ISSN: 2456–4397 RNI No.  UPBIL/2016/68067 VOL.- VI , ISSUE- XI February  - 2022
Anthology The Research
Applicability or Non Applicability of Law of Amnesty to International Crimes
Paper Id :  15680   Submission Date :  12/02/2022   Acceptance Date :  18/02/2022   Publication Date :  25/02/2022
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Sumi Pant
Research Scholar
Law
University Of Lucknow
Lucknow,Uttar Pradesh
Mohd. Ahmad
Professor
Law
University Of Lucknow
Lucknow, U.P., India
Abstract A victim's right to justice entails criminal prosecution of those who are accused of war crimes. The whole idea of reparative or retributive justice for the victims of war crimes in armed situations when the breaches of the rules of war are widespread is often the followed norm. However, in such cases, the State is frequently challenged to walk a tightrope and balance the war crimes with the needs of the territory to cope with past injustices in a systematic and efficient manner while avoiding reopening of old wounds. This is where the concept of giving amnesties comes into picture, which aims at satisfying the normative goals of criminal laws rather than the short term goal of punitive satisfaction. This article aims to study the concept of grant of amnesties under international law with an aim to find out whether the grant of amnesty is explicitly promoted or prohibited under international law.
Keywords Amnesty, Forgiveness, Greek, Rome, International Crimes.
Introduction
Amnesty in simple terms means forgiving someone for the crime they committed. The roots of this concept could be derived from the Greek concept of amnestia which essentially means overlooking something intentionally. [1] The term amnesty has been defined in Black's Law Dictionary as "an act of forgiveness that a sovereign state grants to individuals who committed offensive acts." [2] Though it is not crystal clear as to from where the concept of giving amnesties started, however, it is stated that it started with the act of a Greek general and leader Thrasybulus who forgave all the his enemies and the citizens of the enemy country against being subject to any further torture due to any political acts, through a promise of amnesty. Similarly, in ancient Rome, a similar practice was followed by the name of restitutioinintegrum.[3] In other countries like France, it was known by the concept of lettres de remission generale. [4] Here it would be important to mention that a lot of times people tend to confuse the concept of amnesty with that of impunity. However, there is a difference between these two concepts. When a person is granted impunity, it basically means that the person is immune from prosecution for certain crimes. Though in amnesty also, the end result is the same as that of impunity, in amnesty a person is forgiven for his crimes and not simply protected from prosecution. [5]
Aim of study 1. To understand the meaning and concept of amnesty. 2. To analyse the validity of amnesty in various sources of international law. 3. To analyse the validity of amnesty in view of the Rome statute.
Review of Literature
The reasons why a state chooses to grant amnesty to some people are varied. Like it could grant amnesty for the "reconciliation and reconstruction" in civil strife as stated in the case of Azanian Peoples Org. v. President of the Republic of South Africa[6] or for a greater cause of maintenance of peace, like in the case of the Lome agreement, where amnesty was granted to ensure cease fire; or for the objective of the greater good and development of the nation.[7] This was generally used by the nations as against certain political offenders or the leaders of certain political parties or groups in order to bargain for power and to bring an end to wars. Also for a lot of countries which experience a change of powers or a change of regime, such a time is a critical time for such countries. Granting amnesty helps in strengthening the political and judicial institutions in such cases.[8] However, no matter what the reason to grant amnesty may be, the fact remains that it violates certain principles of justice since it grants impunity to criminals. Hence, there has been a constant debate as to whether amnesty is valid for crimes in International law or not. This paper makes an attempt to answer this question. The researcher tries to look into the various aspects of amnesty in International law and tries to find out its validity.
Methodology
For the present study, the researcher has adopted the doctrinal method of research and the paper is descriptive-cum-analytical in nature. It is largely based on secondary & electronic sources of data. The paper is prepared through extensive study and analysis of various research articles. The researcher has mainly resorted to several online articles for the completion of the project.
Analysis

Kinds of Amnesty : There are mainly two types of amnesty:

1. Self-amnesty

This kind of amnesty is where a political leader grants himself and a set of specified people amnesty in relation to certain crimes done while they were in power and to make sure that they will not be charged with any crime once they are out of power. A classic and important case of self-amnesty is that of the President General of Chile, Augusto Pinochet, who along with the Chilean military committed many killings and torture during his struggle to achieve supreme power during the period of 1973 to 1978. Finally at the nadir of his power regime, he made the parliament pass the infamous amnesty decree 2191 whereby he granted himself and the military amnesty for all the crimes committed during his regime.  In the case of Regina v. Bartle and Commissioner of Police Ex Parte Pinochet[9], he justified the amnesty for the greater causes of peace and to ensure that Chile could smoothly become a democratic country.

2. Discrete Amnesty

In these cases, the amnesty is granted by the judiciary or any political institution in lieu of important information related to crimes, especially crimes related to violations of human rights.[10] This was seen in the case of the South African Truth and Reconciliation Commission. This happened when Nelson Mandela came to power in South Africa after winning the fierce struggle over apartheid. There was a debate whether to punish all those leaders who had earlier committed crimes in their support of amnesty. Ultimately, the government decided to grant amnesty by passing the Truth and Reconciliation Act[11] which set up the Truth and Reconciliation commission. The act mandated grant of amnesty only for crimes which were of a political colour and not the ones committed for personal vengeance.[12] However, this was only when all the material facts of the crimes were fully disclosed.
Result and Discussion

Amnesty in International Law

1. Treaty Law

There is a general norm that the states have the responsibility to punish the perpetrators of International crimes. The states are generally obligated by way of International treaties and conventions to punish the criminals. However, there are certain cases in which amnesty seems to be justified. Most treaties generally disallow amnesty. Even in cases where amnesty is allowed, it is more in implied terms rather in full-fledged, clear and explicit terms. However, there is an exception to this. The Second Additional Protocol to the Geneva Conventions (Protocol II) in Article 6(5), states: "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 relating to the armed conflict, whether they are interned or detained". Hence it grants amnesty to certain people in cases of conflicts which are non-international in nature.

Then, there is an array of treaties which prohibit the grant of amnesty. It would be helpful to have a brief look at them. Such treaties can be categorised as follows:

  1. The treaties that legally obligate the states to prosecute, The example in this case is the Genocide Convention[13] which mentions in Article 1,"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."[14] Under the Geneva Conventions and the Additional Protocols also, the state parties are supposed to mandatorily prosecute those who commit grave breaches of the convention such as torture, inhuman treatment, among others.Similarly, The Convention against Torture, though does not prohibit amnesty directly, however, the stats are obligated to "extradite or submit to competent authorities those suspected of committing acts of torture". In the case of Regina v. Bartle and the Commissioner of Police Ex Parte Pinochet[15], court held that it was an obligation on the states to prosecute people under this convention. In the case of Selmouni v. France,[16] the European Court of Human Rights held that the Convention prohibited amnesty. In a similar line, in the case of Prosecutor v. Furundzija[17], the International Criminal Tribunal for the Former Yugoslavia (ICTY) held that amnesties in case of torture crimes to be void as it is a crime against humanity.  Another example is that of the Declaration on the Protection of All Persons from Enforced Disappearances, according to which that amnesty is prohibited for disappearance crimes as given in Article 18.
  2. The second set of treaties is those which enumerate certain legal rights and remedies which are in principle against the concept of the grant of amnesty. Examples of this include the Universal Declaration of Human Rights, which make it mandatory for the states to give effective remedies to the victims of human rights violations. Similarly, Article 2(3) of the International Covenant for Civil and Political Rights (ICCPR) makes it an obligation for the states to ensure that those whose rights are violated are given effective remedy.[18]
  3. Those treaties which prohibit certain statutory limitations for certain international crimes. These are in effect against amnesty because amnesty negates the very prosecution of the criminal.European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes is an example of this. Article 1 of this convention categorically states that statutory limitations would not be applicable for war crimes and crimes against humanity. A similar provision is found in article 4 of the Rome statute which states that statutory limitations would not be applicable for genocide, crimes against humanity and war crimes.
  4. The last set is of those treaties which are meant to protect certain rights that cannot be violated. These ultimately prohibit amnesty. In such cases the argument given is that even in cases of emergency and all, the government may limit various rights but even then there are certain rights which are considered so important that they cannot be derogated, such as the right to life and the prohibitions against torture etc.  Hence, it is claimed that an amnesty in cases of torture crimes is hence against International law.

Customary International Law

For anything to become a part of the Customary international law, two conditions are required: Firstly, state practice and secondly, opinion juris. Many scholars argue that in cases of jus cogens crimes, states have a duty ergaomnes, to punish for such crimes. This obligation implies that states cannot grant amnesties which permit such jus cogens crimes to go without prosecution. However, even though it may be argued that states do follow such a norm, many scholars have proved empirically that there has been a continuous increase in the grant of amnesties internationally. Also such a practice is not even general or widely followed. Hence, there is no fully proven customary practice against grant of amnesties.

Decisions of International Courts

In the case of Gomez vs. Brazil[19], the Court held that amnesty could not be given to crimes related to human rights violations. Similarly, in the case of Prosecutor v. Furundzija[20], the ICTY held that amnesty could not be provided for crimes such as torture. In the important Case of the special court of Sierra Leone, the court was charged with the task of judging whether the amnesty granted by way of the Lome Accord was valid in international law or not. The trial court held that amnesty could not be granted for war crimes and crimes against humanity.

International Criminal Court (ICC): The Rome statute deals with the powers and jurisdiction of the ICC.
Findings In this regard, it would be important to look into Article 17 of the Rome statute, which talks about the admissibility of cases. It states that a case would be taken up by the ICC if a state is genuinely unwilling to prosecute or investigate the case.[21] Unwillingness is determined by the following factors: 1. if a state decides to protect the perpetrator of a crime from criminal responsibility. 2. if there is a delay in investigation or prosecution which is not having any justification 3. if a state starts proceedings without any intent to bring justice. Article 20 of the statute which deals with the concept of 'Ne bis in idem' states that the jurisdiction of ICC shall not replace national jurisdiction and it will not try such people who have already been tried by the state. Also, Article 53 of the Rome statute deals with the Initiation of an Investigation. It gives the power of discretion to the prosecutor for the ICC to initiate an investigation. When the Rome statute was adopted by the United Nations, the framers did not seem to have mentioned amnesty. Meanwhile many scholars argue that a plain reading of the statute could mean to prohibit amnesty. However, there are many lacuna in the statute which give the impression of supporting amnesty. Hence, this causes a lot of confusion. On a plain reading of Articles 17, 20 and 53, it seems that the Rome statute does not allow for amnesty. According to article 17 the ICC would not look into such cases that have been prosecuted by the state. This means that the cases which have not been taken up by the state would be taken up by the ICC. This implies that article 17 actually mandates a trial. In a similar line of thought even Article 20 requires a trial. Similarly, article 53 requires the prosecutor to decide in accordance with article 17 whether to take up a case or not. Hence, in a broad reading, these articles do not allow for amnesty. However, on the other hand, some scholars argue that these articles may well leave some scope for granting amnesty. Article 17 does not define the term investigation. Hence it is argued that investigation done in the form of truth and reconciliation commissions could also be considered as investigation under the statute. Similarly, even under Article 20 and 53, the state could conduct its national proceedings by way of such truth and reconciliation commissions.[22] Also, article 53 gives the discretion to the prosecutor to decide. He may well consider that giving amnesty may serve the interests of justice. Hence, even though the ICC does not specifically mention about amnesty, it does leave enough room for confusion.
Conclusion As seen currently, it can be seen that there are no clear rules or international norms which invalidate the grant of amnesty. As seen earlier, the international treaties are almost silent on the issue of amnesty. They can at best be interpreted indirectly to hint at a prohibition of the grant of amnesty. Similarly, nothing concrete can be even found in customary international law. This is more so because despite the fact that states may have ratified treaties which indirectly discourage amnesty, yet in real practice, the states are very much granting amnesties. Again the international court rulings are also not so strong so as to offer any concrete argument either for or against amnesties. Hence we see that the position of the validity of the law of amnesty in international crimes is very much unsettled. Perhaps the ICC could make some provisions specially dedicated to amnesty. It could consider both the pros and the cons of the grant of amnesty in the current geo-political scenario and then decide on whether to validate it or not. There could perhaps be a few exceptions and the rules may be made a little flexible to reach a middle ground.
References
1. Diba Majzub, Peace or Justice? Amnesties and the international criminal court, Amnesties and the International Criminal Court, 3 Melbourne Journal of International LawFreeman, M., & Pensky, M. (2012). 2. The Amnesty Controversy in International Law. In F. Lessa& L. Payne (Eds.), Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives (pp. 42-66). Cambridge: Cambridge University Press 3. Gwen K. Young, Amnesty and Accountability, 35 U.C. Davis L. Rev. 427 (2002) 4. Harrop A. Freeman, An Historical Justification and Legal Basis for Amnesty Today, Law & Soc. Order 515 (1971). 5. Henry J. Steiner & Philip Alston, International Human Rights in Context 1085 (2000) 6. Meisenberg, S, Legality of amnesties in international humanitarian law. The Lomé Amnesty Decision of the Special Court for Sierra Leone, 86 International Review of the Red Cross 837-851 (2004). 7. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx
Endnote
1. Harrop A. Freeman, An Historical Justification and Legal Basis for Amnesty Today,LAW & SOC. ORDER 515 (1971).
2. BLACK'S LAW DICTIONARY 82-83 (6thed. 1990);
3. Supra note 1, at 518.
4. Ibid.
5. Gwen K. Young, Amnesty and Accountability, 35 U.C. DAVIS L. REV. 427 (2002)
6. 1996 (4) SALR 671,672 (CC).
7. Meisenberg, S, Legality of amnesties in international humanitarian law. The Lomé Amnesty Decision of the Special Court for Sierra Leone, 86INTERNATIONAL REVIEW OF THE RED CROSS 837-851 (2004).
8. HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 1085 (2000)
9. 37 I.L.M 1302, 1317, 3W.L.R. 1456, 4 AllE.R. 897 (H.L. 1998-99) (Nov. 25, 1998).
10. Supra note 5.
11. Promotion of National Unity and Reconciliation Act 34 of 1995.
12. Promotion of National Unity and Reconciliation Act, section 20(3).
13. Convention on the Prevention and Punishment of the Crime of Genocide, 1948.
14. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx; last accessed on 14th April, 2018.
15. 38 I.L.M 430, 2 W.L.R. 827, 839, 869, 875 (H.L. 1999) (Mar. 24, 1999).
16. Eur. Ct. H.R. app. 25803/94.
17. Prosecutor v. Furundzija, Case No. IT-95-17/1, Judgment, 155, n.172 (Dec. 10, 1998) reprinted in 38 I.L.M. 317, 349;
18. Freeman, M., &Pensky, M. (2012). The Amnesty Controversy in International Law. In F. Lessa& L. Payne (Eds.), Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives (pp. 42-66). Cambridge: Cambridge University Press
19. C No. 219, Inter American Court of Human Rights, November 24, 2010.
20. Prosecutor v. Furundzija, Case No. IT-95-17/1, Judgment, 155, n.172 (Dec. 10, 1998) reprinted in 38 I.L.M. 317, 349.
21. DibaMajzub ,Peace or Justice? Amnesties and the international criminal court, Amnesties and the International Criminal Court, 3 MELBOURNE JOURNAL OF INTERNATIONAL LAW.
22. Supra note 5.