Chapter 1: Evaluation of Encounter of National Law with the
C- Obstacles of Exercising Universality
C.1: National Amnesty before Foreign Courts
The first question is whether domestic amnesties have effect in front of national foreign courts, where the State is seeking to exercise universal jurisdiction. In other words: Which amnesties are valid under international criminal law?
In general, States have granted amnesties in situations of internal conflict involving mass violations of human rights198. Some national systems permit amnesty as a means to promote national unity and reconciliation after long turbulent years of human rights abuse by those in power.199
National amnesties may once have been a matter essentially for the sovereign state; however, with the extension of international human rights and criminal law into domestic affairs, they now fall squarely within the remit of international criminal jurisdiction.200
197The Princeton Principles of Universal Jurisdiction; Principle 5- Immunities: With respect to serious crimes under international law as specified in Principle 2(1), 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- 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 (1): Amnesties are generally inconsistent with the obligation of states to provide accountability for serious crimes under international law as specified in principle 2(1). Principle 7(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.( Pursuant to Principle 2(1), serious crimes under international law include: Piracy, Slavery, War Crimes, Crimes against Peace, Crimes against Humanity, genocide, and torture).
198See, e.g., Douglass Cassel, Lessons from the America: Guidelines for International Response to Amnesties for Atrocities, 59 Law & Contemp (1996), at 197-198, In: Boed Roman, The Effect of a Domestic Amnesty on the Ability of Foreign States to Prosecute Alleged Perpetrators of Serious Human Rights Violations, 33 Cornell I.L.J. 2000, p.299
199Kittichiaisaree, op-cit, p.42
200Gavron Jessica, Amnesties in the light of Developments in International Law and the Establishment of the International Criminal Court, 51 ICLQ 2002, p.116
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From a legal viewpoint, one may nevertheless note that international rules often oblige states to refrain from granting amnesty for international crimes201. As international crimes constitute attacks on universal values, no single State should arrogate to itself the right to decide to cancel such crimes, or to set aside their legal consequences.202
The scope of the duty to prosecute has great practical significance, especially because the duty to prosecute implies a prohibition on amnesty203. No clear position on this has yet emerged in international (criminal) law; it is certain, at least, that an across-the-board exemption from criminal responsibility is unacceptable, to the extent that international law creates a duty to prosecute and punish204. This means that general amnesties for crimes under international law are impermissible under customary international law205. As a result, an amnesty in contravention of international law does not prevent prosecution by third states.206
On the other hand, international (criminal) law cannot completely block an amnesty that is necessary to restore peace207. Authors of the Chicago Principles on Post-Conflict Justice pointed out that:
‘States shall not grant blanket amnesty to absolve individuals of responsibility for genocide, serious war crimes, or crimes against humanity’ and “States that provide amnesty or other mechanisms to reduce individual legal responsibility for past crimes shall do so in consideration of international law.
States should ensure that amnesty policies are linked to specific mechanisms of accountability to discourage impunity and support the goals of post-conflict justice”.208
Not only does the political and military context of amnesties vary, but amnesties themselves are not uniform in nature, the amnesty laws passed in Chile and South
201Cassese, ICL2003, op-cit, p.313 202Ibid, p.315
203Werle, ICL2005, op-cit, p.65 ( A State’s grant of an amnesty would be contrary to its duty to prosecute, and the amnesty would not be recognized on the international plane. Thus, any State could proceed against an alleged perpetrator of genocide despite a domestic amnesty. In: Boed, op-cit, p.325) 204Werle, Ibid
205Ibid 206Ibid, pp.65-66 207Ibid, p.66
208From Principle 1.8, In: M. C. Bassiouni(ed.) The Chicago Principles on Post-Conflict Justice, In: The Pursuit of International Criminal Justice A World Study on Conflicts, Victimization, and Post-Conflict Justice, 2010, Vole I, p.49
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Africa, for example, are at opposing ends of the spectrum209. The law in Chile constitutes a blanket amnesty, absolution by the offender on himself; the international community has shown its disregard for the legitimacy of the amnesty210.The South Africa system of amnesty would present the court with a very different proposition to that of Chile, this amnesty is granted only in direct exchange for disclosure and admission by the individual perpetrator of the crimes he has committed.211
Amnesties often act as a bar to national prosecutions; however, amnesty is not a bar to international courts212. The Appeals Chamber of the Special Court of Sierra Leone held in its decision on an amnesty agreement between the Government and rebel groups (the Lome Amnesty Agreement) that the amnesty agreement created rights and obligations regulated by the laws of Sierra Leone, but it was not binding on an international court such as the Special Court.213
The relationship between prosecution, on the one hand and amnesties and truth commissions, on the other, is not addressed in the ICC statute; whether a domestic amnesty stands in the way of a case’s admissibility before the ICC is in dispute214. One must correctly make a distinction here: a general amnesty for crimes under international law does not affect the admissibility of a case before the ICC215. In all other cases, especially a nation’s assignment of the task of ‘dealing with history’ to a truth commission, the admissibility of a case to the ICC must be considered on a case-by-case basis.216
Where there has been international involvement and where there are verifiably legitimate political considerations, such an amnesty will be respected by the
209Gavron, op-cit, p.112 210Ibid
211Ibid, p.115
212Winter Renate(Judge and President of the Special Court for Sierra Leone) In: Bassiouni, The Pursuit of International Criminal Justice, op-cit, p.156,passim 213Ibid
214Werle, ICL2005, op-cit, p.66 215see Article 17(1)(b), 2(a), In: Ibid 216Ibid
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international community217. However, where an amnesty is without these factors and is clearly in violation of international law, it is not likely to carry weight beyond its own jurisdiction.218
As correctly Professor Oeter stated: all of circumstances must be considered by Public Prosecutor in any State that wants to exercise universal jurisdiction, on a case by case basis.