Rule 159. Amnesty

Volume II, Chapter 44, Section D.

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]