Practice Relating to Rule 159. Amnesty
Section B. Prohibition on amnesty for war crimes
Côte d’Ivoire’s Penal Code (1981), as amended in 2015, states:
The provisions of articles 108, 117, 118, 133 and 135 of the present Code respectively on amnesty, mitigating circumstances, suspension and prescription of punishment do not apply to the offences referred to in the present chapter [including war crimes].
Côte d’Ivoire’s Amnesty Law (2003) provides:
The present amnesty law does not apply to:
b) offences constituting grave violations of human rights law and of international humanitarian law.
c) more specifically, the offences qualified by the Ivorian penal code as crimes and offences against international law, crimes and offences against persons, crimes and offences against objects …
d) the offences addressed by articles 5 to 8 of the Rome Treaty on the International Criminal Court (ICC) and the African Charter on Human and Peoples’ Rights.
Côte d’Ivoire’s Amnesty Ordinance (2007) provides:
Amnestied by law are – whoever the perpetrators, co-perpetrators or accomplices, military or civilian, and whatever their nature and the penalties they have entailed or are likely to entail – the offences against the security of the State and national defence as well as connected offences committed by Ivorian nationals located on the national territory or in exile, between 17 September 2000 and the date of signature of the present ordinance.
Equally amnestied are the acts and their collateral effects related to the operations of defence of the republican institutions carried out by the defence and security forces at the dates and in the periods of the acts amnestied by the present ordinance.
The present amnesty does not apply to:
b) the offences qualified by the Ivorian penal code as crimes and offences against international law, crimes and offences against persons, crimes and offences against objects other than those listed in articles 1 and 2.
The present ordinance which repeals any contrary previous provision shall be published according to urgency procedures as well as in the Journal Officiel de la République de Côte d’Ivoire
, and be executed as law of the State.
In 2003, in the Constitutionality of the ICC Statute case, Côte d’Ivoire’s Constitutional Council was called upon to decide on the constitutionality of the 1998 ICC Statute. The Court stated:
8. Considering that it is clear from article 17 paragraph 2 of the [1998 ICC] Statute that the [jurisdiction of the] International Criminal Court is complementary to national criminal jurisdiction [and considering] that the International Criminal Court can exercise its jurisdiction with respect to cases already pending before the [national] courts if it considers that the States concerned are unwilling or unable to genuinely carry out prosecutions;
9. Considering that the inability to prosecute may stem from a legal impossibility such as in the case of … amnesty;
[that t]he Rome Statute of the International Criminal Court is not in conformity with the Constitution of 1 August 2000.
In 2009, in its report to the UN Human Rights Council, Côte d’Ivoire stated: “[T]he political and military crises faced by Côte d’Ivoire since 1999, exacerbated by the war which broke out in September 2002, have had many grave consequences in the political, economic and social spheres.”
Côte d’Ivoire also stated: “Amnesty laws and/or presidential pardons issued in the context of political negotiations specify that they do not apply to those responsible for attacks on physical integrity or to serious violations of human rights.”
In 2013, in its initial report to the Human Rights Committee, Côte d’Ivoire stated:
193. Numerous extrajudicial executions were committed by police forces, armed forces, militias and armed groups after conflict broke out in 2002, peaking after the 2010 presidential election.
194. The National Commission of Inquiry, set up on 20 July 2011 to investigate violations of human rights and international humanitarian law committed during the post-election period from 31 October 2010 to 15 May 2011, identified 2,018 cases of summary executions carried out for political and/or ethnic reasons.
Measures taken to prevent further violations
197. The Government has opened judicial and non-judicial inquiries in all cases, conducted by the national authorities and by intergovernmental and non-governmental bodies. Great stress is also being laid on national reconciliation.
235. The State of Côte d’Ivoire has taken measures against human rights violations attributable to members of the defence and security forces in the performance of their functions. Disciplinary actions and criminal prosecutions have been brought against those concerned by the Military Tribunal.
236. Amnesty laws and/or presidential pardons issued in the course of political negotiations specify that they are not applicable to the perpetrators of acts of violence against the person and serious human rights violations.