Rule 159. At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.
State practice establishes this rule as a norm of customary international law applicable in non-international armed conflicts.
The obligation of the authorities in power to endeavour to grant the broadest possible amnesty at the end of hostilities is set forth in Additional Protocol II.[1] Since then many States have granted amnesty to persons who have taken part in a non-international armed conflict, either by special agreement,[2] legislation,[3] or other measures.[4]
The UN Security Council has encouraged the granting of such amnesties, for example, in relation to the struggle against apartheid in South Africa and the conflicts in Angola and Croatia.[5] Similarly, the UN General Assembly adopted resolutions encouraging the granting of such amnesties in relation to the conflicts in Afghanistan and Kosovo.[6] Furthermore, the UN Commission on Human Rights adopted resolutions to this effect in relation to Bosnia and Herzegovina and Sudan.[7] Some regional bodies have welcomed such amnesties, for example, the European Union and NATO in relation to the former Yugoslav Republic of Macedonia and the OSCE in relation to Tajikistan.[8] It is noteworthy that the resolutions adopted by the United Nations were in relation to States not party to Additional Protocol II (South Africa, which did not ratify the Protocol until 1995, Angola, Afghanistan and Sudan), and that not all of the States voting in favour of these resolutions were themselves party to Additional Protocol II.
With the exception of the UN Security Council resolutions, which called on the South African government to grant amnesties for opponents of apartheid, the other resolutions adopted by the United Nations and statements by regional bodies take the form of encouragement to grant amnesty or approval of amnesties adopted. This shows that authorities are not absolutely obliged to grant an amnesty at the end of hostilities but are required to give this careful consideration and to endeavour to adopt such an amnesty.
When Article 6(5) of Additional Protocol II was adopted, the USSR stated, in its explanation of vote, that the provision could not be construed to enable war criminals, or those guilty of crimes against humanity, to evade punishment.[9] The ICRC shares this interpretation.[10] Such amnesties would also be incompatible with the rule obliging States to investigate and prosecute persons suspected of having committed war crimes in non-international armed conflicts (see Rule 158).
Most amnesties specifically exclude from their scope persons who are suspected of having committed war crimes or other specifically listed crimes under international law.[11] In the Videla case in 1994, Chile’s Appeal Court of Santiago held that offences which it considered to constitute grave breaches were unamenable to amnesty.[12] In the Mengistu and Others case in 1995, the Special Prosecutor of Ethiopia stated that it was “a well established custom and belief that war crimes and crimes against humanity are not subject to amnesty”.[13] This was confirmed in the Cavallo case in 2001 by Argentina’s Federal Judge with respect to crimes against humanity.[14] In the Azapo case in 1996, however, concerning the legality of establishment of the Truth and Reconciliation Commission, South Africa’s Constitutional Court interpreted Article 6(5) of Additional Protocol II as containing an exception to the peremptory rule prohibiting an amnesty in relation to crimes against humanity.[15] It should be noted, however, that the work of the Truth and Reconciliation Commission in South Africa did not involve the granting of blanket amnesties as it required full disclosure of all the relevant facts.[16]
In resolutions on Croatia and Sierra Leone, the UN Security Council confirmed that amnesties may not apply to war crimes.[17] In a resolution on impunity adopted without a vote in 2002, the UN Commission on Human Rights made the same point,[18] as did the UN Secretary-General in several reports.[19] Some regional bodies have also stated that amnesties may not cover war crimes, in particular the European Parliament in relation to the former Yugoslavia.[20]
There is international case-law to support the proposition that war crimes may not be the object of an amnesty, in particular the judgment of the International Criminal Tribunal for the former Yugoslavia in the Furundžija case in 1998 with respect to torture.[21]
Human rights bodies have stated that amnesties are incompatible with the duty of States to investigate crimes under international law and violations of non-derogable human rights law, for example, the UN Human Rights Committee in its General Comment on Article 7 of the International Covenant on Civil and Political Rights (prohibition of torture).[22] In a case concerning El Salvador’s 1993 General Amnesty Law for Consolidation of Peace, the Inter-American Commission on Human Rights found that law to be in violation of the American Convention on Human Rights, as well as of common Article 3 of the Geneva Conventions and Additional Protocol II.[23] In its judgment in the Barrios Altos case in 2001 concerning the legality of Peruvian amnesty laws, the Inter-American Court of Human Rights held that amnesty measures for serious human rights violations such as torture, extrajudicial, summary or arbitrary executions and enforced disappearances were inadmissible because they violated non-derogable rights.[24]
[1] Additional Protocol II, Article 6(5) (adopted by consensus) (cited in Vol. II, Ch. 44, § 651).
[2] See, e.g., the Esquipulas II Accords (ibid., § 652), Quadripartite Agreement on Georgian Refugees and Internally Displaced Persons (ibid., § 653), Agreement on Refugees and Displaced Persons annexed to the Dayton Accords (ibid., § 634), Agreement between the Parties to the Conflict in Bosnia and Herzegovina (ibid., § 656), Cotonou Agreement on Liberia (ibid., § 657), General Amnesty Proclamation Order annexed to the Sudan Peace Agreement (ibid., § 659), Moscow Agreement on Tajikistan (ibid., § 661), Peace Agreement between the Government of Sierra Leone and the RUF (ibid., § 668) and Protocol II to the Arusha Peace and Reconciliation Agreement for Burundi (ibid., § 669).
[3] See, e.g., the legislation of Algeria (ibid., § 673), Bosnia and Herzegovina (ibid., §§ 678–680), Burundi (ibid., § 681), Chile (ibid., § 682), Colombia (ibid., § 683), Croatia (ibid., § 684), El Salvador (ibid., § 685), Guatemala (ibid., § 688), Peru (ibid., § 690), Russian Federation (ibid., § 691), South Africa (ibid., § 693), Tajikistan (ibid., §§ 694–696) and Zimbabwe (ibid., § 699).
[4] See, e.g., the statements of the former Yugoslav Republic of Macedonia (ibid., § 709), Rwanda (ibid., § 711) and Philippines (ibid., §§ 713–715) and the reported practice of Malaysia (ibid., § 710) and Rwanda (ibid., § 712).
[5] UN Security Council, Res. 190 and 191 (ibid., § 719), Res. 473 (ibid., § 720), Res. 581 (ibid., § 721), Res. 1055 (ibid., § 722), Res. 1064 (ibid., § 723) and Res. 1120 (ibid., § 724); UN Security Council, Statements by the President (ibid., §§ 726–727).
[6] UN General Assembly, Res. 47/141 (adopted without a vote), Res. 48/152 (adopted without a vote) and 49/207 (adopted without a vote) (ibid., § 729) and Res. 53/164 (adopted by 122 votes in favour, 3 against and 34 abstentions) (ibid., § 730).
[7] UN Commission on Human Rights, Res. 1996/71 (adopted without a vote) (ibid., § 732) and Res. 1996/73 (adopted without a vote) (ibid., § 733).
[8] EU, Secretary General/High Representative CFSP, Communiqué No. 0039/02 (ibid., § 747); NATO, Statement (ibid., § 748); OSCE, Press Release (ibid., § 749).
[9] USSR, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 716).
[10] See the practice of the ICRC (ibid., §§ 759–760).
[11] See, e.g., the Quadripartite Agreement on Georgian Refugees and Internally Displaced Persons (ibid., § 653), the Agreement on Refugees and Displaced Persons annexed to the Dayton Accords (ibid., § 654), Statute of the Special Court for Sierra Leone (ibid., § 655) and Agreement between Parties to the conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners (ibid., § 656); see also the legislation of Algeria (ibid., § 673) (exempting terrorist or subversive acts), Argentina (ibid., § 676) (exempting crimes against humanity), Bosnia and Herzegovina (Federation) (ibid., § 679), Colombia (ibid., § 683), Croatia (ibid., § 684), El Salvador (ibid., § 685) (exempting assassinations of Mgr Romero and Herbert Anaya, kidnapping for personal gain or drug trafficking), Ethiopia (ibid. , § 687) (exempting crimes against humanity), Guatemala (ibid., § 688), Russian Federation (ibid., § 691), Tajikistan (ibid., § 695) and Uruguay (ibid., § 697) and the draft legislation of Argentina (ibid., § 677) and Burundi (ibid., § 646); see also the practice of Bosnia and Herzegovina (ibid., § 707), the former Yugoslav Republic of Macedonia (ibid., § 709) and Philippines (ibid., § 715).
[12] Chile, Appeal Court of Santiago, Videla case (ibid., § 702).
[13] Ethiopia, Special Prosecutor's Office, Mengistu and Others case (ibid., § 704).
[14] Argentina, Federal Judge, Cavallo case (ibid., § 700).
[15] South Africa, Cape Provincial Division, Azapo case (ibid., § 705).
[16] See South Africa, The Promotion of National Unity and Reconciliation Act, 26 July 1995, Chapter 2, Article 3(1) (“The objectives of the Commission shall be to promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past by … (b) facilitating the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective and comply with the requirements of this Act.”), see also Articles 4(c) and 20(1)(c).
[17] UN Security Council, Res. 1120 (cited in Vol. II, Ch. 44, § 724) and Res. 1315 (ibid., 725).
[18] UN Commission on Human Rights, Res. 2002/79 (ibid., § 734).
[19] See, e.g., UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone (ibid., § 738) and Report on the protection of civilians in armed conflict (ibid., § 739).
[20] European Parliament, Resolution on human rights in the world and Community human rights policy for the years 1991/1992 (ibid., § 746).
[21] ICTY, Furundžija case, Judgment (ibid., § 751).
[22] UN Human Rights Committee, General Comment No. 20 (Article 7 of the International Covenant on Civil and Political Rights) (ibid., § 752).
[23] Inter-American Commission on Human Rights, Case 10.480 (ibid., § 757).
[24] Inter-American Court of Human Rights, Barrios Altos case (ibid., § 758).