research question on a case by case approach.

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SAMENVATTING (DUTCH SUMMARY)

Steeds opnieuw wordt de wereld geconfronteerd met situaties waarin de rechten van de mens systematisch ernstig worden geschonden. Bekende voorbeelden zijn Zuid- Afrika, Joegoslavië en Rwanda. Wanneer in een dergelijke situatie een einde komt aan het geweld en de schending van mensenrechten, dan staat een land voor de keuze: berechten of niet berechten van de vermeende daders en degenen die verantwoordelijk zijn. Het land moet een afweging maken tussen de verschillende belangen die spelen, waaronder het verantwoordelijk houden van de daders, maar ook met verzoening en de wederopbouw van het land. Het berechten van de vermeende daders en verantwoordelijken kan negatieve neveneffecten hebben, waaronder een oplaaiing van het conflict of een staatsgreep. Wanneer het risico daarop aannemelijk is, en daarmee gepaard gaand het risico op nieuwe misdaden, dan kan een land kiezen om de vermeende daders niet of deels niet te berechten en amnestie te verlenen. Het internationale recht ontwikkelt zich steeds meer in een richting waarin straffeloosheid niet wordt geaccepteerd. Tegelijkertijd wordt amnestie in de praktijk niet verworpen. De statenpraktijk laat zien dat amnestieverlening nog steeds een gebruikelijk middel is na een conflict of gedurende een politieke transitie. Gezien het feit dat de internationale gemeenschap niet alleen belang heeft bij respect voor mensenrechten en de rechtsstaat, maar ook bij het herstellen en het bewaren van de vrede en de openbare orde, luidt de centrale vraag van dit onderzoek als volgt:

Wat voor soort amnestieverlening kan als legitiem worden beschouwd in het licht van de noodzaak om respect voor mensenrechten en de rechtsstaat te combineren met de noodzaak om de vrede en de openbare orde te herstellen en te bewaren?

Het doel van het onderzoek is om de factoren vast te stellen die van belang zijn bij het beoordelen van een amnestiemaatregel, en op basis daarvan een toetsingskader te ontwikkelen, waarmee de centrale vraag van dit onderzoek kan worden beantwoord. In hoofdstuk II wordt een beschrijving gegeven van het fenomeen straffeloosheid en de gevolgen die een situatie van straffeloosheid kan hebben. Er zijn twee vormen van straffeloosheid. Van de iure straffeloosheid spreekt men,

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Samenvatting (Dutch summary) wanneer de straffeloosheid wordt vastgelegd, bijvoorbeeld in een wet of vredesovereenkomst; van de facto straffeloosheid spreekt men, wanneer de straffeloosheid resulteert uit de omstandigheden. Dit kan zowel bedoeld als onbedoeld gebeuren, bijvoorbeeld wanneer berechting niet mogelijk is door een verzwakt rechtssysteem. Voor slachtoffers en nabestaanden kan het onbegrijpelijk zijn dat de daders vrijuit gaan en dit kan leiden tot een gebrek aan vertrouwen in de regering. Dit onbegrip en het gebrek aan vertrouwen kunnen leiden tot een nieuw conflict, of tot gevolg hebben dat mensen het recht in eigen hand gaan nemen. Daarnaast kan een cultuur van straffeloosheid ontstaan, waarin burgers er van uit gaan dat geen berechting zal plaatsvinden wanneer zij een criminele daad begaan. Straffeloosheid wordt als één van de hoofdoorzaken gezien van het opnieuw plaatsvinden van misdaden. Hoewel straffeloosheid onverenigbaar lijkt met de rechtsstaat, kan de eis dat de verantwoordelijken aansprakelijk moeten worden gehouden betekenen dat een gewelddadig conflict voortduurt en dit kan leiden tot meer mensenrechtenschendingen. Ook kan het de verwording tot een democratische staat in gevaar brengen. Gesteld zou kunnen worden dat het uiteindelijke doel om leed te beperken het middel, te weten de amnestieverlening, heiligt. Amnestieverlening is een vorm van de iure straffeloosheid. Amnestie dient overigens niet verward te worden met het verlenen van pardon. Wanneer amnestie wordt verleend betekent dit dat geen berechting zal plaatsvinden van een groep verdachten die in een bepaalde periode in een bepaald gebied misdaden hebben gepleegd. Een voorbeeld zijn de Argentijnse amnestiewetten van 1986 en 1987 waarin aan zowel de verantwoordelijken als aan de ondergeschikten amnestie werd verleend voor hun misdaden begaan tijdens het militaire regime (ook wel bekend als de Vuile Oorlog, 1976-1983). Hoofdstuk III gaat over amnestieverlening. Er zijn verschillende doelen die kunnen worden nagestreefd met het verlenen van amnestie. Bijvoorbeeld kan amnestieverlening deel uitmaken van een vredesovereenkomst; door middel van amnestieverlening kunnen binnenlandse spanningen worden verlicht; maar ook kan amnestie bijdragen aan verzoening. Er zijn verschillende vormen waarin amnestie kan worden verleend, zoals de algehele amnestie en de amnestie onder voorwaarden, bijvoorbeeld de voorwaarde dat degene die amnestie wenst te verkrijgen openheid van zaken geeft over de door hem of haar begane misdaden aan een waarheidscommissie, zoals dat is gebeurd in Zuid-Afrika in de jaren ’90. Een amnestie kan ook door een regime aan zichzelf worden verleend, zoals dat is gebeurd in Chili door Pinochet in 1978. De vormen van amnestie en de mate waarin deze als legitiem zouden kunnen worden aangemerkt worden besproken in Hoofdstuk III. Ook wordt ingegaan op de voordelen die berechting heeft. Amnestie kan worden verleend als middel om een conflict te beëindigen, maar ook na beëindiging van een conflict, bijvoorbeeld om orde op zaken te stellen, onrust te voorkomen en de vrede te bewaren. Na het beschrijven van de verschillende vormen van amnestie en het moment en de manier waarop amnestie verleend kan worden, worden de argumenten voor en tegen het gebruik van amnestie besproken.

230

Samenvatting (Dutch summary)

De meest voorkomende argumenten voor amnestie zijn: amnestie kan vrede en verzoening bevorderen; amnestie kan een middel zijn om een vredesovereenkomst te bereiken; door middel van amnestie kan een militair regime worden overtuigd afstand te doen van de macht, of rebellen worden overtuigd het vechten te staken; amnestie kan binnenlandse onrust doen verminderen. Met het geld dat wordt bespaard door amnestie te verlenen en niet te berechten kan bijvoorbeeld schadevergoeding aan de slachtoffers worden verstrekt, of een waarheids- en verzoeningscommissie worden ingesteld. Ook kan dit worden aangewend voor de wederopbouw van het land en het rechtssysteem. De meest genoemde argumenten tegen amnestie zijn: dat het verlenen van amnestie een schending is van de internationale juridische verplichtingen van een staat; amnestie betekent straffeloosheid (met de mogelijke gevolgen zoals besproken in Hoofdstuk II); amnestie belemmert de wederopbouw van de rechtsstaat; amnestie verzwakt de nieuwe regering; door amnestie te verlenen worden de rechten van slachtoffers geschonden; amnestie ondermijnt het verwordingsproces van een staat tot een democratie; amnestie kan verzoening in de weg staan. Uit verschillende ontwikkelingen op internationaal strafrechtelijk gebied blijkt dat straffeloosheid, en daarmee ook amnestie, minder en minder wordt getolereerd. In Hoofdstuk IV wordt daarom onderzocht of amnestieverlening juridisch gezien mogelijk is binnen het internationaal recht. De verdragen en conventies die samenhangen met het onderwerp van dit onderzoek worden besproken, en ook de rechtsopvattingen van de toezichthoudende organen. Daarnaast worden de internationale straftribunalen van het voormalige Joegoslavië en Rwanda, het Internationaal Strafhof en het Speciale Hof voor Sierra Leone besproken. De statuten van deze tribunalen en hoven worden onderzocht, en er wordt nagegaan of in de jurisprudentie van deze instellingen tegen het onderwerp amnestie ofwel straffeloosheid is aangelopen en hoe daar dan mee is omgegaan. Het Joegoslaviëtribunaal heeft niet hoeven te beslissen over een verdachte aan wie amnestie was verleend, maar acht het verlenen van amnestie een nationale aangelegenheid die internationaalrechtelijk geen betekenis heeft. Het statuut van het Internationaal Strafhof bevat verschillende artikelen die zo geïnterpreteerd kunnen worden dat zij de mogelijkheid van amnestie openlaten. Aan de aanklager van het Internationaal Strafhof wordt bijvoorbeeld in Artikel 53 de ruimte gelaten geen onderzoek te initiëren wanneer dit niet in het belang van gerechtigheid wordt geacht. Het Speciale Hof voor Sierra Leone kreeg wel te maken met verdachten die in hun verdediging amnestie aanvoerden in Prosecutor v. Morris Kallon and Brima Bazzy Kamara. Het Hof beredeneerde dat de amnestie die de verdachten aanvoerden als verdediging deel uitmaakte van een vredesovereenkomst die slechts binnenlandse gelding heeft in Sierra Leone, maar niet voor een internationaal hof en voor het soort van misdaden waarover het hof rechtsmacht heeft, gezien voor deze misdaden universele jurisdictie bestaat. Universele jurisdictie is gebaseerd op het idee dat bepaalde misdaden zo ernstig zijn, dat ook andere landen rechtsmacht hebben om de verdachten van deze misdaden te berechten, en in bepaalde gevallen,

231

Samenvatting (Dutch summary) zoals bij schendingen van de Geneefse Conventies, zelfs daartoe verplicht zijn. Echter kan het uitoefenen van universele jurisdictie over een verdachte waaraan op nationaal niveau amnestie is verleend nogal wat stof doen opwaaien. Het lijkt dan ook geboden deze mogelijkheid met voorzichtigheid uit te oefenen. Het in Hoofdstuk VII gepresenteerde toetsingskader kan hierbij als richtsnoer dienen. De Verenigde Naties (VN) speelt een grote rol in de ontwikkeling van het internationale recht en om die reden wordt in Hoofdstuk V onderzocht welke positie de verschillende VN organen innemen ten opzichte van straffeloosheid, amnestieverlening en de plicht om te berechten, en hoe deze organen daarmee omgaan in de praktijk. De Algemene Vergadering, de Veiligheidsraad en het Internationaal Gerechtshof worden onderzocht als zijnde de relevante organen met betrekking tot dit onderzoek. Daarnaast komen de Secretaris-Generaal van de VN, de voormalige Commissie voor de Rechten van de Mens, de Mensenrechtenraad en de Hoge Commissaris voor de Rechten van de Mens aan bod. Het blijkt dat theorie en praktijk ver uit elkaar liggen, en geconstateerd moet worden dat de VN van geval tot geval bepaalt welke aanpak geschikt is. In Hoofdstuk VI wordt nagegaan welke rechten slachtoffers hebben. Dit is in hoge mate van belang voor dit onderzoek, omdat een amnestiewet die niet gepaard gaat met maatregelen die de gevolgen voor slachtoffers compenseert, de rechten van slachtoffers schendt. De drie rechten van slachtoffers die van belang blijken voor dit onderzoek zijn het recht op gerechtigheid, het recht om de waarheid te weten, en het recht op herstel. De drie beschreven rechten van slachtoffers hangen onderling nauw samen. In een strafproces wordt onderzoek naar de feiten in op zichzelf staande gevallen gedaan, en worden de omstandigheden van het geval, dat wil zeggen de waarheid, voor zover deze van belang is voor het proces vastgesteld. Voor nabestaanden kan het ondraaglijk zijn niet te weten wat er met hun familielid is gebeurd. Een voorbeeld hiervan zijn de Argentijnse 'Moeders van het Plaza de Mayo', een organisatie van moeders van slachtoffers van verdwijningen onder het Argentijnse militaire regime (1976-1983) die sinds de oprichting in 1977 tot op heden elke donderdag een stille demonstratie houdt op het centrale plein in Buenos Aires. Het recht op de waarheid is niet alleen een recht van individuele slachtoffers, maar ook van de samenleving. Niet alleen is het belangrijk de omstandigheden te kennen, maar ook de redenen. Het instellen van een Waarheids(- en Verzoenings) commissie is een manier om toch een onderzoek te doen naar dat wat heeft plaatsgevonden en waarvoor amnestie is verleend. De bevindingen van een dergelijke commissie worden gewoonlijk gepubliceerd in een rapport, een voorbeeld is het rapport van de waarheidscommissie van El Salvador. Het recht van de slachtoffers op herstel is een parapluterm en kan op verschillende manieren worden vormgegeven. Het recht op herstel kan bestaan uit bijvoorbeeld schadevergoeding of het teruggeven van verloren bezit, maar ook het instellen van een gedenkdag of een plaats waar de doden herdacht kunnen worden, kan bijdragen aan het herstel van de slachtoffers en nabestaanden. Het recht op herstel hangt nauw samen met het recht op de waarheid. Het kennen van de

232

Samenvatting (Dutch summary) misdaden en de omstandigheden waaronder deze hebben plaatsgevonden helpt de slachtoffers het geschiedde een plek te geven en draagt zo bij aan het herstel. Door amnestie te verlenen, wordt in de meeste gevallen zowel de strafrechtelijke als de privaatrechtelijke aansprakelijkheid kwijtgescholden. Wanneer geen processen plaatsvinden, dient het ‘herstel’ van de slachtoffers via een andere weg te geschieden. Een Waarheids(- en Verzoening)scommissie kan bijvoorbeeld ook aanbevelingen doen over schadevergoeding. Het recht van de slachtoffers op gerechtigheid wordt geschonden door het verlenen van amnestie. Het is een schending van het ubi jus, ibi remedium. Erkend moet worden dat het niet mogelijk is na een conflict voor alle slachtoffers gerechtigheid te bereiken, daarvoor is het aantal daders te groot. In het beste geval worden de meest verantwoordelijke daders berecht. Door amnestie te verlenen wordt echter aan alle slachtoffers het recht op gerechtigheid ontnomen. De rechten van slachtoffers houden verplichtingen in aan de zijde van de staat. Door het verlenen van amnestie komt een staat haar verplichtingen niet na, tenzij aparte instellingen in het leven worden geroepen die aan de rechten van slachtoffers tegemoetkomen. Het waarborgen van de rechten van slachtoffers draagt bij aan het stabiliseren van de samenleving en de wederopbouw van de rechtsstaat. Gerechtigheid verkrijgen in het geval dat amnestie is verleend is daarbij het meest problematisch. De legitimiteit van een amnestie kan beïnvloed worden door het participeren van slachtoffers, nabestaanden en de samenleving in het besluitvormingsproces. Een oplossing die op een dergelijke manier tot stand is gekomen, en aansluit bij de behoeften van slachtoffers, heeft een veel grotere kans van slagen dan een opgelegde oplossing waarbij de slachtoffers niet betrokken zijn geweest. In Hoofdstuk VII wordt op basis van de bevindingen in de voorgaande hoofdstukken bepaald welke factoren een rol spelen wanneer wordt gekeken naar de legitimiteit van een amnestiemaatregel. Tien factoren komen hierbij naar voren:

I. De omstandigheden waaronder amnestie is verleend. II. Het moment waarop amnestie is verleend. III. De reden dat amnestie is verleend. IV. De vorm waarin amnestie is verleend. V. Het soortmisdaden waarvoor amnestie is verleend. VI. De deelnemers in het besluitvormingsproces van het verlenen van amnestie. VII. Het standpunt van slachtoffers en de samenleving aangaande het verlenen van amnestie. VIII. Maatregelen om de slachtoffers tegemoet te komen in hun rechten. IX. Betrokkenheid internationale gemeenschap. X. Belang dat de staat in kwestie aan de rechtsstaat hecht.

Geformuleerd als tien vragen vormen deze factoren een toetsingskader waaraan een specifiek geval van amnestieverlening kan worden getoetst. Dit toetsingskader is

233

Samenvatting (Dutch summary) uitgewerkt in Hoofdstuk VII en een instrument om de centrale vraag van dit onderzoek te beantwoorden van geval tot geval.

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